UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): April 12, 2016

 

 

PEABODY ENERGY CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   1-16463   13-4004153
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (I.R.S. Employer
Identification No.)

 

701 Market Street, St. Louis, Missouri   63101-1826
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (314) 342-3400

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

As previously disclosed, Peabody Energy Corporation (“Peabody”) has an accounts receivable securitization program (the “AR program”) through its wholly owned subsidiary, P&L Receivables Company, LLC (“P&L Receivables”). Under the AR program, Peabody contributes a pool of eligible trade receivables to P&L Receivables, which then sells, without recourse, the receivables to various conduit and committed purchasers.

Effective April 12, 2016, P&L Receivables and Peabody entered into an amendment to the Fifth Amended and Restated Receivables Purchase Agreement (the “Receivables Purchase Agreement”) that modified the Receivables Purchase Agreement such that the Chapter 11 Cases (as defined below) would not result in an automatic termination of the AR program that would result in the acceleration of the obligations thereunder. However, if an order approving certain amendments to the AR program, the assumption of the related documents and superpriority status for the claims under the AR program is not entered on or prior to May 1, 2016, the AR Program will automatically terminate.

The foregoing description is only a summary of the amendment of the Receivables Purchase Agreement, and is qualified in its entirety by reference to the full text of the amendment to the Receivables Purchase Agreement, which is filed as Exhibit 10.1 hereto and which is incorporated by reference herein.

 

Item 1.02 Termination of a Material Definitive Agreement.

As previously announced, Four Star Holdings, LLC (“Seller”), an indirect subsidiary of Peabody, entered into a Purchase and Sale Agreement, dated as of November 20, 2015 (the “Purchase Agreement”), with Western Megawatt Resources, LLC (“Purchaser”), a subsidiary of Bowie Resource Holdings, LLC. Seller is the sole owner of Southwest Coal Holdings, LLC (“Target”), which owns, directly and indirectly, all of the equity interests of the various entities that hold Peabody’s El Segundo and Lee Ranch coal mines and related mining assets located in New Mexico and at Twentymile Mine in Colorado. Pursuant to the Purchase Agreement, Purchaser would acquire 100% of the ownership interests of Target in exchange for $358 million in cash, subject to customary purchase price adjustments in respect of working capital, accounts receivable, debt and transaction expenses at the time of closing (the “Transaction”). On March 30, 2016, Seller and Purchaser entered into the Limited Waiver to Purchase and Sale Agreement (the “Waiver Agreement”) whereby Seller waived its termination rights under the Purchase Agreement until 11:59:59 p.m., New York time, on April 7, 2016 and Purchaser waived its termination rights under the Purchase Agreement until 11:59:59 p.m., New York time, on April 15, 2016.

Pursuant to Section 7.01 of the Purchase Agreement, Seller terminated the Purchase Agreement by written notice on April 12, 2016, effective April 12, 2016, and directed Purchaser to pay the $20 million termination fee.

The foregoing descriptions of the Purchase Agreement and the Waiver Agreement are not complete and are qualified in their entirety by reference to the full text of (a) the Purchase Agreement, which was filed as Exhibit 10.28 to Peabody’s Annual Report on Form 10-K for the year ended December 31, 2015 filed with the Securities and Exchange Commission on March 16, 2016, and (b) the Waiver Agreement, which was filed as Exhibit 10.1 to Peabody’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 31, 2016, each of which is incorporated into this Item 1.02 by reference.

 

Item 1.03 Bankruptcy or Receivership.

On April 13, 2016, Peabody and a majority of Peabody’s wholly owned domestic subsidiaries, as well as one international subsidiary in Gibraltar (the “Filing Subsidiaries” and, together with Peabody, the “Debtors”), filed voluntary petitions for reorganization (collectively, the “Bankruptcy Petitions”) under chapter 11 of Title 11 of the U.S. Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Eastern District of Missouri (the “Court”), for which joint administration has been sought (the “Chapter 11 Cases”), Case No. 16-42529. Each Debtor will continue to operate its business as a “debtor in possession” under the jurisdiction of the Court and in accordance with the applicable provisions of the Bankruptcy Code and the orders of the Court.

 

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The Company expects to enter into a $500 million debtor-in-possession term loan facility, $100 million letter of credit facility and a $200 million bonding accommodation facility with certain lenders on terms and conditions set forth in the DIP term sheet and DIP credit agreement filed with the Court (the “DIP Financing”). Upon approval by the Court and the satisfaction of the conditions set forth in the DIP term sheet and DIP credit agreement, the DIP Financing and the AR Program, along with the Company’s existing liquidity and cash generated from ongoing operations, will be used to support the business during the restructuring process.

 

Item 2.04 Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.

The filing of the Bankruptcy Petitions constitutes an event of default that (other than with respect to the AR program mentioned above so long as an order approving certain amendments to the AR program, the assumption of the related documents and superpriority status for the claims under the AR program is entered on or prior to May 1, 2016) accelerated Peabody’s obligations under the following debt instruments (collectively, the “Debt Instruments”):

 

    Indenture governing $1,000 million outstanding aggregate principal amount of the Company’s 10.00% senior secured second lien notes due 2022, dated as of March 16, 2015, among the Company, U.S. Bank National Association (“U.S. Bank”), as trustee and collateral agent, and the guarantors named therein.

 

    Indenture governing $650 million outstanding aggregate principal amount of the Company’s 6.50% senior notes due 2020, dated as of March 19, 2004, between the Company and U.S. Bank, as supplemented by that certain Thirty-Third Supplemental Indenture, dated as of August 25, 2010, as further supplemented by that certain Thirty-Eighth Supplemental Indenture, dated as of April 21, 2011, in each case by and among the Company, U.S. Bank and the guarantors named therein.

 

    Indenture governing $1,519 million outstanding aggregate principal amount of the Company’s 6.00% senior notes due 2018, dated as of November 15, 2011, by and among the Company, U.S. Bank and the guarantors named therein.

 

    Indenture governing $1,340 million outstanding aggregate principal amount of the Company’s 6.25% senior notes due 2021, dated as of November 15, 2011, by and among the Company, U.S. Bank and the guarantors named therein.

 

    Indenture governing $250 million outstanding aggregate principal amount of the Company’s 7.875% senior notes due 2026, dated as of March 19, 2004, between the Company and U.S. Bank, as supplemented by that certain Eleventh Supplemental Indenture, dated as of October 12, 2006, as further supplemented by that certain Fourteenth Supplemental Indenture, dated as of November 10, 2006, as further supplemented by that certain Seventeenth Supplemental Indenture, dated as of January 31, 2007, as further supplemented by that certain Twentieth Supplemental Indenture, dated as of June 14, 2007, as further supplemented by that certain Twenty-Third Supplemental Indenture, dated as of November 14, 2007, as further supplemented by that certain Twenty-Sixth Supplemental Indenture, dated as of March 31, 2008, as further supplemented by that certain Twenty-Ninth Supplemental Indenture, dated as of November 5, 2008, as further supplemented by that certain Thirty-Second Supplemental Indenture, dated as of March 13, 2009, as further supplemented by that certain Thirty-Fifth Supplemental Indenture, dated as of May 28, 2010, as further supplemented by that certain Thirty-Seventh Supplemental Indenture, dated as of April 21, 2011, in each case by and among the Company, U.S. Bank and the guarantors named therein.

 

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    Subordinated Indenture governing $733 million outstanding aggregate principal amount of the Company’s convertible junior subordinated debentures due 2066, dated as of December 20, 2006, as supplemented by that certain First Supplemental Indenture, dated as of December 20, 2006, by and among the Company and U.S. Bank, as further supplemented by that certain Second Supplemental Indenture, dated as of June 25, 2014, in each case between the Company and U.S. Bank.

 

    Amended and Restated Credit Agreement, as amended and restated as of September 24, 2013, related to $1,165 million outstanding aggregate principal amount of term loans and approximately $947 million in revolving credit facility borrowings, as well as approximately $675 million of posted but undrawn letters of credit, by and among the Company, Citibank, N.A., as administrative agent, swing line lender and L/C issuer, Citigroup Global Markets, Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, BNP Paribas Securities Corp., Crédit Agricole Corporate and Investment Bank, HSBC Securities (USA) Inc., Morgan Stanley Senior Funding, Inc., PNC Capital Markets LLC and RBS Securities Inc., as joint lead arrangers and joint book managers, and the lender parties thereto, as amended by that certain Omnibus Credit Agreement, dated as of February 5, 2015 (the “Credit Agreement”).

The Debt Instruments provide that as a result of the filing of the Bankruptcy Petitions, all unpaid principal and accrued and unpaid interest due thereunder became immediately due and payable. Any efforts to enforce such payment obligations under the Debt Instruments are automatically stayed as a result of the Bankruptcy Petitions, and the creditors’ rights of enforcement in respect of the Debt Instruments are subject to the applicable provisions of the Bankruptcy Code.

As noted above, if an order approving certain amendments to the AR program, the assumption of the related documents and superpriority status for the claims under the AR program is not entered on or prior to May 1, 2016, the AR Program will automatically terminate and the obligations thereunder will be accelerated. As of April 12, 2016, approximately $169.5 million of obligations were outstanding under the AR program.

 

Item 7.01 Regulation FD Disclosure.

Disclosed Information and Website Posting

Debtholder Discussions

As previously disclosed, prior to filing of the Bankruptcy Petitions, Peabody had discussions with certain of its debt holders relating to the potential restructuring of its debt, including DIP Financing. In connection with these discussions, Peabody entered into non-disclosure agreements with the debt holders pursuant to which Peabody agreed to publicly disclose certain confidential information relating to or provided in connection with such discussions (such information, the “Disclosed Information”). Additionally, Peabody expects to continue to have discussions with its debt holders throughout the Chapter 11 process. In connection with these discussions, Peabody expects to make available additional information, which may be considered material non-public information, on its website (www.peabodyenergy.com) under the Chapter 11 protection tab. Beginning today, Peabody also expects to make available information regarding the Chapter 11 Cases on or through its website under the Chapter 11 protection tab throughout the course of the Chapter 11 Cases, which will contain a link to the claims agent’s website, www.kccllc.net/Peabody.

The Disclosed Information, including Exhibits 99.1, 99.2, 99.3, 99.4, 99.5, 99.6, 99.7, 99.8, 99.9 and 99.10 furnished herewith and incorporated herein by reference, and other information that will be posted on Peabody’s website include, among other things, term sheets related to the proposed transactions described below and the DIP Financing, technical and operating information and historical financial information relating to certain Peabody mines located in the United States, prospective financial information, forecasts and other information generally not publicly disclosed by Peabody. Such Disclosed Information and other information that will be posted on our website was or will be prepared based on expectations, beliefs, opinions, and assumptions of Peabody’s management at the time such Disclosed Information or other information was or will be prepared. Disclosed Information and other information that will be

 

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posted on our website that is not historical information: is forward-looking, speculative and subjective in nature and was based upon expectations, beliefs, opinions, and assumptions, which are inherently uncertain and include factors that are beyond the control of Peabody and may not prove to be accurate; does not necessarily reflect current expectations, beliefs, opinions, or assumptions that the management of Peabody may have about the prospects for its businesses, changes in general business or economic conditions, or any other transaction or event that has occurred or that may occur or that was not anticipated at the time such Disclosed Information or other information was prepared; may not reflect current results or future performance, which may be significantly more favorable or less favorable than projected by such Disclosed Information or other information; and is not, and should not be regarded as, a representation that any of the expectations contained in, or forming a part of, the forecasts will be achieved. For further information concerning forward-looking statements, please refer to the forward-looking statements disclaimer at the end of this Item 7.01.

Other than the term sheets relating to the DIP Financing, which are furnished herewith as Exhibits 99.8, 99.9 and 99.10, none of the term sheets furnished as exhibits to this Current Report on Form 8-K resulted in definitive agreements or consummated transactions. Additionally, with respect to the DIP Financing term sheets, only Exhibit 99.10 furnished herewith represents the final term sheet.

Transaction Discussions

As previously disclosed, Peabody had discussions with certain debt holders concerning potential interest in issuing new debt securities and exchanging and repurchasing debt securities (the “Transaction Discussions”). The parties were unable to reach agreement in connection with the Transaction Discussions. Pursuant to the non-disclosure agreements discussed above, Peabody has agreed to publicly disclose certain confidential information relating to the Transaction Discussions. As a result, Peabody is furnishing the information in this section of Item 7.01 setting forth a summary of the material terms of the potential transactions discussed in the first quarter of 2016.

Initially, the Transaction Discussions contemplated raising secured debt financing through an Australian subsidiary of Peabody and through a subsidiary of Peabody that does not guarantee any of Peabody’s existing debt (a “Non-Guarantor Subsidiary”), which would have included certain mines in the United States being contributed to a Non-Guarantor Subsidiary and mines in the United States and Australia being used as collateral to secure debt. It was not anticipated that the mines would be sold in connection with such financing. Peabody is furnishing the information included in Exhibit 99.1 furnished herewith, which includes technical and operating information and historical financial information relating to the mines. The Transaction Discussions also contemplated using all or a portion of the net proceeds from the debt financing, along with new secured first lien notes of Peabody, to repurchase or otherwise acquire other outstanding debt securities of Peabody.

In February 2016, the focus of the Transaction Discussions changed, and the Transaction Discussions then contemplated a Proposed Exchange (the “Proposed Exchange”) with respect to Peabody’s 6.00% Senior Notes due 2018 (the “2018 Notes”), 6.50% Senior Notes due 2020 (the “2020 Notes”), 6.25% Senior Notes due 2021 (the “2021 Notes”), 7.875% Senior Notes due 2026 (the “2026 Notes”) and 10.00% Senior Secured Second Lien Notes due 2022 (the “Second Lien Notes” and, collectively with the 2018 Notes, the 2020 Notes, the 2021 Notes and the 2026 Notes, the “Existing Notes”). The Proposed Exchange contemplated the exchange of the Existing Notes for a combination of (i) up to $250.0 million principal amount of 6.00% Secured First Lien Notes due 2021 to be issued by Peabody that would have been pari passu with the debt under our Credit Agreement and (ii) up to $350 million of cash. As part of the Proposed Exchange, Peabody also intended to conduct a consent solicitation with respect to the indenture governing the Second Lien Notes to (i) eliminate the requirement in Section 4.09 of such indenture that if a non-guarantor subsidiary provides a guarantee of capital markets indebtedness above a certain principal amount, then such subsidiary must also guarantee the Second Lien Notes, and (ii) eliminate the restrictive covenant contained in Section 4.11 of such indenture limiting the amount of indebtedness permitted to be incurred by a Non-Guarantor Subsidiary.

The Transaction Discussions also contemplated, among other things, certain holders of Peabody’s Existing Notes (the “Specified Holders”) agreeing to (i) not tender substantially all the Existing Notes held by them in the Proposed Exchange, (ii) extend the maturity date of the 2018 Notes held by them by two years and with PIK interest payable on such 2018 Notes instead of cash pay interest for a period of two years, (iii) receive PIK interest instead of cash interest for a period of two years with respect to the 2020 Notes, 2021 Notes, 2026 Notes and Second Lien

 

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Notes held by them and (iv) exchange $200.0 million aggregate principal amount of Existing Notes held by the Specified Holders for $200.0 million aggregate principal amount of senior secured notes (the “PAC Notes”) issued by a newly created subsidiary of Peabody (Peabody Asset Holding Company), which PAC Notes would have had a five-year term (subject to mandatory redemption as of December 31, 2016 if Peabody had not contributed certain mine assets to the new subsidiary by that date), borne interest at an annual rate of 6.0% (payable monthly in kind) and been secured by cash maintained in a blocked deposit account, provided that all accrued and unpaid interest on the Existing Notes held by the Specified Holders would have been paid in kind in applicable Existing Notes and certain cash payments of interest by Peabody that may have been required to avoid material adverse tax consequences would be paid as necessary (such transactions described in clauses (i)-(iv) of this paragraph, collectively, the “Proposed Additional Transactions”). Exhibit 99.4 furnished herewith includes additional terms regarding the proposed structure of Peabody Asset Holding Company. The closing of the Proposed Additional Transactions would have been conditioned on the consummation of the Proposed Exchange, which transactions could have been consummated substantially concurrent with each other.

Closing of the Proposed Exchange would have been subject to certain conditions, such as (i) a minimum percentage of the aggregate principal amount of all series of Existing Notes not held by the Specified Holders electing to participate in the Proposed Exchange, (ii) the consummation of the Proposed Additional Transactions, (iii) the consummation of Peabody’s sale of its New Mexico and Colorado assets (the “Asset Sale”) to Bowie Resources Partners (“Bowie”), as described above in Item 1.02 of this Current Report on Form 8-K, and (iv) customary closing conditions.

The foregoing descriptions of the Proposed Exchange and Proposed Additional Transactions are not complete and are qualified in their entirety by reference to the term sheets for the Proposed Exchange and Proposed Additional Transactions, which are furnished herewith as Exhibits 99.2 and 99.3.

As part of the Transaction Discussions, the Specified Holders also proposed that a Non-Guarantor Subsidiary that would hold the assets to be sold in the Asset Sale (the “Four Star Subsidiary”) would invest $100.0 million in Bowie in the form of convertible preferred equity (the “Bowie Preferred”) and the Specified Holders would purchase $100.0 million aggregate principal amount of senior secured notes convertible into the Bowie Preferred issued by the Four Star Subsidiary, the obligations of which would be secured by the Bowie Preferred and guaranteed by a newly formed bankruptcy remote Non-Guarantor Subsidiary that would hold all of the Existing Notes purchased in the Proposed Exchange (collectively, the “Four Star Transaction”). The foregoing description of the Four Star Transaction is not complete and is qualified in its entirety by reference to the term sheet for the Four Star Transaction, which is furnished herewith as Exhibit 99.5.

Intercompany Loan Facility

Peabody has made available to its Australian platform a committed US$250 million revolving intercompany loan facility (the “Intercompany Loan Facility”). The Intercompany Loan Facility is designed to provide additional liquidity to support the ongoing operations of the Australian business during Peabody’s Chapter 11 reorganization, with draw amounts being tied to operating budgets and subject to certain availability restrictions. The form of the agreement governing the Intercompany Loan Facility was provided to certain debt holders as Disclosed Information and is furnished herewith as Exhibit 99.6.

Bankruptcy Petitions

On April 13, 2016, Peabody issued a press release announcing the filing of the Bankruptcy Petitions. A copy of the press release is furnished as Exhibit 99.11 to this Current Report on Form 8-K and incorporated into this Item 7.01.

* * * * *

Certain statements included in this Current Report on Form 8-K are forward-looking as defined in the Private Securities Litigation Reform Act of 1995. The Company uses words such as “anticipate,” “believe,”

 

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“expect,” “may,” “forecast,” “project,” “should,” “estimate,” “plan,” “outlook,” “target,” “likely,” “will,” “to be” or other similar words to identify forward-looking statements. These forward-looking statements are made as of the date the report was filed and are based on numerous assumptions that the Company believes are reasonable, but these assumptions are open to a wide range of uncertainties and business risks that may cause actual results to differ materially from expectations. These factors are difficult to accurately predict and may be beyond the Company’s control. Factors that could affect the Company’s results include, but are not limited to: supply and demand for the Company’s coal products; sustained depressed levels or further declines in coal prices; competition in coal markets; price volatility, particularly in international seaborne products and in the Company’s trading and brokerage businesses; the Company’s ability to continue as a going concern, including the Company’s ability to confirm a plan of reorganization that restructures our debt obligations to address the Company’s liquidity issues and allow emergence from the Chapter 11 proceedings; the Company’s ability to access adequate debtor-in-possession financing or use cash collateral; the court’s rulings in the Chapter 11 proceedings, including the approval of the amendment to the AR program and the DIP Financing, and the outcome of the Chapter 11 process in general; the effect of the Chapter 11 filings on the Company’s relationships with third parties, regulatory authorities and employees; the potential adverse effects of the Chapter 11 process on the Company’s liquidity, results of operations, or business prospects; the Company’s ability to execute its business and restructuring plan; increased administrative and legal costs related to the Chapter 11 process and other litigation and the inherent risks involved in a bankruptcy process; risks associated with third-party motions in the Chapter 11 proceedings, which may interfere with the Company’s plan of reorganization and restructuring generally; our ability to successfully consummate the planned divestiture of our interest in the Prairie State Energy Campus; the cost, availability and access to capital and financial markets, including the ability to secure new financing after emerging from the Chapter 11 process; the risk that the Chapter 11 process will disrupt or impede our operations in Australia; our ability to appropriately secure our obligations for reclamation, federal and state workers’ compensation, federal coal leases and other obligations related to our operations, including our ability to utilize self-bonding and/or successfully access the commercial surety bond market; customer procurement practices and contract duration; the impact of alternative energy sources, including natural gas and renewables; global steel demand and the downstream impact on metallurgical coal prices; lower demand for our products by electric power generators; the impact of weather and natural disasters on demand, production and transportation; reductions and/or deferrals of purchases by major customers and the Company’s ability to renew sales contracts; credit and performance risks associated with customers, suppliers, contract miners, co-shippers, and trading, bank and other financial counterparties; geologic, equipment, permitting, site access, operational risks and new technologies related to mining; transportation availability, performance and costs; availability, timing of delivery and costs of key supplies, capital equipment or commodities such as diesel fuel, steel, explosives and tires; impact of take-or-pay arrangements for rail and port commitments for the delivery of coal; successful implementation of business strategies, including, without limitation, the actions we are implementing to improve our organization and respond to current market conditions; negotiation of labor contracts, employee relations and workforce availability, including, without limitation, attracting and retaining key personnel; changes in postretirement benefit and pension obligations and their related funding requirements; replacement and development of coal reserves; effects of changes in interest rates and currency exchange rates (primarily the Australian dollar); effects of acquisitions or divestitures; economic strength and political stability of countries in which the Company has operations or serves customers; legislation, regulations and court decisions or other government actions, including, but not limited to, new environmental and mine safety requirements, changes in income tax regulations, sales-related royalties, or other regulatory taxes and changes in derivative laws and regulations; our ability to obtain and renew permits necessary for our operations; litigation or other dispute resolution, including, but not limited to, claims not yet asserted; any additional liabilities or obligations that the Company may have as a result of the bankruptcy of Patriot Coal Corporation, including, without limitation, as a result of litigation filed by third parties in relation to that bankruptcy; litigation, including claims not yet asserted; terrorist attacks or security threats, including, but not limited to, cybersecurity threats; impacts of pandemic illnesses; and other risks detailed in the Company’s reports filed with the SEC. The Company does not undertake to update its forward-looking statements except as required by law.

* * * * *

The information set forth in and incorporated into this Item 7.01 of this Current Report on Form 8-K is being furnished pursuant to Item 7.01 of Form 8-K and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any of Peabody’s filings under the Securities Act of 1933, as amended, or the

 

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Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and regardless of any general incorporation language in such filings, except to the extent expressly set forth by specific reference in such a filing. The filing of this Item 7.01 of this Current Report on Form 8-K shall not be deemed an admission as to the materiality of any information herein that is required to be disclosed solely by reason of Regulation FD.

 

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit
No.

  

Description

10.1    First Amendment to the Fifth Amended and Restated Receivables Purchase Agreement, dated as of April 12, 2016, by and among P&L Receivables Company, LLC, Peabody Energy Corporation, the various Sub-Servicers listed on the signature pages thereto, and PNC Bank, National Association, as Administrator and as the Sole Purchaser, Committed Purchaser, LC Bank and LC Participant
99.1    Overview of Selected Assets
99.2    Term Sheet, dated February 20, 2016
99.3    Term Sheet, dated February 22, 2016
99.4    Additional Terms, dated February 24, 2016
99.5    Term Sheet, dated March 1, 2016
99.6    Form of Intercompany Loan Facility Credit Agreement (including the form of Specific Security Deed)
99.7    March and April 2016 Lender Presentations
99.8    DIP Financing Term Sheet, dated April 3, 2016
99.9    Certain Debt Holder Comments to DIP Financing Term Sheet, dated April 9, 2016
99.10    DIP Financing Term Sheet, dated April 12, 2016
99.11    Press Release, dated April 13, 2016

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

      PEABODY ENERGY CORPORATION
April 13, 2016     By:  

/s/ A. Verona Dorch

      Name:   A. Verona Dorch
      Title:   Executive Vice President, Chief Legal Officer, Government Affairs and Corporate Secretary

 

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EXHIBIT INDEX

 

Exhibit
No.

  

Description

10.1    First Amendment to the Fifth Amended and Restated Receivables Purchase Agreement, dated as of April 12, 2016, by and among P&L Receivables Company, LLC, Peabody Energy Corporation, the various Sub-Servicers listed on the signature pages thereto, and PNC Bank, National Association, as Administrator and as the Sole Purchaser, Committed Purchaser, LC Bank and LC Participant
99.1    Overview of Selected Assets
99.2    Term Sheet, dated February 20, 2016
99.3    Term Sheet, dated February 22, 2016
99.4    Additional Terms, dated February 24, 2016
99.5    Term Sheet, dated March 1, 2016
99.6    Form of Intercompany Loan Facility Credit Agreement (including the form of Specific Security Deed)
99.7    March and April 2016 Lender Presentations
99.8    DIP Financing Term Sheet, dated April 3, 2016
99.9    Certain Debt Holder Comments to DIP Financing Term Sheet, dated April 9, 2016
99.10    DIP Financing Term Sheet, dated April 12, 2016
99.11    Press Release, dated April 13, 2016

 

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Exhibit 10.1

EXECUTION VERSION

FIRST AMENDMENT TO THE FIFTH AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT

This FIRST AMENDMENT TO THE FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “ Amendment ”), dated as of April 12, 2016, is entered into by and among the following parties:

 

  (i) P&L RECEIVABLES COMPANY, LLC, a Delaware limited liability company, as Seller;

 

  (ii) PEABODY ENERGY CORPORATION, a Delaware corporation (“ Peabody ”), as Servicer;

 

  (iii) the various parties identified on the signature pages hereto as Sub-Servicers; and

 

  (iv) PNC BANK, NATIONAL ASSOCIATION (the “ Administrator ”), as Administrator and as the sole Purchaser Agent, Committed Purchaser, LC Bank and LC Participant on the date hereof.

RECITALS

1. The parties hereto have entered into that certain Fifth Amended and Restated Receivables Purchase Agreement, dated as of March 25, 2016 (as amended, amended and restated, supplemented or otherwise modified through the date hereof, the “ Agreement ”).

2. The parties hereto desire to amend the Agreement as hereinafter set forth.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

SECTION 1. Certain Defined Terms . Capitalized terms that are used but not defined herein shall have the meanings set forth in the Agreement.

SECTION 2. Amendment to the Agreement .  The Agreement is hereby amended as follows:

2.1 Section 2.2 of the Agreement is replaced in its entirety with the following:

Section 2.2 Termination Events .

If any of the Termination Events set forth in Exhibit   V shall occur, the Administrator may (with the consent of the Majority Purchaser Agents) and shall (at the direction of the Majority Purchaser Agents), by notice to the Seller, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred); provided , that the Facility Termination Date shall automatically occur (without any requirement for the passage of time or the giving of notice) upon either (i) the occurrence of any event described in paragraph (f)


of Exhibit   V , other than such an event arising from a Specified Chapter 11 Case, or (ii) if a Specified Chapter 11 Case has occurred, the Bankruptcy Court shall not have entered an Interim Order by May 1, 2016. Upon any such declaration, occurrence or deemed occurrence of the Facility Termination Date, the Purchasers, the Purchaser Agents and the Administrator shall have, in addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative.

For purposes of this Section 2.2 , the following terms shall have the following meanings assigned thereto:

Bankruptcy Court ” means the United States Bankruptcy Court for the Eastern District of Missouri or such other court as shall have jurisdiction over the Specified Chapter 11 Cases.

Interim Order ” means an order of the Bankruptcy Court in substantially the form of Annex J , with changes to such form as are reasonably satisfactory to the Administrator and the Majority Purchaser Agents authorizing and approving amendments to the Agreement and each of the other Transaction Documents in form and substance satisfactory to the Administrator and each of the Purchaser Agents in their sole discretion pursuant to Sections 105, 362(d), 363(b)(1), 363(f), 363(m), 364(c), 364(d), 364(e) and 365 of the Bankruptcy Code and Bankruptcy Rule 4001 providing other relief, in form and substance satisfactory to the Administrator and each of the Purchaser Agents in their sole discretion, providing for, among other things, (i) assumption of the Contribution Agreement as so amended and continued sale and contribution of Receivables to the Seller pursuant thereto, (ii) assumption of the Purchase and Sale Agreement as so amended and continued sale of Receivables to the Contributor pursuant thereto and (iii) superpriority administrative status for all claims of the Seller, the Administrator and the Purchasers against Peabody and its Subsidiaries (other than the Seller) under the Transaction Documents as so amended.

Specified Chapter 11 Cases ” means any Chapter 11 cases of Peabody and certain of its Subsidiaries (other than the Seller) initiated on or prior to April 13, 2016 and jointly administered under the same case number in the Bankruptcy Court. For the avoidance of doubt, the Specified Chapter 11 Cases shall not include any Insolvency Proceeding with respect to the Seller.

2.2 Annex J attached hereto is added to the Agreement and shall constitute Annex J thereto.

 

2


SECTION 3. Matters regarding Specified Chapter 11 Cases . For the avoidance of doubt, other than as expressly set forth herein, this Amendment shall not be construed as a waiver by any party of any Termination Event or Unmatured Termination Event, or of any rights or remedies in respect thereof, that may arise from the occurrence of a Specified Chapter 11 Case.

SECTION 4. Representations and Warranties . Each of the Seller and the Servicer hereby represents and warrants to the Administrator, the Purchaser Agents and the Purchasers as follows: (i) the execution and delivery by such Person of this Amendment, and the performance of each of its obligations under this Amendment and the Agreement, as amended hereby, are within each of its organizational powers and have been duly authorized by all necessary action on its part, and (ii) this Amendment and the Agreement, as amended hereby, are such Person’s valid and legally binding obligations, enforceable in accordance with their respective terms.

SECTION 5. Effect of Amendment; Ratification . All provisions of the Agreement, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement (or in any other Transaction Document) to “the Receivables Purchase Agreement”, “this Agreement”, “hereof”, “herein” or words of similar effect, in each case referring to the Agreement shall be deemed to be references to the Agreement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Agreement other than as specifically set forth herein. The Agreement, as amended by this Amendment, is hereby ratified and confirmed in all respects.

SECTION 6. Effectiveness . This Amendment shall become effective as of the date hereof, upon receipt by the Administrator of duly executed counterparts of this Amendment.

SECTION 7. Counterparts . This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

SECTION 8. Governing Law . This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York (including for such purposes Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York).

SECTION 9. Section Headings . The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Agreement or any provision hereof or thereof.

SECTION 10. Successors and Assigns . This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

3


SECTION 11. Severability .   Each provision of this Amendment shall be severable from every other provision of this Amendment for the purpose of determining the legal enforceability of any provision hereof, and the unenforceability of one or more provisions of this Amendment in one jurisdiction shall not have the effect of rendering such provision or provisions unenforceable in any other jurisdiction.

[S IGNATURES BEGIN ON NEXT   PAGE ]

 

4


IN WITNESS WHEREOF , the parties have executed this Amendment as of the date first written above.

 

  THE SELLER:
    P&L RECEIVABLES COMPANY, LLC,
    as Seller
    By:  

/s/ James A. Tichenor

    Name:   James A. Tichenor
    Title:   Vice President & Treasurer
  THE SERVICER:
    PEABODY ENERGY CORPORATION, a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, as Servicer
    By:  

/s/ James A. Tichenor

    Name:   James A. Tichenor
    Title:   Vice President & Treasurer

 

First Amendment to

Fifth Amended and Restated Receivables Purchase Agreement


  THE SUB-SERVICERS:
    PEABODY ARCLAR MINING, LLC;
    PEABODY MIDWEST MINING, LLC;
    TWENTYMILE COAL, LLC;
    PEABODY CABALLO MINING, LLC;
    COALSALES II, LLC;
    PEABODY POWDER RIVER MINING, LLC;
    PEABODY HOLDING COMPANY, LLC;
    PEABODY BEAR RUN MINING, LLC;
    PEABODY WILD BOAR MINING, LLC;
    PEABODY GATEWAY NORTH MINING, LLC;
    PEABODY COALTRADE, LLC; and
    PEABODY COALSALES, LLC,
    each, a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, as a Sub-Servicer
    By:  

/s/ James A. Tichenor

    Name:   James A. Tichenor
    Title:   Vice President & Treasurer of each of the foregoing Sub-Servicers
    PEABODY WESTERN COAL COMPANY, a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code,
    as a Sub-Servicer
    By:  

/s/ Douglas D. Loucks

    Name:   Douglas D. Loucks
    Title:   Treasurer

 

First Amendment to

Fifth Amended and Restated Receivables Purchase Agreement


  PNC’S PURCHASER GROUP:
    PNC BANK, NATIONAL ASSOCIATION,
    as Purchaser Agent for its Purchaser Group and as Committed Purchaser
    By:  

/s/ Michael Brown

    Name:   Michael Brown
    Title:   Senior Vice President

 

First Amendment to

Fifth Amended and Restated Receivables Purchase Agreement


    PNC BANK, NATIONAL ASSOCIATION,
    as an LC Participant for its Purchaser Group and as the LC Bank
    By:  

/s/ Michael Brown

    Name:   Michael Brown
    Title:   Senior Vice President

 

First Amendment to

Fifth Amended and Restated Receivables Purchase Agreement


  THE ADMINISTRATOR:
    PNC BANK, NATIONAL ASSOCIATION,
    as Administrator
    By:  

/s/ Michael Brown

    Name:   Michael Brown
    Title:   Senior Vice President

 

First Amendment to

Fifth Amended and Restated Receivables Purchase Agreement


ANNEX J

to Receivables Purchase Agreement

FORM OF INTERIM ORDER

(As filed with the related motion in the Specified Chapter 11 Cases)

 

First Amendment to

Fifth Amended and Restated Receivables Purchase Agreement

SLIDE 1

Overview of Select Assets Exhibit 99.1


SLIDE 2

Disclaimer Peabody or its affiliates and representatives make no representation or warranty, express or implied, as to any matter reflected in or relating to this presentation.  Certain statements and information in this presentation are forward looking in nature and based on numerous assumptions that Peabody believes are reasonable, but they are open to a wide range of uncertainties and business risks that may cause actual results or outcomes to differ materially from expectations.  These factors are difficult to accurately predict and may be beyond the control of relevant parties.  Actual future results may vary significantly from the projections, estimates, forecasts and other forward-looking information in this presentation.  The recipient must make its own inquiries regarding the assumptions, uncertainties and contingencies that may affect future value, operations and results, and the impact that a variation in future outcomes may have. Nothing in this presentation is intended to constitute a contract or an offer to enter into a contract, or to be binding or to create legal obligations or rights.


SLIDE 3

Select U.s. mines


SLIDE 4

Kayenta Location Map Navajo Generating Station Kayenta Mine RR from Mine to Plant, ~100 miles


SLIDE 5

Kayenta Overview Product 10,600 Btu, 10.1% Ash, 13.3% Moisture, 1.2 #SO2 Ownership Operates through a lease agreement with the Navajo Nation & Hopi Tribe Location Near Kayenta, AZ on reservation lands on the Black Mesa highland plateau Overview Kayenta is a mine-mouth operation providing 100% of its sold production to the Navajo Generation Station (NGS) power plant Kayenta produces thermal coal for the NGS near Page, AZ through a cost-plus sales contract More than 90% of the workforce is Native American Minable Reserves 215.0Mt Major Equipment Operates three draglines (1 - 2570 and 2 – 8750) with supporting truck fleets 24 Dozers, 18 haul trucks, 3 Excavators, 17 Loaders, 2 Backhoe Loaders Transportation Dedicated closed loop electric train; ~100 mile rail line Geology Multi-seam, ranging from 3 to 15 feet (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K Tons Sold (Mt)


SLIDE 6

Kayenta Summary Financial Statistics


SLIDE 7

Midwest Selected Operations Locations


SLIDE 8

Wild Boar Overview Product 11,000 Btu, 9.3% Ash, 14.0% Moisture, 5.9 lbs. SO2 Ownership 100% owner operator Location Lynnville, IN Overview Began production in 2010 Surface mine operating a combination of truck and shovel and tractor push Average projected strip ratio (total yards / tons produced) over the next 3 years: ~19.65 Operates 24 hours per day, 7 days per week, year-round Prep plant has capacity of 650tph and is located near Wild Boar and Somerville UMI servicing both operations Minable Reserves 15Mt Major Equipment 21 Dozers, 8 Excavators, 7 Haul Trucks, 11 Dump Trucks, 2 Loaders Transportation Rail (NS, ISRR and CSX), Rail to Barge (via Ohio River MP 772.5) Geology Seams mined: Indiana 5 and 5A (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K Tons Sold (Mt)


SLIDE 9

Wild Boar Summary Financial Statistics


SLIDE 10

Francisco UG Overview Product Thermal: 11,500 Btu, 8.6% Ash, 12.1% Moisture, 6.1 lbs. SO2 Ownership 100% owner operator Location Near Francisco in Gibson County, IN Overview Began production in 2003 Underground mine operating 3 split-air CM supersections utilizing battery coal haulers Operates two 8-hour shifts, 5.5 days a week, year-round Prep Plant has capacity of 650tph Minable Reserves 31.0Mt Major Equipment 36 Coal Haulers, 29 Continuous Miners, 19 Roof Bolters, 13 Scoops Transportation Rail (NS), Truck Geology Seams mined: Indiana 5 (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K Tons Sold (Mt)


SLIDE 11

Francisco UG Summary Financial Statistics


SLIDE 12

Gateway / Gateway North Overview Product Thermal / Stoker: 11,000 - 11,200 Btu, 8.8% - 9.2% Ash, 11.8% - 13.8% Moisture, 5.5 lbs. SO2 Ownership 100% owner operator Location Near Coulterville in Randolph County, IL Overview Began production in 2005 and has the production capacity of up to 4.5Mtpa Underground mine utilizing continuous miner to extract thermal coal Product Yield: ~65% Operates 3 shifts per day, 7 days a week, year-round Peabody invested $73M of capital for Gateway North Prep plant has a capacity of 1,000tph Minable Reserves 1 75.0Mt Major Equipment 13 Coal Haulers, 6 Continuous Miners, 6 Roof Bolters, 5 Scoops Transportation Truck, Rail (UP), Barge (Cora Terminal via rail) Coal can also be trucked to KRPD #2 Dock Geology Seams mined: Herrin No. 6 (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K; Includes coal reserves assigned to the Gateway North Mine, which is to replace production from the existing Gateway Mine as its reserves are exhausted in 2015 Tons Sold (Mt)


SLIDE 13

Gateway / Gateway North Summary Financial Statistics


SLIDE 14

Bear Run Overview Product Thermal, both mid and high sulfur, and Stoker: 10,900 - 11,300 Btu, 8.7% - 9.5% Ash, 14.6% - 16.2% Moisture, 3.2 - 5.3 lbs. SO2 Ownership 100% owner operator Location Near Carlisle in Sullivan County, IN Overview Began production in 2010 with initial development capital of approximately $375M Average projected strip ratio (virgin yards / clean tons) over the next 3 years: ~17.3 Operates 2 shifts per day, 24 hours per day, 7 days a week, year-round Minable Reserves 266Mt Major Equipment Surface mine utilizing the following equipment: BE2550 dragline, BE 2570 dragline, (3) Hitachi EX5500 shovels, (4) Hitachi EX3500 shovels, (2) Cat 5230 shovels, (24) Cat D11 dozers Transportation Rail (INRD, CSX and ISRR), Truck Geology Seams mined: Indiana 7, 6, 5 and 5A (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K Tons Sold (Mt)


SLIDE 15

Bear Run Summary Financial Statistics


SLIDE 16

Select Australian mines


SLIDE 17

Wilpinjong Products: Thermal coal Markets: Domestic utility and export market Coal Logistics: 300km by rail to ports at Newcastle (PWCS/NCIG) New South Wales Selected Operations Locations Wambo Wilpinjong Metropolitan Products: Metallurgical hard/semi-soft Coking coal Markets: Asian and domestic steel mills Coal Logistics: 45km by rail to port at Port Kembla (PKCT) (PWCS & NCIG) (PKCT)


SLIDE 18

Wilpinjong Overview Product Thermal coal Ownership 100% owner operator; transitioned in April 2013 Location Western coalfields of New South Wales, 40km northeast of Mudgee Overview Purchased in 2006 Open-cut mine utilizing truck and shovel mining method Residential workforce of ~550 which mainly reside in Mudgee and surrounds Minable Reserves 169Mt Major Equipment Excavators – Liebherr 9400 x1 & 9350 x4, Trucks CAT 789 (19) & 785 (3) Transportation Railed to either Newcastle Coal Infrastructure Group (NCIG) or Port Waratah Coal Services (PWCS) at Newcastle Geology Mining Ulan and Moorlaben seams with seam thickness of 0.5 to 12 meters at depths of 5 to 40 meters Coal Processing 1,250tph heavy media wash plant 9.2Mtpa annual feed capacity Domestic quality coal is bypassed (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K Tons Sold (Mt)


SLIDE 19

Wilpinjong Summary Financial Statistics Note: Values are expressed in USD and short tons


SLIDE 20

Metropolitan Overview Product Coking coal (~ 70% LV HCC & ~ 30% Other Metallurgical coal) Ownership 100% owner operator Location Near Helensburgh, New South Wales Overview One of the oldest continually operating coal mining operations in Australia Underground mine utilizing longwall mining techniques Residential Workforce of ~360 residing in the greater Illawarra region of NSW Minable Reserves 28Mt Major Equipment JOY Longwall – 7LS Shearer and 89 x 1,130t roof supports Longwall Face is 158 meters wide CAT 30MB Continuous Miners x3 Transportation Railed to Port Kembla Coal Terminal Geology Mining Bulli seam with seam thickness of 2.5 to 3.2 meters at depths of 410 to 555 meter Coal Processing 430tph heavy media wash plant 4.2Mtpa annual feed capacity (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K Tons Sold (Mt)


SLIDE 21

Metropolitan Summary Financial Statistics Note: Values are expressed in USD and short tons


SLIDE 22

Queensland Selected Operations Locations DBCT Millennium Millennium Products: PCI and Semi hard coking coal Markets: Asian and European steel mills Coal Logistics: 190km by rail to port at Mackay (DBCT) North Goonyella Saleable Products: High Quality hard coking coal Markets: Asian, European and Indian steel mills Coal Logistics: 240km by rail to port at Mackay (DBCT) Coppabella & Moorvale Middlemount Burton


SLIDE 23

Millennium Overview Product Semi Hard Coking & PCI Ownership 100% owner operator; transitioned in April 2013 Location Queensland’s Bowen Basin, 160km southwest of Mackay Overview Open-cut mine utilizing truck and shovel mining method in multiple pits Drive in Drive Out Workforce of ~500 working 7 on 7 off roster residing in camp accommodations Shares coal infrastructure with adjacent BHP Mitsui Poitrel project through a JV Minable Reserves 46Mt Major Equipment Shovel – P&H 4100XPC Excavators – Liebherr 9400 (2) & 9250 (2) & CAT 6060 (1) Trucks - Liebherr 282 (12) & Unit Rig MT4400 (13) Transportation Railed to Dalrymple Bay Coal Terminal Geology Mining Leichart, Millennium and Vermont seams with seam thickness of 0.4 to 5.5 meters at depths of 15 to 120 meters Coal Processing 1,100tph heavy media wash plant 9.0Mtpa annual feed capacity (CHPP is shared with BHP (50%/50%) (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K Tons Sold (Mt)


SLIDE 24

Millennium Summary Financial Statistics Note: Values are expressed in USD and short tons


SLIDE 25

North Goonyella Overview Product High Quality Premium Hard coking coal Ownership 100% owner operator Location Northern end of Bowen Basin, 160km west of Mackay Overview Mine in operation since 1994, acquired in 2004 Underground mine utilizing longwall mining method Mining lease is shared with Peabody’s Eaglefield operation Drive In Drive Out Workforce of ~ 260 working 4 on 4 off residing in camp accommodation Minable Reserves 97Mt Major Equipment CAT LTCC longwall mining system – CAT EL 2000 Shearer & CAT 149 LTCC Roof Supports Longwall Face is 300 meters wide Transportation Railed to Dalrymple Bay Coal Terminal Geology Mining Goonyella Middle seam with seam thickness of 6.0 to 7.5 meters at depths of 330 to 480 meters Coal Processing 800tph heavy media wash plant 4.8Mtpa annual feed capacity (1) Proven & Probable Reserves as of December 31, 2014; sourced from 10-K Tons Sold (Mt)


SLIDE 26

North Goonyella Summary Financial Statistics Note: Values are expressed in USD and short tons


SLIDE 27

Exhibit 99.2

KLNF Comments - February 20, 2016

Subject to FRE 408 & All Other Applicable Privileges

and Confidentiality Agreements

Peabody Energy Corporation (the “ Issuer ”)

Private Offers to Exchange

New Pari Passu Secured First Lien Notes (defined below) and cash for

certain outstanding senior debt securities of the Issuer (collectively, the “ Existing Notes ”)

This proposal for the Exchange Offers and related transactions is preliminary and non-binding and shall not be construed as a commitment to take any steps to effect the Exchange Offers or any other transaction.

Summary of Principal Terms

 

Exchange :

  

Subject to the acceptance priority level for each series of Existing Notes set forth in the table below, offers to exchange (the “ Exchange Offers ”) the outstanding Existing Notes held by qualified institutional buyers for the following:

 

(i)     Up to $250,000,000 in aggregate principal amount of new 6% Pari Passu Secured First Lien Notes due 2021 (the “ New Pari Passu Secured First Lien Notes ”) issued by the Issuer; and

 

(ii)    Up to $350,000,000 in cash.

 

No additional amounts shall be payable in respect of accrued but unpaid interest on the Existing Notes that are exchanged.

Subject Securities and Acceptance Priority Levels :

 

                        Principal Amount of New Pari Passu
Secured First Lien Notes and Cash (1)
 

Title of
Series of
Existing Notes

   Maturity
Date
   Aggregate
Principal Amount
Outstanding
     Acceptance
Priority
Level
     Notes
Consideration
(Par Value)
    Cash
Consideration
    Early
Tender
Premium
(Cash)
    Total
Exchange
Consideration (2)
 

6.00% Senior Notes due 2018 (the “ 2018 Notes ”)

   Nov.
2018
   $ 1,518,800,000         1       $ [81.08   $ [83.51   $ [30.00   $ [194.59

10.00% Senior Secured Second Lien Notes due 2022 (the “ Existing Second Lien Notes ”)

   March
2022
   $ 1,000,000,000         2       $ [108.11   $ [121.35   $ [30.00   $ [259.46

6.50% Senior Notes due 2020 (the “2020 Notes” )

   Sept.
2020
   $ 650,000,000         3       $ [64.86   $ [60.81   $ [30.00   $ [155.68

(continued)

 

(1 )   For each $1,000 principal amount of Existing Notes. [NTD: For discussion purposes only. Subject to further review by the Issuer and its advisors].
(2 )   Includes the Early Tender Premium of $[30.00] in cash.

 


                        Principal Amount of New Pari Passu
Secured First Lien Notes and Cash (3)
 

Title of
Series of
Existing Notes

   Maturity
Date
   Aggregate
Principal Amount
Outstanding
     Acceptance
Priority
Level
     Notes
Consideration
(Par Value)
    Cash
Consideration
    Early
Tender
Premium
(Cash)
    Total
Exchange
Consideration (3)
 

6.25% Senior Notes due 2021 (the “2021 Notes” )

   Nov.
2021
   $ 1,339,600,000         4       $ [64.86   $ [60.81   $ [30.00   $ [155.68

7.875% Senior Notes due 2026 (the “2026 Notes” )

   Nov.
2026
   $ 250,000,000         5       $ [64.86   $ [60.81   $ [30.00   $ [155.68

 

   Eligible holders must validly tender their Existing Notes at or prior to 5:00 p.m., New York City time, on a specified early tender date (such date the “ Early Tender Date ”), in order to be eligible to receive the applicable “ Total Exchange Consideration ” shown in the table above. Existing Notes tendered after the Early Tender Date but prior to expiration of the Exchange Offers will be eligible to receive only the applicable “ Exchange Consideration ” set out in such table, which does not include the “ Early Tender Premium ”. The Issuer may modify or terminate any consent solicitations in connection with the Exchange Offers upon prior written notice thereof (to include, with respect to any modifications, the nature thereof) to the Specified Holders. 4
Conditions :   

The closing of the Exchange will be conditioned on:

 

(i)     a minimum of [    ]% of the aggregate principal amount of all series of Existing Notes not held by the Specified Holders electing to participate in the Exchange Offers (the “ Overall Minimum Condition ”); ][subject to further discussion]

 

(ii)    the consummation of the Additional Private Exchange Transactions (defined below) with the Specified Holders, which transactions may be consummated substantially concurrent with each other;

 

(iii)  the consummation of the Issuer’s sale of its New Mexico and Colorado assets to Bowie Resources Partners; and

 

(iv)   customary additional conditions.

 

The conditions set forth in conditions (i) through (iv) above are waiveable by the Issuer with the consent of each of the Specified Holders.

Additional Private Exchange Transactions :   

Elliott/Aurelius/CapRe (collectively, the Specified Holders ) agree (a) not to tender their Existing Notes in the Exchange Offers; provided, however, that CapRe may tender up to $[30.0] million aggregate principal amount of Existing Notes beneficially owned, (b) to extend the maturity date of the 2018 Notes held by them by two years to November 2020 with PIK interest payable on such 2018 Notes instead of cash pay interest for a period of two years (payable monthly, beginning on the last interest payment date), (c) to receive PIK interest in lieu of cash pay interest for a period of two years (payable monthly, beginning on the last interest payment

 

(3)   Includes the Early Tender Premium of $[30.00] in cash.
4 Peabody to advise as to any additional consent solicitations it intends to seek.

 

2


   date) (5) with respect to each of the Existing Second Lien Notes, the 2020 Notes, the 2021 Notes and the 2026 Notes held by the Specified Holders (collectively with the 2018 Notes, the “ SH Notes ”), and (d) exchange $200,000,000 of SH Notes 6 for $200,000,000 of PAC Notes 7 , provided that all accrued and unpaid interest on the SH Notes shall be paid in kind in applicable SH Notes and certain cash payments of interest by the Issuer may be required to avoid material adverse tax consequences (collectively, the “ Additional Private Exchange Transactions ”). The closing of the Additional Private Exchange Transactions is conditioned on the consummation of the Exchange Offers contemplated by this term sheet, which transactions may be consummated substantially concurrent with each other. The indentures governing the modified SH Notes shall be substantially identical to the indentures governing the Existing Notes in effect immediately prior to the Exchange Offers and not modified in any way except: (i) to the extent that the limitation contained in Section 4.09 of the indenture governing the Existing Second Lien Notes is modified or otherwise eliminated in connection with a consent solicitation, such covenant would apply as modified or eliminated, as the case may be, to the modified Second Lien Notes held by the Specified Holders; (ii) the extension of the maturity date of the 2018 Notes held by the Specified Holders by two years to November 2020 and (iii) provisions that the Specified Holders shall receive PIK interest in lieu of cash pay interest for a period of two years.

New Pari Passu Secured First Lien Notes (the “New Notes”)

 

Issuer :    Peabody Energy Corporation.
Maturity :    March 15, 2021.
Interest :    Payable semi-annually in cash at 6.0% per annum.
Ranking :    Pari passu with the Issuer’s existing first lien credit facilities (the “ Existing First Lien Facilities ”) evidenced by that certain credit agreement, dated as of June 18, 2010, as amended prior to the date hereof, including by that certain Omnibus Amendment Agreement, dated as of February 5, 2015 (as amended, the “ Existing First Lien Credit Agreement ”).
Guarantors :    Identical to the subsidiaries of the Issuer (the “ Guarantors ”) that guaranty the Existing First Lien Facilities.
Security :    Identical to the collateral securing the Existing First Lien Facilities.
Pari Passu Intercreditor Agreement :    Intercreditor agreement among the Issuer, the administrative agent under the Existing First Lien Credit Agreement and the collateral trustee of the New Pari Passu Secured First Lien Notes, and substantially in the form of Exhibit I-2 of the Existing First Lien Credit Agreement, subject to changes to reflect current market practice or that are not adverse to the lenders under the Existing First Lien Credit Agreement.

 

( 5 )   For the avoidance of doubt, the interest payments on the Existing Second Lien Notes and the 2020 Notes due on March 15, 2016 shall be paid in kind.
6   ACE to provide which SH Notes are to be exchanged.
7   It is contemplated that such exchange shall be effectuated by Peabody purchasing for $200,000,000 the PAC Notes from Peabody AssetCo and then Peabody using such PAC Notes as consideration for the purchase of $200,000,000 of SH Notes.

 

3


First Lien/ Second Lien Intercreditor :    The New Notes will constitute “Additional Senior Debt” under that certain intercreditor agreement, dated March 16, 2015, among Peabody Energy Corporation, the other grantor parties thereto, U.S. Bank, National Association, as Second Priority Representative, and Citibank, N.A., as Senior Representative.
Optional Redemption :    The New Notes will be redeemable at the Issuer’s option, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the New Notes to be redeemed, together with accrued and unpaid interest, if any, to, but excluding, the redemption date.
Change of Control :    The Issuer will be required to make an offer to repurchase the New Notes following the occurrence of a “change of control triggering event” with respect to the Issuer (to be defined in a manner consistent with the 2018 Notes) at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.
Covenants and Events of Default :   

To be consistent with the Existing Second Lien Notes, except as follows:

 

(a)    there shall be no limitations on the ability of existing or future non-guarantor subsidiaries to guarantee indebtedness of the Issuer or any of its subsidiaries; and

 

(b)    there shall be no limitation on the ability of such non-guarantor subsidiaries to incur indebtedness.

Governing Law :    New York.

 

New Senior Secured Notes Issued by Peabody Asset Holding Company (the “PAC Notes”)
Issuer :    Newly created direct or indirect wholly owned subsidiary of Peabody, organized as a Delaware limited liability company that is designated as an “Unrestricted Subsidiary” under the Existing First Lien Credit Agreement (the “ Peabody AssetCo ”). 8
Funding :    Peabody shall (i) purchase $200,000,000 principal amount of PAC Notes for $200,000,000 from Peabody AssetCo and (ii) invest cash in Peabody AssetCo as a capital contribution in an amount not less than all interest that will accrue on the PAC Notes through December 31, 2016 plus $3,000,000 (together, (i) and (ii), the “ PAC Collateral ”), pursuant to the investment baskets in the Existing Credit Agreement.
Maturity :    December 31, 2016. 9 10 If the Drop Down shall not have occurred prior to the maturity of the PAC Notes, the PAC Notes, together with all accrued interest, shall be repaid in full in cash with proceeds from such PAC Collateral.
Interest :    Payable monthly in kind at 6.0% per annum.

 

8   NTD: Potential intermediate Holdco above Peabody AssetCo as modification to structure to be discussed.
9   Subject to tax review; notes of this maturity would not appear to be securities for tax purposes, which is necessary for the Specified Holders’ desired tax-free recapitalization treatment.
10   NTD: Peabody’s preference would be to do one instrument with a five-year maturity and mandatory redemption at December 31, 2016 if the Drop Down does not occur.

 

4


Ranking :    Senior secured.
Guarantors :    None.
Security :    The PAC Collateral, which will be maintained in a blocked deposit account (such amount to be reduced by the amount of any PAC Note redemptions).
Optional Redemption :    The PAC Notes will be redeemable at the Peabody AssetCo’s option, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the PAC Notes to be redeemed, plus accrued but unpaid interest, if any, at the then applicable rate to, but excluding, the redemption date.
Change of Control :    If Issuer or Peabody AssetCo experiences a Change of Control, Peabody AssetCo must offer to repurchase the PAC Notes at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, at the then applicable rate to, but excluding, the date of purchase. As used in this term sheet, “Change of Control” means (a) an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the equity securities of Issuer entitled to vote for members of the board of directors or equivalent governing body of Issuer on a fully diluted basis, (b) the replacement of a majority of the directors or members of the equivalent governing body of Issuer from the directors who constituted the board of directors (or equivalent governing body) of Issuer and such replacement shall not have been approved by a vote of at least a majority of the board of directors (or other equivalent governing body) of the Issuer then still in office who were either members of such board of directors (or other equivalent governing body) or whose election as a member of such board (or other equivalent governing body) was previously so approved, (c) Peabody AssetCo ceases to be 100% owned (directly or indirectly) by Issuer or (d) a “Change of Control” as defined in the existing Senor Notes Indenture.

Covenants and

Events of Default :

   No additional debt or other obligations of any type at Peabody AssetCo; no restrictions on dividends of cash other than with respect to maintaining the PAC Collateral in a blocked deposit account; no other liens on assets of Peabody AssetCo; others TBD.
Governing Law :    New York
Drop Down :    Peabody may elect to contribute the NG Notes Assets (as defined below) to Peabody AssetCo on or prior to December 31, 2016 and simultaneously exchange of the PAC Notes for the New NG Notes (as defined below) (the “ Drop Down ”) in exchange for the release of the lien on the PAC Collateral and the elimination of restrictions on the use of any such cash thereafter; provided , that neither the working capital nor the net working capital position of Peabody AssetCo and its subsidiaries immediately after the Drop Down is less than the working capital and net working capital position, respectively, of the entities and assets contributed to Peabody AssetCo as of December 31, 2015. 11 After the Drop Down, Peabody will maintain the then-current levels of self-bonding and surety bonding, as well as collateral support for surety bonding, of the NG Notes Assets and continue to comply with its contractual obligations in respect of surety bonding. To the extent that the NG Notes Assets require surety bonds and/or collateral support for surety bonds above the amounts in place at the time of the Drop Down, Peabody shall retain the right to be reimbursed by Peabody

 

11   NTD: HL and Lazard to determine the appropriate calculation methodology.

 

5


  

AssetCo for any (x) costs associated with incremental surety bonding (i.e., annual premium payments), (y) incremental fees incurred by Peabody for letters of credit that are used to collateralize incremental surety bonds of Peabody AssetCo and (z) incremental cash collateral posted to collateralize existing or new surety bonds of Peabody AssetCo (collectively, the “ Additional Peabody Economic Support ”). Any Additional Peabody Economic Support that Peabody seeks to be reimbursed by Peabody AssetCo shall be treated as a change in working capital of Peabody AssetCo and therefore reduce the amount of cash available for dividend to Peabody.

 

Upon contribution of the NG Notes Assets on or prior to December 31, 2016, the $200,000,000 principal amount of PAC Notes shall be exchanged for $212,500,000 principal amount of New NG Notes (as defined below) (exchange amounts to be reduced proportionately to reflect any redemptions of PAC Notes prior to the Drop Down) and any interest on the PAC Notes since issuance that has been paid in kind or is accrued and unpaid since the last coupon payment shall increase the principal amount of the New NG Notes dollar for dollar at the closing of the exchange. 12  If the contribution of the NG Notes Assets and the exchange of PAC Notes for New NG Notes do not occur by December 31, 2016, then any accrued interest on the PAC Notes that has not been paid in kind shall be paid in kind and the outstanding principal amount of the PAC Notes shall be due and payable in full in cash at such time. 13

New Senior Secured U.S. Non-Guarantor Notes (the “New NG Notes”)

Issuer :    Peabody AssetCo (or a wholly-owned subsidiary of Peabody AssetCo) into which substantially all assets associated with the following mines are contributed: (i) the Kayenta Mine (the “Principal Property Mine” ) and (ii) the Francisco U/G Mine, the Gateway North Mine and the Wild Boar Mine (collectively, the “Non-Principal Property Mines” and, together, with the Principal Property Mine, the “NG Notes Assets”). 14 , 15
Maturity :    March 15, 2021.
Interest :    Payable monthly in kind at 8.0% per annum for a period equal to (i) two years minus (ii) the length of time the PAC Notes were outstanding; payable in cash after the two-year anniversary of the issuance of the PAC Notes every six months.
Ranking :    Senior to all obligations of Peabody AssetCo with respect to the collateral securing the New NG Notes; senior in right of payment to all future debt of Peabody AssetCo.
Guarantors :    To the extent Section 4.09 of the Second Lien Notes Indenture is eliminated, the subsidiaries of Peabody AssetCo shall guarantee the NG Notes. To the extent Section 4.09 of the Second Lien Notes Indenture is not eliminated Peabody AssetCo shall directly hold all of the NG Notes Assets and have no subsidiaries.

 

12   If December 31, 2016, would be $221,500,000
14   NTD: Bankruptcy remoteness structure to be discussed.
15   To confirm whether all assets would be contributed to Issuer, or equity of subsidiaries holding the assets would be included, such that there would be Guarantor Subsidiaries.

 

6


Collateral :    NG Notes Assets that constitute Non-Principal Property Mines.
Mandatory Redemption :    Not less than five Business Days following the consummation of a sale of any NG Notes Assets, Peabody AssetCo will be required to issue a notice of redemption in connection with the mandatory redemption of New NG Notes in an aggregate principal amount equal to the net cash proceeds of such sale, at a redemption price equal to 100% of the principal amount of the New NG Notes to be redeemed, plus accrued but unpaid interest, if any, at the then applicable rate to, but excluding, the date of redemption.
Optional Redemption :    The New NG Notes will be redeemable at the Peabody AssetCo’s option, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the New NG Notes to be redeemed, plus accrued but unpaid interest, if any, at the then applicable rate to, but excluding, the redemption date.

Dividend

Redemption :

   Subject to compliance with a restricted payments covenant (as described below), Peabody AssetCo shall be permitted to pay dividends with respect to its equity interests. Within two Business Days following the payment of any Dividend Amount (as defined below), Peabody AssetCo will be required to issue a notice of redemption in connection with the mandatory redemption of New NG Notes in an aggregate principal amount equal to the Dividend Redemption Amount (as defined below), at par plus accrued but unpaid interest at the then applicable rate to, but excluding, the date of redemption.

Drop Down

Redemption :

   Within two Business Days following the date on which the Drop Down occurs, Peabody AssetCo will be required to issue a notice of redemption in connection with the mandatory redemption of New NG Notes in an aggregate principal amount equal to $5,000,000 per each calendar quarter (pro-rated for any period less than a calendar quarter) that has elapsed since the closing of the Private Exchange Transactions, at redemption price equal to 100% of the principal amount of New NG Notes to be redeemed, plus accrued but unpaid interest, if any, at the then applicable rate to, but excluding, the date of redemption.
Change of Control :    Peabody AssetCo will be required to make an offer to repurchase the New NG Notes following the occurrence of a Change of Control (as defined above) at a price in cash equal to 101% of the outstanding principal amount thereof, plus accrued and unpaid interest at the then applicable rate to, but excluding, the date of repurchase.
Covenants and Events of Default :    Customary covenants and events of default for financings of this type applicable to the Peabody AssetCo, which shall in any event include negative covenants on debt, liens, restricted payments (including investments), affiliate transactions, asset sales and mergers (with customary carve outs for issuances of this type, including, without limitation, exceptions that allow the Issuer and Peabody AssetCo to operate its business in the ordinary course, such as exceptions for de minimis asset sales and the incurrence of and liens in connection with capital leases, surety bonds, self-bonding and accounts receivable securitizations); provided , that (i) (x) all sales and dispositions may only be made if on a pro forma basis after giving effect to such sale or disposition, Peabody AssetCo shall be in compliance with all covenants, including, without limitation, the Required Leverage Ratio and the Appraised Value Requirement (each as defined below), (y) the net cash proceeds of such sale or disposition shall be applied in accordance with the Mandatory Redemption requirements set forth above and (z) immediately before and after such sale or disposition no Default or Event of Default has occurred and is continuing and (ii) in no event will Peabody AssetCo be permitted to incur debt other than junior debt for cash proceeds, so long as (x) it has a junior lien or is unsecured, and in any event is payment subordinated pursuant to strict subordination terms including with respect to turnover of proceeds, and the intercreditor

 

7


  

agreement and/or subordination provisions are acceptable to the Specified Holders, (y) the debt does not require payment of interest in cash and (z) no guarantees of debt issued by entities other than Peabody AssetCo are required pursuant to Section 4.09 of the Second Lien Notes Indenture or otherwise.

 

Peabody AssetCo may (a) distribute the PAC Collateral to the Issuer or any of its subsidiaries in connection with the Drop Down, (b) make SG&A Overhead (as defined below) payments pursuant to the Cost Sharing Agreement (as defined below) and (c) make cash dividends to its parent so long as, with respect to part (c) of this sentence only: (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Total Leverage Ratio of Peabody AssetCo (calculated (i) as of the end of the fiscal quarter immediately preceding payment of such dividend for which financial statements are available for the period of four consecutive quarters ending on such date (determined on a pro forma basis for the first three fiscal quarters after the Drop Down to give effect to the financial results of the NG Notes Assets prior to Peabody AssetCo’s ownership thereof) and (ii) net of SG&A Overhead) is less than 2.5x (the “ Required Leverage Ratio ”) on a pro forma basis after giving effect to such dividend (and payment of the corresponding Dividend Redemption Amount, as defined below) and (iii) the most recent Appraisal (as defined below) shall reflect a value of the New NG Notes Assets that is at least 2x (the “ Appraised Value Requirement ”) the total amount of New NG Notes outstanding at the time of such dividend, on a pro forma basis after giving effect to the payment of the corresponding Dividend Redemption Amount. The aggregate amount that is permitted to be paid in accordance with the foregoing, and which Peabody AssetCo would otherwise pay as a dividend, is referred to as the “ Total Dividend Amount .” 85% of the Total Dividend Amount may be dividended with respect to equity interests (the “Dividend Amount” ). 15% of the Dividend Amount shall be applied to redeem the New NG Notes as provided above, including the amount of PIK, at par, plus accrued and unpaid interest at the then applicable rate to, but excluding, the date of repurchase (such amount, the “ Dividend Redemption Amount ”).

 

SG&A Overhead ” is to be defined as SG&A allocated to Peabody AssetCo pursuant to a cost sharing agreement (the “ Cost Sharing Agreement ”), which SG&A Overhead for any fiscal year shall not exceed the lesser of (x) 20% of the SG&A of the Parent and its subsidiaries on a consolidated basis for such fiscal year (which such percentage shall be adjusted proportionately upward or downward, as applicable, to reflect asset sales of non-NG Notes Assets or NG Notes Assets, respectively, by the Issuer or Peabody AssetCo) and (y) $25,000,000 (which amount in this clause (y) shall grow at the CPI pursuant to an annual adjustment).

 

Appraisal ” shall mean the most recent appraisal of the NG Notes Assets, which shall be conducted by [FTI] and others to be proposed or any other nationally recognized appraiser selected by the Issuer or Peabody AssetCo and agreed to by the Specified Holders. Appraisals shall be conducted semi-annually, beginning immediately prior to any cash dividend other than the distribution of the PAC Collateral to the Issuer or any of its subsidiaries in connection with the Drop Down.

Governing Law :    New York

 

8

Exhibit 99.3

BTU Comments - February 22, 2016

Subject to FRE 408 & All Other Applicable Privileges

and Confidentiality Agreements

Peabody Energy Corporation (the “ Issuer ”)

Private Offers to Exchange

New Pari Passu Secured First Lien Notes (defined below) and cash for

certain outstanding senior debt securities of the Issuer (collectively, the “ Existing Notes ”)

This proposal for the Exchange Offers and related transactions is preliminary and non-binding and shall not be construed as a commitment to take any steps to effect the Exchange Offers or any other transaction.

Summary of Principal Terms

 

Exchange :   

Subject to the acceptance priority level for each series of Existing Notes set forth in the table below, offers to exchange (the “ Exchange Offers ”) the outstanding Existing Notes held by qualified institutional buyers for the following:

 

(i)     Up to $250,000,000 in aggregate principal amount of new 6% Pari Passu Secured First Lien Notes due 2021 (the “ New Pari Passu Secured First Lien Notes ”) issued by the Issuer; and

 

(ii)    Up to $350,000,000 in cash.

 

No additional amounts shall be payable in respect of accrued but unpaid interest on the Existing Notes that are exchanged.

Subject Securities and Acceptance Priority Levels :

 

                        Principal Amount of New Pari Passu
Secured First Lien Notes and Cash (1)
 

Title of
Series of
Existing Notes

   Maturity
Date
   Aggregate
Principal

Amount
Outstanding
     Acceptance
Priority
Level
     Notes
Consideration
(Par Value)
    Cash
Consideration
    Early
Tender
Premium
(Cash)
    Total
Exchange
Consideration (2)
 

6.00% Senior Notes due 2018 (the “ 2018 Notes ”)

   Nov.
2018
   $ 1,518,800,000         1       $ [81.08   $ [83.51   $ [30.00   $ [194.59

10.00% Senior Secured Second Lien Notes due 2022 (the “ Existing Second Lien Notes ”)

   March
2022
   $ 1,000,000,000         2       $ [108.11   $ [121.35   $ [30.00   $ [259.46

6.50% Senior Notes due 2020 (the “2020 Notes” )

   Sept.
2020
   $ 650,000,000         3       $ [64.86   $ [60.81   $ [30.00   $ [155.68

(continued)

 

(1)   For each $1,000 principal amount of Existing Notes. [NTD: For discussion purposes only. Subject to further review by the Issuer and its advisors].
( 2)   Includes the Early Tender Premium of $[30.00] in cash.


                        Principal Amount of New Pari Passu
Secured First Lien Notes and Cash (3)
 

Title of
Series of
Existing Notes

   Maturity
Date
   Aggregate
Principal

Amount
Outstanding
     Acceptance
Priority
Level
     Notes
Consideration
(Par Value)
    Cash
Consideration
    Early
Tender
Premium
(Cash)
    Total
Exchange
Consideration (3)
 

6.25% Senior Notes due 2021 (the “2021 Notes” )

   Nov.
2021
   $ 1,339,600,000         4       $ [64.86   $ [60.81   $ [30.00   $ [155.68

7.875% Senior Notes due 2026 (the “2026 Notes” )

   Nov.
2026
   $ 250,000,000         5       $ [64.86   $ [60.81   $ [30.00   $ [155.68

 

   Eligible holders must validly tender their Existing Notes at or prior to 5:00 p.m., New York City time, on a specified early tender date (such date the “ Early Tender Date ”), in order to be eligible to receive the applicable “ Total Exchange Consideration ” shown in the table above. Existing Notes tendered after the Early Tender Date but prior to expiration of the Exchange Offers will be eligible to receive only the applicable “ Exchange Consideration ” set out in such table, which does not include the “ Early Tender Premium ”. The Issuer may modify or terminate any consent solicitations in connection with the Exchange Offers upon prior written notice thereof (to include, with respect to any modifications, the nature thereof) to the Specified Holders. 4 Notwithstanding anything to the contrary contained herein, the Issuer may terminate the Exchange Offers without the consent of any of the Specified Holders.
Conditions :   

The closing of the Exchange will be conditioned on:

 

(i)     a minimum of [85]% of the aggregate principal amount of all series of Existing Notes not held by the Specified Holders electing to participate in the Exchange Offers (the “ Overall Minimum Condition ”); ][subject to further discussion]

 

(ii)    the consummation of the Additional Private Exchange Transactions (defined below) with the Specified Holders, which transactions may be consummated substantially concurrent with each other;

 

(iii)  the consummation of the Issuer’s sale of its New Mexico and Colorado assets to Bowie Resources Partners to the extent that such pending sale has not been consummated prior to the launch of the Exchange Offers; and

 

(iv)   customary additional conditions.

 

The conditions set forth in conditions (i) through (iii) above are waiveable by the Issuer with the consent of each of the Specified Holders. The conditions set forth in condition (iv) are waiveable by the Issuer in its sole discretion.

Additional Private Exchange Transactions :   

Elliott/Aurelius/CapRe (collectively, the “ Specified Holders ”) agree (a) not to tender their Existing Notes in the Exchange Offers; provided, however, that CapRe may tender up to $[30.0] million aggregate principal amount of Existing Notes beneficially owned by it, (b) to

 

(3)   Includes the Early Tender Premium of $[30.00] in cash.
4   Peabody intends to conduct a consent solicitation with respect to the indenture governing the Existing Second Lien Notes to (i) eliminate the restrictive covenant contained in Section 4.09 and (ii) eliminate the requirement in Section 4.11 that if a non-guarantor subsidiary provides a guarantee under capital markets indebtedness above a certain principal amount, then such subsidiary must also guarantee the Existing Second Lien Notes.

 

2


   extend the maturity date of the 2018 Notes held by them by two years to November 2020 with PIK interest payable on such 2018 Notes instead of cash pay interest for a period of two years (payable monthly, beginning on the last interest payment date), (c) to receive PIK interest in lieu of cash pay interest for a period of two years (payable monthly, beginning on the last interest payment date) (5) with respect to each of the Existing Second Lien Notes, the 2020 Notes, the 2021 Notes and the 2026 Notes held by the Specified Holders (collectively with the 2018 Notes, the “SH Notes” ), and (d) exchange $200,000,000 of SH Notes for $200,000,000 of PAC Notes, provided that all accrued and unpaid interest on the SH Notes shall be paid in kind in applicable SH Notes and certain cash payments of interest by the Issuer that may be required to avoid material adverse tax consequences shall be paid as necessary (collectively, the “ Additional Private Exchange Transactions ”). The closing of the Additional Private Exchange Transactions is conditioned on the consummation of the Exchange Offers contemplated by this term sheet, which transactions may be consummated substantially concurrent with each other. The indentures governing the modified SH Notes shall be substantially identical to the indentures governing the Existing Notes in effect immediately prior to the Exchange Offers and not modified in any way except: (i) to the extent that the covenants contained in Section 4.09 or Section 4.11 of the indenture governing the Existing Second Lien Notes is modified or otherwise eliminated in connection with a consent solicitation, such covenants would apply as modified or eliminated, as the case may be, to the modified Second Lien Notes held by the Specified Holders; (ii) the extension of the maturity date of the 2018 Notes held by the Specified Holders by two years to November 2020 and (iii) provisions that the Specified Holders shall receive PIK interest in lieu of cash pay interest for a period of two years.
New Pari Passu Secured First Lien Notes (the “New Notes”)
Issuer :    Peabody Energy Corporation.
Maturity :    March 15, 2021.
Interest :    Payable semi-annually in cash at 6.0% per annum.
Ranking :    Pari passu with the Issuer’s existing first lien credit facilities (the “ Existing First Lien Facilities ”) evidenced by that certain credit agreement, dated as of June 18, 2010, as amended prior to the date hereof, including by that certain Omnibus Amendment Agreement, dated as of February 5, 2015 (as amended, the “ Existing First Lien Credit Agreement ”).
Guarantors :    Identical to the subsidiaries of the Issuer (the “ Guarantors ”) that guaranty the Existing First Lien Facilities.

Security :

   Identical to the collateral securing the Existing First Lien Facilities.
Pari Passu Intercreditor Agreement :    Intercreditor agreement among the Issuer, the administrative agent under the Existing First Lien Credit Agreement and the collateral trustee of the New Pari Passu Secured First Lien Notes, and substantially in the form of Exhibit I-2 of the Existing First Lien Credit Agreement, subject to changes to reflect current market practice or that are not adverse to the lenders under the Existing First Lien Credit Agreement.

 

(5) For the avoidance of doubt, the interest payments on the Existing Second Lien Notes and the 2020 Notes due on March 15, 2016 shall be paid in kind.
6   ACE to provide which SH Notes are to be exchanged.
7   It is contemplated that such exchange shall be effectuated by Peabody purchasing for $200,000,000 the PAC Notes from Peabody AssetCo and then Peabody using such PAC Notes as consideration for the purchase of $200,000,000 of SH Notes.

 

3


First Lien/ Second Lien Intercreditor :    The New Notes will constitute “Additional Senior Debt” under that certain intercreditor agreement, dated March 16, 2015, among Peabody Energy Corporation, the other grantor parties thereto, U.S. Bank, National Association, as Second Priority Representative, and Citibank, N.A., as Senior Representative.
Optional Redemption :    The New Notes will be redeemable at the Issuer’s option, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the New Notes to be redeemed, together with accrued and unpaid interest, if any, to, but excluding, the redemption date.
Change of Control :    The Issuer will be required to make an offer to repurchase the New Notes following the occurrence of a “change of control triggering event” with respect to the Issuer (to be defined in a manner consistent with the 2018 Notes) at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.
Covenants and Events of Defaul t:   

To be consistent with the Existing Second Lien Notes, except as follows:

 

(a)    there shall be no limitation on the ability of existing or future non-guarantor subsidiaries to guarantee capital market indebtedness of the Issuer or any of its subsidiaries; and

 

(b)    there shall be no limitation on the ability of such non-guarantor subsidiaries to incur indebtedness.

Governing Law :    New York.

New Senior Secured Notes Issued by Peabody Asset Holding Company (the “PAC Notes”)

Issuer :    Newly created direct or indirect wholly owned subsidiary of Peabody, organized as a Delaware limited liability company that is designated as an “Unrestricted Subsidiary” under the Existing First Lien Credit Agreement (the “Peabody AssetCo” ). 8
Funding :    Peabody shall (i) purchase $200,000,000 principal amount of PAC Notes for $200,000,000 from Peabody AssetCo and (ii) invest cash in Peabody AssetCo as a capital contribution in an amount not less than all interest that will accrue on the PAC Notes through December 31, 2016 plus $3,000,000 (together, (i) and (ii), the “ PAC Collateral ”), pursuant to the investment baskets in the Existing Credit Agreement.
Maturity :    December 31, 2016. 9 10 If the Drop Down shall not have occurred prior to the maturity of the PAC Notes, the PAC Notes, together with all accrued interest, shall be repaid in full in cash with proceeds from such PAC Collateral.

 

8   NTD: Potential intermediate Holdco above Peabody AssetCo as modification to structure to be discussed.
9   Subject to tax review; notes of this maturity would not appear to be securities for tax purposes, which is necessary for the Specified Holders’ desired tax-free recapitalization treatment.
10   NTD: Peabody’s preference would be to do one instrument with a five-year maturity and mandatory redemption at December 31, 2016 if the Drop Down does not occur. From discussion with KLNF, seems like the one instrument approach is acceptable, but please confirm.

 

4


Interest :    Payable monthly in kind at 6.0% per annum.
Ranking :    Senior secured.
Guarantors :    None.
Security :    The PAC Collateral, which will be maintained in a blocked deposit account (such amount to be reduced by the amount of any PAC Note redemptions).
Optional Redemption :    The PAC Notes will be redeemable at the Peabody AssetCo’s option, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the PAC Notes to be redeemed, plus accrued but unpaid interest, if any, at the then applicable rate to, but excluding, the redemption date.
Change of Control :    If the Issuer or Peabody AssetCo experiences a Change of Control, Peabody AssetCo must offer to repurchase the PAC Notes at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, at the then applicable rate to, but excluding, the date of purchase. As used in this term sheet, “Change of Control” means (a) an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of 35% or more of the equity securities of the Issuer entitled to vote for members of the board of directors or equivalent governing body of Issuer on a fully diluted basis, (b) Peabody AssetCo ceases to be 100% owned (directly or indirectly) by the Issuer or (c) a “Change of Control” as defined in the Senor Notes Indenture (as defined in the Existing First Lien Credit Agreement).
Covenants and Events of Default :    No additional debt or other obligations of any type at Peabody AssetCo; no restrictions on dividends of cash other than with respect to maintaining the PAC Collateral in a blocked deposit account; no other liens on assets of Peabody AssetCo; others TBD.
Governing Law :    New York
Drop Down :    Peabody may elect to contribute the NG Notes Assets (as defined below) to Peabody AssetCo on or prior to December 31, 2016 and simultaneously exchange of the PAC Notes for the New NG Notes (as defined below) (the “ Drop Down ”) in exchange for the release of the lien on the PAC Collateral and the elimination of restrictions on the use of any such cash thereafter; provided , that neither the working capital nor the net working capital position of Peabody AssetCo and its subsidiaries immediately after the Drop Down is less than the working capital and net working capital position, respectively, of the entities and assets contributed to Peabody AssetCo as of December 31, 2015. 11 After the Drop Down, Peabody will use commercially reasonable efforts to (i) maintain the then-current levels of self-bonding and surety bonding, as well as collateral support for surety bonding, of the NG Notes Assets and (ii) continue to comply with its contractual obligations in respect of surety bonding. To the extent that the NG Notes Assets require surety bonds and/or collateral support for surety bonds above the amounts in place at the time of the Drop Down, Peabody shall retain the right to be reimbursed by Peabody AssetCo for any (x) costs associated with incremental surety bonding (i.e., annual premium payments), (y) incremental fees incurred by Peabody for letters of credit that are used to collateralize incremental surety bonds of Peabody AssetCo and (z) incremental cash collateral posted to collateralize existing or new

 

11   NTD: HL and Lazard to determine the appropriate calculation methodology.

 

5


  

surety bonds of Peabody AssetCo (collectively, the “ Additional Peabody Economic Support ”). Any Additional Peabody Economic Support that Peabody seeks to be reimbursed by Peabody AssetCo shall be treated as a change in working capital of Peabody AssetCo and therefore reduce the amount of cash available for dividend to Peabody.

 

Upon contribution of the NG Notes Assets on or prior to December 31, 2016, the $200,000,000 principal amount of PAC Notes shall be exchanged for $212,500,000 principal amount of New NG Notes (as defined below) (exchange amounts to be reduced proportionately to reflect any redemptions of PAC Notes prior to the Drop Down) and any interest on the PAC Notes since issuance that has been paid in kind or is accrued and unpaid since the last coupon payment shall increase the principal amount of the New NG Notes dollar for dollar at the closing of the exchange. 12  If the contribution of the NG Notes Assets and the exchange of PAC Notes for New NG Notes do not occur by December 31, 2016, then any accrued interest on the PAC Notes that has not been paid in kind shall be paid in kind and the outstanding principal amount of the PAC Notes shall be due and payable in full in cash at such time. 13

New Senior Secured U.S. Non-Guarantor Notes (the “New NG Notes”)

 

Issuer :    Peabody AssetCo (or a wholly-owned subsidiary of Peabody AssetCo) into which substantially all assets associated with the following mines are contributed: (i) the Kayenta Mine (the “ Principal Property Mine ”) and (ii) the Francisco U/G Mine, the Gateway North Mine and the Wild Boar Mine (collectively, the “ Non-Principal Property Mines ” and, together, with the Principal Property Mine, the “ NG Notes Assets ”). 14 , 15
Maturity :    March 15, 2021.
Interest :    Payable monthly in kind at 8.0% per annum for a period equal to (i) two years minus (ii) the length of time the PAC Notes were outstanding; payable in cash after the two-year anniversary of the issuance of the PAC Notes every six months.
Ranking :    Senior to all obligations of Peabody AssetCo with respect to the collateral securing the New NG Notes; senior in right of payment to all future debt of Peabody AssetCo.
Guarantors :    To the extent Section 4.09 and Section 4.11 of the indenture governing the Existing Second Lien Notes are modified and eliminated, respectively, as contemplated herein, the subsidiaries of Peabody AssetCo shall guarantee the NG Notes. To the extent Section 4.09 and Section 4.11 of the indenture governing the Existing Second Lien Notes are not so modified and eliminated, respectively, Peabody AssetCo shall directly hold all of the NG Notes Assets and have no subsidiaries.
Collateral :    NG Notes Assets that constitute Non-Principal Property Mines.

 

12   If December 31, 2016, would be $221,500,000
13   NTD: The parties will cooperate to structure the PAC Issuer and the NG issuer, and the exchange of the notes of each such issuer, in a tax efficient manner for the Specified Holders, to the extent feasible and to the extent it does not cause a material current or future tax or other cost for the Issuer or its subsidiaries.
14   NTD: Bankruptcy remoteness structure to be discussed.
15  

To confirm whether all assets would be contributed to Issuer, or equity of subsidiaries holding the assets would be included, such that there would be Guarantor Subsidiaries.

 

6


Mandatory Redemption :    Not less than five Business Days following the consummation of a sale of any NG Notes Assets, Peabody AssetCo will be required to issue a notice of redemption in connection with the mandatory redemption of New NG Notes in an aggregate principal amount equal to the net cash proceeds of such sale, at a redemption price equal to 100% of the principal amount of the New NG Notes to be redeemed, plus accrued but unpaid interest, if any, at the then applicable rate to, but excluding, the date of redemption.
Optional Redemption :    The New NG Notes will be redeemable at the Peabody AssetCo’s option, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the New NG Notes to be redeemed, plus accrued but unpaid interest, if any, at the then applicable rate to, but excluding, the redemption date.

Dividend

Redemption :

   Subject to compliance with a restricted payments covenant (as described below), Peabody AssetCo shall be permitted to pay dividends with respect to its equity interests. Within two Business Days following the payment of any Dividend Amount (as defined below), Peabody AssetCo will be required to issue a notice of redemption in connection with the mandatory redemption of New NG Notes in an aggregate principal amount equal to the Dividend Redemption Amount (as defined below), at par plus accrued but unpaid interest at the then applicable rate to, but excluding, the date of redemption.

Drop Down

Redemption :

   Within two Business Days following the date on which the Drop Down occurs, Peabody AssetCo will be required to issue a notice of redemption in connection with the mandatory redemption of New NG Notes in an aggregate principal amount equal to $5,000,000 per each calendar quarter (pro-rated for any period less than a calendar quarter) that has elapsed since the closing of the Private Exchange Transactions, at redemption price equal to 100% of the principal amount of New NG Notes to be redeemed, plus accrued but unpaid interest, if any, at the then applicable rate to, but excluding, the date of redemption.
Change of Control :    Peabody AssetCo will be required to make an offer to repurchase the New NG Notes following the occurrence of a Change of Control (as defined above) at a price in cash equal to 101% of the outstanding principal amount thereof, plus accrued and unpaid interest at the then applicable rate to, but excluding, the date of repurchase.
Covenants and Events of Default :    Customary covenants and events of default for financings of this type applicable to the Peabody AssetCo, which shall in any event include negative covenants on debt, liens, restricted payments (including investments), affiliate transactions, asset sales and mergers (with customary carve outs for issuances of this type, including, without limitation, exceptions that allow the Issuer and Peabody AssetCo to operate its business in the ordinary course, such as exceptions for de minimis asset sales and the incurrence of and liens in connection with capital leases, surety bonds, self-bonding and accounts receivable securitizations); provided, that (i) (x) all sales and dispositions may only be made if on a pro forma basis after giving effect to such sale or disposition, Peabody AssetCo shall be in compliance with all covenants, including, without limitation, the Required Leverage Ratio and the Appraised Value Requirement (each as defined below), (y) the net cash proceeds of such sale or disposition shall be applied in accordance with the Mandatory Redemption requirements set forth above and (z) immediately before and after such sale or disposition no Default or Event of Default has occurred and is continuing and (ii) in no event will Peabody AssetCo be permitted to incur debt other than junior debt for cash proceeds, so long as (x) it has a junior lien or is unsecured, and in any event is payment subordinated pursuant to strict subordination terms including with respect to turnover of proceeds, and the intercreditor agreement and/or subordination provisions are acceptable to the Specified Holders, (y) the debt does not require payment of interest in cash and (z) no guarantees of debt issued by entities other than Peabody AssetCo are required pursuant to Section 4.09 of the Second Lien Notes Indenture or otherwise.

 

7


  

 

Peabody AssetCo may (a) distribute the PAC Collateral to the Issuer or any of its subsidiaries in connection with the Drop Down, (b) make SG&A Overhead (as defined below) payments pursuant to the Cost Sharing Agreement (as defined below) and (c) make cash dividends to its parent so long as, with respect to part (c) of this sentence only: (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Total Leverage Ratio of Peabody AssetCo (calculated (i) as of the end of the fiscal quarter immediately preceding payment of such dividend for which financial statements are available for the period of four consecutive quarters ending on such date (determined on a pro forma basis for the first three fiscal quarters after the Drop Down to give effect to the financial results of the NG Notes Assets prior to Peabody AssetCo’s ownership thereof) and (ii) net of SG&A Overhead) is less than 2.5x (the “ Required Leverage Ratio ”) on a pro forma basis after giving effect to such dividend (and payment of the corresponding Dividend Redemption Amount, as defined below) and (iii) the most recent Appraisal (as defined below) shall reflect a value of the New NG Notes Assets that is at least 2x (the “ Appraised Value Requirement ”) the total amount of New NG Notes outstanding at the time of such dividend, on a pro forma basis after giving effect to the payment of the corresponding Dividend Redemption Amount. The aggregate amount that is permitted to be paid in accordance with the foregoing, and which Peabody AssetCo would otherwise pay as a dividend, is referred to as the “ Total Dividend Amount .” 85% of the Total Dividend Amount may be dividended with respect to equity interests (the “ Dividend Amount ”). 15% of the Dividend Amount shall be applied to redeem the New NG Notes as provided above, including the amount of PIK, at par, plus accrued and unpaid interest at the then applicable rate to, but excluding, the date of repurchase (such amount, the “ Dividend Redemption Amount ”).

 

SG&A Overhead ” is to be defined as SG&A allocated to Peabody AssetCo pursuant to a cost sharing agreement (the “ Cost Sharing Agreement ”), which SG&A Overhead for any fiscal year shall not exceed the lesser of (x) 20% of the SG&A of the Parent and its subsidiaries on a consolidated basis for such fiscal year (which such percentage shall be adjusted proportionately upward or downward, as applicable, to reflect asset sales of non-NG Notes Assets or NG Notes Assets, respectively, by the Issuer or Peabody AssetCo) and (y) $25,000,000 (which amount in this clause (y) shall grow at the CPI pursuant to an annual adjustment).

 

Appraisal ” shall mean the most recent appraisal of the NG Notes Assets, which shall be conducted by FTI Consulting or any other nationally recognized appraiser selected by the Issuer or Peabody AssetCo and agreed to by the Specified Holders. Appraisals shall be conducted semi-annually, beginning immediately prior to any cash dividend other than the distribution of the PAC Collateral to the Issuer or any of its subsidiaries in connection with the Drop Down.

Governing Law :    New York

 

8

Exhibit 99.4

KL Comments as of February24,2016

Subject to FRE 408 & All Other Applicable Privileges

and Confidentiality Agreements

Annex I

Bankruptcy Remote Provisions

 

1. Except as specifically set forth in the Term Sheet, Peabody AssetCo and each of its direct and indirect subsidiaries (collectively, the “ NewCos ”) shall be newly formed direct or indirect wholly-owned subsidiaries of the Issuer organized as a Delaware limited liability companies that are designated as an “Unrestricted Subsidiary” under the Existing First Lien Credit Agreement.

 

2. Each NewCo shall have a board of managers, with no more than 3 (three) managers serving on such board, at least one (1) of which will, at all times, be an Independent Manager (as defined below).

 

3. The indenture governing the PAC Notes and the New NG Notes (the “ Notes Indenture ”) shall prohibit the modification of the organizational documents of the NewCos (the “ Organizational Documents ”) as it relates to the bankruptcy remote provisions contained herein and therein without the consent of the holders of a majority of the Notes (the “ Majority Holders ”), and any such modification shall constitute an immediate Event of Default under the Notes Indenture.

 

4. The Notes Indenture and the Organizational Documents shall, among other things:

(a) require the consent of the relevant Independent Manager, in its sole and absolute discretion, to, among other things, (1) initiate, institute, consent to, participate in or otherwise effect any Bankruptcy (as defined below), liquidation or dissolution of a NewCo, consolidate a NewCo with or into any person, or sell all or substantially all of the assets of a NewCo, or (2) amend, modify or waive any provision in the Organizational Documents of the applicable NewCo that affect the requirements set forth in this Annex I;

(b) require a certificate from the chief financial officer of the relevant NewCo to the relevant Independent Manager at least 5 business days prior to making any dividend of the Dividend Amount or other distribution on account of its equity interests, which shall include the calculation of the Required Leverage Ratio and an Appraisal dated within six months of the certificate, that certifies that such dividend or other distribution constitutes a permitted Dividend Amount and includes the calculation of such Dividend Amount and is expressly permitted by the terms of the Notes Indenture. No dividend or other distribution shall be permitted to be made (i) unless and until such calculations are reasonably acceptable to the Independent Manager and (ii) at any time prior to the Drop-Down;

(c) include a mechanism that (i) provides that in the event of a vacancy in the position of an Independent Manager, the Member of the applicable NewCo shall appoint a successor which shall be acceptable to the Trustee under the Indenture in its sole discretion (and no actions may be taken that would otherwise require the consent of an Independent Manager during the pendency of such vacancy), and (ii) allows the Trustee/ Majority Holders to replace an Independent Manager upon notice to the relevant NewCo.

(d) to the fullest extent permitted by law, require each Independent Manager to consider the interests of, and have a fiduciary duty to, the holders of Notes and other creditors, in connection with any actions that require the vote or consent of the Independent Manager and to waive any fiduciary duties to the relevant NewCo or any equityholder in respect thereof;


(e) include covenants consistent with those in the Notes Indenture and other customary separateness covenants in the Organizational Documents that cannot be amended or waived without the consent of the Trustee and relevant Independent Manager, as applicable, including the following:

 

    Not commingle assets [other than cash that passes through the Issuer’s consolidated cash management system] 1 ;

 

    Maintain the ability to calculate separate financial statements;

 

    Pay its own liabilities out of its own funds;

 

    Maintain an arm’s length relationship with its affiliates;

 

    Pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations;

 

    Not guarantee or become obligated for any debts, except as permitted in the Indenture Documents, including the debts of the Issuer or any Restricted Subsidiary or hold out its credit as being available to satisfy obligations of the Issuer or any Restricted Subsidiary;

 

    Allocate fairly and reasonably any overhead from shared office space, corporate overhead and resources; and

 

    Maintain adequate capital in light of its contemplated business operations.

(f) require each NewCo to indemnify the relevant Independent Manager in connection with all liabilities incurred in connection with acting in his or her capacity as such, and reimburse the reasonable and documented out-of-pocket expenses of such Independent Manager incurred in connection with acting in his or her capacity as such;

(g) require each NewCo to (i) permit each relevant Independent Manager attend any meeting of the board of managers of the relevant NewCo; and (ii) notify the relevant Independent Manager of any such meetings no later than concurrently with the delivery of notice thereof to any other member of the board of managers of the relevant NewCo, and provide the relevant Independent Manager with copies of any documents or materials to be provided in connection with such meetings or otherwise provided to any other member of the board of managers of the relevant NewCo; providing that the Independent Manager shall not have any voting rights with respect to any actions by the relevant NewCo other than as set forth in Paragraphs 3(a), 3(b), 3(d), and 3(e) above; and

(h) require all Managers to, to the fullest extent permitted by law, consider the interests of creditors of the relevant NewCo before initiating, instituting, consenting to, participating in or otherwise effect any Bankruptcy, liquidation or dissolution of a NewCo, consolidating a NewCo with or into any person, or selling all or substantially all of the assets of a NewCo.

 

 

1   TBD: Need to ensure Peabody AssetCo can access its cash at any given time, regardless of circumstances at the Parent and consolidated cash management system. Prior to Drop Down, cash received on account of receivables should enter system through an SPE to be allocated between Issuer and Peabody AssectCo pursuant to servicer arrangement TBD.

 

2


Bankruptcy ” means a voluntary or involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law, including the consent by the relevant NewCo to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the relevant NewCo or of any substantial part of its property, or the making by it of an assignment of a substantial part of its property for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the relevant NewCo in furtherance of any such action.

Independent Manager ” means initially, an individual designated by the Majority Holders, and thereafter, an individual designated as provided in 4(c) above.

 

3

Exhibit 99.5

KL Draft of March 1, 2016

Subject to FRE 408 & All Other Applicable Privileges

and Confidentiality Agreements

This proposal for a potential financing of the non-Guarantor, Unrestricted Subsidiary (“Four Star”) of Peabody Energy Corporation (“Peabody”) holding the assets proposed to be sold to Bowie Resource Partners (“Bowie”) (the “Financing”) is preliminary and non-binding and shall not be construed as a commitment to take any steps to effect the Financing or any other transaction.

Summary of Principal Terms of Financing of Four Star

Set forth below are certain principal terms of a $100,000,000 financing of Four Star:

 

Bowie Sale :    Four Star shall sell mining assets to Bowie in accordance with the terms of the existing purchase and sale agreement (the “ Sale Transaction ”).
Bowie Investment :    Simultaneously with the closing of the Sale Transaction, Four Star shall invest $100,000,000 in convertible preferred equity of Bowie on terms to be agreed (the “ Bowie Preferred ”).
Four Star Investment:    Simultaneously with the closing of the public and private exchange transactions contemplated by that certain term sheet (“ Term Sheet ”) between ACE and Peabody (the “ Exchange Transactions ”), the Holders shall purchase $100,000,000 of senior secured convertible notes of Four Star having the terms set forth on Exhibit A (the “ Four Star Notes ”). The Four Star Notes shall have the same economic terms as the Bowie Preferred and shall be convertible into preferred equity of Four Star having the same terms as the Bowie Preferred (the “ Preferred ”). 1 The investment in the Four Star Notes is referred to as the “ Mirror Investment .” Four Star’s payment obligations under the Four Star Notes shall be secured by the Bowie Preferred and a secured guarantee by Bond HoldCo, which shall hold the Balance Sheet Notes (each as defined below). Four Star shall become subject to bankruptcy remote provisions on or prior to the closing of the Mirror Investment.
Exchange Transactions :    A newly formed, bankruptcy remote, non-Guarantor, Unrestricted Subsidiary (“ Bond HoldCo ”) shall conduct the cash portion of the public exchange transaction contemplated by the Term Sheet (and Peabody shall invest the applicable cash in Bond HoldCo prior to closing of the Exchange Transaction), and hold all acquired Peabody notes on its balance sheet (the “ Balance Sheet Notes ”). Bond HoldCo shall guarantee the Four Star Notes and the new PIK Notes to be issued to the Specified Holders in the Exchange Transactions (the “ PIK Notes ”), to the maximum extent permitted pursuant to the indenture for the 10% Senior Secured Second Lien Notes due 2022 of Peabody (the “ Second Lien Indenture ”), and that would result in Bond HoldCo remaining solvent on a pro forma basis after giving effect to such guarantee. Bond HoldCo shall be able to dividend or otherwise utilize the cash payments of interest received from Peabody in respect of the Balance Sheet Notes.

 

1   At the election of Peabody, the Holders will instead make the Mirror Investment directly at closing of the Sale Transaction upon cash investment by Peabody in the amount of the Mirror Investment which shall serve as collateral, or an exchange by Peabody of a like amount of new First Lien Notes (the “Exchange Notes”) for unsecured notes of Peabody currently held by the Lenders with an aggregate principal amount equal to the Mirror Investment. In this case, upon closing of the Exchange Transactions and effectiveness of the secured guarantee and the collateral thereunder, the cash collateral shall be released, or the First Lien in favor of the Exchange Notes shall be released, as applicable.


Exhibit A – Four Star Notes

$100,000,000 senior secured notes due [2021] to be issued by Four Star shall include the following principal terms (the “ Four Star Notes ”):

 

    Interest shall mirror, in format and amount, dividends payable to Four Star in respect of the Bowie Preferred;

 

    The Four Star Notes shall be secured by a first lien on all assets of Four Star (which shall consist of the Bowie Preferred and payments and rights in respect thereof);

 

    No additional debt or liens at Four Star or any subsidiaries of Four Star;

 

    No restrictions on cash dividends from proceeds of issuance of Four Star Notes;

 

    The Four Star Notes shall be callable by Four Star if the Bowie Preferred is called by Bowie, for the full amount of the call consideration payable by Bowie in respect of the Bowie Preferred;

 

    The Four Star Notes shall include customary events of default including a cross default upon a bankruptcy of Peabody; 2 and

 

    The Four Star Notes shall be convertible into Preferred Equity of Four Star having the same terms as the Bowie Preferred at the election of the Holders.

 

2   The pledge agreement pursuant to which the Balance Sheet Notes are held shall provide the holders, as secured parties, with a proxy to vote the Balance Sheet Notes.

 

2

Exhibit 99.6

Execution Version

THIS CREDIT AGREEMENT is entered into as of April 13, 2016 among each of the undersigned designated as a borrower on the signature page hereto (with any other Person (as hereinafter defined) that becomes a borrower pursuant to Section 2.12 hereof, collectively, the “ Borrowers ” and individually, each a “ Borrower ”), Peabody Energy Australia Pty Ltd ACN 096 909 410 and PEAMCoal Pty Ltd ACN 152 004 772 (each a “ Parent ”), each other Guarantor (as hereinafter defined) from time to time party hereto and Global Center for Energy and Human Development, LLC (the “ Lender ”).

RECITALS:

WHEREAS, for the purposes specified in Section 5.07(a) and subject to the terms and conditions of this Agreement, the Borrowers desire to obtain from the Lender Loans pursuant to the Revolving Commitments.

WHEREAS, the Lender is willing, on the terms and subject to the conditions hereinafter set forth, to make the Loans to the Borrowers as set forth herein.

NOW, THEREFORE, the parties hereto agree as follows:

AGREEMENT:

In consideration of the premises and the mutual covenants contained herein, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS AND TERMS

Section 1.01 Certain Defined Terms . As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires:

Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (i) the acquisition of all or substantially all of the assets of any Person, or any business or division of any Person, (ii) the acquisition or ownership of in excess of 50% of the Equity Interests of any Person, or (iii) the acquisition of another Person by a merger, consolidation, amalgamation or any other combination with such Person.

Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person, or, in the case the Lender is an investment fund, the investment advisor thereof and any investment fund having the same investment advisor. A Person shall be deemed to control a second Person if such first Person possesses, directly or indirectly, the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors or managers of such second Person or (ii) to direct or cause the direction of the management and policies of such second Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding the foregoing, the Lender shall not in any event be considered an Affiliate of any Borrower or any Subsidiary.

Agreement ” means this Credit Agreement, including any exhibits or schedules, as the same may from time to time be amended, restated, amended and restated, supplemented or otherwise modified.

Allocable Amount ” means, as of any date of determination, for a Borrower, the maximum amount of liability that could be asserted against such Borrower under this Agreement with respect to the


applicable Borrower Payment without (i) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code or Section 2 of either the Uniform Fraudulent Transfer Act (as in effect in any applicable state, the “UFTA”) or the Uniform Fraudulent Conveyance Act (as in effect in any applicable state, the “UFCA”), (ii) leaving such Borrower with unreasonably small capital, within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or Section 5 of the UFCA, or (iii) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or Section 6 of the UFCA.

Anti-Terrorism Law ” means the USA Patriot Act or any other law pertaining to the prevention of future acts of terrorism, in each case as such law may be amended from time to time.

Applicable Margin ” means, for any day, a rate per annum equal to fifteen percent (15.0%) per annum.

Approved Bank ” has the meaning provided in subpart (ii) of the definition of “Cash Equivalents.”

Asset Sale ” means, with respect to any Person, the sale, lease, transfer or other disposition (including by means of sale and leaseback transactions, and by means of mergers, consolidations, amalgamations and liquidations of a corporation, partnership or limited liability company of the interests therein of such Person) by such Person to any other Person of any of such Person’s assets; provided that the term Asset Sale specifically excludes (i) any sales, transfers or other dispositions of inventory, or obsolete, worn-out or excess furniture, fixtures, equipment, accounts receivable or other property, real or personal, tangible or intangible, in each case in the ordinary course of business, and (ii) the actual or constructive total loss of any property or the use thereof resulting from any Event of Loss.

Attributable Indebtedness ” means, on any date of determination, in respect of any Capital Lease Obligations of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

Australian PPS Law ” means: (a) the Australian PPSA; (b) regulations made under the Australian PPSA; or (c) any amendment made at any time to any other legislation as a consequence of an Australian PPSA Law referred to in clauses (a) and (b) of this definition, including amendments to the Corporations Act.

Australian PPSA ” means the Personal Property Securities Act 2009 (Cth) of Australia.

Authorized Officer ” means, with respect to any Person, any of the following officers: the President Australia, the SVP Finance & Administration Australia, the Treasurer Australia, the Treasury Manager Australia or such other Person as is authorized in writing to act on behalf of such Person and is acceptable to the Lender. Unless otherwise qualified, all references herein to an Authorized Officer shall refer to an Authorized Officer of the Borrower Representative.

Availability Block ” means the percentage of the Revolving Commitment available to the Borrowers on a specific date as set forth below (or such other time periods and percentages as may be mutually agreed (in good faith) from time to time between the Lender and the Borrowers):

 

Time Period

   Availability Block  

Closing Date through June 30, 2016

     35

July 1, 2016 through August 31, 2016

     60

September 1, 2016 through December 31, 2016

     75

January 1, 2017 through the Revolving Facility Termination Date

     100

 

2


Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto, as hereafter amended.

Borrower ” and “ Borrowers ” each has the meaning provided in the first paragraph of this Agreement.

Borrower Payment ” has the meaning provided in Section 2.05(e) .

Borrower Representative ” means Peabody Energy Australia Coal Pty Ltd.

Borrowing ” means the incurrence of Revolving Loans by the Borrowers on a given date.

Bowen GSA ” means the certain General Security Deed granted or to be granted by Peabody (Bowen) in favour of the Lender.

Business Day ” means any day other than Saturday, Sunday or any other day on which commercial banks in New York, New York or Brisbane, Australia or Sydney, Australia are authorized or required by law to close.

Capital Distribution ” means, with respect to any Person, a payment made, liability incurred or other consideration given for the purchase, acquisition, repurchase, redemption or retirement of any Equity Interest of such Person or as a dividend, return of capital or other distribution in respect of any of such Person’s Equity Interests.

Capital Lease ” as applied to any Person means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP (as it applies as of the date of this Agreement), should be accounted for as a capital lease on the balance sheet of that Person.

Capitalized Lease Obligations ” means, with respect to any Person, all obligations under Capital Leases of such Person, without duplication, in each case taken as the amount thereof accounted for as liabilities identified as “capital lease obligations” (or any similar words) on the balance sheet of such Person prepared in accordance with GAAP (as it applies as of the date of this Agreement).

Cash Equivalents ” means any of the following:

(i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition;

(ii) U.S. dollar denominated time deposits, certificates of deposit and bankers’ acceptances of (y) any commercial bank of recognized standing organized under the laws of the United States (or any state thereof or the District of Columbia) and having capital and surplus in excess of $500,000,000 or (z) any commercial bank (or the parent company of such bank) of recognized standing organized under the laws of the United States (or any state thereof or the District of Columbia) and whose short-term

 

3


commercial paper rating from S&P is at least A-1, A-2 or the equivalent thereof or from Moody’s is at least P-1, P-2 or the equivalent thereof (any such bank, an “ Approved Bank ”), in each case with maturities of not more than 180 days from the date of acquisition;

(iii) time deposits, certificates of deposit and bankers’ acceptances of any commercial bank of recognized standing organized under the laws of Australia and having capital and surplus in excess of $500,000,000, in each case with maturities of not more than 180 days from the date of acquisition;

(iv) commercial paper issued by any Approved Bank or by the parent company of any Approved Bank and commercial paper issued by, or guaranteed by, any industrial or financial company of recognized standing organized under the laws of the United States (or any state thereof or the District of Columbia) with a short-term commercial paper rating of at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, or guaranteed by any industrial company of recognized standing organized under the laws of the United States (or any state thereof or the District of Columbia) with a long-term unsecured debt rating of at least A or A2, or the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case maturing within 180 days after the date of acquisition; and

(v) fully collateralized repurchase agreements entered into with any Approved Bank having a term of not more than 30 days and covering securities described in clause (i) above.

Cash Flow Projections ” has the meaning provided in Section 6.01(d) .

Cash Proceeds ” means, with respect to (i) any Asset Sale, the aggregate cash payments (including any cash received by way of deferred payment pursuant to a note receivable issued in connection with such Asset Sale, other than the portion of such deferred payment constituting interest, but only as and when so received) received by any Credit Party or any Subsidiary from such Asset Sale, (ii) any Event of Loss, the aggregate cash payments, including all insurance proceeds and proceeds of any award for condemnation or taking, received in connection with such Event of Loss and (iii) the issuance or incurrence of any Indebtedness, the aggregate cash proceeds received by any Credit Party or any Subsidiary in connection with the issuance or incurrence of such Indebtedness.

Change in Control ” means that, for any reason:

(i) Peabody Energy Corporation ceases to own, either directly or indirectly, 100% of the Equity Interests in each Parent;

(ii) a Parent ceases to own, either directly or indirectly, 100% of the Equity Interests in the Credit Parties; and

(iii) the occurrence of a change in control or similar provision under or with respect to any Material Indebtedness Agreement or Equity Interests of the Credit Parties.

Charges ” has the meaning provided in Section 10.18 .

Clean-Down Date ” has the meaning provided in Section 2.10(b)(vi) .

Closing Date ” means April 13, 2016.

Collateral ” means, collectively, the “Secured Property” as defined in the Security Agreement and any other collateral (whether Real Property or personal property) covered by any Security Document.

 

4


Compliance Certificate ” has the meaning provided in Section 6.01(c) .

Confidential Information ” has the meaning provided in Section 10.13(b) .

Corporations Act ” means the Corporations Act 2001 (Cth) of Australia.

Credit Facility ” means the credit facility established under this Agreement pursuant to which the Lender shall make Revolving Loans to the Borrowers.

Credit Party ” means any Borrower or any Guarantor.

Default ” means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.

Default Rate ” means, for any day, an interest rate equal to the Applicable Rate plus 2% per annum.

Disqualified Equity Interests ” means any Equity Interest that (a) by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Revolving Facility Termination Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or other Indebtedness or (ii) any Equity Interest referred to in clause (a) above, in each case at any time on or prior to the first anniversary of the Revolving Facility Termination Date, (c) contains any repurchase obligation that may come into effect prior to payment in full of all Obligations, (d) requires cash dividend payments prior to one year after the Revolving Facility Termination Date, (e) does not provide that any claims of any holder of such Equity Interest may have against the Borrowers or any other Credit Party (including any claims as judgment creditor or other creditor in respect of claims for the breach of any covenant contained therein) shall be fully subordinated (including a full remedy bar) to the Obligations in a manner reasonably satisfactory to the Lender, (f) provides the holders of such Equity Interests with any rights to receive any cash upon the occurrence of a change of control prior to the first anniversary date on which the Obligations have been irrevocably paid in full, unless the rights to receive such cash are contingent upon the Obligations being irrevocably paid in full, or (g) is otherwise prohibited by the terms of this Agreement.

Dollars ,” “ U.S. Dollars ” and the sign “ $ ” each means lawful money of the United States.

Equity Interest ” means, with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or non-voting) of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) or any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership, but in no event will Equity Interest include any debt securities convertible or exchangeable into equity unless and until actually converted or exchanged.

Event of Default ” has the meaning provided in Section 8.01 .

Event of Loss ” means, with respect to any property, (i) the actual or constructive total loss of such property or the use thereof resulting from destruction, damage beyond repair, or the rendition of such property permanently unfit for normal use from any casualty or similar occurrence whatsoever, (ii) the destruction or damage of a portion of such property from any casualty or similar occurrence whatsoever,

 

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(iii) the condemnation, confiscation or seizure of, or requisition of title to or use of, any property, or (iv) in the case of any property located upon a leasehold, the termination or expiration of such leasehold (other than at the end of a stated term in any lease).

Excluded Property means any property in respect of which any Credit Party has at any time sufficient rights to grant a security interest but which is and remains subject to a prohibition or restriction (including any which requires the consent or waiver of any person) on the granting of a security interest over that property under:

(a) any applicable law;

(b) any contract, licence or other agreement to which the Grantor is a party,

including, in each case, without limitation any mining tenements which are subject to any such prohibitions or restrictions. For the avoidance of doubt, any property will automatically cease to be “Excluded Property” and will become subject to the relevant security interest on and from the time that the prohibition or restriction on granting a security interest over that property ceases to apply (including, for the avoidance of doubt, by reason of any requisite consents or waivers being given to the relevant Credit Party in relation to the granting of the security interest).

FIRB ” means the Foreign Investment Review Board, Australia.

FIRB Application ” means an application made by the Lender under the Foreign Acquisitions and Takeovers Act 1975 (Cwlth), pursuant to Section 6.10(a).

FIRB No Objection Notice ” means a written notice from FIRB to the Lender notifying the Lender that FIRB either approves of or does not object to the transactions the subject of the FIRB Application.

Free Cash ” means cash held by the Credit Parties or any of its Subsidiaries that is not held in escrow, trust or other fiduciary capacity for or on behalf of any other Person or subject to any other restriction.

GAAP ” means generally accepted accounting principles in Australia as in effect from time to time (except where otherwise specified).

Governmental Authority ” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Guarantor ” means Parent and any Subsidiary of Parent that is or hereafter becomes a party to the Guaranty.

Guaranty ” means that certain Deed of Guaranty, dated as of the date hereof, among the Credit Parties and the Lender, and any other guaranty, in form and substance satisfactory to the Lender, pursuant to which a Person guarantees all or any portion of the Obligations.

Guaranty Obligations ” means as to any Person (without duplication) any obligation of such Person guaranteeing any Indebtedness (“ primary Indebtedness ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person,

 

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whether or not contingent: (i) to purchase any such primary Indebtedness or any property constituting direct or indirect security therefore; (ii) to advance or supply funds for the purchase or payment of any such primary Indebtedness or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary Indebtedness of the ability of the primary obligor to make payment of such primary Indebtedness; or (iv) otherwise to assure or hold harmless the owner of such primary Indebtedness against loss in respect thereof, provided , however , that the definition of Guaranty Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary Indebtedness in respect of which such Guaranty Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder).

Hedge Agreement ” means (i) any interest rate swap agreement, any interest rate cap agreement, any interest rate collar agreement or other similar interest rate management agreement or arrangement, (ii) any currency swap or option agreement, foreign exchange contract, forward currency purchase agreement or similar currency management agreement or arrangement or (iii) any commodities hedge agreement.

Indebtedness ” of any Person means without duplication:

(i) all indebtedness of such Person for borrowed money;

(ii) all bonds, notes, debentures and similar debt securities of such Person;

(iii) the deferred purchase price of capital assets or services that in accordance with GAAP (as it applies as at the date of this Agreement) would be shown on the liability side of the balance sheet of such Person;

(iv) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder and unpaid reimbursement obligations in respect thereof;

(v) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances or surety bonds;

(vi) all indebtedness of a second Person secured by any Lien on any property owned by such first Person, whether or not such indebtedness has been assumed;

(vii) all Capitalized Lease Obligations of such Person;

(viii) all obligations of such Person with respect to asset securitization financing;

(ix) all net obligations of such Person under Hedge Agreements;

(x) all Disqualified Equity Interests of such Person;

(xi) the full outstanding balance of trade receivables, notes or other instruments sold with full recourse (and the portion thereof subject to potential recourse, if sold with limited recourse), other than in any such case any thereof sold solely for purposes of collection of delinquent accounts; and

(xii) all Guaranty Obligations of such Person;

 

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provided , however, that (y) neither trade payables (other than trade payables outstanding for more than 90 days after the date such trade payables were created), deferred revenue, taxes nor other similar accrued expenses, in each case arising in the ordinary course of business, shall constitute Indebtedness; and (z) the Indebtedness of any Person shall in any event include (without duplication) the Indebtedness of any other entity (including any general partnership in which such Person is a general partner) to the extent such Person is liable thereon as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide expressly that such Person is not liable thereon. The amount of any Capital Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any indebtedness of a joint venture secured by a Lien on property owned or being purchased by any Credit Party or any Subsidiary as of any date shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the indebtedness that is secured by such Lien and (b) the maximum amount for which any Credit Party or any Subsidiary may be liable (which may be determined with reference to the fair market value of the property securing such indebtedness as reasonably determined by any Parent in good faith) pursuant to the terms of such indebtedness. Except as set forth in the sentence immediately above, the amount of indebtedness of any joint venture, which is attributable to any Credit Party or any Subsidiary, shall be deemed to equal the amount of indebtedness that would be attributable to that Credit Party or any Subsidiary in accordance with GAAP.

Indemnitees ” has the meaning provided in Section 10.02 .

Insolvency Event ” means, with respect to any Person:

(i) the commencement of a voluntary case by such Person under the Bankruptcy Code or the seeking of relief by such Person under any bankruptcy, winding up, insolvency or analogous law in any jurisdiction outside of the United States or any other action is taken with a view to the winding up of such Person;

(ii) the commencement of an involuntary case against such Person under the Bankruptcy Code or any bankruptcy, winding up, or insolvency or analogous law in any jurisdiction outside of the United States and the petition is not controverted within 10 days, or is not dismissed within 60 days, after commencement of the case;

(iii) a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of such Person;

(iv) such Person commences (including by way of applying for or consenting to the appointment of, or the taking of possession by, a rehabilitator, receiver, custodian, trustee, conservator or liquidator (collectively, a “ conservator ”) of such Person or all or any substantial portion of its property) any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, winding up, liquidation, rehabilitation, conservatorship or similar law of any jurisdiction whether now or hereafter in effect relating to such Person;

(v) any such proceeding of the type set forth in clause (iv) above is commenced against such Person to the extent such proceeding is consented to by such Person or remains undismissed for a period of 60 days;

(vi) such Person is adjudicated insolvent or bankrupt;

 

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(vii) any order of relief or other order approving any such case or proceeding is entered, if available under applicable law;

(viii) such Person suffers any appointment of any conservator or the like for it or any material part of its property that continues undischarged or unstayed for a period of 60 days;

(ix) such Person makes a general assignment for the benefit of creditors or generally does not or is unable to pay its debts as such debts become due;

(x) any petition is presented or order or meeting convened or resolution passed for the winding up or administration of such Person or for a provisional liquidator to be appointed in respect of such Person and the petition is not controverted within 10 days, or is not dismissed within 60 days, after commencement of the case;

(xi) any distress, execution or other process is levied on any material portion of the assets of such Person or any liquidator, provisional liquidator, receiver or administrative receiver of such Person is appointed;

(xii) any corporate (or similar organizational) action is taken by such Person for the purpose of effecting any of the foregoing; or

(xiii) any event analogous to any of the foregoing occurring in or outside of the United States.

Investment ” means: (i) any direct or indirect purchase or other acquisition by a Person of any Equity Interest of any other Person; (ii) any loan, advance (other than deposits with financial institutions available for withdrawal on demand), capital contribution or extension of credit to, guarantee or assumption of debt or purchase or other acquisition of any other Indebtedness of, any Person by any other Person; or (iii) the purchase, acquisition or investment of or in any stocks, bonds, mutual funds, notes, debentures or other securities, or any deposit account, certificate of deposit or other investment of any kind.

Leaseholds ” of any Person means all the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.

Lender ” has the meaning provided in the first paragraph of this Agreement.

Lien ” means any mortgage, pledge, security interest, hypothecation, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

Loan ” means any Revolving Loan.

Loan Documents ” means this Agreement, the Note, any Guaranty, any joinder agreement, the Security Documents and any other agreement, document or instrument executed in connection herewith or therewith.

Margin Stock ” has the meaning provided in Regulation U.

Material Adverse Effect ” means any or all of the following: (i) any material adverse effect on the business, operations, property, assets, liabilities or financial or other condition of any Borrower or the

 

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Borrowers and their Subsidiaries, taken as a whole; (ii) any material adverse effect on the ability of any Borrower or any other Credit Party to perform its obligations under any of the Loan Documents to which it is a party, or any material adverse effect on the ability of the Borrowers and the other Credit Parties, taken as a whole, to perform their obligations under any of the Loan Documents to which they are party; (iii) any material adverse effect on the validity, effectiveness or enforceability, as against any Borrower, individually, or the Credit Parties, taken as a whole, of any of the Loan Documents to which it is or they are a party; (iv) any material adverse effect on the rights and remedies of the Lender against any Borrower or the Credit Parties, taken as a whole, under any Loan Document; or (v) any material adverse effect on the validity, perfection or priority of any Lien in favor of the Lender on any of the Collateral; provided that, in each case above, other than, as arising directly or indirectly as a result of (x) any Insolvency Event affecting Peabody Energy Corporation or any of its Subsidiaries incorporated in the United States of America or (y) an “Event of Default” occurring under the US Credit Agreement (as that term is defined therein).

Material Indebtedness ” means, as to any Borrower or any Subsidiary, any particular Indebtedness of such Borrower or such Subsidiary (including any Guaranty Obligations) in excess of the aggregate principal amount of $50,000,000.

Material Indebtedness Agreement ” means any agreement governing or evidencing any Material Indebtedness.

Maximum Rate ” has the meaning provided in Section 10.18 .

Minimum Borrowing Amount ” means with respect to any Loan, $1,000,000, with minimum increments thereafter of $1,000,000.

Moody’s ” means Moody’s Investors Service, Inc. and its successors.

NAB ” means National Australia Bank Limited ABN 12 004 044 937.

NAB Transactional Facility ” means the document dated 4 February 2016 entitled “Transactional Facilities Letter of Offer” between Peabody Energy Australia Pty Ltd ACN 096 909 410, Peabody Coalsales Pacific Pty Ltd ACN 146 797 408 and NAB.

Net Cash Proceeds ” means, with respect to (i) any Asset Sale, the Cash Proceeds resulting therefrom net of (A) reasonable and customary expenses of sale incurred in connection with such Asset Sale, and other reasonable and customary fees and expenses incurred, and all state and local taxes paid or reasonably estimated to be payable by such Person as a consequence of such Asset Sale, and the payment of principal, premium and interest of Indebtedness (other than the Obligations) secured by the asset that is the subject of such Asset Sale, and required to be, and that is, repaid under the terms thereof as a result of such Asset Sale, and (B) incremental federal, state and local income taxes paid or payable as a result thereof; (ii) any Event of Loss, the Cash Proceeds resulting therefrom net of (A) reasonable and customary expenses incurred in connection with such Event of Loss, and local taxes paid or reasonably estimated to be payable by such Person as a consequence of such Event of Loss and the payment of principal, premium and interest of Indebtedness (other than the Obligations) secured by the asset that is the subject of the Event of Loss and required to be, and that is, repaid under the terms thereof as a result of such Event of Loss, and (B) incremental federal, state and local income taxes paid or payable as a result thereof; and (iii) the incurrence or issuance of any Indebtedness, the Cash Proceeds resulting therefrom net of reasonable and customary fees and expenses incurred in connection therewith and net of the repayment or payment of any Indebtedness or obligation intended to be repaid or paid with the proceeds of such Indebtedness; in the case of each of clauses (i), (ii) and (iii), to the extent, but only to the

 

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extent, that the amounts so deducted are (x) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (y) properly attributable to such transaction or to the asset that is the subject thereof.

Note ” means a promissory note substantially in the form of Exhibit A .

Notice of Borrowing ” has the meaning provided in Section 2.04(b) .

Notice Office ” means the office of the Lender at 701 Market Street, St. Louis, MO 63101, Attention: Senior Vice President - Finance, with a copy to 701 Market Street, St. Louis, MO 63101, Attention: Chief Legal Officer, or, in each case, such other office as the Lender may designate in writing to the Borrowers from time to time.

Obligations ” means all amounts, indemnities and reimbursement obligations, direct or indirect, contingent or absolute, of every type or description, and at any time existing, owing by any Credit Party to the Lender or any Affiliate of the Lender pursuant to the terms of this Agreement or any other Loan Document (including, but not limited to, interest and fees that accrue after the commencement by or against any Credit Party of any insolvency proceeding, regardless of whether allowed or allowable in such proceeding or subject to an automatic stay under Section 362(a) of the Bankruptcy Code). Without limiting the generality of the foregoing description of Obligations, the Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, reasonable attorneys’ fees and disbursements, indemnities and other amounts payable by the Credit Parties under any Loan Document, and (b) the obligation to reimburse any amount in respect of any of the foregoing that the Lender or any Affiliate, in connection with the terms of any Loan Document, may elect to pay or advance on behalf of the Credit Parties.

Organizational Documents ” means, with respect to any Person (other than an individual), such Person’s Articles (Certificate) of Incorporation, or equivalent formation documents, and Bylaws, or equivalent governing documents, and, in the case of any partnership, includes any partnership agreement and any amendments to any of the foregoing.

Parent ” has the meaning provided in the first paragraph of this Agreement.

Payment Office ” means such office(s) as the Lender may designate to the Borrowers in writing from time to time.

Peabody Bowen ” means Peabody (Bowen) Pty Ltd ACN 010 879 526.

Permitted Creditor Investment ” means any securities (whether debt or equity) received by any Borrower or any Subsidiary in connection with the bankruptcy or reorganization of any customer or supplier of such Borrower or any such Subsidiary and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business.

Permitted Lien ” means any Lien permitted by Section 7.03 .

Permitted Purposes ” means general corporate purposes (including, without limitation, capital expenditures) and working capital, in each case, not inconsistent with the terms of this Agreement and otherwise not in violation of applicable law.

 

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Person ” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, central bank, trust or other enterprise or any governmental or political subdivision or any agency, department or instrumentality thereof.

“Post-Closing Security Agreement ” means:

(a) a certain general security deed among the Credit Parties (other than any Credit Party expressly restricted from granting a general security under the terms of the FIRB No Objection Notice) and the Lender; and

a certain specific security deed among the Credit Parties (other than any Credit Party expressly restricted from granting a specific security under the terms of the FIRB No Objection Notice) and the Lender,

in each case, where the property secured under such Post-Closing Security Agreement (i) excludes the Excluded Property and (ii) is not otherwise already secured in favour of the Lender under any other Loan Document, and the granting of the Lien under such Post-Closing Security Agreement would not breach any condition of the terms of the FIRB No Objection Notice or is not otherwise expressly restricted under those terms.

Production Payments ” means with respect to any Person, all production payment obligations and other similar obligations with respect to coal and other natural resources of such Person that are recorded as a liability or deferred revenue on the financial statements of such Person in accordance with GAAP.

Real Property ” of any Person shall mean all of the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.

Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

Related Parties ” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

Restricted Payment ” means (i) any Capital Distribution, (ii) any amount paid by any Credit Party or any Subsidiary in repayment, prepayment, redemption, retirement, repurchase, direct or indirect, of any subordinated Indebtedness or (iii) any voluntary or mandatory prepayment of principal of any Material Indebtedness (other than the Obligations).

Revolving Commitment ” means $250,000,000.

Revolving Facility ” means the credit facility established under Section 2.02 pursuant to the Revolving Commitment.

Revolving Facility Availability Period ” means the period from the Closing Date until the Revolving Facility Termination Date.

Revolving Facility Exposure ” means, at any time, the sum of the principal amounts of all Revolving Loans made by the Lender and outstanding at such time.

Revolving Facility Termination Date ” means the earlier of (i) March 13, 2019 and (ii) the date that all of the Revolving Commitments have been terminated pursuant to Section 2.09 or Section 8.02 .

 

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Revolving Loan ” means any loan made by the Lender pursuant to Section 2.02 .

S&P ” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., and its successors.

SEC ” means the United States Securities and Exchange Commission.

Security Agreement ” means

that certain Specific Security Deed, dated as of the date hereof, among Peabody Energy Australia PCI Pty Ltd ACN 096 001 955 and the Lender.

Security Documents ” means the Security Agreement, each additional security document entered into pursuant to Section 6.08 hereof or any other Loan Document, any UCC financing statement, any control agreement and any document pursuant to which any Lien is granted or perfected by any Credit Party to the Lender as security for any of the Obligations.

Standard Permitted Lien ” means any of the following:

(i) Liens for taxes not yet delinquent or Liens for taxes, assessments or governmental charges being contested in good faith and by appropriate proceedings for which adequate reserves in accordance with GAAP have been established;

(ii) Liens in respect of property or assets imposed by law that were incurred in the ordinary course of business, such as carriers’, suppliers’, warehousemen’s, materialmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, that do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of a Parent or any of its Subsidiaries and do not secure any Indebtedness;

(iii) Liens created by this Agreement or the other Loan Documents;

(iv) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 8.01(h) ;

(v) Liens incurred or deposits made in the ordinary course of business in connection with workers compensation, unemployment insurance and other types of social security, and mechanic’s Liens, carrier’s Liens, and other Liens to secure the performance of tenders, statutory obligations, contract bids, reclamation bonds, insurance bonds, statutory obligations, government contracts, surety, appeal, customs, performance bonds, bank guarantees, letters of credit and return-of-money bonds and other similar obligations, incurred in the ordinary course of business (exclusive of obligations in respect of the payment for borrowed money), whether pursuant to statutory requirements, common law or consensual arrangements;

(vi) leases or subleases granted in the ordinary course of business to others not interfering in any material respect with the business of a Parent or any of its Subsidiaries and any interest or title of a lessor under any lease not in violation of this Agreement;

(vii) easements, agistments, rights-of-way, zoning or other restrictions, charges, encumbrances, defects in title, prior rights of other persons, and obligations contained in similar instruments, in each case that do not secure Indebtedness and do not involve, and are not likely to involve at any future time, either individually or in the aggregate, (A) a substantial and prolonged interruption or disruption of the business activities of a Parent and its Subsidiaries considered as an entirety, or (B) a Material Adverse Effect;

 

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(viii) Liens arising from the rights of lessors under leases (including financing statements regarding property subject to lease) not in violation of the requirements of this Agreement, provided, that such Liens are only in respect of the property subject to, and secure only, the respective lease (and any other lease with the same or an affiliated lessor);

(ix) one of the following transactions to the extent permitted under this Agreement and such transaction does not secure payment or performance of an obligation: (A) a transfer of an “account” or “chattel paper” (as defined in the Australian PPSA), (B) a commercial consignment, or (C) a PPS lease (as defined in the Australian PPSA);

(x) Liens with respect to retention of title arrangements entered into by any Credit Party or its Subsidiary in the ordinary course of business;

(xi) (A) Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties or (B) cross charges, Liens or security arrangements entered into in respect of a joint venture for the benefit of a participant, manager or operator of such joint venture, in each case, consistent with normal practices in the mining industry;

(xii) (A) Liens in favor of a banking institution arising by operation of law or any contract encumbering deposits (including the right of set-off) held by such banking institutions incurred in the ordinary course of business and which are within the general parameters customary in the banking industry or (B) contractual rights of setoff to the extent constituting Liens; and

(xiii) Liens on receivables and rights related to such receivables created pursuant to any agreement under which such receivables or rights are transferred (to the extent, in each case, that any such disposition of receivables is deemed to give rise to a Lien).

Subsidiary ” of any Person means (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary Voting Power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have Voting Power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries, owns more than 50% of the Equity Interests of such Person at the time or in which such Person, one or more other Subsidiaries of such Person or such Person and one or more Subsidiaries of such Person, directly or indirectly, has the power to direct the policies, management and affairs thereof (it being understood that none of (i) Wambo Coal Pty Ltd ACN 000 668 057, (ii) Middlemount Coal Pty Ltd ACN 122 348 412, (iii) Monto Coal 2 Pty Ltd ACN 098 919 414, (iv) Red Mountain Infrastructure Pty Ltd ACN 115 080 003, (iv) Peabody Energy Australia PCI (C&M Equipment) Pty Ltd ACN 121 437 036, (v) Peabody Energy Australia (C&M Management) Pty Ltd ACN 077 890 932, (vi) Peabody Bistrotel Pty Ltd ACN 079 942 073 and (vii) each of their subsidiaries (as defined in the Corporations Act) shall constitute a Subsidiary of any Borrower or its Subsidiaries hereunder). Unless otherwise expressly provided, all references herein to “Subsidiary” shall mean a Subsidiary of a Parent.

Taxes ” has the meaning provided in Section 3.01(a) .

 

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Total Credit Facility Amount ” means the Revolving Commitment. As of the Closing Date, the Total Credit Facility Amount is $250,000,000.

UCC ” means the Uniform Commercial Code as in effect from time to time. Unless otherwise specified, the UCC shall refer to the UCC as in effect in the State of New York.

United States ” and “ U.S . ” each means United States of America.

USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001.

US Credit Agreement ” means the Amended and Restated Credit Agreement, dated September 24, 2013, between Peabody Energy Corporation, as borrower, Citibank N.A., as administrative agent, and the other parties party thereto from time to time (as amended).

Voting Power ” means, with respect to any Person, the exclusive ability to control, through the ownership of shares of capital stock, partnership interests, membership interests or otherwise, the election of members of the board of directors or other similar governing body of such Person, and the holding of a designated percentage of Voting Power of a Person means the ownership of shares of capital stock, partnership interests, membership interests or other interests of such Person sufficient to control exclusively the election of that percentage of the members of the board of directors or other similar governing body of such Person.

Section 1.02 Computation of Time Periods . In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each means “to but excluding” and the word “through” means “through and including.”

Section 1.03 Accounting Terms . Except as otherwise specifically provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time.

Section 1.04 Australian Legislation . Where the context so requires, (i) any term defined in this Agreement or the Loan Documents by reference to the “ UCC ” or the “ Uniform Commercial Code ” shall instead have the analogous meaning given to such term in applicable Australian PPS Law, in all cases for the extension, preservation or betterment of the security and rights of the Collateral, (ii) all references in this Agreement to a financing statement, continuation statement, amendment or termination statement shall instead be deemed to refer to the analogous documents used under applicable Australian PPS Law, (iii) all references to the United States of America, or to any subdivision, department, agency or instrumentality thereof shall instead be deemed to refer to Australia, or to any subdivision, department, agency or instrumentality thereof, (iv) all references to federal or state securities laws of the United States shall instead be deemed to refer to analogous federal and state securities laws in Australia, (v) all references to any proceeding, corporate action, procedure or step commenced or taken by or against that Person under any provision of the Bankruptcy Code, or under any other state or federal bankruptcy or insolvency law, shall instead be deemed to refer to a proceeding, corporate action, procedure or step commenced or taken by or against that Person under any provision of any analogous federal and state bankruptcy or insolvency laws in Australia, including the Corporations Act, and (vi) all references in this Agreement to GAAP shall instead be deemed to refer to generally accepted accounting principles in Australia as in effect from time to time.

Section 1.05 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall

 

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include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Schedules and Exhibits shall be construed to refer to Sections of, and Schedules and Exhibits to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all Real Property, tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and interests in any of the foregoing, and (f) any reference to a statute, rule or regulation is to that statute, rule or regulation as now enacted or as the same may from time to time be amended, re-enacted or expressly replaced.

ARTICLE II.

THE TERMS OF THE CREDIT FACILITY

Section 2.01 Establishment of the Credit Facility . On the Closing Date, and subject to and upon the terms and conditions set forth in this Agreement and the other Loan Documents, the Lender agrees to establish the Credit Facility for the benefit of the Borrowers; provided , however, that at no time will the Revolving Facility Exposure exceed the Total Credit Facility Amount.

Section 2.02 Revolving Facility . During the Revolving Facility Availability Period, the Lender agrees, on and subject to the terms and conditions set forth in this Agreement, to make a Revolving Loan or Revolving Loans to the Borrowers, in such amounts as the Borrowers may request from time to time pursuant to the Revolving Commitment, which Revolving Loans (i) may be repaid or prepaid and reborrowed in accordance with the provisions hereof; and (ii) shall not be made if, after giving effect to any such Revolving Loan, (A) the Revolving Facility Exposure would exceed the Revolving Commitment or (B) the Borrowers would be required to prepay Loans.

Section 2.03 [Reserved] .

Section 2.04 Notice of Borrowing .

(a) Time of Notice . Each Borrowing of a Loan shall be made upon notice in the form provided for below which shall be provided by the Borrower Representative to the Lender at its Notice Office not later than 11:00 A.M. (local time at its Notice Office) at least three (3) Business Days’ prior to the date of such Borrowing.

(b) Notice of Borrowing . Each request for a Borrowing shall be made by an Authorized Officer of the Borrower Representative by delivering written notice of such request substantially in the form of Exhibit B hereto (each such notice, a “ Notice of Borrowing ”) or by telephone (to be confirmed immediately in writing by delivery by an Authorized Officer of the Borrower Representative of a Notice of Borrowing), and in any event each such request shall specify (i) the aggregate principal amount of the Loans to be made pursuant to such Borrowing and (ii) the date of the Borrowing (which shall be a Business Day). Without in any way limiting the obligation of the Borrower Representative to confirm in writing any telephonic notice permitted to be given hereunder, the Lender may act prior to receipt of

 

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written confirmation without liability upon the basis of such telephonic notice believed by the Lender in good faith to be from an Authorized Officer of the Borrower Representative entitled to give telephonic notices under this Agreement on behalf of the Borrowers. In each such case, the Lender’s record of the terms of such telephonic notice shall be conclusive absent manifest error.

(c) Minimum Borrowing Amount . The aggregate principal amount of each Borrowing by the Borrowers shall not be less than the Minimum Borrowing Amount.

(d) Maximum Borrowings . Not more than two Borrowings may be incurred by the Borrowers during any calendar month.

Section 2.05 Evidence of Obligations .

(a) Loan Accounts . The Lender shall maintain accounts in which it shall record (i) the amount of each Loan and Borrowing made hereunder, (ii) the amount of any principal due and payable or to become due and payable from the Borrowers, and (iii) the other details relating to the Loans and other Obligations.

(b) Effect of Loan Accounts, etc . The entries made in the accounts maintained pursuant to Section 2.05(a) shall be prima facie evidence of the existence and amounts of the Obligations recorded therein; provided , that the failure of the Lender to maintain such accounts or any error (other than manifest error) therein shall not in any manner affect the obligation of any Credit Party to repay or prepay the Loans or the other Obligations in accordance with the terms of this Agreement.

(c) Note . Upon the request of the Lender, the Borrowers will execute and deliver to the Lender a Note to evidence the Borrowers’ obligation to pay the principal of, and interest on, the Revolving Loans made to it by the Lender and its registered assigns; provided, however, that the decision of the Lender to not request a Note shall in no way detract from the Borrowers’ obligations to repay the Loans and other amounts owing by the Borrowers to the Lender in accordance with the terms of this Agreement.

(d) Joint and Several Liability of the Borrowers . Each request by the Borrower Representative for a Borrowing shall be deemed to be a joint and several request by all of the Borrowers. Each Borrower acknowledges and agrees that the Lender is entering into this Agreement at the request of each Borrower and with the understanding that each Borrower is and shall remain fully liable, jointly and severally, for payment in full of all of the Obligations.

(e) Contribution Among Borrowers . To the extent that any Borrower shall make a payment (each a “ Borrower Payment ”) of all or any portion of the Obligations, then such Borrower shall be entitled to contribution and indemnification from, and be reimbursed by, the other Borrowers in an amount equal to a fraction of such Borrower Payment, the numerator of which fraction is such other Borrower’s Allocable Amount as of the date on which such payment is made (without giving effect to any right to receive, or obligation to make, any contribution hereunder), or if such other Borrower’s Allocable Amount has not been determined, the aggregate amount of all monies received by such other Borrower from all other Borrowers after the date hereof (whether by loan, capital infusion or by other means) and the denominator of which is the sum of the aggregate Allocable Amount of all Borrowers as of the date on which such payment is made (without giving effect to any right to receive, or obligation to make, any contribution hereunder), or to the extent that an Allocable Amount of a Borrower has not been determined, the aggregate amount of all monies received by such Borrower from all other Borrowers after the date hereof (whether by loan, capital infusion or by other means). This Section is intended only to define the relative rights of the Borrowers, and nothing set forth in this Section is intended to or shall impair the obligations of the Borrowers, jointly and severally, to pay any amounts, as and when the same

 

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shall become due and payable in accordance with the terms of this Agreement and the other Loan Documents. The Borrowers acknowledge that the rights of contribution and indemnification hereunder shall constitute assets in favor of each Borrower to which such contribution and indemnification is owing. Any right of contribution of any of the Borrowers shall be subject and subordinate to the prior indefeasible payment in full of the Obligations.

(f) Miscellaneous . The obligations of the Lender as provided in this Section shall be considered to have complied with if the Lender maintains such accounts consistent with past practice. Each Borrower hereby agrees that the failure of the Lender to comply with the provisions of this Section shall not relieve the Credit Parties of any of their obligations under this Agreement or any of the other Loan Documents.

Section 2.06 Interest; Default Rate .

(a) Interest on Revolving Loans . Subject to clauses (b) and (c) below, the outstanding principal amount of each Revolving Loan made by the Lender shall bear interest at the Applicable Margin.

(b) Default Interest . Notwithstanding the above provisions, if an Event of Default has occurred and is continuing, all outstanding amounts of principal and, to the extent permitted by applicable law, all overdue interest in respect of each Loan and all fees or other amounts owed hereunder shall bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable in cash on demand, at a rate per annum equal to the Default Rate. In addition, if any amount (other than amounts as to which the foregoing are applicable) payable by the Credit Parties under the Loan Documents is not paid when due, upon written notice by the Lender, such amount shall bear interest, payable in cash on demand, at a rate per annum equal to the Default Rate.

(c) Accrual and Payment of Interest . Interest shall accrue from and including the date of any Borrowing to but excluding the date of any prepayment or repayment thereof and shall be payable by the Borrowers on the Revolving Maturity Date, at maturity (whether by acceleration or otherwise), and, after such maturity or, in the case of any interest payable pursuant to Section 2.06(b) , on demand.

(d) Computations of Interest . All computations of interest hereunder shall be made on the actual number of days elapsed over a year of 360 days.

Section 2.07 [ Reserved ].

Section 2.08 Authority of the Borrower Representative . Each Borrower hereby irrevocably designates and appoints the Borrower Representative as its agent under this Agreement and the other Loan Documents and hereby irrevocably authorizes the Borrower Representative to give and receive notices on its behalf, and to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as such Borrower could exercise on its own (which the Borrower Representative may, but shall not be obligated to, do), together with such other powers as are reasonably incidental thereto, with all such actions by the Borrower Representative that purport to be on behalf of any Borrower being sufficient, without any further action or authorization by such Borrower, to bind such Borrower. Any requirement that notice be given to the Borrowers hereunder may be satisfied with a notice given only to the Borrower Representative, and any notice required to be given by the Borrowers may be satisfied with a notice given only by the Borrower Representative. The Lender shall be entitled to rely upon all statements, certificates, notices, consents, affidavits, letters, cablegrams, telegrams, facsimile transmissions, electronic transmissions, e-mails, telex or teletype messages, orders or other documents or conversations

 

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furnished or made by the Borrower Representative pursuant to any of the provisions of this Agreement or any of the other Loan Documents, or otherwise in connection with the transactions contemplated by the Loan Documents, as being made or furnished on behalf of, and with the effect of irrevocably binding, each Borrower, without any duty to ascertain or to inquire as to the authority of the Borrower Representative in so doing. Notwithstanding the foregoing, the Lender may also rely on or act in accordance with directions or instructions coming directly from any such Borrower.

Section 2.09 Termination and Reduction of Revolving Commitments .

(a) Mandatory Termination of Revolving Commitments . All of the Revolving Commitments shall terminate on the Revolving Facility Termination Date.

(b) Voluntary Termination of the Revolving Commitment . Upon at least three Business Days’ prior irrevocable written notice (or telephonic notice confirmed in writing) to the Lender at its Notice Office, the Borrowers shall have the right, without penalty or premium, to terminate (x) in whole the Revolving Commitment, provided that all outstanding Revolving Loans are contemporaneously prepaid in accordance with Section 2.10 or (y) in part the Revolving Commitment, provided that if the Revolving Facility Exposure exceeds the Total Credit Facility Amount, then the Borrowers shall, on such day, prepay on such date the principal amount of Loans in an aggregate amount at least equal to such excess.

Section 2.10 Voluntary, Scheduled and Mandatory Prepayments of Loans .

(a) Voluntary Prepayments . The Borrowers shall have the right to prepay any of the Loans owing by it, in whole or in part, without premium or penalty. The Borrower Representative shall give the Lender at the Notice Office written or telephonic notice (in the case of telephonic notice, promptly confirmed in writing if so requested by the Lender) of its intent to prepay the Loans, the amount of such prepayment, which notice shall be received by the Lender by 11:00 A.M. (local time at the Notice Office) three Business Days prior to the date of such prepayment, provided that:

(i) each partial prepayment shall be in an aggregate principal amount of at least $1,000,000 (or, if less, the full amount of such Borrowing), or an integral multiple of $1,000,000 in excess thereof; and

(ii) no partial prepayment of any Loans made pursuant to a Borrowing shall reduce the aggregate principal amount of such Loans outstanding pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto.

(b) Mandatory Payments . The Loans shall be subject to mandatory repayment or prepayment (in the case of any partial prepayment conforming to the requirements as to the amounts of partial prepayments set forth in Section 2.10(a) above), in accordance with the following provisions:

(i) Revolving Facility Termination Date . The entire principal amount of all outstanding Revolving Loans shall be repaid in full on the Revolving Facility Termination Date.

(ii) Loans Exceed the Total Credit Facility Amount . If on any date (after giving effect to any other payments made on such date) the Revolving Facility Exposure exceeds the Total Credit Facility Amount, then the Borrowers shall, on such day, prepay on such date the principal amount of Loans in an aggregate amount at least equal to such excess.

 

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(iii) Certain Proceeds of Asset Sales . If during any fiscal year of any of the Credit Parties or their respective Subsidiaries has received cumulative Net Cash Proceeds during such fiscal year from one or more Asset Sales of at least $10,000,000 (other than Asset Sales permitted by Section 7.02(e) ), not later than the third Business Day following the date of receipt of any Cash Proceeds in excess of such amount, an amount equal to 100% of the Net Cash Proceeds then received in excess of such amount from any Asset Sale shall be applied as a mandatory prepayment of the Loans in accordance with Section 2.10(b)(vii) below; provided , that (A) if no Default or Event of Default shall have occurred and be continuing, and (B) the Borrowers notify the Lender of the amount and nature thereof and of their intention to reinvest all or a portion of such Net Cash Proceeds in such capital expenditures during such 180-day period, then no such prepayment shall be required and may be applied as provided in Section   8.03 if an Event of Default occurs and is continuing. If at the end of any such 180-day period any portion of such Net Cash Proceeds has not been so reinvested, the Borrowers will immediately make a prepayment of the Loans, to the extent required above.

(iv) Certain Proceeds of Indebtedness . Not later than the second Business Day following the date of the receipt by any Credit Party of the Net Cash Proceeds from any sale or issuance of any Indebtedness (other than any Indebtedness permitted to be incurred pursuant to Section 7.04 after the Closing Date), the Borrowers will make a prepayment of the Loans in an amount equal to 100% of such Net Cash Proceeds in accordance with Section 2.10(b)(vii) below.

(v) Certain Proceeds of an Event of Loss . If during any fiscal year of the Borrowers, any of the Credit Parties or their respective Subsidiaries has experienced one or more Events of Loss, not later than the third Business Day following the date of receipt of any Net Cash Proceeds in excess of $1,000,000 in respect thereof (excluding proceeds of business interruption insurance), the Borrowers will make a prepayment of the Loans with an amount equal to 100% of the Net Cash Proceeds in excess of $1,000,000 then received from any Event of Loss in accordance with Section 2.10(b)(vii) below. Notwithstanding the foregoing, in the event any of the Credit Parties or their respective Subsidiaries experiences an Event of Loss and (A) the Net Cash Proceeds received in any fiscal year as a result of such Event of Loss are less than $2,000,000, (B) no Default or Event of Default has occurred and is continuing, and (C) the Borrowers notify the Lender in writing that it intends to repair, rebuild or restore the affected property, that such repair, rebuilding or restoration can be accomplished within 180 days out of such Cash Proceeds and other funds available to the applicable Credit Party or Subsidiary, then no such prepayment of the Loans shall be required and may be applied as provided in Section 8.03 if an Event of Default occurs and is continuing. If at the end of any such 180-day period any portion of such Net Cash Proceeds from Events of Loss has not been so used to rebuild or restore the affected property, the Borrowers will immediately make a prepayment of the Loans, to the extent required above.

(vi) Quarterly Clean-Down . The Borrowers shall repay Loans, on the last Business Day of each March, June, September and December, commencing with September 30, 2016 (“ Clean-Down Date ”), in an aggregate amount such that after giving effect to such repayment, the aggregate amount of Free Cash maintained by the Credit Parties as of such Clean-Down Date does not exceed the aggregate of the net cash needs of the Credit Parties and their respective Subsidiaries for the next calendar month as set forth in the most recently delivered Cash Flow Projections provided to the Lender (which Cash Flow Projection shall be mutually satisfactory to the Lender and the Borrowers) or $50,000,000 Australian dollars, whichever is greater.

(vii) Applications of Certain Prepayment Proceeds . Each prepayment required to be made pursuant to Section 2.10(b)(ii) , (iii) , (iv) , (v) or (vi) above shall be applied as a mandatory prepayment of the outstanding Revolving Loans (without a reduction of the commitments related thereto).

(c) Extent of Obligations . For the avoidance of doubt, no Credit Party shall be required to pay or repay any amount under Section 2.10(b) in an amount greater than the principal amount of outstanding Loans at the relevant time.

 

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Section 2.11 Method and Place of Payment .

(a) Generally . All payments made by the Borrowers hereunder under the Note or any other Loan Document shall be made without setoff, counterclaim or other defense.

(b) Payment of Obligations . Except as specifically set forth elsewhere in this Agreement, all payments under this Agreement with respect to any of the Obligations shall be made to the Lender on the date when due and shall be made at the Payment Office in immediately available funds and shall be made in Dollars.

(c) Timing of Payments . Any payments under this Agreement that are made later than 11:00 A.M. (local time at the Payment Office) shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable rate in effect immediately prior to such extension.

Section 2.12 Addition of Borrowers .

(a) Addition of Borrowers . Any Subsidiary that is not then a Borrower hereunder may become a Borrower hereunder with the written consent of the Lender, which consent shall be given in the sole discretion of the Lender, and pursuant to any procedures and documentation satisfactory in form and substance to Lender.

(b) Documentation . Upon satisfaction by the Borrower Representative and any Subsidiary of the requirements set forth in subpart (a) above, and the Lender’s satisfaction that the addition of such Subsidiary as a Borrower hereunder is appropriately documented pursuant to this Agreement and the other Loan Documents, such Subsidiary shall be designated a “Borrower” pursuant to the terms and conditions of this Agreement, and such Subsidiary shall become bound by all representations, warranties, covenants, provisions and conditions of this Agreement and each other Loan Document applicable to the Borrowers as if such Borrower had been the original party making such representations, warranties and covenants.

ARTICLE III.

TAXES

Section 3.01 Net Payments .

(a) All payments made by the Credit Parties hereunder, under the Note or any other Loan Document, will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments and all interest, penalties or similar liabilities with respect to such non-excluded

 

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taxes, levies imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “ Taxes ”). The Credit Parties will indemnify and hold harmless the Lender, or reimburse the Lender, upon its written request, for the amount of any Taxes imposed on and paid by the Lender with respect to such payments. The Credit Parties will furnish to the Lender within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the Lender, evidencing such payment by the Credit Parties.

(b) If the Lender determines that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Credit Parties pursuant to this Section 3.01 , it shall promptly remit such refund (including any interest received in respect thereof), net of all reasonable and documented out-of-pocket costs and expenses, to the Credit Parties; provided, however, that the Credit Parties agree to promptly return any such refund (plus interest) to the Lender in the event the Lender is required to repay such refund to the relevant taxing authority. The Lender shall provide the Credit Parties with a copy of any such notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. The Lender shall apply for any such refund upon the reasonable request and at the expense of the Credit Parties.

ARTICLE IV.

CONDITIONS PRECEDENT

Section 4.01 Conditions Precedent at Closing Date . The obligation of the Lender to make Loans is subject to the satisfaction of each of the following conditions on or prior to the Closing Date:

(a) Credit Agreement . This Agreement shall have been executed by the Credit Parties and the Lender.

(b) Note . The Borrowers shall have executed and delivered to the Lender the Note to the extent requested.

(c) Security Agreement . The Credit Parties shall have duly executed and delivered the Security Agreement.

(d) Corporate Resolutions and Approvals . The Lender shall have received certified copies of the resolutions of the Board of Directors or equivalent governing body of the Credit Parties approving or ratifying the transactions provided for herein and in the other Loan Documents and authorizing the Credit Parties to fulfill all of their respective obligations hereunder and under the other Loan Documents, and documents evidencing all other necessary corporate or other organizational action, as the case may be, and governmental approvals, if any, with respect to the execution, delivery and performance by the Credit Parties of the Loan Documents, all of which documents to be in form and substance satisfactory to the Lender.

(e) Recordation of Security Agreement, Delivery of Collateral, Taxes, etc.  The Security Agreement (or proper notices or UCC financing statements in respect thereof) shall have been duly recorded, published and filed in such manner and in such places as is required by law to establish, perfect, preserve and protect the rights, Liens and security interests of the parties thereto and their respective successors and assigns, all Collateral items required to be physically delivered to the Lender thereunder shall have been so delivered, accompanied by any appropriate instruments of transfer, and all taxes, fees and other charges then due and payable in connection with the execution, delivery, recording, publishing and filing of such instruments and the issuance of the Obligations and the delivery of the Notes shall have been paid in full or satisfactory arrangements are in place for payment of the same.

 

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(f) Litigation . Except as disclosed in Peabody Energy Corporation’s period reports filed prior to the date hereof under the Securities Exchange Act of 1934 (as amended), there is no litigation that could reasonably be expected to has resulted in, or could reasonably be expected to have a Material Adverse Effect.

(g) No Material Adverse Change . As of the Closing Date, no condition or event shall have occurred since December 31, 2015 that has resulted in, or could reasonably be expected to have a Material Adverse Effect.

(h) Miscellaneous . The Credit Parties shall have provided to the Lender such other items and shall have satisfied such other conditions as may be reasonably required by the Lender.

Section 4.02 Conditions Precedent to All Borrowings . The obligation of the Lender to make each Borrowing (except as specified below) is subject, at the time thereof, to the satisfaction of the following conditions:

(a) Cash Forecast . The amount of such Borrowing shall not exceed the lesser of (i) Total Credit Facility Amount less the aggregate amount of Loans outstanding, in each case as of the proposed date of the borrowing, (ii) the net cash needs set forth in the most recently delivered Cash Flow Projections provided to the Lender, and (iii) the Total Credit Facility Amount times the applicable Availability Block, in each case as of the proposed date of the borrowing.

(b) Notice . The Lender shall have received a Notice of Borrowing meeting the requirements of Section 2.04(b) with respect to any Borrowing.

(c) No Default; Representations and Warranties . At the time of each Borrowing and also after giving effect thereto, (i) there shall exist no Default or Event of Default and (ii) all representations and warranties of the Credit Parties contained herein or in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Borrowing, except to the extent that such representations and warranties expressly relate to an earlier specified date, in which case such representations and warranties shall have been true and correct in all material respects as of the date when made.

(d) Post Closing Security Agreement . With respect to each Borrowing requested after the date which is 10 days after the date on which the FIRB No Objection Notice has been received, the Credit Parties have (i) entered into a Post-Closing Security Document on terms and in form and substance satisfactory to the Lender (provided in each case that by entering into the Post-Closing Security Agreement neither the Lender nor the Credit Party would be in breach of any condition to the FIRB No Objection Notice), and (ii) executed and delivered the documents and tasks set forth on Schedule 6.10 in relation thereto, in each case within the time limits specified on such schedule.

 

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ARTICLE V.

REPRESENTATIONS AND WARRANTIES

In order to induce the Lender to enter into this Agreement and to make the Loans, each Credit Party makes the following representations and warranties to, and agreements with, the Lender, all of which shall survive the execution and delivery of this Agreement and each Borrowing:

Section 5.01 Corporate Status . Each Credit Party (i) is a duly organized or formed and validly existing corporation, partnership or limited liability company, as the case may be, in good standing or in full force and effect under the laws of the jurisdiction of its organization or formation and has the corporate, partnership or limited liability company power and authority, as applicable, to own its property and assets and to transact the business in which it is engaged and presently proposes to engage, and (ii) has duly qualified and is authorized to do business in all jurisdictions where it is required to be so qualified or authorized except where the failure to be so qualified would not have a Material Adverse Effect.

Section 5.02 Corporate Power and Authority . Each Credit Party has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of the Loan Documents to which it is party and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is party. Each Credit Party has duly executed and delivered each Loan Document to which it is party and each Loan Document to which it is party constitutes the legal, valid and binding agreement and obligation of such Credit Party enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law) and subject to necessary stamping and registration.

Section 5.03 Legal Name . The true and correct legal name of each Credit Party is set forth on the signature pages hereto and in the other Loan Documents.

Section 5.04 No Violation . Neither the execution, delivery and performance by any Credit Party of the Loan Documents to which it is party nor compliance with the terms and provisions thereof (i) will contravene any provision of any law, statute, rule, regulation, order, writ, injunction or decree of any Governmental Authority applicable to such Credit Party or its properties and assets, (ii) will conflict with or result in any breach of, any of the material terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (other than the Liens created pursuant to the Security Documents) upon any of the property or assets of such Credit Party pursuant to the terms of any promissory note, bond, debenture, indenture, mortgage, deed of trust, credit or loan agreement or other material agreement to which such Credit Party is a party or by which it or any of its property or assets are bound or to which it may be subject, or (iii) will violate any provision of the Organizational Documents of such Credit Party.

Section 5.05 Consents and Approvals . No order, consent, approval, license, authorization or filing, recording or registration with, or exemption by, any Governmental Authority or other third party is required to authorize or is required as a condition to (i) the execution, delivery and performance by any Credit Party of any Loan Document to which it is a party or any of its obligations thereunder, or (ii) the legality, validity, binding effect or enforceability of any Loan Document to which any Credit Party is a party, except the filing and recording of financing statements and other documents necessary in order to perfect the Liens created by the Security Documents, the payment of any applicable stamp duty, consents of landlords not required to be obtained herein or in any other Loan Document, and consents of third parties (other than any Governmental Authority) the failure of which to obtain could not reasonably be expected to be materially adverse to the interests of the Lenders under the Loan Documents.

 

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Section 5.06 Litigation . Except as disclosed in Peabody Energy Corporation’s period reports filed prior to the date hereof under the Securities Exchange Act of 1934 (as amended), there are no actions, suits or proceedings pending or, to the knowledge of any Credit Party, threatened with respect to any Credit Party or any of its respective Subsidiaries or against any of their respective properties that have had, or could reasonably be expected to have, a Material Adverse Effect.

Section 5.07 Use of Proceeds; Margin Regulations .

(a) The proceeds of the Loans shall be utilized solely for Permitted Purposes.

(b) No part of the proceeds of any Borrowing will be used directly or indirectly to purchase or carry Margin Stock, or to extend credit to others for the purpose of purchasing or carrying any Margin Stock, in violation of any of the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System. No Credit Party is engaged in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. At no time would more than 25% of the value of the assets of any Borrower or of any Borrower and its consolidated Subsidiaries that are subject to any “arrangement” (as such term is used in Section 221.2(g) of such Regulation U) hereunder be represented by Margin Stock.

Section 5.08 [Reserved] .

Section 5.09 Solvency . The Credit Parties, taken as a whole, have capital sufficient to carry on their business and transactions and all business and transactions in which they are about to engage and are now solvent and able to pay their debts as they mature, and the Credit Parties, taken as a whole, own property having a value, both at fair valuation and at present fair salable value, greater than the amount required to pay the Credit Parties’ debts; and the Credit Parties are not entering into the Loan Documents with the intent to hinder, delay or defraud their creditors. For purposes of this Section, “ debt ” means any liability on a claim, and “ claim ” means (y) right to payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (z) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.

Section 5.10 Tax Returns and Payments . Each Credit Party has filed all federal income tax returns and all other material tax returns, domestic and foreign, required to be filed by it and has paid all taxes and assessments payable by it that have become due, other than those not yet delinquent and except for those contested in good faith.

Section 5.11 Investment Company Act, etc . Neither any Borrower nor any of their Subsidiaries is subject to regulation with respect to the creation or incurrence of Indebtedness under the Investment Company Act of 1940, as amended, or under any other federal or state statute or regulation which may limit their ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable.

Section 5.12 [Reserved].

Section 5.13 Title to Properties . Each Credit Party has good title in the Collateral free and clear of Liens other than Permitted Liens.

 

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Section 5.14 Lawful Operations, etc . Each Credit Party and each of its Subsidiaries: (i) holds all necessary foreign, federal, state, local and other governmental licenses, registrations, certifications, permits and authorizations necessary to conduct its business and own its properties; and (ii) is in full compliance with all requirements imposed by law, regulation or rule, whether foreign, federal, state or local, that are applicable to it, its operations, or its properties and assets, including, without limitation, applicable requirements of environmental laws, except for any failure to obtain and maintain in effect, or noncompliance that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

Section 5.15 True and Complete Disclosure . All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Credit Party in writing to the Lender for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Person in writing to the Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any material fact necessary to make such information (taken as a whole) not misleading at such time in light of the circumstances under which such information was provided, except that any such information consisting of financial projections prepared by the Credit Parties or any of their Subsidiaries is only represented herein as being based on good faith estimates and assumptions believed by such persons to be reasonable at the time made, it being recognized by the Lender that such projections as to future events and other forward-looking information are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ materially from the projected results.

Section 5.16 Defaults . No Default or Event of Default has occurred and is continuing.

Section 5.17 No Material Adverse Change . Since December 31, 2015, there has been no change in the condition, business, affairs or prospects of the Credit Parties, or their properties and assets, except for changes none of which, individually or in the aggregate, has had or could reasonably be expected to have, a Material Adverse Effect.

Section 5.18 Anti-Terrorism Law Compliance . Each Credit Party and each Subsidiary of each Credit Party is and will remain in compliance in all material respects with all U.S. economic sanctions laws, Executive Orders and implementing regulations as promulgated by the U.S. Treasury Department’s Office of Foreign Assets Control, and all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it. Neither any Credit Party, nor any Subsidiary of a Credit Party (i) is a Person designated by the U.S. government on the list of the Specially Designated Nationals and Blocked Persons (the “ SDN List ”) with which a U.S. Person cannot deal with or otherwise engage in business transactions, (ii) is a Person who is otherwise the target of U.S. economic sanctions laws such that a U.S. Person cannot deal or otherwise engage in business transactions with such Person or (iii) is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions such that the entry into, or performance under, this Agreement or any other Loan Document or any of the transactions contemplated hereby or thereby would be prohibited under U.S. law. Each Credit Party and each of its Subsidiaries are in compliance with (a) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (b) the Patriot Act and (c) other federal or state laws relating to “know your customer” and anti-money laundering rules and regulations. No part of the proceeds of any Loan will be used directly or indirectly for any payments to any government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

 

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ARTICLE VI.

AFFIRMATIVE COVENANTS

Each Credit Party hereby covenants and agrees that on the Closing Date and thereafter so long as this Agreement is in effect and until such time as the Revolving Commitments have been terminated, no Notes remain outstanding and the Loans, together with interest, fees and all other Obligations incurred hereunder and under the other Loan Documents, have been paid in full, as follows:

Section 6.01 Reporting Requirements . The Borrowers will furnish, or cause to be furnished, to the Lender:

(a) Annual Financial Statements . As soon as available and in any event within 90 days after the close of each fiscal year of the Borrowers, the unaudited consolidated balance sheets of Peabody Australia Holdco Pty Ltd and its Subsidiaries (and such other Persons to the extent required to be included in order to comply with GAAP) as at the end of such fiscal year and the related consolidated statements of income, of stockholders’ equity and of cash flows for such fiscal year, in each case setting forth comparative figures for the preceding fiscal year, all in reasonable detail.

(b) [Reserved] .

(c) Officer s Compliance Certificates . At the time of the delivery of the financial statements provided for in subpart (a) above, (i) a certificate (a “ Compliance Certificate ”), substantially in the form of Exhibit E , signed by an Authorized Officer of the Borrower Representative to the effect that no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof and the actions the Credit Parties have taken or propose to take with respect thereto, and (ii) if, as a result of any change in accounting principles and policies (or the application thereof) from those used in the preparation of the historical financial statements of the Credit Parties, the consolidated financial statements of the Credit Parties delivered pursuant to Section 6.01(a) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance reasonably satisfactory to the Lender.

(d) Cash Flow Projections . By Friday of each week, the Borrowers shall submit to Lender 13-week cash flow projections in reasonable detail, representing Borrowers’ good faith projections (including cash flow projections) for the ensuing 13-week period on a rolling basis, together with a statement of any underlying assumptions and supporting schedules and information, including a report of variances (such projections, the “ Cash Flow Projections ”).

(e) Notices . Promptly, and in any event within three Business Days, after any Credit Party or any Subsidiary obtains knowledge thereof, notice of:

(i) the occurrence of any event that constitutes a Default or Event of Default, which notice shall specify the nature thereof, the period of existence thereof and what action the Credit Parties propose to take with respect thereto; and

(ii) any event that could reasonably be expected to have a Material Adverse Effect (which in all instances, shall include the appointment of an administrator with respect to any of the Credit Parties or their assets).

 

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(f) SEC Reports and Registration Statements . Promptly after transmission thereof or other filing with the SEC or any equivalent governing body, copies of all registration statements (other than the exhibits thereto and any registration statement on Form S-8 or its equivalent) and all annual, quarterly or current reports that a Parent, the Credit Parties or any of their respective Subsidiaries files with the SEC or any equivalent governing body on Form 10-K, 10-Q or 8-K (or any successor forms), provided that the notification by the Borrower Representative of the electronic filing of any of the foregoing reports with the SEC or equivalent governing body shall satisfy the requirements of this clause (f).

(g) [Reserved] .

(h) Auditors’ Internal Control Comment Letters, etc . Promptly upon receipt thereof, a copy of each letter or memorandum commenting on internal accounting controls and/or accounting or financial reporting policies followed by the Credit Parties and/or any of their Subsidiaries that is submitted to such Credit Party or Subsidiary by its independent accountants in connection with any annual or interim audit made by them of the books of any Credit Party or any Subsidiary.

(i) Other Notices . Promptly after the transmission or receipt thereof, as applicable, copies of all material notices received or sent by any Credit Party or any Subsidiary to or from the holders of any Material Indebtedness or any trustee with respect thereto.

(j) Other Information . Promptly upon the reasonable request therefor, such other information or documents (financial or otherwise) relating to any Credit Party or any Subsidiary as the Lender may reasonably request from time to time.

Section 6.02 Books, Records and Inspections . Each Credit Party will, and will cause each of its Subsidiaries to, (i) keep proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of such Credit Party or such Subsidiary, as the case may be, in accordance with GAAP; and (ii) permit officers and designated representatives of the Lender to visit and inspect any of the properties or assets of such Credit Party and/or its Subsidiaries in whomsoever’s possession, to examine the books of account of such Credit Party or such Subsidiary, as applicable, and make copies thereof and take extracts therefrom, and to discuss the affairs, finances and accounts of the Credit Parties and/or such Subsidiary, as applicable, with, and be advised as to the same by, its and their officers and independent accountants and independent actuaries, if any, all at such reasonable times and intervals and to such reasonable extent as the Lender may request.

Section 6.03 [Reserved] .

Section 6.04 Payment of Taxes and Claims . Each Credit Party will, and will cause each of its Subsidiaries to, pay and discharge all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all lawful claims that, if unpaid, might become a Lien or charge upon any properties of any Credit Party or any of its respective Subsidiaries; provided, however, that no Credit Party nor any of their respective Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim that is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP.

 

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Section 6.05 Corporate Franchises . Each Credit Party will, and will cause each of its Subsidiaries to, do, or cause to be done, all things necessary to preserve and keep in full force and effect its legal existence, rights and authority, qualification, franchises, licenses and permits except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.

Section 6.06 [Reserved].

Section 6.07 Compliance with Statutes, etc . Each Credit Party will, and will cause each of its Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property, other than those the noncompliance with which would not be reasonably expected to have a Material Adverse Effect.

Section 6.08 Further Assurances .

(a) [ Reserved].

(b) [ Reserved].

(c) Further Assurances . The Credit Parties will, and will cause each of their respective Subsidiaries to, at the expense of the Borrowers, make, execute, endorse, acknowledge, file and/or deliver to the Lender from time to time such conveyances, financing statements, transfer endorsements, powers of attorney, certificates, and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Lender may reasonably require. If at any time the Lender determines, based on applicable law, that all applicable taxes (including, without limitation, mortgage recording taxes or similar charges) were not paid in connection with the recordation of any mortgage or deed of trust, the Borrowers shall promptly pay the same upon demand.

Section 6.09 Post-Closing Matters . The Credit Parties will execute and deliver the documents and complete the tasks set forth on Schedule 6.09, in each case within the time limits specified on such schedule and each Credit Party that is party to the NAB Transactional Facility must use its best endeavours to obtain NAB’s consent, within 30 days after the Closing Date to the granting of:

(a) the Liens by Peabody (Bowen) in favour of the Lender under the Bowen GSA; and

(b) the Liens by each other Credit Party in favour of the Lender, under the Post-Closing Security Agreements (if and when they are required to be granted).

If such consent is provided by NAB in respect of the Bowen GSA, Peabody (Bowen) Pty Ltd must provide to the Lender a duly executed and delivered counterpart of the Bowen GSA within 5 Business Days of receiving such consent.

Section 6.10 FIRB Application . Each of the Lender and the Credit Parties will, at the expense of the Borrowers:

(a) each use its best endeavours to prepare and, as soon as practicable and in any event on or before 30 June 2016, file an adequate and competent application with FIRB seeking confirmation that FIRB approves of or does not object to the Lender acquiring an interest in the Credit Parties either in part or as a group ( FIRB Application );

 

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(b) each use its reasonable endeavours to adequately and competently respond, or assist with any such response, to any requisitions or requests for further information or documents from FIRB in connection with the FIRB Application within the time period, if any, requested by FIRB; and

(c) in the case of each of the Credit Parties, provide the Lender with all information and documents and make, execute, endorse, acknowledge, file and/or deliver to the Lender from time to time such information or documents reasonably requested by the Lender in connection with the FIRB Application (including, any information or document the Lender is required or requested to file in connection with the FIRB Application).

ARTICLE VII.

NEGATIVE COVENANTS

Each Credit Party hereby covenants and agrees that on the Closing Date and thereafter for so long as this Agreement is in effect and until such time as the Revolving Commitments have been terminated, no Notes remain outstanding and the Loans, together with interest, fees and all other Obligations incurred hereunder and under the other Loan Documents, have been paid in full as follows:

Section 7.01 Changes in Business . No Credit Party nor any of their respective Subsidiaries shall engage in any business other than the businesses engaged in by the Credit Parties and their Subsidiaries on the Closing Date and any other business reasonably related thereto.

Section 7.02 Consolidation, Merger, Acquisitions, Asset Sales, etc . No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) make or otherwise effect any Asset Sale outside the ordinary course of business, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:

(a) the merger, consolidation or amalgamation of (i) a Borrower into another Borrower; (ii) any Subsidiary of a Borrower with or into a Borrower, provided such Borrower is the surviving or continuing or resulting Person; or (iii) any Subsidiary of a Borrower with or into any Guarantor, provided that the surviving or continuing or resulting corporation is a Guarantor;

(b) any Asset Sale by a Credit Party to any other Credit Party;

(c) any transaction permitted pursuant to Section 7.05 ;

(d) any Asset Sale to the extent that such property is exchanged substantially contemporaneously for credit against the purchase price of similar replacement property;

(e) a Parent or any Subsidiary may make the Asset Sales previously disclosed in writing to the Lender on or before the date hereof;

(f) the winding-up, liquidation or dissolution of Subsidiaries into a Credit Party or the winding up or deregistration of Peabody Energy Australia PCI Management Pty Ltd, Peabody Energy Australia PCI Financing Pty Ltd and/or Peabody Energy Australia PCI Exploration Pty Ltd;

(g) any Asset Sale which results from a pre-emptive or buy out right which is triggered as a result of (i) any Insolvency Event affecting Peabody Energy Corporation or any of its Subsidiaries incorporated in the United States of America or (ii) an “Event of Default” occurring under the US Credit Agreement (as that term is defined therein); and

 

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(h) in addition to any Asset Sale permitted above, a Parent or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 80% of such consideration consists of cash; and (ii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrowers shall not exceed $7,500,000 in any fiscal year and $30,000,000 in the aggregate for all such Asset Sales over the life of this Agreement.

Section 7.03 Liens . No Credit Party will, nor will any Credit Party permit its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind of such Credit Party or such Subsidiary whether now owned or hereafter acquired, except that the foregoing shall not apply to:

(a) any Standard Permitted Lien;

(b) Liens in existence on the Closing Date and extensions or renewals of such Liens, so long as such Liens being extended or renewed do not extend to any other property or assets other than replacements and the aggregate principal amount of Indebtedness secured by such Liens is not increased;

(c) Liens (i) that are placed upon fixed or capital assets acquired, constructed or improved by the Credit Parties or any of their respective Subsidiaries, provided that (A) such Liens only secure Indebtedness permitted by Section 7.04(b) or Section 7.04(c) , (B) such Liens and the Indebtedness secured thereby are incurred prior to or within 120 days after such acquisition or the completion of such construction or improvement, (C) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets, and (D) such Liens shall not apply to any other property or assets of the Credit Parties or any of their respective Subsidiaries; or (ii) arising out of the refinancing, extension, renewal or refunding of any Indebtedness secured by any such Liens, provided that the principal amount of such Indebtedness is not increased and such Indebtedness is not secured by any additional assets other than replacements;

(d) any Lien granted to the Lender securing any of the Obligations or any other Indebtedness of the Credit Parties under the Loan Documents;

(e) any Lien over receivables or other monetary assets and proceeds of such assets and related rights (including rights to returned goods) granted in connection with a sale or discounting of receivables permitted under Section 7.04, to secure obligations in relation to that arrangement so long as the principal amount of those obligations does not exceed the aggregate face amount of such receivables or other monetary assets; or

(f) in addition to any Lien pursuant to any of the foregoing subparts, Liens with respect to obligations that do not in the aggregate exceed $10,000,000 at any one time.

Section 7.04 Indebtedness . No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness of the Credit Parties or any of their respective Subsidiaries, except:

(a) Indebtedness incurred under this Agreement and the other Loan Documents;

 

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(b) the Indebtedness existing as of the date hereof, and any refinancing, extension, renewal or refunding of any such Indebtedness;

(c) (i) Indebtedness consisting of capital lease obligations or similar obligations of the Credit Parties and their Subsidiaries, (ii) Indebtedness secured by a Lien referred to in Section 7.03(c) , and (iii) any refinancing, extension, renewal or refunding of any such Indebtedness not involving an increase in the principal amount thereof, provided , the aggregate outstanding principal amount of Indebtedness permitted by this subpart (c) shall not exceed $10,000,000 at any time;

(d) any intercompany loans and advances made by a Credit Party to any other Credit Party;

(e) Indebtedness constituting Guaranty Obligations permitted by Section 7.05 ;

(f) Indebtedness in respect of bid, performance or surety bonds issued for the account of a Credit Party or any Subsidiary in the ordinary course of business, including guarantees of obligations of such Person with respect to letters of credit supporting such bid, performance or surety obligations;

(g) Indebtedness arising from (i) honoring by a bank or other financial institution of a check or draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, and (ii) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(h) Indebtedness in respect of a sale or discounting of receivables, provided that there is no recourse for such indebtedness beyond the receivables collected;

(i) to the extent constituting Indebtedness, Investments permitted under Section 7.05(j) ;

(j) additional unsecured Indebtedness of the Credit Parties or any of their respective Subsidiaries to the extent not permitted by any of the foregoing clauses, provided that the aggregate outstanding principal amount of all such Indebtedness does not exceed $10,000,000 at any time.

Section 7.05 Investments and Guaranty Obligations . No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) make or commit to make any Investment or (ii) be or become obligated under any Guaranty Obligations, except :

(a) Investments by a Parent or any of its Subsidiaries in cash and Cash Equivalents;

(b) (A) Investments in the nature of Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties, (B) cross charges, Liens or security arrangements entered into in respect of a joint venture for the benefit of a participant, manager or operator of such joint venture, in each case, consistent with normal practices in the mining industry or (C) payments or other arrangements whereby the Borrower provides a loan, advance payment or guarantee in return for future coal deliveries;

(c) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business;

(d) a Parent and its Subsidiaries may create, acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

 

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(e) any Permitted Creditor Investment;

(f) loans and advances to employees for business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business;

(g) Investments existing as of the Closing Date;

(h) any Guaranty Obligations of the Credit Parties or any of their respective Subsidiaries in favor of the Lender pursuant to the Loan Documents;

(i) Investments of a Credit Party in any other Credit Party;

(j) Investments by a Credit Party or its Subsidiary in any Person that is not a Credit Party, only so long as at the time such Investment was made, (x) such Investment was (i) set forth in the most recently delivered (or required to be delivered) Cash Flow Projections, and (ii) such Cash Flow Projections mutually satisfactory to the Lender and the Borrowers and (y) no Default or Event of Default exists;

(k) (i) promissory notes and other similar non-cash consideration received by any Credit Party or its Subsidiaries in connection with Asset Sales not otherwise prohibited under this document and (ii) Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of any Credit Party or its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, (B) litigation, arbitration or other disputes or (C) the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;

(l) intercompany loans and advances permitted by Section 7.04(d) ;

(m) Investments of the Borrowers and their respective Subsidiaries in Hedge Agreements permitted to be entered into pursuant to this Agreement; and

(n) any Guaranty Obligation incurred by any Credit Party with respect to Indebtedness of another Credit Party that is permitted by Section 7.04 .

Section 7.06 Restricted Payments . No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except :

(a) the Borrowers or any of their respective Subsidiaries may declare and pay or make Capital Distributions that are payable solely in additional shares of its common stock (or warrants, options or other rights to acquire additional shares of its common stock); and

(b) (i) a Credit Party may declare and pay or make Capital Distributions to another Credit Party, (ii) any Subsidiary of a Credit Party may declare and pay or make Capital Distributions to a Credit Party, and (iii) any Subsidiary that is not a Credit Party may declare and pay or make Capital Distributions to any other Subsidiary, a Borrower or any Guarantor.

Section 7.07 Limitation on Certain Restrictive Agreements . No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist or become effective, any “negative pledge” covenant or other agreement, restriction or arrangement that

 

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prohibits, restricts or imposes any condition upon (a) the ability of any Credit Party or any of their respective Subsidiaries to create, incur or suffer to exist any Lien upon any of its property or assets as security for Indebtedness, or (b) the ability of any such Credit Party or any such Subsidiary to make Capital Distributions or any other interest or participation in its profits owned by any Credit Party or any Subsidiary, or pay any Indebtedness owed to any Credit Party or any Subsidiary, or to make loans or advances to any Credit Party or any Subsidiary, or transfer any of its property or assets to any Credit Party or any Subsidiary, except for such restrictions existing as of the Closing Date or existing under or by reason of (i) applicable law, (ii) this Agreement and the other Loan Documents, (iii) customary provisions restricting subletting or assignment of any lease governing a leasehold interest, (iv) customary provisions restricting assignment entered into in the ordinary course of business, (v) customary provisions restricting the transfer or further encumbering of assets subject to Liens permitted under Section 7.03(c) , (vi) customary restrictions affecting only a Subsidiary of a Borrower under any agreement or instrument governing any of the Indebtedness of a Credit Party permitted pursuant to Section 7.04 , (vii) any document relating to Indebtedness secured by a Lien permitted by Section 7.03 insofar as the provisions thereof limit grants of junior liens on the assets securing such Indebtedness, (ix) any operating lease or capital lease, insofar as the provisions thereof limit grants of a security interest in, or other assignments of, the related leasehold interest to any other Person; (x) any Asset Sale permitted under this Agreement; (xi) any customary provisions in joint venture agreements and other similar agreements applicable solely to such joint venture or the equity interests therein and (xii) any customary restrictions cash collateral imposed under contracts entered into in the ordinary course of business.

Section 7.08 Anti-Terrorism Laws . The Credit Parties shall not be subject to or in violation of any law, regulation, or list of any government agency (including, without limitation, the U.S. Office of Foreign Asset Control list, Executive Order No. 13224 or the USA Patriot Act) that prohibits or limits the conduct of business with or the receiving of funds, goods or services to or for the benefit of certain Persons specified therein or that prohibits or limits the Lender from making any advance or extension of credit to the Borrowers or from otherwise conducting business with the Borrowers.

Section 7.09 Modification of Certain Agreements . Amend, modify, waive or change in any manner any term or condition of the Organizational Documents of the Credit Parties, except amendments, modifications or changes that would not reasonably be expected to be material and adverse to the interests of the Lender.

Section 7.10 Fiscal Year . The Credit Parties shall not change their Fiscal Year end from December 31.

ARTICLE VIII.

EVENTS OF DEFAULT

Section 8.01 Events of Default . Any of the following specified events shall constitute an Event of Default (each an “ Event of Default ”):

(a) Payments : the Borrowers shall (i) default in the payment when due (whether at maturity, on a date fixed for a scheduled repayment, on a date on which a required prepayment is to be made, upon acceleration or otherwise) of any principal of the Loans; or (ii) default, and such default shall continue for five (5) or more Business Days, in the payment when due of any interest on the Loans, any fees or any other Obligations; or

 

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(b) Representations, etc .: any representation, warranty or statement made by the Borrowers or any other Credit Party herein or in any other Loan Document or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue in any material respect (without duplication as to any materiality modifiers, qualifications, or limitations applicable thereto) on the date as of which made or furnished or deemed made or furnished; or

(c) Certain Covenants : the Credit Parties shall default in the due performance or observance by it of any term, covenant or agreement contained in Section 6.01 , Section 6.05 , Section 6.08 or Article VII of this Agreement; or

(d) Other Covenants : any Credit Party shall default in the due performance or observance by it of any term, covenant or agreement contained in this Agreement or any other Loan Document (other than those referred to in Section 8.01(a) , (b) or (c) above) and such default is not remedied within 30 days after the earlier of (i) an Authorized Officer of any Credit Party obtaining knowledge of such default or (ii) any Borrower receiving written notice of such default from the Lender (any such notice to be identified as a “notice of default” and to refer specifically to this paragraph); or

(e) Cross Default Under Other Agreements : any Credit Party or any of its Subsidiaries shall (i) default in any payment with respect to any Material Indebtedness (other than the Obligations), and such default shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness; or (ii) default in the observance or performance of any agreement or condition relating to any Material Indebtedness (other than the Obligations) or contained in any instrument or agreement evidencing, securing or relating thereto (and all grace periods applicable to such observance, performance or condition shall have expired), or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause any such Material Indebtedness to become due prior to its stated maturity; or any such Material Indebtedness of any Credit Party or any of its Subsidiaries shall be declared to be due and payable, or shall be required to be prepaid (other than by a regularly scheduled required prepayment or redemption, prior to the stated maturity thereof); provided , notwithstanding the above, no Event of Default shall be deemed to have occurred under this clause (e) as a result of (x) any Insolvency Event affecting Peabody Energy Corporation or any of its Subsidiaries incorporated in the United States of America or (y) an “Event of Default” occurring under the US Credit Agreement (as that term is defined therein); or

(f) Invalidity of Loan Documents : any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or under such Loan Document or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Credit Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Credit Party denies that it has any further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document or the Lender fails to have; or

(g) Invalidity of Liens : any security interest and Lien purported to be created by any Security Document shall cease to be in full force and effect (other than in accordance with the terms hereof and thereof), or shall cease to give the Lender the Liens, rights, powers and privileges purported to be created and granted under such Security Documents (including a perfected first priority security interest in and Lien on, all of the Collateral thereunder (except as otherwise expressly provided in such Security Document)) or shall be asserted by any Credit Party not to be, a valid, perfected, first priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in or Lien on any Collateral covered thereby; or

 

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(h) Judgments : (i) one or more judgments, orders or decrees (or any settlement of any claim that, if breached, could result in a judgment order or decree) shall be entered against any Credit Party and/or any of its Subsidiaries involving a liability (other than a liability covered by insurance, as to which the carrier has adequate claims paying ability and has not effectively reserved its rights) of $20,000,000 or more in the aggregate for all such judgments, orders, decrees and settlements for the Credit Parties and their Subsidiaries, and any such judgments or orders or decrees or settlements shall not have been vacated, discharged or stayed or bonded pending appeal within 30 days (or such longer period, not in excess of 60 days, during which enforcement thereof, and the filing of any judgment lien, is effectively stayed or prohibited) from the entry thereof; or (ii) one or more judgments, orders, decrees or settlements shall be entered against any Credit Party and/or any of its Subsidiaries involving a required divestiture of any material properties, assets or business reasonably estimated to have a fair value in excess of $20,0000,000, and any such judgments, orders or decrees shall not have been vacated, discharged or stayed or bonded pending appeal within 30 days (or such longer period, not in excess of 60 days, during which enforcement thereof, and the filing of any judgment lien, is effectively stayed or prohibited) from the entry thereof; or

(i) Insolvency Event : any Insolvency Event shall occur with respect to (i) any Borrower; (ii) any other Credit Party or (iii) any of their other Subsidiaries having assets in excess of $5,000,000; or

(j) Change of Control : if there occurs a Change of Control; provided , notwithstanding the above, no Event of Default shall be deemed to have occurred under this clause (j) as a result of (x) any Insolvency Event affecting Peabody Energy Corporation or any of its Subsidiaries incorporated in the United States of America or (y) an “Event of Default” occurring under the US Credit Agreement (as that term is defined therein); or

(k) Post Closing Security Agreement . If the FIRB No Objection Notice has been obtained and the Credit Parties have not entered into a Post-Closing Security Document on terms and in form and substance satisfactory to the Lender (provided in each case that by entering into the Post-Closing Security Agreement neither the Lender nor the Credit Party would be in breach of any condition to the FIRB No Objection Notice) within 10 days of that FIRB No Objection Notice being obtained .

Section 8.02 Remedies . Upon the occurrence of any Event of Default, and at any time thereafter, if any Event of Default shall then be continuing, the Lender may take any or all of the following actions, without prejudice to the rights of the Lender to enforce its claims against the Borrowers or any other Credit Party in any manner permitted under applicable law:

(a) declare the Revolving Commitments terminated, whereupon the Revolving Commitment of the Lender shall forthwith terminate immediately without any other notice of any kind;

(b) declare the principal of and any accrued interest in respect of all Loans and all other Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; or

(c) exercise any other right or remedy available under any of the Loan Documents or applicable law;

provided that, if an Event of Default specified in Section 8.01(i) shall occur, the result that would occur upon the giving of written notice by the Lender as specified in clauses (a), (b) and/or (c) above shall occur automatically without the giving of any such notice.

 

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Section 8.03 Application of Certain Payments and Proceeds . All payments and other amounts received by the Lender through the exercise of remedies hereunder or under the other Loan Documents shall, unless otherwise required by the terms of the other Loan Documents or by applicable law, be applied as follows:

(i) first , to the payment of that portion of the Obligations constituting fees, indemnities and expenses and other amounts (including attorneys’ fees and amounts due under Article III) payable to the Lender;

(ii) second , to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans;

(iii) third , to the payment of that portion of the Obligations constituting unpaid principal of the Loans;

(iv) fourth , to the payment of all other Obligations of the Borrowers owing under or in respect of the Loan Documents that are then due and payable to the Lender; and

(v) finally , any remaining surplus after all of the Obligations have been paid in full, to the Borrowers or to whomsoever shall be lawfully entitled thereto.

ARTICLE IX.

RESERVED

ARTICLE X.

MISCELLANEOUS

Section 10.01 Payment of Expenses etc . Each Credit Party agrees to pay (or reimburse the Lender or its Affiliates, as the case may be) all of the following: (i) [reserved]; (ii) all reasonable and documented out-of-pocket costs and expenses of the Lender in connection with any amendment, waiver or consent relating to any of the Loan Documents (including, without limitation, any and all reasonable and documented costs or expenses incurred in connection with any pledge (other than in respect of the Security Agreement and any Post Closing Security Agreement) or release of Collateral after the Closing Date pursuant to the terms hereof); (iii) all costs and expenses of the Lender in connection with the enforcement of any of the Loan Documents or the other documents and instruments referred to therein, including, without limitation, the reasonable fees and disbursements of any counsel to the Lender (including, without limitation, allocated costs of internal counsel); (iv) any and all present and future stamp and other similar taxes with respect to the foregoing matters (other than an assignment or transfer under Section 10.05) and save the Lender harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to any such indemnified Person) to pay such taxes; (v) all reasonable and documented costs and expenses of creating and perfecting Liens in favor of the Lender including filing and recording fees, expenses and amounts owed pursuant to Article III , search fees, title insurance premiums and fees, expenses and disbursements of counsel to the Lender and of counsel providing any opinions that the Lender may request in respect of the Collateral or the Liens created pursuant to the Security Documents; (vi) all reasonable and documented costs and fees, expenses and disbursements of any auditors, accountants, consultants or appraisers whether internal or external; and (vii) all the actual costs and expenses (including the fees, expenses and disbursements of counsel (including allocated costs of internal counsel) and of any appraisers, consultants, advisors and agents employed or retained by the Lender and its counsel) in connection with the custody or preservation of any of the Collateral.

 

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Section 10.02 Indemnification . Each Credit Party agrees to indemnify the Lender and its respective Related Parties (collectively, the “ Indemnitees ”) from and hold each of them harmless against any and all losses, liabilities, claims, damages or expenses reasonably incurred by any of them as a result of, or arising out of, or in any way related to, or by reason of (i) any investigation, litigation or other proceeding (whether or not the Lender is a party thereto) related to the entering into, performance of any Loan Document and/or the enforcement of any right or remedy under any Loan Document (other than an assignment or transfer under Section 10.05) or the use of the proceeds of any Loans hereunder or the consummation of any transactions contemplated in any Loan Document and (ii) a breach of a Credit Party of the representations, warranties and covenants under the Loan Documents, including, without limitation, the reasonable documented fees and disbursements of counsel incurred in connection therewith (but excluding any such losses, liabilities, claims, damages or expenses of any Indemnitee to the extent incurred by reason of the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction). To the extent that the undertaking to indemnify, pay or hold harmless any Person set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, each Credit Party shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities that is permissible under applicable law.

Section 10.03 Right of Setoff . In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, the Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to any Credit Party or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by the Lender (including, without limitation, by branches and agencies wherever located) to or for the credit or the account of any Credit Party against and on account of the Obligations and liabilities of any Credit Party to the Lender under this Agreement or under any of the other Loan Documents, including, without limitation, all claims of any nature or description arising out of or connected with this Agreement or any other Loan Document, irrespective of whether or not the Lender shall have made any demand hereunder and although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured. The Lender agrees to promptly notify the Borrowers after any such set off and application, provided , however , that the failure to give such notice shall not affect the validity of such set off and application.

Section 10.04 Notices .

(a) Generally . Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subpart (c) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:

(i) if to the Borrowers or to any other Credit Party, to the Borrower Representative at 100 Melbourne Street, South Brisbane, Queensland, Australia 4101, Attn: Treasurer; and

(ii) if to the Lender, to it at the Notice Office.

(b) Receipt of Notices . Notices and communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent and receipt has been confirmed by telephone. Notices delivered through electronic communications to the extent provided in subpart (c) below shall be effective as provided in said subpart (c).

 

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(c) Electronic Communications . Notices and other communications to the Lender hereunder and required to be delivered pursuant to Section 6.01(a) and (c) may be delivered or furnished by electronic communication (including e-mail and Internet or intranet web sites) pursuant to procedures approved by the Lender. The Lender and the Borrowers may, in their discretion, agree in a separate writing to accept notices and other communications to them hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless the Lender otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet web site shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the web site address therefor.

(d) Change of Address, Etc . Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to each of the other parties hereto in accordance with Section 10.04(a) .

Section 10.05 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns; provided, however, that the Borrowers may not assign or transfer any of their rights or obligations hereunder without the prior consent of the Lender and the Lender may not assign or transfer any of its rights or obligations hereunder without the prior consent of the Borrowers, provided that (x) no such consent of the Borrowers shall be required if an Event of Default shall have occurred and is continuing and (y) the Lender may, without the consent of the Borrowers, assign any of its rights hereunder by way of pledge of a security interest.

Section 10.06 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial .

(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

(b) EACH CREDIT PARTY HEREBY IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY IN ANY LITIGATION OR OTHER PROCEEDING BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER OR THE CREDIT PARTIES IN CONNECTION HEREWITH OR THEREWITH; PROVIDED , HOWEVER , THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE LENDER’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND;

 

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PROVIDED , FURTHER , THAT NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDER TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.

(c) EACH CREDIT PARTY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 10.04 . EACH CREDIT PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO IN CLAUSE   (b) ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY CREDIT PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH CREDIT PARTY HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS. EACH CREDIT PARTY HEREBY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT THAT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.

(d) THE LENDER AND EACH CREDIT PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER OR SUCH CREDIT PARTY IN CONNECTION THEREWITH.   EACH CREDIT PARTY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER ENTERING INTO THE LOAN DOCUMENTS.

Section 10.07 Counterparts . This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same agreement. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower Representative and the Lender.

Section 10.08 Integration . This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof or thereof. To the extent that there is any conflict between the terms and provisions of this Agreement and the terms and provisions of any other Loan Document, the terms and provisions of this Agreement will prevail.

 

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Section 10.09 Headings Descriptive . The headings of the several Sections and other portions of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

Section 10.10 Amendment or Waiver . Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof, may be amended, changed, waived or otherwise modified unless such amendment, change, waiver or other modification is in writing and signed by the Credit Parties and the Lender.

Section 10.11 Survival of Indemnities . All indemnities set forth herein including, without limitation, in Article III or Section 10.02 shall survive the execution and delivery of this Agreement and the making and repayment of the Obligations.

Section 10.12 [Reserved .]

Section 10.13 Confidentiality .

(a) The Lender agrees to maintain the confidentiality of the Confidential Information, except that Confidential Information may be disclosed (1) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such Confidential Information confidential), (2) to any direct or indirect contractual counterparty in any hedge agreement (or to any such contractual counterparty’s professional advisor), so long as such contractual counterparty (or such professional advisor) agrees to be bound by the provisions of this Section, (3) to the extent requested by any regulatory authority, (4) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, provided the Lender provides prompt notice to the Borrower Representative of such requirement to the extent permitted by applicable law, (5) to any other party to this Agreement, (6) in connection with the exercise of any remedies hereunder or under any of the other Loan Documents, or any suit, action or proceeding relating to this Agreement or any of the other Loan Documents or the enforcement of rights hereunder or thereunder, (7) with the prior written consent of the Borrower Representative, (8) subject to an agreement containing provisions substantially the same as those of this Section, to any assignee of, or participant in, any of its rights or obligations under this Agreement or (9) to the extent such Confidential Information (i) becomes publicly available other than as a result of a breach of this Section, or (ii) becomes available to the Lender on a non-confidential basis from a source other than a Credit Party and not otherwise in violation of this Section.

(b) As used in this Section, “ Confidential Information ” shall mean all information received from the Borrowers relating to the Borrowers or their businesses, other than any such information that is available to the Lender on a non-confidential basis prior to disclosure by the Borrowers.

(c) Any Person required to maintain the confidentiality of Confidential Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Confidential Information as such Person would accord to its own confidential information. The Borrowers hereby agree that the failure of the Lender to comply with the provisions of this Section shall not relieve the Borrowers, or any other Credit Party, of any of their obligations under this Agreement or any of the other Loan Documents.

Section 10.14 Lender Not Fiduciary to Borrowers, etc . The relationship among the Borrowers and their respective Subsidiaries, on the one hand, and the Lender, on the other hand, is solely that of debtor and creditor, and the Lender has no fiduciary or other special relationship with a Parent and

 

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its Subsidiaries, and no term or provision of any Loan Document, no course of dealing, no written or oral communication, or other action, shall be construed so as to deem such relationship to be other than that of debtor and creditor.

Section 10.15 Survival of Representations and Warranties . All representations and warranties herein shall survive the making of Loans hereunder, the execution and delivery of this Agreement, the Note and the other documents the forms of which are attached as Exhibits hereto, the issue and delivery of the Note, any disposition thereof by the holder thereof, and any investigation made by the Lender. All statements contained in any certificate or other document delivered to the Lender by or on behalf of the Credit Parties or any of their Subsidiaries pursuant hereto or otherwise specifically for use in connection with the transactions contemplated hereby shall constitute representations and warranties by the Borrowers hereunder, made as of the respective dates specified therein or, if no date is specified, as of the respective dates furnished to the Lender.

Section 10.16 Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Section 10.17 Independence of Covenants . All covenants hereunder shall be given independent effect so that if a particular action, event, condition or circumstance is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations or restrictions of, another covenant, shall not avoid the occurrence of a Default or an Event of Default if such action is taken or event, condition or circumstance exists.

Section 10.18 Interest Rate Limitation . Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts that are treated as interest on such Loan under applicable law (collectively, the “ Charges ”), shall exceed the maximum lawful rate (the “ Maximum Rate ”) that may be contracted for, charged, taken, received or reserved by the Lender in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Applicable Margin to the date of repayment, shall have been received by the Lender.

Section 10.19 USA Patriot Act . The Lender hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow the Lender to identify the Borrowers in accordance with the USA Patriot Act.

Section 10.20 No Waiver; Remedies Cumulative . No failure or delay on the part of the Lender in exercising any right, power or privilege hereunder or under any other Loan Document and no course of dealing between the Credit Parties and the Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. No notice to or demand on the Credit Parties in any case shall entitle the Credit Parties to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Lender to any other or further action in any circumstances without notice or

 

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demand. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Lender may have had notice or knowledge of such Default or Event of Default at the time. The rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies that the Lender would otherwise have.

Section 10.21 General Limitation of Liability . Except as expressly set forth in Section 10.13, no claim may be made by any Credit Party or any other Person against the Lender or any of its Affiliates, directors, officers, employees, attorneys or agents for any damages other than actual compensatory damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any of the other Loan Documents, or any act, omission or event occurring in connection therewith; and each Credit Party hereby, to the fullest extent permitted under applicable law, waive, release and agree not to sue or counterclaim upon any such claim for any special, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in their favor.

Section 10.22 No Duty . All attorneys, accountants, appraisers, consultants and other professional persons (including the firms or other entities on behalf of which any such Person may act) retained by the Lender with respect to the transactions contemplated by the Loan Documents shall have the right to act exclusively in the interest of the Lender, as the case may be, and shall have no duty of disclosure, duty of loyalty, duty of care, or other duty or obligation of any type or nature whatsoever to the Credit Parties, to any of their respective Subsidiaries, or to any other Person, with respect to any matters within the scope of such representation or related to their activities in connection with such representation. Each Credit Party agrees, on behalf of itself and its Subsidiaries, not to assert any claim or counterclaim against any such persons with regard to such matters, all such claims and counterclaims, now existing or hereafter arising, whether known or unknown, foreseen or unforeseeable, being hereby waived, released and forever discharged.

Section 10.23 Advertising and Publicity . Neither party shall issue or disseminate to the public (by advertisement, including without limitation any “tombstone” advertisement, press release or otherwise), submit for publication or otherwise cause or seek to publish any information describing the credit or other financial accommodations made available by the Lender pursuant to this Agreement and the other Loan Documents without the prior written consent of the other party. Nothing in the foregoing shall be construed to prohibit any party hereto from making any submission or filing which it is required to make by applicable law or pursuant to judicial process; provided , that, such filing or submission shall contain only such information as is necessary to comply with applicable law or judicial process.

Section 10.24 Payments Set Aside . To the extent that the Lender receives a payment from or on behalf of any Borrower or any other Person, from the proceeds of any Collateral, from the exercise of its rights of setoff, any enforcement action or otherwise, and such payment is subsequently, in whole or in part, invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligations or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not occurred.

Section 10.25 Release of Guarantees and Liens . When this Agreement has been terminated and all of the Obligations have been paid in full (other than obligations in respect of contingent indemnity obligations) and the obligations of the Lender to provide additional credit under the Loan Documents have been terminated irrevocably, the Lender will, at the Borrowers’ sole expense, execute and deliver any termination statements, lien releases, mortgage releases, re-assignments of intellectual property, discharges of security interests, and other similar discharge or release documents (and, if applicable, in recordable form) as are necessary or advisable to release, as of record, the Lender’s Liens and all notices of security interests and liens previously filed by the Lender with respect to the Obligations.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written.

 

Borrower    
Executed by Peabody Energy Australia Coal Pty Ltd ACN 001 401 663 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of director

MARIA DA CONCEICAO DE SANTANA

   

CHARLES FREDERICK MEINTJES

Full name of director     Full name of director
Parents    
Executed by Peabody Energy Australia Pty Ltd ACN 096 909 410 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

MARIA DA CONCEICAO DE SANTANA

   

CHARLES FREDERICK MEINTJES

Full name of director     Full name of director
Executed by PEAMCoal Pty Ltd ACN 152 004 772 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

MARIA DA CONCEICAO DE SANTANA

   

CHARLES FREDERICK MEINTJES

Full name of director     Full name of director


Guarantors    
Executed b y Burton Coal Pty Ltd ACN 064 159 977 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of director

GEOFFREY DAVID HARVEY

   

STEVEN JOHN HEDGES

Full name of director     Full name of director
Signed for and on behalf of Excel Equities International Pty Ltd ACN 075 481 953 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Helensburgh Coal Pty Ltd ACN 086 463 452 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney


Signed for and on behalf of Metropolitan Collieries Pty Ltd ACN 003 135 635 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Executed by Millennium Coal Pty Ltd ACN 089 566 021 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

GEOFFREY DAVID HARVEY

   

STEVEN JOHN HEDGES

Full name of director     Full name of director
Signed for and on behalf of North Goonyella Coal Mines Pty Ltd ACN 010 912 526 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Executed by Peabody Acquisition Co. No. 5 Pty Ltd ACN 158 298 250 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

MARIA DA CONCEICAO DE SANTANA

   

CHARLES FREDERICK MEINTJES

Full name of director     Full name of director


Signed for and on behalf of Peabody Australia Mining Pty Ltd ACN 002 818 699 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    MARIA DA CONCEICAO DE SANTANA

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody BB Interests Pty Ltd ACN 116 402 352 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody Budjero Pty Ltd ACN 142 356 983 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney


Signed for and on behalf of Peabody Budjero Holdings Pty Ltd ACN 143 001 825 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody (Bowen) Pty Ltd ACN 010 879 526 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Executed by Peabody (Burton Coal) Pty Ltd ACN 077 679 513 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

GEOFFREY DAVID HARVEY

   

STEVEN JOHN HEDGES

Full name of director     Full name of director


Signed for and on behalf of Peabody Capricorn Pty Ltd ACN 117 316 793 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody CHPP Pty Ltd ACN 609 368 649 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Executed by Peabody COALSALES Australia Pty Ltd ACN 142 991 286 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

MARIA DA CONCEICAO DE SANTANA

   

GEOFFREY DAVID HARVEY

Full name of director     Full name of director
Executed by Peabody COALSALES Pacific Pty Ltd ACN 146 797 408 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

MARIA DA CONCEICAO DE SANTANA

   

GEOFFREY DAVID HARVEY

Full name of director     Full name of director


Executed by Peabody COALTRADE Australia Pty Ltd ACN 094 052 267 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

MARIA DA CONCEICAO DE SANTANA

   

GEOFFREY DAVID HARVEY

Full name of director     Full name of director
Executed by Peabody Coppabella Pty Ltd ACN 095 976 042 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

GEOFFREY DAVID HARVEY

   

STEVEN JOHN HEDGES

Full name of director     Full name of director
Executed by Peabody Custom Mining Pty Ltd ACN 109 159 471 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

GEOFFREY DAVID HARVEY

   

STEVEN JOHN HEDGES

Full name of director     Full name of director
Executed by Peabody Energy Australia PCI Pty Ltd ACN 096 001 955 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

MARIA DA CONCEICAO DE SANTANA

   

CHARLES FREDERICK MEINTJES

Full name of director     Full name of director


Signed for and on behalf of Peabody Energy Australia PCI Berrigurra Pty Ltd ACN 146 346 161 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody Energy Australia PCI Equipment Pty Ltd ACN 080 410 359 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody Energy Australia PCI Exploration Pty Ltd ACN 096 687 508 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney


Signed for and on behalf of Peabody Energy Australia PCI Financing Pty Ltd ACN 146 746 107 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody Energy Australia PCI Management Pty Ltd ACN 096 687 491 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody Energy Australia PCI Mine Management Pty Ltd ACN 113 889 928 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney


Signed for and on behalf of Peabody Energy Australia PCI Rush Pty Ltd ACN 128 817 461 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody (Kogan Creek) Pty Ltd ACN 101 562 580 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody Moorvale Pty Ltd ACN 166 673 301 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney


Signed for and on behalf of Peabody Moorvale West Pty Ltd ACN 117 316 686 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody Olive Downs Pty Ltd ACN 096 140 377 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody Pastoral Holdings Pty Ltd ACN 141 206 368 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney


Signed for and on behalf of Peabody West Burton Pty Ltd ACN 117 316 695 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody West Rolleston Pty Ltd ACN 117 316 775 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney
Signed for and on behalf of Peabody West Walker Pty Ltd ACN 117 316 739 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney


Signed for and on behalf of Wilpinjong Coal Pty Ltd   ACN 104 594 694 by its attorney under a power of attorney dated 8 April 2016 in the presence of:    

 

   

 

Signature of witness     Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney
    GEOFFREY DAVID HARVEY

 

   

 

Full name of witness     Full name of attorney


GLOBAL CENTER FOR ENERGY AND HUMAN DEVELOPMENT, LLC , as Lender
By:   PEABODY INVESTMENTS CORP., its sole member
  By:  

 

    Name:   James A. Tichenor
    Title:   Vice President and Treasurer


Schedule 6.09

The Credit Parties will execute and deliver the documents and complete the tasks set forth in this Schedule 6.09, in each case within the time limits specified on this schedule. This does not limit any obligation that any Credit Party has to the Lender under the Security Agreement. Capitalized terms used in this schedule which are not otherwise defined in the Credit Agreement have the meaning given to them in the Security Agreement.

 

Item

  

Relevant clause reference – Specific Security Deed

  

Task

  

Time limit

1    Clause 5.8(g) of the Specific Security Deed dated on or about the date hereof between Peabody Energy Australia Pty PCI Pty Ltd ACN 096 001 955 and the Lender ( Specific Security Deed )   

If any Secured Property is located in New South Wales, Australia for stamp duty purposes, provide to the Lender:

 

•       sufficient funds to pay any necessary duty in respect of the Specific Security Deed; and

 

•       a duly completed and executed multi-jurisdictional mortgage statement in form and substance satisfactory to the Lender.

 

   Within 3 months of the date of execution of the Specific Security Deed.
2    Clause 5.5(a)(i) of the Specific Security Deed    Deliver to the Lender all Title Documents in respect of any of the Secured Property.    Within 60 days of the date of the Specific Security Deed.
3    Clause 5.8(h) of the Specific Security Deed    Provide to the Lender executed stock transfer forms, undated and blank as to transferee and consideration, in relation to any investment instrument which is Secured Property.    Within 60 days of the date of the Specific Security Deed
4    Clause 5.8(a) of the Specific Security Deed    Provide to the Lender evidence that the constitution of the Company has been amended so as to remove any discretion of the directors of the Company to refuse to register a transfer of shares in the Company if an Event of Default has occurred under the Specific Security Deed and the Lender has enforced its rights under the Specific Security Deed.    Within 60 days of the date of the Specific Security Deed


Schedule 6.10

Subject to the terms of section 6.10, the Credit Parties will execute and deliver the documents and complete the tasks set forth in this Schedule 6.10, in each case within the time limits specified on this schedule. This does not limit any obligation that any Credit Party may have to the Lender under any Post-Closing Security Agreement. Capitalized terms used in this schedule which are not otherwise defined in the Credit Agreement have the meaning given to them in the relevant Post-Closing Security Agreement entitled or designated as a “General Security Deed” (in the case of Table A) or a “Specific Security Deed” (in the case of Table B).

Table A – General Security Deed

 

Item

  

Task

  

Time limit

1   

If any Secured Property is located in New South Wales, Australia for stamp duty purposes, provide to the Lender:

 

•       sufficient funds to pay any necessary duty in respect of the General Security Deed; and

 

•       a duly completed and executed multi-jurisdictional mortgage statement in form and substance satisfactory to the Lender.

   On the date of execution of the General Security Deed.
2    Provide to the Lender all Registration Details in respect of any item of the Grantor’s Serial Numbered Property which has a book value of A$5,000,000 or greater (or its equivalent).    Within 10 days of the execution of the General Security Deed.
3    Deliver to the Lender all Title Documents in respect of any of the Secured Property.    On the date of the date of the General Security Deed.
4    Provide to the Lender executed stock transfer forms, undated and blank as to transferee and consideration, in relation to any investment instrument which is Secured Property.    On the date of the date of the General Security Deed
5    To the extent still relevant, provide evidence to the Lender that the Grantor has used its best endeavours to obtain NAB’s consent to the granting of the security interests under the General Security Deed.    Within 30 days of the date of the General Security Deed

Table B – Specific Security Deed

 

Item

  

Task

  

Time limit

1   

If any Secured Property is located in New South Wales, Australia for stamp duty purposes, provide to the Lender:

 

•       sufficient funds to pay any necessary duty in respect of the Specific Security Deed; and

 

•       a duly completed and executed multi-jurisdictional mortgage statement in form and substance satisfactory to the Lender.

   On the date of the date of execution of the Specific Security Deed.


2    Deliver to the Lender all Title Documents in respect of any of the Secured Property.    On the date of the Specific Security Deed.
3    Provide to the Lender executed stock transfer forms, undated and blank as to transferee and consideration, in relation to any investment instrument which is Secured Property.    On the date of the Specific Security Deed
4    To the extent still required, provide evidence to the Lender that the Grantor has used its best endeavours to obtain NAB’s consent to the granting of the security interests under the General Security Deed.    Within 30 days of the date of the Specific Security Deed
4    Provide to the Lender evidence that the constitution of the Company has been amended so as to remove any discretion of the directors of the Company to refuse to register a transfer of shares in the Company if an Event of Default has occurred under the Specific Security Deed and the Lender has enforced its rights under the Specific Security Deed.    Within 10 days of the date of the Specific Security Deed


EXHIBIT A

NOTE

 

$250,000,000.00                , 2016
   New York, New York

FOR VALUE RECEIVED, the undersigned Peabody Energy Australia Coal Pty Ltd ACN 001 401 663 (the “ Borrower ”), hereby promises to pay to Global Center for Energy and Human Development, LLC (the “ Lender ”) the principal sum of Two Hundred and Fifty Million Dollars ($250,000,000.00) or, if less, the then unpaid principal amount of all Revolving Loans (such term and each other capitalized term used herein without definition shall have the meanings ascribed thereto in the Credit Agreement referred to below) made by the Lender to the Borrower pursuant to the Credit Agreement, in Dollars and in immediately available funds, at the Payment Office on the Revolving Facility Termination Date.

This Note is one of the Notes referred to in the Credit Agreement, dated as of April [    ], 2016, by and between the Borrower, the Lender and the other parties party thereto from time to time (as the same may be amended, restated or otherwise modified from time to time, the “ Credit Agreement ”), and is entitled to the benefits thereof and of the other Loan Documents. As provided in the Credit Agreement, this Note is subject to mandatory repayment prior to the Revolving Facility Termination Date, in whole or in part.

In case an Event of Default shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.

The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Revolving Facility Note, except as expressly set forth in the Credit Agreement. No failure to exercise, or delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of any such rights.

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS REVOLVING FACILITY NOTE, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

Very truly yours,
Borrower
[Execution clause to be inserted]

 

E-1


EXHIBIT B

NOTICE OF BORROWING

            , 20    

Global Center for Energy and Human Development, LLC

 

 

 

 
Attention:  

 

 

 

  Re: Notice of Borrowing

Ladies and Gentlemen:

The undersigned, Peabody Energy Australia Coal Pty Ltd ACN 001 401 663 (the “ Borrower ”), refers to the Credit Agreement, dated as of April [    ], 2016 (as the same may be amended, restated or otherwise modified from time to time, the “ Credit Agreement ,” the terms defined therein being used herein as therein defined), by and between the Borrower, Global Center for Energy and Human Development, LLC and the other parties party thereto from time to time, and hereby gives you notice, irrevocably, pursuant to Section 2.04(b) of the Credit Agreement, that the undersigned hereby requests one or more Borrowings under the Credit Agreement, and in that connection therewith sets forth on Annex 1 hereto the information relating to each such Borrowing (collectively the “ Proposed Borrowing ”) as required by Section 2.04(b) of the Credit Agreement.

The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:

(A) the representations and warranties of the Borrower contained in the Credit Agreement and the other Loan Documents are and will be true and correct in all material respects (or, in the case of any representation and warranty already subject to a materiality qualifier, true and correct), before and after giving effect to the Proposed Borrowing and to the application of the proceeds thereof, as though made on such date, except to the extent that such representations and warranties expressly relate to an earlier specified date, in which case such representations and warranties were true and correct in all material respects as of the date when made; and

(B) no Default or Event of Default has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds thereof.

 

Very truly yours,
Borrower
[Execution clause to be inserted]

 

E-2


Annex 1

to

Notice of Borrowing

 

 

 

  1. The Business Day of the Proposed Borrowing is [                    ].

 

  2. The aggregate principal amount of the Loans to made pursuant to such Borrowing is [$        ].

 

E-3


EXHIBIT E

COMPLIANCE CERTIFICATE

            , 20    

Global Center for Energy and Human Development, LLC

 

 

 

 
Attention:  

 

 

Ladies and Gentlemen:

Reference is made to that certain Credit Agreement, dated as of April [    ], 2016, by and between Peabody Energy Australia Coal Pty Ltd ACN 001 401 663 (the “ Borrower ”), Global Center for Energy and Human Development, LLC (the “ Lender ”) and the other parties party thereto from time to time (as the same may be amended, restated or otherwise modified from time to time, the “ Credit Agreement ”; terms defined therein being used herein as therein defined). Pursuant to Section 6.01(c) of the Credit Agreement, the undersigned hereby certifies to the Lender as follows:

(a) I am the duly elected [Chief Financial Officer] of the Borrower.

(b) I am familiar with the terms of the Credit Agreement and the other Loan Documents, and I have made, or have caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements.

(c) The review described in paragraph (b) above did not disclose, and I have no knowledge of, the existence of any condition or event that constitutes or constituted a Default or Event of Default at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate.

 

Very truly yours,
Borrower
[Execution clause to be inserted]

 

E-4


Execution Version

Specific Security Deed

Peabody Energy Australia PCI Pty Ltd ACN 096 001 955

Global Center for Energy and Human Development, LLC


Execution Version

Table of Contents

 

Agreed terms

     1   

1.

    

Definitions and Interpretation

     1   

2.

    

Grant of Security

     5   

3.

    

Release of Secured Property

     6   

4.

    

Representations and Warranties

     7   

5.

    

Undertakings of the Grantor

     8   

6.

    

Enforcement

     11   

7.

    

Receiver

     12   

8.

    

Application and Receipts of Money

     15   

9.

    

Power of Attorney

     18   

10.

    

Protection

     19   

11.

    

Not used

     19   

12.

    

Saving Provisions

     19   

13.

    

PPSA

     22   

14.

    

General

     23   


Execution Version

Specific security deed

 

 

Date    April 13, 2016
Parties    Peabody Energy Australia PCI Pty Ltd ACN 096 001 955 (Grantor)
   Global Center for Energy and Human Development, LLC (Secured Party)

Agreed terms

 

1. Definitions and Interpretation

 

1.1. Definitions

In this document:

Additional Securities means any Marketable Securities issued by the Company which, after the date of this document, become owned beneficially by the Grantor.

Attorney means an attorney appointed under this document, if any.

Company means Peabody West Burton Pty Ltd ACN 117 316 695.

Corporations Act means the Corporations Act, 2001 (Cth).

Credit Agreement means the agreement so named dated on or about the date of this document between, amongst others, the Grantor, the Company and the Secured Party.

Excluded Tax means any Tax imposed by any jurisdiction on the net income of the Secured Party.

Initial Securities means the Marketable Securities listed in schedule 1.

Marketable Securities means:

 

  (a) a “marketable security” as defined in the Corporations Act;

 

  (b) a negotiable instrument (within the ordinary meaning of that term);

 

  (c) any units (whatever called) in a trust estate which represent a legal or beneficial interest in any of the income or assets of that trust estate;

 

  (d) a right or interest in a partnership; and

 

  (e) a right or an option in respect of any of the above, whether issued or unissued.

Officer means:

 

  (a) in relation to the Grantor, a director of the Grantor;

 

  (b) in relation to the Secured Party, any officer, as that expression is defined in the Corporations Act, of the Secured Party; and

 

  (c) in relation to a Receiver or an Attorney which is a corporation, any officer, as that expression is defined in the Corporations Act, of that Receiver or Attorney.


Permitted Restriction means:

 

  (a) a Restriction disclosed in writing to, and consented to in writing by, the Secured Party on or before the date of this document (unless the consent was conditional and any of the conditions are not complied with); and

 

  (b) a Restriction created after the date of this document which was consented to by the Secured Party in writing on or before its creation (unless the consent was conditional and any of the conditions are not complied with).

Permitted Security Interest means:

 

  (a) each Security; and

 

  (d) a Permitted Lien,

which affects or relates to any of the Secured Property.

Power means any right, power, authority, discretion or remedy conferred on the Secured Party, Receiver or Attorney by this document or any applicable law.

PPS Law means:

 

  (a) the PPSA and any regulation made at any time under the PPSA, including the PPS Regulations (each as amended from time to time); and

 

  (b) any amendment made at any time to any other legislation as a consequence of a law or regulation referred to in paragraph (a).

PPS Regulations means the Personal Property Securities Regulations 2010 (Cth).

PPSA means the Personal Property Securities Act 2009 (Cth).

Proceeds means all money (in whatever currency) and amounts payable to the Grantor or to which the Grantor is entitled now or in the future (whether alone or with any other person) on any account or in any way whatsoever under, or as holder of, any Marketable Securities in the Company or Rights, including distributions, dividends, bonuses, profits, return of capital, interest and all proceeds of sale (within the ordinary meaning of those words), redemption or disposal.

Receiver means a receiver or receiver and manager appointed under this document.

Registrar means the Registrar of Personal Property Securities administering the Personal Property Securities Register under PPS Law.

Relevant Currency means the lawful currency of the United States of America.

Restriction means any agreement, obligation or arrangement that restricts, or entitles another person to rights of pre-emption or refusal for, a sale, assignment or other dealing with Marketable Securities in the Company.

Rights means:

 

  (a) rights to acquire Marketable Securities in the Company arising because the Grantor has an interest in the Marketable Securities in the Company, including due to any allotment, offer, substitution, conversion, consolidation, reclassification, redemption, reconstruction, amalgamation, subdivision, reduction of capital, liquidation or scheme of arrangement in relation to any Marketable Securities in the Company; and

 

  (b) any other rights of the Grantor of any kind in connection with the Marketable Securities, including in relation to any Proceeds.

 

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Secured Money means all debts and monetary liabilities of the Grantor to the Secured Party under the Loan Documents, in any capacity irrespective of whether the debts or liabilities:

 

  (a) are present or future;

 

  (b) are actual, prospective, contingent or otherwise;

 

  (c) are at any time ascertained or unascertained;

 

  (d) are owed or incurred by or on account of the Grantor alone, or severally or jointly with any other person;

 

  (e) are owed to or incurred for the account of the Secured Party alone, or severally or jointly with any other person;

 

  (f) are owed to any other person as agent (whether disclosed or not) for or on behalf of the Secured Party;

 

  (g) are owed or incurred as principal, interest, fees, charges, Taxes, damages (whether for breach of contract or tort or incurred on any other ground) losses, costs or expenses, or on any other account;

 

  (h) are owed to or incurred for the account of the Secured Party directly or as a result of:

 

  (i) the assignment to the Secured Party of any debt or liability of the Grantor; or

 

  (ii) any other dealing with any such debt or liability;

 

  (i) are owed to or incurred for the account of the Secured Party before the date of this document, before the date of any assignment of this document to the Secured Party by any other person or otherwise; or

 

  (j) comprise any combination of the above.

Secured Property means all of the Grantor’s present and future right, title and interest in, to, under or derived from:

 

  (a) all the Initial Securities;

 

  (b) all the Additional Securities; and

 

  (c) all the Rights,

irrespective, in each case, of the capacity in which the Grantor holds or comes to hold any of the same, including as trustee of any trust.

Security means the Security Interest created by this document.

Security Interest has the meaning given to the term “Lien” in the Credit Agreement.

Title Document means an original, duplicate or counterpart certificate or document of title or evidencing title to, or rights to acquire, possess, use or dispose of, any Secured Property including any share certificate.

Transfer means, in respect of any Marketable Securities in the Company, a document of transfer signed by the Grantor as transferee that is sufficient to transfer all the legal and beneficial ownership of those Marketable Securities to the Secured Party or its nominee.

 

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1.2. Credit Agreement

 

  (a) Unless otherwise defined, capitalised terms used in this document have the meanings given to them in or for the purposes of the Credit Agreement.

 

  (b) This document is a “Loan Document” for the purposes of the Credit Agreement.

 

1.3. PPS Law Definitions

Unless otherwise defined in this document, terms defined in the PPS Law have the same meaning in this document.

 

1.4. Interpretation

In this document, headings are for convenience only and do not affect the interpretation of this document and, unless the context otherwise requires:

 

  (a) words importing the singular include the plural and vice versa;

 

  (b) words importing a gender include any gender;

 

  (c) other parts of speech and grammatical forms of a word or phrase defined in this document have a corresponding meaning;

 

  (d) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Governmental Authority;

 

  (e) a reference to any thing (including any right) includes a part of that thing;

 

  (f) a reference to a clause, party or schedule is a reference to a part and clause of, and a party, and schedule to, this document and a reference to this document includes any schedule;

 

  (g) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;

 

  (h) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;

 

  (i) a reference to a party to a document includes that party’s successors and permitted assigns;

 

  (j) a reference to an agreement other than this document includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;

 

  (k) a reference to an asset includes all property of any nature, including a business, and all rights, revenues and benefits;

 

  (l) a reference to a document includes any agreement in writing, or any certificate, notice, deed, instrument or other document of any kind;

 

  (m) a reference to liquidation includes official management, appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding-up, dissolution, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death;

 

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  (n) no provision of this document will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of this document or that provision;

 

  (o) a reference to “subsists” or any similar expression in relation to an Event of Default indicates an Event of Default which has not been remedied or waived in accordance with the terms of the Loan Documents; and

 

  (p) the phrase grant a security interest or grant a Security Interest includes to charge, mortgage, pledge, encumber, assign by way of security and transfer by way of security.

 

1.5. Business Day

Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the preceding Business Day, except as otherwise expressly provided for in the Credit Agreement.

 

1.6. Inclusive expressions

Specifying anything in this document after the words include or for example or similar expressions does not limit what else is included unless there is express wording to the contrary.

 

2. Grant of Security

 

2.1. Security

The Grantor as beneficial owner grants a security interest in all of the Secured Property to the Secured Party to secure:

 

  (a) the performance of the Obligations; and

 

  (b) the due and punctual payment of the Secured Money.

 

2.2. Priority

This security interest will operate as a first ranking Security Interest subject only to:

 

  (a) any Security Interests mandatorily preferred by law; and

 

  (b) any Security Interest created under a Permitted Security Interest which exists as at the date of this document.

 

2.3. No agreement or consent to subordination, attachment or accessions

Nothing in this document may be construed as an agreement or consent by the Secured Party to:

 

  (a) subordinate the Security Interest created under this document in favour of any person (other than as expressly recognised under clause 2.2); or

 

  (b) defer or postpone the date of attachment of the Security Interest created under this document in any Secured Property.

 

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2.4. Conversion

If an Event of Default occurs and during the period it subsists, the Secured Party may (subject to any Restriction) procure itself (or its nominee) to be registered as the holder of the Marketable Securities comprising the Secured Property (or any of them). To facilitate this, the Grantor :

 

  (a) irrevocably and unconditionally authorises the Secured Party to date and complete any Transfers and lodge those transfers for stamping and registration accompanied by, if certified, share certificates relating to those Transfers; and

 

  (b) must at that time, if the Secured Party requires, do everything in its power to assist the Secured Party (or its nominee) being registered as the holder of the shares, units or other Marketable Securities comprising the Secured Property (or any of them).

 

3. Release of Secured Property

 

3.1. Release

Subject to Clause 3.3, at the written request of the Grantor, the Secured Party must release the Secured Property from this document and the Security Interest created under it if:

 

  (a) the Secured Money have been paid in full; and

 

  (b) the Obligations have been fully observed and performed.

 

3.2. Procedure for release

The Secured Party must effect any release of the Secured Property under Clause 3.1 by:

 

  (a) executing a deed of release confirming the release of the Secured Property from this document and the Security Interest created under it; and

 

  (b) at the election of the Grantor:

 

  (i) lodging with the Registrar a financing change statement amending the financing statement lodged by the Secured Party with respect to this document to reflect the release under Clause 3.1; or

 

  (ii) provide the Grantor with the token referrable to this document issued at the time of lodgement of the financing statement for this document with the Registrar and authorise the Grantor to use the token to lodge a financing change statement with the Registrar to amend the financing statement referrable to this document to reflect the release effected under Clause 3.1.

 

3.3. Final Release

 

  (a) The Secured Party is not obliged to release the Secured Property from this document and the Security Interest created under Clause 3.1 if, at the time the requirements of Clause 3.1 are satisfied, the Secured Party is of the opinion that:

 

  (i) any Secured Money may be owed contingently or otherwise to the Secured Party or any Obligations are yet to be fully performed; or

 

  (ii) Secured Money will be owed or Obligations will need to be performed within a reasonable time after the date the Grantor requests the discharge of the Security Interest created under this document.

 

  (b) Clause 3.3(a) overrides any other Clause to the contrary in this document.

 

  (c) The parties intend that Clause 3.3(a)(ii) be severed from Clause 3.3(a) if Clause 3.3(a)(ii) is void or unenforceable under applicable law.

 

  (d) The parties do not intend Clause 3.3(c) to exclude the general law of severance from applying to this document.

 

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3.4. Partial Release of Security Interest created under this document

 

  (a) The Secured Party may release a part of the Secured Property from the Security Interest created under this document at any time.

 

  (b) A release under Clause 3.4(a) does not adversely affect the Security Interest created under this document over other Secured Property.

 

3.5. Reinstatement of Security Interest created under this document

 

  (a) The Grantor must do or cause to be done anything the Secured Party requires the Grantor to do to reinstate the Security Interest created under this document if anyone claims that money applied to satisfied Secured Money has to be repaid or refunded under any law after the Secured Property has been released.

 

  (b) A law referred to in Clause 3.5(a) includes a law about preferences, bankruptcy, insolvency or winding up.

 

  (c) The Secured Party may require the Grantor to sign documents under Clause 3.5(a).

 

  (d) If a claim referred to in Clause 3.5(a) is upheld or omitted, the Secured Party is entitled to the same rights, powers and remedies against the Grantor and the Secured Property as it would have had if the relevant money had not been applied to satisfy Secured Money and the Secured Property had never been released.

 

  (e) This Clause 3.5 survives release of the Secured Property from this document.

 

4. Representations and Warranties

 

4.1. Representations and Warranties

The Grantor gives the following representations and warranties.

 

  (a) It is not the trustee of any trust or settlement, or a partner in any partnership, which has not been disclosed in writing to the Secured Party and agreed to by the Secured Party in writing.

 

  (b) It obtains or will obtain commercial benefit in entering into this document and performing its obligations under it.

 

  (c) All Marketable Securities in the Company in existence as at the date of this document are fully paid up and validly issued and all Marketable Securities in the Company acquired after the date of this document will be fully paid up and validly issued at the time that it arises or comes into existence.

 

  (d) It has good right to grant a security interest in the Secured Property in the manner provided in this document and the Secured Property is free of all Liens other than in favour of the Secured Party, any other Permitted Security Interest or as expressly permitted by any Loan Document;

 

  (e) The Secured Party has received from the Grantor all information requested by the Secured Party to complete any financing statement (or financing change statement, if necessary) for this document and that the information is true and correct in all respects.

 

4.2. Survival of representations and warranties

The representations and warranties set out in Clause 4.1:

 

  (a) survive the execution of this document; and

 

  (b) are given on execution.

 

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4.3. Reliance

The Grantor acknowledges that it has not entered into this document in reliance on any representation, warranty, promise or statement made by the Secured Party or any person on behalf of the Secured Party other than as expressly disclosed in this document.

 

5. Undertakings of the Grantor

 

5.1. Credit Agreement

Each undertaking given in this Clause 5 is subject to the relevant provisions of the Credit Agreement and to the extent that the Grantor has complied with those provisions of the Credit Agreement then (notwithstanding any inconsistency between those provisions and this clause) it will be taken to have also complied with this clause.

 

5.2. Performance under this document

The Grantor will satisfy, or procure the satisfaction of, the Obligations and will pay the Secured Money to the Secured Party when it is due and in the currency in which it is owed. For the purposes of section 14(6)(a) of the PPSA, this Clause 5.2 constitutes the method of payment application agreed by the Parties.

 

5.3. Undertakings relating to Relevant Securities

The Grantor must:

 

  (a) comply with the following:

 

  (i) comply with the terms of each Permitted Restriction binding on it in respect of the Secured Property from time to time where non-compliance could reasonably be expected to have a Material Adverse Effect;

 

  (ii) not create or permit to exist any Restriction over any Secured Property other than a Permitted Restriction; and

 

  (iii) not release or vary any Permitted Restriction or waive the obligations of another person in relation to a Permitted Restriction;

 

  (b) immediately notify the Secured Party of any Rights, Proceeds or Marketable Securities in the Company acquired by or accruing to the Grantor, or to which the Grantor becomes entitled, after the date of this document; and

 

  (c) at the Grantor’s cost exercise or take up all Rights (other than for Proceeds) as directed by the Secured Party where, in the Secured Party’s opinion, failure to do so would be likely to materially lessen the value of, or prejudicially affect, the Secured Property and the rights of the Secured Party under Security Interest granted under this document.

 

5.4. Voting powers and Proceeds

If the Marketable Securities in the Company are not registered in the Secured Party’s name and if no Event of Default subsists, the Grantor may do any of the following without the need for consent or direction from the Secured Party:

 

  (a) exercise any voting powers it has as holder of the Marketable Securities in the Company as it sees fit, provided that it does so prudently and does not otherwise cause or permit a breach of any of the Grantor’s other obligations under this document; and

 

  (b) retain and use in the ordinary course of its business any Proceeds (other than Proceeds from a reduction of capital, a buy-back of shares under a buy-back scheme or otherwise under a scheme of arrangement).

 

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However, if an Event of Default subsists, the rights of the Grantor under Clauses 5.4(a) and 5.4(b) immediately cease, and:

 

  (c) the Secured Party is entitled to exercise all voting rights in respect of all of the Marketable Securities in the Company to the exclusion of the Grantor; and

 

  (d) the Grantor must pay over amounts of any Proceeds, or otherwise must ensure that any Proceeds are paid directly, to the Secured Party to be applied in accordance with Clause 8.

Nothing in this Clause 5.4 obliges the Secured Party to vote or exercise other rights in relation to the Marketable Securities in the Company or to obtain any Proceeds, and the Secured Party will have no responsibility or liability for any loss arising due to the Secured Party’s failure or delay in so acting.

 

5.5. Not used

 

5.6. Title documents

 

  (a) Unless the Secured Party otherwise consents in writing, the Grantor must deposit with the Secured Party, or as the Secured Party directs, all the Title Documents in respect of any of the Secured Property which is the subject of this security interest:

 

  (i) within 60 days after the date of this document; and

 

  (ii) immediately on acquisition of any asset which forms part of the Secured Property.

 

  (b) Where title to any Marketable Securities included in Secured Property is evidenced by a certificate, the Grantor must obtain the issue of replacement certificates if the original certificates are lost or destroyed or believed by the Secured Party to be so.

 

  (c) Subject to Clause 5.6(d), the Secured Party may retain the Title Documents until the Secured Property is released from the Security Interest created by this document under Clause 3.

 

  (d) If the Security Interest created by this document is enforced, the Secured Party, Receiver or Attorney is entitled:

 

  (i) to deal with the Title Documents as if it was the absolute and unencumbered owner of the Secured Property to which the Title Documents relate; and

 

  (ii) in exercising a power of sale, to deliver any Title Document to a purchaser of the Secured Property to which it relates.

 

5.7. Negative pledge

 

  (a) The Grantor must not create or permit to exist any Security Interest over any Secured Property other than under any Permitted Security Interest (or if by law its creation cannot be restricted, the Grantor must use its best endeavours to procure that the holder of the Security Interest first enters into priority arrangement in a form and substance acceptable to the Secured Party).

 

  (b) Unless otherwise permitted under this document, the Grantor must not, and must not agree to, or attempt to, sell, assign, transfer, dispose of, part with possession of, or otherwise deal with any of the Secured Property.

 

9


  (c) Clause 5.7(b) does not apply to any Permitted Security Interest.

 

  (d) The Grantor must not, and must not agree to or attempt to, request or consent to the removal of any of the Secured Property from any register on which it is recorded or registered, or permit the Secured Property to become liable to cancellation, forfeiture, avoidance or loss.

 

5.8. Proceeds

The Grantor and the Secured Party confirm and agree that the Security Interests under this document will extend to all proceeds from any disposal or dealing with the Secured Property (whether or not it is authorised under Clause 5.7). The Grantor agrees to do all things which the Secured Party requires (acting reasonably) to ensure that the Secured Party has a perfected Security Interest in any proceeds.

 

5.9. Further assurances

The Grantor must do (and must procure that anyone else who has an interest in the Secured Property or who claims under or in trust for the Grantor does) whatever the Secured Party reasonably requires to:

 

  (a) better secure the Secured Property for payment of the Secured Money and performance or satisfaction of the Obligations and to enable the better exercise of any Power (including the granting of further specific security in the form required by the Secured Party and depositing with the Secured Party documents or evidence of titles and transfers in relation to investment instruments); and

 

  (b) perfect, preserve, maintain, protect, or otherwise give full effect to the Secured Property, this document or the Security Interest intended to be created under this document, and the priority of that Security Interest required by the Secured Party.

This includes:

 

  (c) anything the Secured Party reasonably requires in order for it to:

 

  (i) register and maintain (including renew before expiry) one or more financing statements in relation to any Security Interest created by this document;

 

  (ii) remove any financing statement which is registered against the Grantor in relation to any Security Interest in relation to the Secured Property; or

 

  (iii) obtain control of any Secured Property for the purpose of perfecting the Secured Party’s Security Interest in that Secured Property by control except where the Secured Party’s control of that Secured Property would reasonably be expected to unduly restrict the ability of the Grantor to conduct its ordinary business;

 

  (d) using reasonable endeavours to procure that any other person holding a Security Interest in all or any part of the Secured Property provides to the Secured Party such information in relation to that Security Interest as the Secured Party may reasonably request (unless the Grantor is contractually restricted from doing so);

 

  (e) perfecting or improving the Grantor’s title to, or other right or interest in, all or any part of the Secured Property;

 

  (f) facilitating the exercise of any right by the Secured Party or any Receiver or Attorney at any time or the realisation of the Secured Property following the occurrence of an Event of Default and while it subsists, including the exercise of all rights of inspection, requesting all Records and taking all necessary copies, which the Grantor is entitled to exercise, request or take;

 

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  (g) paying any Taxes on this document;

 

  (h) executing and delivering to the Secured Party transfer forms in relation to any of the Secured Property, undated and blank as to transferee and consideration; and

 

  (i) otherwise enabling the Secured Party to obtain the full benefit of the provisions of this document.

 

5.10. Subsequent provision of perfection of Security Interests

Without limiting Clause 5.9, to the extent any Security Interest in any Secured Property is not able to be provided under this document or perfected on the date of this document, the Grantor must use commercially reasonable efforts to allow such Security Interest to be provided or perfected in such property within 60 days after the date of this document, or such longer period as the Secured Party reasonably agrees.

 

5.11. Term of undertakings

Each of the Grantor’s undertakings in this Clause 5 continue in full force and effect from the date of this document until the Security Interest created under this document in respect of all the Secured Property is discharged under Clause 3.

 

6. Enforcement

 

6.1. When enforceable

If any Event of Default occurs then, during the period it continues, at the option of the Secured Party and despite any delay or previous waiver of the right to exercise that option,

 

  (a) each Security is immediately enforceable without the need for any demand or notice to be given to the Grantor or any other person;

 

  (b) the Secured Party may by notice to the Grantor declare that all or any part of the Secured Money is immediately due and payable. On receipt of that notice, the Grantor must pay that Secured Money immediately to the Secured Party; and

 

  (c) all Powers not previously exercisable become exercisable.

 

6.2. Secured Party’s general powers

While an Event of Default subsists, regardless of whether the Secured Party has appointed a Receiver, the Secured Party may, without demand or notice to anyone (unless notice is expressly required under this document):

 

  (a) do all things that a secured party with a Security Interest in, or a mortgagee or an absolute owner of, the Secured Property can do; and

 

  (b) exercise all rights, Powers and remedies:

 

  (i) of a secured party with a Security Interest in, or a mortgagee or an absolute owner of, the Secured Property;

 

  (ii) conferred on a Receiver under the Corporations Act if appointed; or

 

  (iii) specified in Clause 6.4;

 

  (c) exercise all other Powers; and

 

  (d) appoint an agent or agents (whether severally, jointly or jointly and severally) and delegate the Powers (or any of them) to the agent or agents (as if the agent or agents were each appointed as a Receiver).

 

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6.3. Secured Party’s PPSA powers – sections 123 and 128

Without limiting any other provision of this document or any Security, the Grantor agrees that, at any time while an Event of Default subsists, the Secured Party may (subject to section 109(3) of the PPSA):

 

  (a) seize any Secured Property; and

 

  (b) dispose of any Secured Property in such manner and generally on such terms and conditions as the Secured Party thinks desirable,

and otherwise do anything that the Grantor could do in relation to the Secured Property.

 

6.4. Specific Powers

 

  (a) Without limiting Clauses 6.1 to 6.3 (inclusive), upon the occurrence of an Event of Default and while it subsists, the Secured Party may undertake any of the actions or otherwise exercise any of the powers which are listed in Clause 7.2 that a Receiver may exercise, whether in its own name or in the name of the Grantor or otherwise and whether or not it is in possession of the Secured Property.

 

  (b) The exercise of any Power by the Secured Party, Receiver or Attorney does not cause or deem the Secured Party, Receiver or Attorney:

 

  (i) to be a mortgagee in possession;

 

  (ii) to account as mortgagee in possession; or

 

  (iii) to be answerable for any act or omission for which a mortgagee in possession is liable.

 

6.5. Assistance in realisation

Upon the occurrence of an Event of Default and while it subsists, the Grantor must take all action required by the Secured Party, Receiver or Attorney to assist any of them to realise the Secured Property and to exercise any Power including:

 

  (a) executing all transfers, assignments, and assurances of any of the Secured Property;

 

  (b) doing anything necessary or desirable under the law in force in any place where the Secured Property is situated;

 

  (c) giving all notices, orders, directions and consents which the Secured Party, Receiver or Attorney thinks expedient.

 

7. Receiver

 

7.1. Appointment of Receiver

Upon or at any time after the occurrence of an Event of Default and while it subsists, the Secured Party may:

 

  (a) appoint any person or any 2 or more persons jointly, or severally, or jointly and severally to be a receiver or a receiver and manager of the Secured Property;

 

  (b) remove any Receiver and on the removal, retirement or death of any Receiver, appoint another Receiver; and

 

  (c) fix the remuneration and direct payment of that remuneration and any costs, charges and expenses of the Receiver out of the proceeds of any realisation of the Secured Property.

 

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7.2. Powers of Receiver

Subject to any express exclusion by the terms of the Receiver’s appointment, a Receiver appointed over all or any part of the Secured Property, in addition to any powers conferred on the Receiver by applicable law, power to do any of the following:

 

  (a) manage, possession or control : to manage, enter into possession or assume control of any of the Secured Property;

 

  (b) sale : to sell or concur in selling any of the Secured Property to any person:

 

  (i) by auction, private treaty or tender;

 

  (ii) on such terms and special conditions as the Secured Party or the Receiver thinks fit;

 

  (iii) for cash or for a deferred payment of the purchase price, in whole or in part, with or without interest or security;

 

  (iv) in conjunction with the sale of any property by any other person; and

 

  (v) in one lot or in separate parcels;

 

  (c) grant options to purchase : to grant to any person an option to purchase any of the Secured Property;

 

  (d) acquire property : to acquire any interest in any property, in the name or on behalf of the Grantor, which on acquisition forms part of the Secured Property;

 

  (e) borrowings and security :

 

  (i) to raise or borrow any money, in its name or the name or on behalf of the Grantor, from the Secured Party or any person approved by the Secured Party in writing; and

 

  (ii) to secure money raised or borrowed under Clause 7.2(e)(i) by a Security Interest over any of the Secured Property, ranking in priority to, equal with, or after, the Security Interest created under this document;

 

  (f) surrender Secured Property : to surrender or transfer any of the Secured Property to any person;

 

  (g) exchange Secured Property : to exchange with any person any of the Secured Property for any other property whether of equal value or not;

 

  (h) delegate : to delegate to any person any Power of the Receiver;

 

  (i) perform or enforce documents : to observe, perform, enforce, exercise or refrain from exercising any right, power, authority, discretion or remedy of the Grantor under, or otherwise obtain the benefit of:

 

  (i) any document, agreement or right which attaches to or forms part of the Secured Property; and

 

  (ii) any document or agreement entered into in exercise of any Power by the Receiver;

 

  (j) receipts : to give effectual receipts for all moneys and other assets which may come into the hands of the Receiver;

 

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  (k) take proceedings : to commence, discontinue, prosecute, defend, settle or compromise in its name or the name or on behalf of the Grantor, any proceedings including, but not limited to, proceedings in relation to any insurance in respect of any of the Secured Property;

 

  (l) insolvency proceedings : to make any debtor bankrupt, wind-up any company, corporation or other entity and do all things in relation to any bankruptcy or winding-up which the Receiver thinks necessary or desirable including, but not limited to, attending and voting at creditors’ meetings and appointing proxies for those meetings;

 

  (m) execute documents : to enter into and execute any document or agreement in the name of the Receiver or the name or on behalf of the Grantor including, but not limited to, bills of exchange, cheques or promissory notes for any of the purposes of this document;

 

  (n) make calls : to make calls on any member of the Grantor in respect of uncalled nominal or premium capital of the Grantor;

 

  (o) vote : to exercise any voting rights or powers in respect of any part of the Secured Property;

 

  (p) ability of Grantor : to do anything the Grantor could do in respect of the Secured Property; and

 

  (q) incidental power : to do anything necessary or incidental to the exercise of any Power of the Receiver.

 

7.3. Nature of Receiver’s Powers

The Powers of the Receiver must be construed independently and no one Power limits the generality of any other Power. Any dealing under any Power of the Receiver will be on the terms and conditions the Receiver thinks fit.

 

7.4. Status of Receiver after commencement of winding-up

 

  (a) The power to appoint a Receiver under Clause 7.1 may be exercised even if at the time an Event of Default occurs or if at the time a Receiver is appointed, an order has been made or a resolution has been passed for the winding-up of the Grantor.

 

  (b) If for any reason, including, but not limited to operation of law, a Receiver:

 

  (i) appointed in the circumstances described in Clause 7.4(a); or

 

  (ii) appointed at any other time,

ceases to be the agent of the Grantor upon or by virtue of, or as a result of, an order or a resolution being passed for the winding-up of the Grantor, then the Receiver immediately becomes the agent of the Secured Party.

 

7.5. Notice of exercise of rights

The Secured Party, Receiver or Attorney is not required:

 

  (a) to give notice of the Security Interest created under this document to any debtor or creditor of the Grantor or to any other person;

 

  (b) to enforce payment of any money payable to the Grantor including, but not limited to, any of the debts or monetary liabilities charged by this document; or

 

  (c) to obtain the consent of the Grantor to any exercise of a Power.

 

14


7.6. Termination of receivership and possession

The Secured Party may, at any time, terminate the appointment of a Receiver and may, at any time, give up possession of the Secured Property.

 

8. Application and Receipts of Money

 

8.1. Order of application

 

  (a) Upon the occurrence of an Event of Default and while it subsists, all money received by the Secured Party, Receiver, Attorney or any other person acting on their behalf under this document may be appropriated and applied towards any amount and in any order that the Secured Party, Receiver, Attorney or that other person determines in its absolute discretion, to the extent not prohibited by law.

 

  (b) Failing a determination under Clause 8.1(a), the money must be applied in the following manner and order:

 

  (i) first, in payment of all amounts which, to the extent required by law, have priority over the payments specified in the balance of Clause 8.1(b);

 

  (ii) second, in payment of all costs, charges and expenses of the Secured Party, Receiver or Attorney incurred in or incidental to the exercise or performance or attempted exercise or performance of any Power;

 

  (iii) third, in payment of any other outgoings the Secured Party, Receiver or Attorney thinks fit to pay;

 

  (iv) fourth, in payment to the Receiver of his or her remuneration;

 

  (v) fifth, in payment and discharge, in order of their priority, of any Security Interests of which the Secured Party, Receiver or Attorney is aware and which have the priority to the Security Interest created under this document;

 

  (vi) sixth, in payment to the Secured Party towards satisfaction of the Secured Moneys and applied against interest, principal or any other amount the Secured Party, Receiver or Attorney thinks fit;

 

  (vii) seventh, in payment only to the extent required by law, in order of their priority, of other Security Interests in respect of the Secured Property of which the Secured Party, Receiver or Attorney is aware and which are due and payable in accordance with their terms; and

 

  (viii) eighth, in payment of the surplus, if any, without interest to the Grantor. The Secured Party, Receiver or Attorney may pay the surplus to the credit of an account in the name of the Grantor in the books of any bank carrying on business within Australia and having done so is under no further liability in respect of that surplus.

 

8.2. Money actually received

In applying any money towards satisfaction of the Secured Moneys the Grantor is to be credited only with so much of the money which is available for that purpose and which is actually received by the Secured Party, Receiver or Attorney. The credit dates from the time of receipt.

 

8.3. Amounts contingently due

 

  (a) If at the time of a distribution of any money under Clause 8.1 any part of the Secured Moneys is contingently owing to the Secured Party, the Secured Party, Receiver or Attorney may retain an amount equal to the amount contingently owing or any part of it.

 

15


  (b) If the Secured Party, Receiver or Attorney retains any amount under Clause 8.3(a) it must place that amount on short-term interest bearing deposit until the amount contingently owing becomes actually due and payable or otherwise ceases to be contingently owing at which time the Secured Party, Receiver or Attorney:

 

  (i) may open a new account in the name of the Grantor in its books; or

 

  (ii) must apply the balance of the amount retained, together with any interest on the amount contingently owing, in accordance with Clause 8.1.

 

8.4. Notice of a subsequent Security Interest

 

  (a) If the Secured Party receives actual or constructive notice of a subsequent Security Interest, the Secured Party:

 

  (i) may open a new account in the name of the Grantor in its books; or

 

  (ii) is regarded as having opened a new account in the name of the Grantor in its books,

on the date it received or was regarded as having received notice of the subsequent Security Interest.

 

  (b) From the date on which that new account is opened or regarded as opened:

 

  (i) all payments made by the Grantor to the Secured Party; and

 

  (ii) all financial accommodation and advances by the Secured Party to the Grantor,

are or are regarded as credited and debited, as the case may be, to the new account.

 

  (c) The payments by the Grantor under Clause 8.4(b) must be applied:

 

  (i) first, in reduction of the debit balance, if any, in the new account; and

 

  (ii) second, if there is no debit balance in the new account, in reduction of the Secured Moneys which have not been debited or regarded as debited to the new account.

 

8.5. Secured Party’s statement of indebtedness

A certificate signed by any Officer of the Secured Party stating:

 

  (a) the amount of the Secured Moneys due and payable; or

 

  (b) the amount of the Secured Moneys, whether currently due and payable or not,

is prima facie evidence of that amount as at the date stated on the certificate or failing that as at the date of the certificate.

 

8.6. Secured Party’s receipts

 

  (a) The receipt of any Officer of a Secured Party for any money payable to or received by the Secured Party under this document exonerates the payer from all liability to enquire whether any of the Secured Moneys have become payable.

 

16


  (b) Every receipt of an Officer of a Secured Party effectually discharges the payer from:

 

  (i) any future liability to pay the amount specified in the receipt; and

 

  (ii) being concerned to see to the application of, or being answerable or accountable for any loss or misapplication of, the amount specified in the receipt.

 

8.7. Conversion of currencies on application

In making an application under Clause 8.1, the Secured Party, Receiver or Attorney may itself or through its bankers purchase one currency with another in the manner and amounts and at the times it thinks fit, whether or not the purchase is through an intermediate currency, or spot or forward.

 

8.8. Payments in gross

Any payment which the Grantor is required to make under this document must be:

 

  (a) without any set-off, counter-claim or condition; and

 

  (b) without any deduction or withholding for any Tax or any other reason unless the Grantor is required to make a deduction or withholding under applicable law.

 

8.9. Additional payments

 

  (a) All payments made by the Grantor under this document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or in the future imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “ Taxes ”).

 

  (b) The Grantor will indemnify and hold harmless the Secured Party, or reimburse the Secured Party, upon its written request, for the amount of any Taxes imposed on and paid by the Secured Party with respect to such payments. The Grantor will furnish to the Secured Party within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the Secured Party, evidencing such payment by the Grantor.

 

  (c) If the Secured Party determines that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Grantor pursuant to this Clause 8.9, it shall promptly remit such refund (including any interest received in respect thereof), net of all reasonable and documented out-of-pocket costs and expenses, to the Grantor; provided, however, that the Grantor agrees to promptly return any such refund (plus interest) to the Secured Party in the event the Secured Party is required to repay such refund to the relevant taxing authority. The Secured Party shall provide the Grantor with a copy of any such notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. The Secured Party shall apply for any such refund upon the reasonable request and at the expense of the Grantor.

 

8.10. Not used

 

17


8.11. Amounts payable on demand

Subject to the relevant provisions of the Credit Agreement, if an amount payable under this document is not expressed to be payable on a specified date, that amount is payable by the Grantor on demand by the Secured Party.

 

8.12. Currency of payments

The Grantor must make each payment under this document in the Relevant Currency.

 

9. Power of Attorney

 

9.1. Appointment of Attorney

In consideration of the Secured Party entering into this document, the Grantor irrevocably appoints each Receiver and each Officer of the Secured Party severally its attorney for the purposes set out in Clause 9.2.

 

9.2. Purposes of appointment

The Attorney may, in its name or in the name of the Grantor, Secured Party or Receiver, at any time after the occurrence of an Event of Default and while it subsists do any of the following:

 

  (a) do any thing which ought to be done by the Grantor under this document;

 

  (b) exercise any right, power, authority, discretion or remedy of the Grantor under:

 

  (i) this document; or

 

  (ii) any agreement forming part of the Secured Property;

 

  (c) do anything which in the opinion of the Secured Party, Receiver or Attorney is necessary or expedient for securing or perfecting the Security Interest created under this document;

 

  (d) execute in favour of the Secured Party any legal mortgage, transfer, assignment and any other assurance of any of the Secured Property;

 

  (e) execute deeds of assignment, composition or release;

 

  (f) sell or otherwise part with the possession of any of the Secured Property;

 

  (g) exercise any Rights and voting rights in respect of the Relevant Securities, and direct payment of all Proceeds in accordance with this document; and

 

  (h) generally, do any other thing, whether or not of the same kind as those set out in Clause 9.2(a) to 9.2(g), which in the opinion of the Secured Party, Receiver or Attorney is necessary or expedient:

 

  (i) to more satisfactorily secure to the Secured Party the payment of the Secured Moneys; or

 

  (ii) in relation to any of the Secured Property.

 

9.3. Delegation and substitution

The Attorney may, at any time, for any of the purposes in Clause 9.2, appoint or remove any substitute or delegate or sub-attorney.

 

18


10. Protection

 

10.1. Protection of third parties

No person dealing with the Secured Party, Receiver or Attorney is:

 

  (a) bound to enquire whether:

 

  (i) the Security Interest created under this document has become enforceable;

 

  (ii) the Receiver or Attorney is duly appointed; or

 

  (iii) any Power has been properly or regularly exercised; or

 

  (b) affected by express notice that the exercise of any Power was unnecessary or improper.

 

10.2. Protection of the Secured Party, Receiver and Attorney

The Secured Party, Receiver or Attorney is not liable for any loss or damage directly or indirectly from:

 

  (a) any omission or delay in the exercise or non-exercise of any Power; or

 

  (b) the neglect, default or dishonesty of any manager, Officer, employee, agent, accountant, auctioneer or solicitor of the Grantor.

 

10.3. Application of Clause 10.2

Clause 10.2 does not apply:

 

  (a) in respect of the Secured Party, to any loss or damage which arises from the wilful default, fraud or gross negligence of the Secured Party; and

 

  (b) in respect of a Receiver or Attorney, to any loss or damage which arises from the wilful default, fraud or gross negligence of the Receiver or Attorney.

 

11. Not used

 

12. Saving Provisions

 

12.1. Statutory powers

 

  (a) The powers of the Secured Party under this document are in addition to any powers the Secured Party has under applicable law.

 

  (b) To the extent not prohibited by law, before enforcing this document or exercising any Power, the Secured Party is not required to give any notice or allow the expiration of any time to any person.

 

12.2. Continuing security

The Security Interest created under this document is a continuing security despite any settlement of account or any other thing until the Secured Party has given a release of the Security Interest created under this document in respect of all the Secured Property under Clause 3.

 

19


12.3. No merger of security

 

  (a) Nothing in this document merges, extinguishes, postpones, lessens or otherwise prejudicially affects:

 

  (i) any Security Interest in favour of the Secured Party at any time; or

 

  (ii) any right, power, authority, discretion or remedy which the Secured Party may have against the Grantor or any other person at any time.

 

  (b) No other Security Interest held by the Secured Party in any way prejudicially affects any right, Power, authority, discretion or remedy of the Secured Party under this document.

 

12.4. Exclusion of moratorium

To the extent not excluded by law, a provision of any legislation which at any time directly or indirectly:

 

  (a) lessens or otherwise varies or affects in favour of the Grantor any obligations under this document; or

 

  (b) stays, postpones or otherwise prevents or prejudicially affects the exercise by the Secured Party, Receiver or Attorney of any Power,

is negatived and excluded from this document and all relief and protection conferred on the Grantor by or under that legislation is also negatived and excluded.

 

12.5. Conflict

Where any right, power, authority, discretion or remedy of the Secured Party, Receiver or Attorney under this document is inconsistent with the powers conferred by applicable law then, to the extent not prohibited by that law, the powers conferred by applicable law are regarded as negatived or varied to the extent of the inconsistency.

 

12.6. Consent of Secured Party

Whenever the doing of any thing by the Grantor is dependent upon the consent or approval of the Secured Party, the Secured Party may withhold its consent or approval or give it conditionally or unconditionally in its absolute discretion unless expressly stated otherwise. Any conditions must be complied with by the Grantor.

 

12.7. Principal obligations

The Security Interest created under this document is:

 

  (a) a principal obligation and is not ancillary or collateral to any other Security Interest or other obligation however created; and

 

  (b) independent of, and unaffected by, any other Security Interest or other obligation however created which the Secured Party may hold at any time in respect of the Secured Moneys.

 

12.8. No obligation to marshal

Before the Secured Party enforces the Security Interest created under this document, it is not required to marshal or to enforce or apply under, or appropriate, recover or exercise:

 

  (a) any Security Interest held, at any time, by the Secured Party; or

 

  (b) any moneys or assets which the Secured Party, at any time, holds or is entitled to receive.

 

20


12.9. Non-avoidance

If any payment by the Grantor to the Secured Party is at any time avoided for any reason including, but not limited to, any legal limitation, disability or incapacity of or affecting the Grantor or any other thing, and whether or not:

 

  (a) any transaction relating to the Secured Moneys was illegal, void or substantially avoided; or

 

  (b) any thing was or ought to have been within the knowledge of the Secured Party,

that Grantor:

 

  (c) as an additional and independent obligation, indemnifies the Secured Party against that avoided payment but only to the extent that this indemnity can be satisfied out of the Secured Property; and

 

  (d) acknowledges that any liability of the Grantor under this document and any Power is the same as if that payment had not been made.

 

12.10. Rights and liabilities not affected

The rights given to the Secured Party under this document (including Clause 5.2), and the Grantor’s liabilities under it, are not affected by any act or omission of the Secured Party or any other person (irrespective of the consent or knowledge or lack of knowledge, of the Secured Party, the Grantor, or any other person of any event described in this clause or any rule of law or equity to the contrary). For example, those rights and liabilities are not affected by:

 

  (a) any act or omission:

 

  (i) varying or replacing in any way and for any reason any agreement or arrangement under which the Obligations are expressed to be owing (such as by adding, replacing or changing the purpose of a facility, increasing a facility limit or extending the term of a facility including in connection with a restructuring or refinancing of the Obligations);

 

  (ii) releasing the Grantor or any other person or giving the Grantor or any other person a concession (such as more time to pay);

 

  (iii) releasing, losing the benefit of, or not obtaining any Security Interest or negotiable instrument:

 

  (A) by which the obligations of any person who guarantees any Credit Party’s obligations may not be enforceable;

 

  (B) by which any person who was intended to guarantee the Grantor’s obligations does not do so, or does not do so effectively;

 

  (C) by which a person who is a co-surety or co-indemnifier for payment of the Obligations or Secured Money is discharged under an agreement or by operation of law;

 

  (D) by which any Security Interest which could be registered is not registered;

 

  (b) a person dealing in any way with a Security Interest, guarantee, indemnity, judgment or negotiable instrument;

 

21


  (c) the death, mental or physical disability or insolvency of any person including the Grantor;

 

  (d) changes in the membership, name or business of any person;

 

  (e) acquiescence or delay by the Secured Party or any other person; and

 

  (f) an assignment of rights in connection with the Obligations or Secured Money.

 

13. PPSA

 

13.1. Waiver

Without limiting any other provision of this document, the Grantor waives its right to receive any verification statement (or notice of any verification statement) in respect of any financing statement or financing change statement relating to any Security Interest created under this document.

 

13.2. Chapter 4 and additional rights

Without limiting Clause 13.1, the Grantor and the Secured Party agree that, to the extent permitted by law and in respect of this document and the Security Interest created under this document or a Security:

 

  (a) the Grantor and the Secured Party need not comply with:

 

  (i) the Secured Party’s obligation to:

 

  (A) dispose of or retain Secured Property under section 125 of the PPSA; and

 

  (B) include details of amounts paid to other secured parties in a statement of account under section 132(3)(d) of the PPSA;

 

  (ii) (without limiting Clause 3.1) section 142 of the PPSA; and

 

  (iii) section 143 of the PPSA;

 

  (b) The Grantor and the Secured Party need not comply with the Grantor’s rights to (and the Grantor waives its rights to):

 

  (i) receive notice of the Secured Party’s proposal to dispose of Secured Property under section 130 of the PPSA;

 

  (ii) receive a statement of account under section 132(4) of the PPSA; and

 

  (c) The Grantor and the Secured Party need not comply with Part 4.3 of the PPSA (other than sections 126, 128, 129(1), 133, 134(1), 138B and 138C) if that Part would apply by virtue of section 116(2) of the PPSA and section 109(3) of the PPSA.

 

13.3. Other rights

Where the Secured Party have Powers in addition to, or existing separately from, those in Chapter 4 of the PPSA, those Powers will continue to apply and are not limited or excluded (or otherwise adversely affected) by the PPSA. This is despite Clause 13.2 or any other provision of this document.

 

13.4. Confidentiality agreement

The parties agree that the Grantor and the Secured Party will not disclose any of the information set out in section 275(1) of the PPSA in relation to this document or any Security

 

22


Interest created under this document to any person (except that the Secured Party may do so where required due to the operation of section 275(7) of the PPSA or in accordance with another provision of this document).

 

14. General

 

14.1. Performance by Secured Party of the Grantor’s obligations

If the Grantor defaults in fully and punctually performing any obligation contained or implied in this document, the Secured Party may, without prejudice to any Power do all things necessary or desirable, in the opinion of the Secured Party, to make good or attempt to make good that default to the satisfaction of the Secured Party.

 

14.2. Grantor to bear cost

Any thing which must be done by the Grantor under this document, whether or not at the request of the Secured Party, is to be done at the cost of the Grantor.

 

14.3. Governing law and jurisdiction

 

  (a) Subject to Clause 14.3(b), this document is governed by the laws of Queensland.

 

  (b) Clause 14.3(a) does not apply to the extent that a Security Interest is created under this document in any personal property described in Section 237(2) of the PPSA, in which case the law determined by the PPSA governs the Security Interest in that property.

 

14.4. Prohibition and enforceability

 

  (a) Any provision of, or the application of any provision of, this document or any Power which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

 

  (b) Any provision of, or the application of any provision of, this document which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

 

14.5. Waivers

 

  (a) Waiver of any right arising from a breach of this document or of any Power arising upon default under this document or upon the occurrence of an Event of Default must be in writing and signed by the party granting the waiver.

 

  (b) A failure or delay in exercise, or partial exercise, of:

 

  (i) a right arising from a breach of this document or the occurrence of an Event of Default; or

 

  (ii) a Power created or arising upon default under this document or upon the occurrence of an Event of Default,

does not result in a waiver of that right or Power.

 

  (c) A party is not entitled to rely on a delay in the exercise or non-exercise of a right or Power arising from a breach of this document or on a default under this document or on the occurrence of an Event of Default as constituting a waiver of that right or Power.

 

  (d) A party may not rely on any conduct of another Party as a defence to exercise of a right or Power by that other Party.

 

  (e) This Clause 14.5 may not itself be waived except by writing.

 

23


14.6. Variation

A variation of any term of this document must be in writing and signed by the parties.

 

14.7. Cumulative Rights

The powers are cumulative and do not exclude any other right, power, authority, discretion or remedy of the Secured Party, Receiver or Attorney.

 

14.8. Assignment

 

  (a) The Secured Party must not assign its rights under this document without the prior consent of the Grantor provided that:

 

  (i) no such consent of the Grantor shall be required if an Event of Default has occurred and is subsisting; and

 

  (ii) the Secured Party may, without the consent of the Grantor, assign any of its rights under this document by way of pledge of a security interest.

 

  (b) The Grantor must not assign any of its rights under this document without the prior written consent of the Secured Party.

 

14.9. Counterparts

This document may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same agreement. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower Representative and the Secured Party.

 

14.10. Multiple persons comprising the Grantor

If more than one person is named as comprising the Grantor:

 

  (a) ( joint and several liability ) each person comprising the Grantor will be liable jointly and severally for the payment of all of the Secured Money and for the performance of all of the other obligations of the Grantor under this document; and

 

  (b) ( enforcement ) the Secured Party may enforce this document against any one or more of the persons comprising the Grantor without affecting the liability of any other person or persons comprising the Grantor and without enforcing this document against all of them.

Each person who enters this document as a person comprising the Grantor will be bound by it, even though one or more of the persons named as comprising the Grantor may not have executed this document, may not be bound by it or may be released from it.

 

14.11. Further assurances

The Grantor must execute any document and take any other action required by the Secured Party to give effect to this document and to give effect to the transactions the subject of this document.

 

24


Schedule 1 - Initial Securities

 

Name and address of Company

  

ACN

  

Description of Marketable Securities

Peabody West Burton Pty Ltd    117 316 695    1 ordinary share

 

25


Executed as a deed

 

Grantor

   
Executed by Peabody Energy Australia PCI Pty Ltd ACN 096 001 955 in accordance with section 127 of the Corporations Act 2001 (Cth):    

 

   

 

Signature of director     Signature of company secretary/director

MARIA DA CONCEICAO DE SANTANA

   

CHARLES FREDERICK MEINTJES

Full name of director     Full name of director

 

26


Secured Party

 

GLOBAL CENTER FOR ENERGY AND HUMAN DEVELOPMENT, LLC , as Lender
By:   PEABODY INVESTMENTS CORP., its sole member
  By:  

 

    Name:   James A. Tichenor
    Title:   Vice President and Treasurer

 

27

Lender
Overview
March 2016
Exhibit 99.7


SLIDE 2

Lender Overview March 2016 Introductions Peabody Overview Historical Financial Performance Review of Current Liquidity DIP Forecast/Objectives Appendix Topics Peabody’s North Antelope Rochelle Mine is the world’s largest and most productive coal mine. Production totaled 109 million tons in 2015, or ~12% of all U.S. coal.


SLIDE 3

Executive Summary Business segment performance in key markets shows strength despite unprecedented market pressures Prior debt and hedging actions against extreme down-cycle conditions placed unsustainable burden on company despite significant cost, portfolio and overhead improvements Sustainable mining practices in safety and mine reclamation and industry leadership in advocacy of High-Efficiency-Low-Emissions and Carbon Capture, Use and Storage technologies Strengths include unmatched asset base, strong underlying operations, new management team with fresh perspectives


SLIDE 4

Peabody the World’s Largest Private Sector Coal Company Major Positions in Core Regions of PRB, ILB and Australia Additional sales and trading offices in London, Beijing, New Delhi and Newcastle


SLIDE 5

Coal to Continue to be Fundamental Part of Energy Mix for Many Decades to Come Source: Wood Mackenzie. Renewables Natural Gas Oil Nuclear Hydro Coal 2000 2035P 2015P Most third party projections show that coal will be a substantial source of electricity and essential ingredient in steel making Continued build-out of coal-fueled plants in dozens of countries Wood-Mackenzie projects that coal will overtake oil as world’s largest energy source in coming years Even under EPA’s Clean Power Plan projections, U.S. 2050 coal demand expected to be greater than YTD 2016 annualized coal shipments WoodMackenzie Projection: Global Primary Energy Demand (MTOE) Source: Wood Mackenzie; BP Statistical Review of World Energy 2015; EPA Clean Power Plan; NMA Weekly Statistical Summary; United Nations, Department of Economic and Social Affairs, Population Division “World Urbanization Prospects: The 2014 Revision.”


SLIDE 6

Peabody Holds Unmatched Asset Base 26 active operations in U.S. and Australia 6.3 billion tons of coal reserves 2 billion tons of unassigned reserves 30 year reserve- to-production ratio 690 million ton sales backlog 500,000 acres of surface lands Assets offer geographic and product diversity Source: Peabody Energy 2015 10-K filing. Wilpinjong Mine


SLIDE 7

Peabody’s PRB Position is Unsurpassed Peabody Leads in Size, Productivity and Margins Source: Peabody Energy 2015 10-K Filing; Company data. Peabody largest producer and reserve holder in PRB 139 million tons shipped to ~100 facilities in more than 25 states Nearly 3 billion tons of reserves represent more than 20 years at current production No new LBAs required until next decade World’s largest and most productive coal mine – North Antelope Rochelle High-Btu, ultra-low sulfur coal Tailored products from unique loading operation Prime location on joint line


SLIDE 8

Peabody Maintaining Industry-Leading PRB Gross Margins Source: Industry reports. Gross margins calculated for 2014 / 2015. Peabody historic PRB gross margins more than 70% above peer average Driven by contracting strategies, strategic reserve investments and cost reductions Leveraging previous investments in equipment, technology and infrastructure Benefits from superior overburden ratios Mine plan allows for long runway before crossing the joint line or purchasing new reserves Peabody PRB Gross Margins Versus Peers Avg.


SLIDE 9

Illinois Basin Portfolio Well Positioned: Anchored by Key Mines Operations Well Capitalized From Previous Investments Source: Peabody Energy 2015 10-K Filing. Operations strategically located to serve local customer base 21 million tons shipped in 2015 Major emphasis on Indiana sub-region Bear Run Mine largest surface mine in Eastern U.S. Produces ~8 million tons per year Gateway North Mine extended life of one of lowest cost operations in region Bear Run Mine


SLIDE 10

Peabody Australian Platform Offers Long-Term Strategic Advantage Competitive advantage with mines close to ports; Near high-growth regions Platform benefits from quality, location, lower AUD and costs Among leading producers of seaborne metallurgical coal Peabody is largest seaborne low-vol PCI supplier World-class thermal operations competitive among peers Significant sensitivity to any future rise in met coal prices Every $10 move means more than $100 million in EBITDA North Goonyella Mine


SLIDE 11

Peabody Sets New Company Record for Global Safety Performance Global Incidence Rate 13% Better Than 2014 Peabody’s 2015 global incidence rate of 1.25 reflects improvement at both surface and underground mines Continuing to invest in safety programs across the platform Safety A Way of Life Management System modeled under NMA’s CORESafety Incidence rate per 200,000 hours worked. Stats as of Jan. 11, 2016. 2013 figures do not include Discontinued Operations, JVs, office employees or Americas contractors. Peabody Global Incidence Rate 2013 2014 2015


SLIDE 12

Focus on Business Priorities


SLIDE 13

Against Brutal Industry Backdrop, Peabody Has Notable 2015 Achievements Achieved record global safety performance Improved unit costs even with lower volumes Reduced costs by 5% in U.S. Improved Australian costs 24% to lowest level for this platform Average gross margins of 26% across 4 of 5 segments Lowered capital spending by 35% Reduced SG&A by 22% to lowest level in nearly a decade Continued progress of selling non-core assets Amended agreement with UMWA to reduce VEBA contributions, improving 2017 cash flows by $70 million Advanced aggressive actions to optimize liquidity and deleverage


SLIDE 14

2016 Core Priorities Build On Previous Successes Across Organization Peabody benefits from unmatched asset base, strong underlying performance, strategic position of mines Core Priorities Drive Continuous Improvement in Safety, Productivity and Costs Preserve Liquidity and Reduce Debt Shape Portfolio to Unlock Value


SLIDE 15

Financial Update North Antelope Rochelle Mine


SLIDE 16

Depressed Markets Pressure Earnings Despite Strong Operating Performance 2015 Adjusted EBITDA 2014 Adjusted EBITDA U.S. Mining $937 $1,083 Australian Mining $175 $113 Hedging $(437) $(50) SG&A $(176) $(227) Other $(64) $(105) Adjusted EBITDA $435 $814 Australian Mining increases $62 million over prior year despite lower volumes and pricing SG&A and capital spending reduced to lowest level in nearly a decade Gross margins across four of our five operating segments average 26% Excluding hedging, 2015 Adjusted EBITDA exceeds prior-year results


SLIDE 17

Liquidity as of February 29, 2016 The Company is assuming total LC / cash collateral requirements of $1.03B by the end of 1Q16.


SLIDE 18

As of February 29, 2016, Peabody had approximately $1.4B of uncollateralized corporate guarantees (i.e., self-bonds), as well as $310M of surety bonds outstanding to secure its U.S. reclamation obligations. U.S. Reclamation Bonding


SLIDE 19

DIP Financing


SLIDE 20

DIP Budget – Key Assumptions The committed tons assumptions below represent the amounts assumed for purposes of the DIP Budget. Although 2016 U.S. production is fully committed in the 150Mt to 160Mt range, run rates during the 1st Quarter have been below the committed levels. PCI includes the results / forecast for the Coppabella and Moorvale mines. Millennium, which produces both Met and PCI, is included as part of Met for presentational purposes.


SLIDE 21

DIP Budget – Summary Projections The increase in capital expenditures in 2017 is primarily related to mine life extensions in Australia.


SLIDE 22

Peabody Energy Benefits from Multiple Strengths and Improvement Initiatives


SLIDE 23

Appendix Rawhide Mine


SLIDE 24

Disclaimer Peabody or its affiliates and representatives make no representation or warranty, express or implied, as to any matter reflected in or relating to this presentation. Certain statements and information in this presentation are forward-looking in nature and based on numerous assumptions that Peabody believes are reasonable, but they are open to a wide range of uncertainties and business risks that may cause actual results or outcomes to differ materially from expectations. These factors are difficult to accurately predict and may be beyond the control of relevant parties. Actual future results may vary significantly from the projections, estimates, forecasts, and other forward-looking information in this presentation. The recipient must make its own inquiries regarding the assumptions, uncertainties, and contingencies that may affect future value, operations and results, and the impact that a variation in future outcomes may have. Nothing in the presentation is intended to constitute a contract or an offer to enter into a contract, or to be binding or to create legal obligations or rights.


SLIDE 25

Powder River Basin: Peabody the Largest Producer and Reserve Holder 2015 2014 Number of Mines 3 3 Sales Volumes 138.8 142.6 Revenues per Ton $13.45 $13.49 Costs per Ton $9.97 $9.92 Margin per Ton $3.48 $3.57 Gross Margin (%) 26% 26% Gross Margin ($) $483.0 $509.1 Reserves 2.960 billion tons Surface mining method 2015 sales volume: North Antelope Rochelle 109.3 million tons Rawhide 15.2 million tons Caballo 11.4 million tons Notes: Sales volumes in tons per millions; Dollars in millions, except for per ton data Source: Peabody Energy 2015 10-K Filing; Company data.


SLIDE 26

Illinois Basin Overview 2015 2014 Number of Mines 10 9 Sales Volumes 21.2 25.0 Revenues per Ton $46.18 $47.99 Costs per Ton $33.49 $35.70 Margin per Ton $12.69 $12.29 Gross Margin (%) 27% 26% Gross Margin ($) $269.0 $307.3 Reserves 1.99 billion tons Surface and underground mining methods 2015 sales volume: Bear Run 7.9 million tons Somerville Complex 3.6 million tons Francisco Underground 2.9 million tons Wild Boar 2.0 million tons Wildcat Hills 1.7 million tons Gateway Complex 1.8 million tons Cottage Grove 1.3 million tons Notes: Sales volumes in tons per millions; Dollars in millions, except for per ton data Source: Peabody Energy 2015 10-K Filing; Company data.


SLIDE 27

Western U.S. Mines Serve Local Customers, Many With Long-Term Contracts 2015 2014 Number of Mines 3 4 Sales Volumes 17.9 23.8 Revenues per Ton $38.09 $37.90 Costs per Ton $27.78 $26.69 Margin per Ton $10.31 $11.21 Gross Margin (%) 27% 30% Gross Margin ($) $184.5 $266.8 Reserves 526 million tons Surface and underground mining methods 2015 sales volume: El Segundo 8.1 million tons Kayenta 6.6 million tons Twentymile 3.2 million tons Notes: Sales volumes in tons per millions; Dollars in millions, except for per ton data Source: Peabody Energy 2015 10-K Filing; Company data.


SLIDE 28

Australian Met Mines Provide Coking Coal and PCI to Asian Steel Markets 2015 2014 Number of Mines 7 7 Sales Volumes 15.7 17.2 Revenues per Ton $75.04 $93.81 Costs per Ton $76.20 $102.60 Margin per Ton $(1.16) $(8.79) Gross Margin (%) (2%) (9%) Gross Margin ($) $(18.2) $(151.2) Reserves 599 million tons Surface and underground mining methods 2015 sales volume: Millennium 4.6 million tons Coppabella 2.9 million tons North Goonyella 2.7 million tons Moorvale 2.3 million tons Metropolitan 2.0 million tons Burton 1.9 million tons Notes: Sales volumes in tons per millions; Dollars in millions, except for per ton data Source: Peabody Energy 2015 10-K Filing; Company data.


SLIDE 29

Australian Thermal Mines Provide Thermal Coal to Asian Generating Plants 2015 2014 Number of Mines 3 3 Sales Volumes 20.1 21.0 Revenues per Ton $41.00 $50.46 Costs per Ton $31.36 $37.87 Margin per Ton $9.64 $12.59 Gross Margin (%) 24% 25% Gross Margin ($) $193.8 $264.4 Reserves 262 million tons Surface and underground mining methods 2015 sales volume: Wilpinjong 13.5 million tons Wambo Open-Cut 3.5 million tons N. Wambo Underground 3.1 million tons Notes: Sales volumes in tons per millions; Dollars in millions, except for per ton data Source: Peabody Energy 2015 10-K Filing; Company data.


SLIDE 30

Aggressive SG&A and CapEx Reductions in Recent Years Selling & Administrative Expenses Capital Expenditures Source: Peabody Energy 2015 and 2014 10-K filings. Values in millions. SG&A Lowest Levels in Nearly a Decade; Capex Lowest Since IPO


SLIDE 31

Reclaimed Mining Lands Sustain Farmland, Wildlife and Communities Extensive planning required in advance of mining activity Contemporaneous land restoration ensures smallest active area for mining operations Peabody has pioneered agricultural practices to return mined land to highly productive farmland in U.S. and Australia Restored 4,300+ acres of mined lands in 2014; Planted more than 250,000 trees Source: Peabody Energy Environmental Reporting.


SLIDE 32

Lender Overview March 2016


SLIDE 1

Overview of DIP Budget April 12, 2016


SLIDE 2

Disclaimer Peabody or its affiliates and representatives make no representation or warranty, express or implied, as to any matter reflected in or relating to this presentation. Certain statements and information in this presentation are forward-looking in nature and based on numerous assumptions that Peabody believes are reasonable, but they are open to a wide range of uncertainties and business risks that may cause actual results or outcomes to differ materially from expectations. These factors are difficult to accurately predict and may be beyond the control of relevant parties. Actual future results may vary significantly from the projections, estimates, forecasts, and other forward-looking information in this presentation. The recipient must make its own inquiries regarding the assumptions, uncertainties, and contingencies that may affect future value, operations and results, and the impact that a variation in future outcomes may have. Nothing in the presentation is intended to constitute a contract or an offer to enter into a contract, or to be binding or to create legal obligations or rights. 34


SLIDE 3

DIP Budget – Summary Projections – 2016 5 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 ($ Millions) Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec FY Operational EBITDAR (Excl. Restructuring / Hedging) 39 $ 28 $ 26 $ 15 $ 28 $ 24 $ 34 $ 29 $ 30 $ 33 $ 35 $ 45 $ 367 $ Working Capital / Other (41) (24) (20) 45 (63) 55 (18) 9 (5) (25) (21) 19 (90) Federal Coal Lease Payments (0) (0) (0) - - (0) - (89) (0) (159) - - (249) Capital Expenditures 2 (2) (7) (14) (16) (10) (7) (5) (8) (9) (1) (4) (81) Hedging Obligations (41) (37) (46) (29) - - - - - - - - (153) Restructuring Expenses (2) (5) (6) (8) (5) (5) (8) (6) (6) (8) (6) (6) (70) Net Cash Flow Prior to Financing Items (43) $ (41) $ (53) $ 9 $ (56) $ 63 $ 0 $ (62) $ 11 $ (168) $ 7 $ 56 $ (276) $ Revolver / DIP Proceeds - 947 - 200 300 - - - - - - - 1,447 AR Securitization Activity (19) (123) (114) 43 1 (48) 66 (0) (1) 12 1 (2) (184) Interest / Adequate Protection / DIP Facility Fees (1) (1) (24) (37) (22) (27) (9) (9) (27) (9) (9) (28) (203) Intercompany Activity 109 (47) 45 (465) - - - - - - - - (358) Net Cash Flow 46 $ 735 $ (146) $ (250) $ 223 $ (12) $ 58 $ (72) $ (17) $ (165) $ (2) $ 26 $ 425 $ Beginning Cash 19 $ 64 $ 800 $ 654 $ 404 $ 627 $ 615 $ 673 $ 601 $ 584 $ 419 $ 417 $ 19 $ Net Cash Flow 46 735 (146) (250) 223 (12) 58 (72) (17) (165) (2) 26 425 Ending Cash 64 $ 800 $ 654 $ 404 $ 627 $ 615 $ 673 $ 601 $ 584 $ 419 $ 417 $ 443 $ 443 $


SLIDE 4

DIP Budget – Summary Projections – 2017 36 2017 2017 2017 2017 2017 2017 2017 2017 2017 2017 2017 2017 2017 ($ Millions) Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec FY Operational EBITDAR (Excl. Restructuring / Hedging) 32 $ 24 $ 19 $ 24 $ 32 $ 28 $ 33 $ 31 $ 29 $ 28 $ 30 $ (2) $ 308 $ Working Capital / Other 15 17 42 7 (53) 23 (8) 21 0 20 (30) (2) 52 Federal Coal Lease Payments - - (1) - - - - - - - - (14) (15) Capital Expenditures (6) (6) (9) (12) (6) (20) (5) (12) (7) (7) (8) (5) (104) Hedging Obligations - - - - - - - - - - - - - Restructuring Expenses (8) (6) (6) (8) (6) (6) (8) (6) (6) (8) (6) (21) (93) Net Cash Flow Prior to Financing Items 32 $ 29 $ 45 $ 10 $ (32) $ 26 $ 11 $ 35 $ 17 $ 32 $ (14) $ (43) $ 148 $ Revolver / DIP Proceeds - - - - - - - - - - - - - AR Securitization Activity (2) (2) 3 (2) (0) 2 0 2 (3) 1 (1) (2) (4) Interest / Adequate Protection / DIP Facility Fees (10) (9) (28) (22) (10) (28) (10) (10) (29) (10) (10) (30) (208) Intercompany Activity - - - - - - - - - - - - - Net Cash Flow 20 $ 18 $ 20 $ (14) $ (42) $ (1) $ 1 $ 27 $ (15) $ 23 $ (25) $ (76) $ (63) $ Beginning Cash 443 $ 464 $ 482 $ 502 $ 488 $ 446 $ 445 $ 446 $ 473 $ 458 $ 481 $ 456 $ 443 $ Net Cash Flow 20 18 20 (14) (42) (1) 1 27 (15) 23 (25) (76) (63) Ending Cash 464 $ 482 $ 502 $ 488 $ 446 $ 445 $ 446 $ 473 $ 458 $ 481 $ 456 $ 380 $ 380 $


SLIDE 5

DIP Budget – 13 Week Cash Flow Forecast 37 Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Forecast Week 1 Week 2 Week 3 Week 4 Week 5 Week 6 Week 7 Week 8 Week 9 Week 10 Week 11 Week 12 Week 13 Total ($ in millions) 4/22 4/29 5/6 5/13 5/20 5/27 6/3 6/10 6/17 6/24 7/1 7/8 7/15 13 Weeks Receipts : Total Receipts 34.3 $ 57.1 $ 52.9 $ 37.4 $ 53.6 $ 65.1 $ 53.1 $ 35.7 $ 53.5 $ 63.9 $ 123.4 $ 54.1 $ 34.7 $ 718.9 $ Operating Disbursements : Payroll & Benefits (19.1) (4.8) (17.3) (4.7) (19.2) (4.4) (18.6) (2.7) (21.2) (2.4) (22.8) (9.5) (11.7) (158.4) Other Operating Disbursements (30.4) (28.4) (54.8) (67.9) (26.4) (35.3) (54.1) (21.0) (27.6) (22.2) (48.1) (46.6) (45.0) (507.9) Cash Flow from Operations (15.2) 23.8 (19.2) (35.2) 8.1 25.4 (19.5) 12.1 4.7 39.3 52.5 (2.0) (22.0) 52.6 Capex (4.0) (4.0) (4.0) (2.6) (2.6) (2.6) (2.6) (1.5) (1.5) (1.5) (1.5) (1.5) (1.5) (31.4) Cash Interest & Bank Fees (0.8) (4.0) (0.6) (0.6) (0.6) (19.3) (0.5) (0.5) (0.5) (1.2) (23.9) (0.6) (0.6) (53.9) Intl. Intercompany Transfers - - - - - - - - - - - - - - Changes in Restricted Cash 19.2 1.3 0.9 10.6 0.2 (10.7) (8.9) 4.9 (9.2) (17.5) (17.3) 1.8 17.2 (7.6) DIP Financing Proceeds - - - - - 300.0 - - - - - - - 300.0 Other - - - - - - - - - - - - - - Net Cash Flow (0.8) 17.1 (22.9) (27.8) 5.0 292.7 (31.6) 14.9 (6.5) 19.2 9.8 (2.4) (7.0) 259.7 Beginning Cash – Unrestricted 346.0 $ 345.2 $ 362.3 $ 339.4 $ 311.6 $ 316.6 $ 609.3 $ 577.7 $ 592.7 $ 586.1 $ 605.3 $ 615.1 $ 612.7 $ 346.0 $ Net Cash Flow (0.8) 17.1 (22.9) (27.8) 5.0 292.7 (31.6) 14.9 (6.5) 19.2 9.8 (2.4) (7.0) 259.7 Ending Cash – Unrestricted 345.2 $ 362.3 $ 339.4 $ 311.6 $ 316.6 $ 609.3 $ 577.7 $ 592.7 $ 586.1 $ 605.3 $ 615.1 $ 612.7 $ 605.8 $ 605.8 $ Liquidity Covenant 300.0 $ 300.0 $ 300.0 $ 300.0 $ 300.0 $ 300.0 $ 300.0 $ 300.0 $ Cushion 277.7 $ 292.7 $ 286.1 $ 305.3 $ 315.1 $ 312.7 $ 305.8 $ 305.8 $

Exhibit 99.8

Privileged and Confidential

Attorney Work Product/Subject to FRE 408

Kramer Levin Draft as of April 3, 2016

SUMMARY OF PRINCIPAL TERMS AND CONDITIONS

$400,000,000 Senior Secured Super Priority Debtor-In-Possession Credit Facility

This Summary of Principal Terms and Conditions (this “ Term Sheet ”) outlines certain terms of the Senior Secured Super Priority Debtor-In-Possession Credit Facility (the “ DIP Facility ”) and does not reflect all of the terms, conditions, representations, warranties and other provisions that will be set forth in the definitive credit documentation relating to such DIP Facility (the “ Loan Documents ”), and is qualified in its entirety by such final Loan Documents. The final Loan Documents, if any, will constitute the sole agreement among the parties with respect to the matters addressed herein. This Term Sheet is for discussion purposes only, is a non-binding proposal and does not constitute, represent or imply a commitment to lend or an agreement to deliver such commitment. Any such agreement or commitment (1) will be subject to completion of our credit approval process, (2) will be subject to the execution and delivery of final Loan Documents, acceptable to us and our counsel, on the one hand, and the Company (as defined herein), on the other hand, (3) will be subject to the completion of our legal and business due diligence and our satisfaction with the results thereof, (4) will assume the accuracy and completeness in all material respects of the information provided by or on behalf of us, on the one hand, and the Company, on the other hand and (5) will be subject to (x) the Obligors (defined below) commencing bankruptcy cases (the “ Bankruptcy Cases ”) by filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code (11 U.S.C. §§ 101 et seq., as amended, the “ Bankruptcy Code ”) with the United States Bankruptcy Court for the Eastern District of Missouri (the “ Bankruptcy Court ”) and (y) approval of the Bankruptcy Court of the Loan Documents.

 

DIP Facility   

Senior Secured Super-priority term loan debtor-in-possession facility in the aggregate principal amount of up to $400 million (the “ DIP Loans ”):

 

•     Tranche A Term Loan : Tranche A of the DIP Facility shall consist of a delayed draw term loan in the aggregate amount of $200 million, with $75 million of immediate draw funding available upon entry of an order of the Bankruptcy Court approving the DIP Facility on an interim basis in a form acceptable to the DIP Lenders (the “ Interim DIP Order ”), and $125 million of delayed draw funding available upon entry of an order of the Bankruptcy Court approving the DIP Facility on a final basis in a form acceptable to the DIP Lenders (the “ Final DIP Order ”).

 

•     Tranche B Term Loan : Tranche B of the DIP Facility shall consist of a delayed draw term loan in the aggregate amount of $200 million of delayed draw funding available upon entry of the Final DIP Order, subject to the satisfaction of the “ Conditions to Draw ” below.

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

L/C Facility    The DIP Facility will permit a separate letter of credit facility provided by [ fronting bank TBD ] for new letters of credit (other than letters of credit issued in connection with bonding requests, which are contemplated below) in an aggregate amount not exceeding $[        ], that shall be cash collateralized in an amount equal to 102% of the face amount of letters of credit issued thereunder (the “ L/C Facility ”)
Bonding Accommodation Facility   

Accommodation for bonding requests by relevant state authorities (“ Bonding Requests ”) in the form of (or any combination of):

 

•      Upon the entry of a Priming Order (defined below), a carve-out from the Collateral (as defined below) with superpriority claim status, subject only to the Carve-Out (as defined below), entitling the authority making any Bonding Request to receive proceeds of Collateral first in priority before distribution to any Lender or other prepetition secured creditor (the Bonding Carve-Out ) ; and/or

 

•      A letter of credit facility (the “ Bonding L/C Facility and, together with the Bonding Carve-Out, the “ Bonding Accommodation Facility ”) provided by [ fronting bank TBD ] which shall be cash collateralized in an amount equal to 102% of the face amount of letters of credit issued under the Bonding L/C Facility (each, a “ Bonding Letter of Credit ”).

 

The $[200] million maximum aggregate amount of the Bonding Accommodation Facility for state bonding requests may be used at the Borrower’s discretion. Without limiting the foregoing, the Borrower may obtain additional availability for state bonding requests under the Bonding L/C Facility, the Bonding Carve-Out or the L/C Facility upon approval by the Required Lenders.

DIP Agent    [    ], or any successor thereof appointed in accordance with the DIP Credit Agreement.
DIP Lenders   

Entities managed by Franklin, Aurelius, CapRe and Elliott (the “ Original DIP Lenders ”) will hold 80% of the commitment, while the remaining 20% will be held by other existing creditors of the Borrower as allocated by Franklin, Aurelius and Elliott, subject to the Borrower’s consent (which consent shall not be unreasonably withheld).

 

With respect to the 80% of the commitment of the DIP Facility allocated to the Original DIP Lenders (i) 50% of such allocation will

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

    

be calculated based on an equal allocation to each such Original DIP Lender and (ii) 50% of such allocation will be calculated based on the face value of each such Original DIP Lenders’ existing holdings of the Borrower’s debt.

 

The allocations provided to the Original DIP Lenders shall be assignable to any other DIP Lenders or other existing creditors of the Borrower.

Borrower    Peabody Energy Corporation
Guarantors    Super-priority secured guarantees provided by (x) all direct and indirect U.S. subsidiaries of Borrower that are debtors and debtors-in-possession in the Bankruptcy Cases and (y) all existing and future direct and indirect subsidiaries of Borrower that guarantee any obligations of Borrower or any U.S. subsidiary of Borrower under the existing First Lien Credit Agreement or other indebtedness (all such guarantors together with the Borrower, the “ Obligors ”) 1
Interest Rate   

LIBOR + 8.5% per annum paid in kind monthly on the last day of each month.

 

LIBOR floor of 1.0%.

 

Default Interest Rate: Additional 3.0% per annum paid in kind

Fees   

Commitment Fee : 5.0% paid in kind.

 

(i) The Commitment Fee for Tranche A Term Loan is due and payable upon entry of the Interim DIP Order.

 

(ii) The Commitment Fee for Tranche B Term Loan is due and payable when the Conditions to Draw (defined below) for the Tranche B Term Loan have been met and the Borrower may borrow the Tranche B Term Loan.

 

Undrawn Fee : 5.0% per annum paid in kind will accrue and be payable only with respect to the amount of the DIP Loans that are available to be drawn but are undrawn and pursuant to which any Conditions to Draw have been satisfied and as follows:

 

(i) Prior to the entry of the Final DIP Order, the Undrawn Fee for Tranche A Term Loan is only due and payable with respect to amounts that are available to be drawn but are undrawn upon entry of the Interim DIP Order.

 

(ii) Prior to the entry of a Priming Order (defined below), no Undrawn Fee with respect to Tranche B Term Loan shall be due and payable.

 

 

1   The domestic subsidiaries that will not be debtors in the Company’s Case and, therefore, not Guarantors include: P&L Receivables Company, LLC; Sterling Centennial Missouri Insurance Corp.; Global Center For Energy And Human Development, LLC; Peabody China, LLC; Peabody Mongolia, LLC; and PG Investments Six LLC.

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

     Equity Fee : Upon the effective date of the Plan, the DIP Lenders shall receive their pro-rated share of [10.0% of the equity of the reorganized Borrower] OR [equity of the reorganized Borrower equal to 0.83% multiplied by the number of months in the period from the date on which the DIP Facility is approved on an interim basis through the effective date of the Plan, pro-rated as applicable for any partial months], with adjustments TBD.
Bonding Letter of Credit Fees    A fronting fee in the amount of 0.25% on the outstanding face amount of each Bonding Letter of Credit shall be payable to the issuer of such Bonding Letter of Credit. In addition, the Company will pay to each Bonding Letter of Credit issuer its standard opening, amendment, presentation, wire and other administration charges applicable to each such Bonding Letter of Credit.
L/C Facility Fees:    A fronting fee in the amount of 0.25% on the outstanding face amount of each LC Facility Letter of Credit shall be payable to the issuer of such L/C Facility Letter of Credit. In addition, the Company will pay to each L/C Facility Letter of Credit issuer its standard opening, amendment, presentation, wire and other administration charges applicable to each such L/C Facility Letter of Credit.
Maturity    The earlier of (a) the date occurring fifteen (15) months after the date of filing the Bankruptcy Cases (the “ Scheduled Maturity Date ”) subject to a three month extension at the election of the Borrower, subject to satisfaction of certain conditions precedent to be mutually agreed, including, but not limited to, a 3.0% fee to be paid in kind on the outstanding principal subject to extension and no default or event of default shall be continuing, (b) the Plan Effective Date, (c) the date all loans become due and payable under the Loan Documents, whether by acceleration or otherwise and (d) the closing of a sale or sales, individually or in the aggregate, of all or substantially all of the assets of the Company (the “ Maturity Date ”).
DIP Collateral    The DIP Loans (including the guarantees thereof) shall be secured by (w) all unencumbered assets of the Borrower and Guarantors (limited, in the case of voting securities of any foreign subsidiary, to 65%), including the Bowie Assets, all unencumbered cash and all other

 

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Attorney Work Product/Subject to FRE 408

 

    

currently unencumbered assets (the “ Senior Collateral ”), (x) all assets of the Borrower and Guarantors that constitute Principal Property (as defined in the First Lien Credit Agreement) other than the Senior Collateral (the “ Principal Property Collateral ”), (y) all assets of the Borrower and the Guarantors (limited, in the case of voting securities of any foreign subsidiary, to 65%), other than Principal Property, subject to liens under the First Lien Credit Agreement and the Second Lien Notes (the “ Junior Collateral ”), and (z) all other assets of the Borrower and the Guarantors (limited, in the case of voting securities of any foreign subsidiary, to 65%), subject to liens other than those liens under the First Lien Credit Agreement (the “ Other Collateral, ” and together with the Senior Collateral, the Principal Property Collateral, and the Junior Collateral, the “ Collateral ”). Notwithstanding the foregoing, all assets (including accounts receivable, goods and collections) sold, pledged or financed in connection with the A/R Facility Agreement will not constitute Collateral.

 

For the avoidance of doubt, (i) each of the Tranche A Term Loan and the Tranche B Term Loan shall be secured by the Collateral and (ii) upon the satisfaction of the “ Conditions to Draw ” below related to the Tranche B Term Loan and the Bankruptcy Court’s entry of a Priming Order (defined below), both the Tranche A Term Loan and the Tranche B Term Loan (including the guarantees thereof) shall be secured by a priming first priority perfected lien pursuant to section 364(d) of the Bankruptcy Code on the Principal Property Collateral.

 

The liens securing the DIP Facility (the “ DIP Liens ”) shall be subject to the Carve-Out (as defined below).

Conditions to Draw    The Tranche A Term Loan may be drawn by the Company as necessary in its sole discretion subject to (i) satisfaction of conditions under the Loan Documents following an order by the Bankruptcy Court providing that the DIP Loans (including the guarantees thereof) are secured by (w) first-priority perfected lien pursuant to section 364(c)(2) of the Bankruptcy Code on all Senior Collateral, (x) a second-priority perfected lien pursuant to section 364(c)(3) of the Bankruptcy Code on all Principal Property Collateral, (y) a second-priority perfected lien pursuant to section 364(c)(3) of the Bankruptcy Code on all Junior Collateral, and (z) a junior-priority perfected lien pursuant to section 364(c)(3) of the Bankruptcy Code on all Other Collateral and (ii) no event of default shall be continuing, or exist on a pro forma basis upon such draw, under the DIP Facility.

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

    

The Tranche B Term Loan may be drawn by the Company as necessary in its sole discretion subject to (i) (x) satisfaction of the conditions under the Loan Documents to draw under the Tranche A Term Loan, and (y) the entry of an amended Final DIP Order or other order by the Bankruptcy Court providing that the DIP Loans (including the guarantees thereof) are secured by a priming first priority perfected lien pursuant to section 364(d) of the Bankruptcy Code on all Principal Property Collateral (a “ Priming Order ”) and (ii) no event of default shall be continuing, or exist on a pro forma basis upon such draw, under the DIP Facility.

 

Each draw on the DIP Facility shall be in the minimum amount of $1,000,000. The date on which such conditions are satisfied or waived and such initial borrowings take place is referred to herein as the “ Closing Date ”. The proceeds of the DIP Facility will be held in a DIP Loan Disbursement Account (defined below) subject to a first priority lien in favor of the DIP Lenders, and will be disbursed upon the direction of the Borrower.

DIP Superpriority Claim    All obligations of the Borrower under the DIP Facility and all amounts owing by the Guarantors in respect thereof at all times shall constitute allowed super-priority administrative expense claims in the Bankruptcy Cases (the “ DIP Superpriority Claim ”), having priority over all administrative expenses of the kind specified in, or ordered pursuant to, sections 105, 326, 330, 331, 503(b), 506(c), 507(a), 507(b) or 726 or any other provisions of the Bankruptcy Code, subject only to the Carve-Out.
Use of Proceeds    Subject to any other limitation contained herein or in the Loan Documents, the proceeds of the DIP Facility shall be used to, among other things, provide working capital to the Obligors, to cash collateralize certain letters of credit and fund the costs of the administration of the Chapter 11 Cases and the consummation of the restructuring.
DIP Budget / 13-Week Forecast    The Obligors shall prepare and deliver to the DIP Agent (i) a budget on or prior to the Closing Date (as defined herein), which budget shall reflect projected receipts and expenditures of the Company on a monthly basis for the first 15 months following the Closing Date, and shall be in form and substance reasonably acceptable to the DIP Agent (the “ DIP Budget ”) and (ii) a cash flow forecast for the 13-week period ending after the Closing Date (the “ 13-Week Forecast ”).

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

Allocations of Payments    The payment of certain expenses of the Obligors shall be allocated as follows: (i) operating expenses, capital expenditures, and [other asset-specific expenses] shall be allocated among (x) the Obligors’ cash that is not subject to the liens of the prepetition secured creditors (such cash referred to in this subclause (i)(x), the “ Prepetition Unencumbered Cash ”), (y) the cash collateral of such prepetition secured creditors related to the Principal Property (such cash collateral referred to in this subclause (i)(y), the “ Principal Property Cash Collateral ”), and (z) the cash collateral of such prepetition secured creditors that is not related to the Principal Property (such cash collateral referred to in this subclause (i)(z), the “ Other Cash Collateral ”) based on whether such payments relate to assets unencumbered prepetition, Principal Property or other prepetition collateral of the secured lenders, (ii) Adequate Protection Payments (defined below) shall be paid from the Other Cash Collateral and (iii) general administrative expenses, and expenses related to the Bankruptcy Cases, including professional fees, shall be allocated pro rata among the Prepetition Unencumbered Cash, the Principal Property Cash Collateral, and the Other Cash Collateral on a monthly basis based on the non-cash value of the Obligors’ assets that are not subject to the liens of the prepetition secured creditors, the Principal Property, and the other collateral of the prepetition secured creditors.
    
Australian Funding    Funding of Australian operations by US non-debtor entities (the “ Australian Funding Entities ”) to be capped at [$TBD] and must be provided in the form of a new secured intercompany loan reasonably acceptable to the DIP Lenders. Such intercompany loan shall be secured by assets of the Australian operations to be determined, and shall be structurally senior with respect to such assets. The equity interests of the Australian Funding Entities will be pledged as collateral for the DIP Facility and the Australian Funding Entities will be subject to customary negative covenants 2 restricting, among other things, indebtedness and liens. 100% of the net proceeds from the sale of any assets of the Australian operations shall be used to prepay such intercompany loan.
Mandatory Prepayment    Solely with respect to the Obligors, mandatory prepayments of the DIP Loans shall be required with 100% of the net cash proceeds from (i) issuance of any indebtedness (with exceptions for permitted indebtedness) and (ii) sales or other dispositions (including casualty events) of any assets (excluding (a) sales of inventory in the ordinary course of business and (b) any sale of an equity interest in Lively

 

2   Subject to further diligence and understanding of how funding is being made to Australian operations.

 

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Grove Energy Partners, LLC, the owner of the Company’s 5.06% interest in Prairie State Energy Campus Management, Inc., and other exceptions to be agreed) in an aggregate amount for any transactions in which the net cash proceeds realized by the Obligor exceeds the Threshold Amount (as defined below). For the avoidance of doubt, there will be no prepayment fee for any mandatory prepayments.

 

Notwithstanding the foregoing, 100% of the net cash proceeds from the sale of Senior Collateral shall be applied to prepay the DIP Loans.

 

Threshold Amount ” means net cash proceeds in excess of (i) $[10] million, in the aggregate, resulting from any single sale or disposition or series of sales or dispositions (including, in each case, casualty events) of any assets and (ii) $[50] million, in the aggregate resulting, from all sales or other dispositions (including casualty events) of any assets (in each case, excluding (a) sales of inventory in the ordinary course of business and (b) any sale of an equity interest in Lively Grove Energy Partners, LLC, the owner of the Company’s 5.06% interest in Prairie State Energy Campus Management, Inc., and other exceptions to be agreed).

Voluntary Prepayment    Prior to the Maturity Date, the Company may, upon at least two business days’ notice and at the end of any applicable interest period (or at other times with the payment of applicable breakage costs), prepay all or any portion of the outstanding DIP Loans; provided , that (i) no amounts so prepaid may be reborrowed and (ii) a prepayment fee shall be due on account of prepayment of the DIP Facility at any time prior to the Maturity Date in an amount equal to 5.00% of the principal amount prepaid.
Carve-Out    The Carve-Out shall consist of the aggregate amount needed for (i) accrued but unpaid professional fees, costs and expenses of the Borrower (other than any “ success ” or similar fees payable to such professionals) and professionals for any official committee of unsecured creditors (the “ Committee ”), whether allowed before or after the delivery of a Carve-Out Trigger Notice, incurred at any time prior to DIP Agent’s delivery of a Carve-Out Trigger Notice (as defined below), (ii) professional fees, costs and expenses of the Borrower and Committee incurred at any time in the Bankruptcy Cases after delivery of a Carve-Out Trigger Notice not to exceed $7.5 million and (iii) the payment of fees and expenses pursuant to 28 U.S.C. § 1930 (collectively, the “ Carve-Out ”). The Carve-Out and any loans under the DIP Facility may not be used to investigate or challenge the validity, perfection, priority, extent, or enforceability of the DIP Facility, or the liens or security interests securing the DIP

 

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     Facility. “ Carve-Out Trigger Notice ” means written notice to the Borrower that the Carve-Out is invoked, which notice shall be delivered only after the occurrence and during the continuation of an Event of Default (after giving effect to any applicable grace periods).
Expenses and Indemnification   

All reasonable, documented, out-of-pocket expenses (including but not limited to reasonable legal fees and reasonable, documented, out-of-pocket expenses (the reasonable fees and reasonable, documented, out-of-pocket expenses of Kramer Levin Naftalis & Frankel LLP, Pachulski Stang Ziehl & Jones LLP, Kirkland & Ellis LLP, O’Melveny & Myers LLP, local counsel, and counsel in Australia), reasonable fees and reasonable, documented, out-of-pocket expenses of any other advisors (including but not limited to the reasonable fees and reasonable, documented, out-of-pocket expenses of Houlihan Lokey, Inc. and Ducera Partners) and reasonable, documented, out-of-pocket expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses) of the DIP Agent and the DIP Lenders incurred in connection with the Bankruptcy Cases, the DIP Facility and in preparation of the Bankruptcy Cases. In addition, all reasonable fees and reasonable, documented, out-of-pocket costs and expenses (including but not limited to reasonable legal fees and documented, out-of-pocket expenses) of the DIP Agent and the DIP Lenders for workout proceedings, enforcement costs, and documentary taxes associated with the DIP Facility are to be paid by the Borrower.

 

The Borrower will indemnify the DIP Lenders, the DIP Agent and their respective affiliates, and hold them harmless from and against all reasonable out-of-pocket costs, expenses (including but not limited to reasonable legal fees and expenses) and liabilities arising out of or relating to the transactions contemplated hereby and any actual or proposed use of the proceeds of any loans made under the DIP Facility; provided, however , that no such person will be indemnified for costs, expenses or liabilities to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have been incurred solely by reason of the gross negligence, bad faith or willful misconduct of such person.

Adequate Protection for Prepetition First Lien Lenders    As adequate protection for the use of cash collateral of the Prepetition First Lien Lenders, and to secure payment of an amount equal to, any diminution in the value as of the Petition Date of their interests in their prepetition collateral, the Prepetition First Lien Lenders shall receive, to the extent of any aggregate diminution in the value of their collateral: (i) valid, binding, enforceable and perfected replacement liens on and security interests in the Collateral, which liens and

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

     security interests shall (x) be junior and subordinate only to the Carve-Out, the DIP Liens, and other permitted liens, (y) otherwise be senior to all other security interests in or liens on any of the Senior Collateral; and (z) junior to the liens of the Prepetition First Lien Lenders on the Principal Property Collateral, Junior Collateral and Other Collateral, and (ii) allowed super-priority administrative expense claims in the Bankruptcy Cases having priority over all administrative expenses of the kind specified in, or ordered pursuant to, section 364(c)(1) of the Bankruptcy Code, subject only to the Carve-Out and the DIP Superpriority Claim. In addition, the Prepetition First Lien Lenders shall receive current payment of interest at a rate equal to 55% of the non-default rate under the First Lien Credit Facility and payment of reasonable fees and documented, out-of-pocket expenses incurred by the Prepetition First Lien Lenders (collectively, the “ Adequate Protection Payments ”); provided, however, that the Adequate Protection Payments shall be subject to recharacterization as payments of the Prepetition First Lien Lenders’ secured claims in the event that the Bankruptcy Court determines that the Prepetition First Lien Lenders are undersecured.
DIP Loan Disbursement Account    Proceeds of the DIP Facility shall be deposited, held and disbursed through a newly formed account (the “ DIP Loan Disbursement Account ”) subject to an account control agreement (in form and substance reasonably satisfactory to the DIP Lenders) pursuant to which the DIP Agent will have control over the account (provided that so long as no event of default under the DIP Facility is continuing, the Borrower may direct disbursements from the DIP Loan Account).
Reporting   

The Company shall provide the DIP Agent:

 

(a) monthly unaudited consolidated financial statements of the Company and its subsidiaries (together with consolidating financial statements of the Company’s foreign subsidiaries) within 20 days after the end of each fiscal month, certified by the Company’s chief financial officer, chief accounting officer or treasurer;

 

(b) quarterly unaudited consolidated financial statements of the Company and its subsidiaries (together with consolidating financial statements consistent with the Company’s December 31, 2015 10-K) within 45 days of quarter-end for the first three fiscal quarters of the fiscal year, certified by the Company’s chief financial officer, chief accounting officer or treasurer;

 

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Attorney Work Product/Subject to FRE 408

 

    

(c) annual audited consolidated financial statements of the Company (together with consolidating financial statements of the Company’s foreign subsidiaries) and its subsidiaries within 90 days of year-end, certified with respect to such consolidated statements by Ernst & Young or other independent certified public accountants;

 

(d) copies of all reports on Form 10-K, 10-Q or 8-K filed by the Company or its subsidiaries with the Securities and Exchange Commission;

 

(e) 13-week cash flow forecasts, on a rolling 13-week basis, updated on a bi-weekly basis;

 

(f) all pleadings, motions and other documents directly related to the Cases, DIP Facility, any Plan and/or any disclosure statement related thereto by the earlier of (i) two business days prior to being filed (and if impracticable, then promptly after being filed) on behalf of any Obligor with the Bankruptcy Court, or (ii) at the same time as such documents are provided by an Obligor to any creditors’ committee or the U.S. trustee; and

 

(g) a report of any variance from the DIP Budget for each week, by 1:00 p.m. (New York time) each immediately following Monday.

Affirmative Covenants   

The Loan Documents will contain affirmative covenants in form and substance customary for debtor-in-possession financings and the specific transaction, subject to, where appropriate, materiality thresholds, carve-outs and exceptions to be agreed (which will be applicable only to the Obligors), including, but not limited to, the following:

 

a.      Financial statements.

 

b.      Certificates and other information.

 

c.      Notices.

 

d.      Payment of tax obligations.

 

e.      Preservation of existence.

 

f.       Maintenance of properties.

 

g.      Maintenance of insurance.

 

h.      Compliance with laws.

 

i.       Books and records.

 

j.       Inspection rights.

 

k.      Use of proceeds.

 

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l.       Additional Guarantors.

 

m.     Preparation of environmental reports.

 

n.      Certain long-term liabilities and environmental reserves.

 

o.      Covenant to give security.

Rating Covenant    The Borrower shall use reasonable commercial efforts to maintain a minimum credit rating for the DIP Facility of Ba3 from Moody’s and/or BB- from S&P or a similar rating from any other acceptable rating agency, which may be a private rating.
Negative Covenants   

The Loan Documents will contain negative covenants in form and substance customary for debtor-in-possession financings and the specific transaction and where appropriate, subject to materiality thresholds, carve-outs and exceptions to be agreed (which will be applicable only to the Obligors), including, but not limited to, the following:

 

a.      Limitations on liens.

 

b.      Limitations on investments.

 

c.      Limitations on indebtedness.

 

d.      Limitations on fundamental changes, including mergers and transfers of all or substantially all assets.

 

e.      Limitations on asset dispositions (including sale-leaseback transactions and dispositions to non-Obligors).

 

f.       Limitations on restricted payments (including (i) payments on account of equity interests, (ii) payments of junior or subordinated debt and (iii) restricted investments).

 

g.      Limitations on changes in nature of business.

 

h.      Limitations on burdensome agreements.

 

i.       Limitations on transactions with affiliates.

 

j.       Limitations on use of proceeds (including with respect to margin regulations and anti-corruption, sanctions and terrorism laws).

 

k.      Limitations on negative pledge clauses.

 

l.       Limitations on use of cash, including funding of non-debtor subsidiaries, to be agreed.

 

m.     Limitations on modifications of organizational documents and other indebtedness.

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

    

n.      Limitations on bonding superpriority claims (other than in compliance with the terms of the Loan Documents).

 

o.      Funding of Australian operations from the proceeds of the DIP Loans.

Financial Covenants   

The DIP Facility will contain only the following financial covenants (which will be applicable only to the Obligors):

 

a.      Maximum capital expenditures, to be tested monthly (with carry-forwards to be agreed); such covenant levels to be set with 10% permitted variance from the initial DIP Budget.

 

b.      Minimum monthly consolidated EBITDA (to be defined in the Loan Documents) of the Borrower; such covenant levels to be set with 10% permitted variance from the initial DIP Budget.

 

c.      Minimum Liquidity (as defined below), as of any date during each monthly period set forth in the DIP Budget, of $50 million in excess of the Liquidity provided for such period in the DIP Budget, as adjusted for the funding cap to be determined for the Australian operations, and which is to be tested at all times.

 

Liquidity ” shall be defined as the sum of (x) unrestricted cash and cash equivalents of the Obligors (but excluding, for the avoidance of doubt, (i) any restricted cash and (ii) any cash pledged as collateral to secure letters of credit under the L/C Facility or any Bonding Letters of Credit) and (y) any undrawn but available to be drawn amounts under the Tranche A Term Loan and Tranche B Term Loan.

Representations and Warranties    The Loan Documents will contain representations and warranties in form and substance customary for debtor-in-possession financings and the specific transaction (which will be applicable to the Obligors and subject to certain exceptions and qualifications to be agreed), including the following: existence, qualification and power; authorization and no contravention; governmental authorization; binding effect; financial statements and no material adverse effect; litigation; no default; ownership and identification of property; environmental compliance; insurance; taxes; ERISA compliance; subsidiaries; margin regulations and Investment Company Act; disclosure; compliance with laws; anti-corruption, sanctions and terrorism laws; intellectual property, licenses, etc.; security documents; and mines.

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

Events of Default

  

The Loan Documents will contain events of default (with, where appropriate, customary grace periods and exceptions) in form and substance appropriate for debtor-in-possession financings and the specific transaction (which will be applicable to the Obligors), including, but not limited to, the following,

 

a.      Failure to pay principal, interest or any other amount when due.

 

b.      Representations and warranties incorrect in any material respect when made or deemed made.

 

c.      Failure to comply with covenants (including milestones).

 

d.      Cross-default to payment defaults on other Obligors postpetition indebtedness, or default or event of default with respect to an Obligor’s other postpetition indebtedness if the effect is to accelerate or permit acceleration in excess of an amount to be mutually agreed upon, and cross-acceleration to any material postpetition indebtedness.

 

e.      Post-petition judgments in excess of $10 million that is not stayed, reversed, overturned, withdrawn or settled for a lower amount within five days of such judgment.

 

f.       The occurrence of certain ERISA events, other than events relating to claims of withdrawal liability from multiemployer pension plans, if any, that result in liabilities in an amount in excess of $10 million that are not reduced, overturned, withdrawn or settled for a lower amount within five days of the occurrence of such events.

 

g.      Actual or asserted (by any Obligor or any affiliate thereof) invalidity or impairment of any Loan Document (including the failure of any lien to remain perfected).

 

h.      Invalidity of Loan Documents and DIP Collateral Documents.

 

i.       (i) The entry of an order dismissing any of the Bankruptcy Cases or converting any of the Bankruptcy Cases to a case under chapter 7 of the Bankruptcy Code, or any filing by any Obligor of a motion or other pleading seeking entry of such an order;

 

(ii) a trustee, responsible officer or an examiner under Bankruptcy Code section 1104 (other than a fee examiner) is appointed or elected in any Obligor’s Bankruptcy Case, any Obligor applies for, consents to, or acquiesces in, any such appointment, or the Bankruptcy Court shall have entered an order providing for such appointment, in each case without the prior written consent of the DIP Lenders in their sole discretion;

 

(iii) the entry of an order staying, reversing, vacating or otherwise modifying the Interim DIP Order, the Final DIP Order or the

 

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Attorney Work Product/Subject to FRE 408

 

    

Priming Order, in each case in a manner adverse in any material respect to the Administrative Agent or the DIP Lenders, or the filing by any Obligor of an application, motion or other pleading seeking entry of such an order;

 

(iv) the entry of an order in any of the Bankruptcy Cases appointing an examiner having expanded powers (beyond those set forth under Sections 1106(a)(3) and (4) of the Bankruptcy Code);

 

(v) the entry of a final, nonappealable order in any of the Bankruptcy Cases denying or terminating use of cash collateral by the Obligors;

 

(vi) the entry of an order (that is not otherwise stayed, reversed, overturned, withdrawn or settled within five days of the entry of such order) in any of the Bankruptcy Cases granting relief from any stay of proceeding (including, without limitation, the automatic stay) so as to allow a third party to proceed against any material assets of the Obligors in excess of $10 million.

 

(vii) the entry of a final non-appealable order in the Bankruptcy Cases charging any of the Collateral under Section 506(c) of the Bankruptcy Code against the DIP Lenders without the consent of the Administrative Agent, or the commencement of other actions that is materially adverse to the DIP Agent’s or the DIP Lenders’ rights and remedies under the DIP Facility in any of the Bankruptcy Cases or inconsistent with the applicable Loan Documents;

 

(viii) the entry of an order in any of the Bankruptcy Cases seeking authority to obtain financing under Section 364 of the Bankruptcy Code (other than the DIP Facility or in the ordinary course of the Obligors’ businesses), unless such financing would repay in full in cash all obligations under the DIP Facility upon consummation thereof.

 

j.       The making of any payments in respect of prepetition obligations other than (i) as permitted by the Interim DIP Order or the Final DIP Order, (ii) as permitted by any “first day” orders reasonably satisfactory to the Administrative Agent or (iii) as permitted by any other order of the Bankruptcy Court in amounts reasonably satisfactory to the Administrative Agent.

 

k.      Use of the Collateral, including without limitation cash collateral, in a manner inconsistent with any budgets submitted pursuant to a cash collateral order.

 

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Privileged and Confidential

Attorney Work Product/Subject to FRE 408

 

   

l.       The entry of the Final DIP Order shall not have occurred within [45] days after entry of the Interim DIP Order.

 

m.     An order of the Bankruptcy Court granting, other than in respect of the DIP Facility and the Carve-Out or the Bonding Carve Out or as otherwise permitted under the applicable Loan Documents, any claim entitled to superpriority administrative expense claim status in the Bankruptcy Cases pursuant to Section 364(c)(1) of the Bankruptcy Code pari passu with or senior to the claims of the DIP Agent and the DIP Lenders under the DIP Facility, or the filing by any Obligor of a motion or application seeking entry of such an order.

 

n.      Other than with respect to the Carve-Out or the Bonding Carve Out and the liens provided for in the DIP Facility, any Obligor shall create or incur, or the Bankruptcy Court enters an order granting, any claim that is pari passu with or senior to any liens under the DIP Facility, the adequate protection liens and adequate protection obligations granted under the Interim DIP Order.

 

o.      Noncompliance by any Obligor or any of its subsidiaries with the terms of the Interim DIP Order or the Final DIP Order.

 

p.      A plan of reorganization shall be confirmed in any of the Bankruptcy Cases that is not an Acceptable Plan of Reorganization (as defined below), or any order shall be entered that dismisses any of the Bankruptcy Cases and does not provide for termination of the unused commitments under the DIP Facility and payment in full in cash of the Obligors’ obligations under the DIP Facility, or any of the Obligors shall file, propose, support, or fail to contest in good faith the filing or confirmation of such a plan or the entry of such an order.

 

q.      Any Obligor shall file any motion seeking authority to consummate the sale of assets of any Obligor (other than any such sale that is permitted under the Loan Documents) pursuant to Section 363 of the Bankruptcy Code having a value in excess of $10 million, without the consent of the DIP Agent and the Required Lenders, or any Obligor shall file (or fail to oppose) any motion seeking an order authorizing the sale of all or substantially all of the assets of the Obligors (unless such sale would result in the repayment in full in cash of all obligations under the DIP Facility upon consummation thereof).

 

r.       The Obligors shall make any payments of expenses from sources contrary to the allocations provided in the “Allocations of Payments” section above.

 

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s.      Any Obligor shall take any action in support of any matter set forth in paragraphs (i), (m), (n) or (p) above or in support of any filing by any person of a Plan that is not an Acceptable Plan of Reorganization (as defined below) or any other person shall do so and such application is not contested in good faith by the Obligors and the relief requested is granted in an order that is not stayed pending appeal, in each case unless the DIP Agent (with the consent of the Required Lenders) consents to such action.

 

t.       Any Obligor (or affiliate thereof) shall seek to, or shall support (whether by way of motion or other pleadings filed with the Bankruptcy Court or any other writing executed by any Obligor or by oral argument) any other person’s motion to, (1) disallow in whole or in part any of the obligations arising under the DIP Facility or any other Loan Document, or (2) challenge the validity and enforceability of the liens or security interests granted under any of the Loan Documents or in the Interim Order, Final Order or Priming Order in favor of the DIP Agent for the benefit of the DIP Lenders.

Remedies upon an

Event of Default

   Among other remedies to be specified, upon the occurrence of an Event of Default, the automatic stay shall automatically terminate and the DIP Lenders shall wait at least five days to foreclose on all or any portion of the Collateral, and apply the proceeds thereof to the obligations arising under the DIP Facility or otherwise exercise remedies against the Collateral permitted by applicable non-bankruptcy law.
Waivers    The DIP Orders shall provide customary waivers, including the waiver of the automatic stay in connection with the DIP Agent’s enforcement of remedies upon an Event of Default. The DIP Orders shall provide a waiver of the ability to surcharge the Collateral securing the DIP Facility, including under section 506(c) of the Bankruptcy Code or any similar law (a “ 506(c) Waiver ”) and shall provide a waiver of the equitable doctrine of “ marshaling ” with respect to the Collateral securing the DIP Facility (a “ Marshaling Waiver ”). The DIP Orders shall not provide (i) a waiver of the “equities of the case” exception to section 552(b) of the Bankruptcy Code, (ii) a 506(c) Waiver or (iii) a Marshalling Waiver, in each case, with respect to the collateral of the prepetition secured creditors.

 

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Attorney Work Product/Subject to FRE 408

 

Stipulations    The DIP Orders shall provide customary stipulations with respect to the priority and the validity of the DIP Liens and the DIP Superpriority Claim.
Release    Pursuant to the DIP Orders, the Borrower and Guarantors shall release all claims against the DIP Agent in its capacity as such and the DIP Lenders in their capacity as such.
Right to Credit Bid    The DIP Lenders shall have the right to participate in any asset sale process or plan sponsorship process and shall have the right to credit bid the amount of their DIP Loan claims during any sale of Obligors’ assets (in whole or in part), including without limitation, sales occurring pursuant to section 363 of the Bankruptcy Code or included as part of any restructuring plan subject to confirmation under section 1129(b)(2)(A)(ii)-(iii) of the Bankruptcy Code.

Yield Protection,

Taxes and Other

Deductions

   The Loan Documents will contain yield protection provisions, customary for facilities of this nature, protecting the DIP Lenders in the event of unavailability of LIBOR, breakage losses, reserve and capital adequacy requirements. All payments are to be free and clear of any present or future taxes, withholdings or other deductions whatsoever (other than income and franchise taxes in the United States or the jurisdiction of the DIP Lender’s organization or applicable lending office or FATCA taxes). The DIP Agent and the DIP Lenders will use commercially reasonable efforts to minimize, to the extent possible, any applicable taxes and the Borrower will indemnify the DIP Lenders and the for such taxes paid.
Governing Law    The laws of the State of New York. Each party to the Loan Documents will waive the rights to trial by jury and will consent to jurisdiction of the Bankruptcy Court for so long as the Bankruptcy Cases remain open and, thereafter, the state and federal courts located in the City of New York.
Milestones   

•    The Obligors shall commence the Bankruptcy Cases by filing voluntary petitions under chapter 11 of the Bankruptcy Code with the Bankruptcy Court on or before April 15, 2016 (the “ Petition Date ”).

 

•    On the Petition Date, the Obligors shall file a motion, in form and substance reasonably acceptable to the DIP Lenders, seeking approval of the DIP Facility.

 

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•    The Bankruptcy Court shall enter the Interim DIP Order, in form and substance acceptable to the DIP Lenders, approving the DIP Facility on an interim basis no later than three days following the Petition Date.

 

•    The Borrower shall provide a five-year business plan with respect to its (and its direct and indirect subsidiaries’) U.S. and Australian operations to the DIP Agent no later than 100 days following the Petition Date.

 

•    The Bankruptcy Court shall enter an order fully resolving the Declaratory Judgment Action (as defined below) no later than 120 days following the Petition Date.

 

•    The Obligors shall, no later than 150 days following the Petition Date, file (x) a Chapter 11 plan, with respect to the Obligors (the “ Plan ”) in form and substance acceptable to the DIP Lenders; provided that a Plan that provides for the payment in full in cash and full discharge of the Obligors’ obligations under the DIP Facility at emergence and for full releases of the DIP Lenders that are customarily contained in a plan of reorganization (an “ Acceptable Plan of Reorganization ”) shall be deemed to be in form and substance acceptable to the DIP Lenders in their capacity as DIP Lenders, and (y) a motion (the “ Disclosure Statement Approval Motion ”) seeking approval of a disclosure statement in connection with the Plan.

 

•    The Bankruptcy Court shall enter an order, in form and substance acceptable to the DIP Lenders, approving the Disclosure Statement Approval Motion no later than 210 days following the Petition Date.

 

•    The Bankruptcy Court shall conduct a hearing with respect to the confirmation of the Plan no later than 270 days following the Petition Date.

 

•    The Bankruptcy Court shall enter a final order of the Bankruptcy Court confirming the Plan, in form and substance reasonably acceptable to the DIP Lenders, no later than 300 days following the Petition Date.

 

•    The Effective Date shall occur no later than 360 days following the Petition Date.

 

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Required Lenders:    DIP Lenders holding greater than [65]% of the outstanding commitments and/or exposure under the DIP Loans (the “ Required Lenders ”). 3
Amendments:    All amendments, modifications and waivers of the DIP Loan Documents shall require the consent of the Required Lenders, except in the case of amendments, modifications or waivers customarily requiring consent from all DIP Lenders or all affected DIP Lenders.
Intercreditor Litigation:    The Obligors shall file a motion or commence an adversary proceeding, no later than 20 days following the Petition Date seeking entry of a declaratory judgment as to (i) the dollar amount of the Principal Property Cap as of the Petition Date and (ii) the identities of the mines that are Principal Properties as of the Petition Date (the “ Declaratory Judgment Action ”). For the avoidance of doubt, each of the Obligors, the DIP Lenders and the Prepetition First Lien Lenders reserve all rights in respect of the Declaratory Judgment Action.

 

3   To be based on allocations. No one party controlling.

 

  20  

Exhibit 99.9

KL COMMENTS AS OF 4/9/16 TO DPW DRAFT 04/07/2016

SUBJECT TO FRE 408

CONFIDENTIAL

$500,000,000 Senior Secured Debtor-In-Possession Term Loan Facility

$100,000,000 Senior Secured Debtor-In-Possession L/C Facility

$200,000,000 Bonding Accommodation Facility

Summary of Terms And Conditions

 

Borrower:    Peabody Energy Corporation, a Delaware corporation (the “ Company ”), as a debtor and debtor-in-possession in a proceeding (the “ Company’s Case ”) under chapter 11 of the United States Bankruptcy Code (the “ Bankruptcy Code ”) to be filed in the United States Bankruptcy Court for the Eastern District of Missouri (the “ Bankruptcy Court ”).
Guarantors:   

The obligations of the Company under the DIP Facilities (as defined below) will be guaranteed by (x) each of the Company’s direct and indirect domestic subsidiaries that will be debtors and debtors-in-possession (each of such subsidiaries and the Company, a “ Debtor ”) in proceedings (together with the Company’s Case, the “ Cases ”) under chapter 11 of the Bankruptcy Code filed contemporaneously and jointly administered with the Company’s Case and (y) Global Center for Energy & Human Development, LLC (“ Global Center ”) (the persons described in the foregoing clauses (x) and (y), collectively, the “ Guarantors ”). 1

 

The Company and the Guarantors are referred to herein as “ Loan Parties ” and each as a “ Loan Party ”.

 

The date of commencement of the Cases is referred to herein as the “ Petition Date ”.

Lenders:    Financial institutions or entities identified by the Arranger (as defined below) in consultation with the Company (the “ Lenders ”). [●] percent of the Term Facility (as defined below) shall be made available to funds managed by Aurelius, Elliott, CapRe, and Franklin (the “ Participating DIP Lenders ”).

Certain Prepetition Secured Debt

Facilities:

  

A/R Facility : That certain Fifth Amended and Restated Receivables Purchase Agreement, dated as of March 25, 2016, by and among P&L Receivables Company, LLC, as seller, the Company, as initial servicer, the sub-servicers party thereto, PNC Bank, National Association, as administrator (the “ A/R Agent ”) and LC bank, and the other parties thereto (the “ A/R Facility Agreement ”).

 

First Lien Credit Agreement : A first lien senior secured term and revolving loan facility made available to the Company pursuant to that certain Amended and Restated Credit Agreement, dated as of September 24, 2013, by and among the Company, the lenders and L/C issuers party thereto (the “ Prepetition

 

 

1   The Guarantors will include the direct and indirect subsidiaries of the Company holding the “Four Star” assets previously released in anticipation of the Bowie sale. The domestic subsidiaries that will not be debtors or Guarantors are P&L Receivables Company, LLC; Sterling Centennial Missouri Insurance Corp.; and Newhall Funding Company (Massachusetts trust with no assets).

 

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Lenders ”), Citibank, N.A., as administrative agent (in such capacity, the “ Prepetition Administrative Agent ”) and swing line lender, and the other agents and arrangers party thereto (as amended, supplemented or otherwise modified prior to the date hereof, the “ Prepetition Credit Agreement ”). 2

 

Second Lien Notes Indenture : That certain Indenture, dated as of March 16, 2015, among the Company, the subsidiary guarantors party thereto and U.S. Bank National Association, as trustee and collateral agent (as amended, supplemented or otherwise modified prior to the date hereof, the “ Second Lien Notes Indenture ”), pursuant to which the Company issued $1,000 million aggregate principal amount of its 10% Senior Secured Second Lien Notes due 2022 (the “ Second Lien Notes ”).

Administrative

Agent:

   An affiliate of the Arranger shall act as administrative agent in respect of the DIP Facilities (as defined below) (the “ Administrative Agent ”).

Sole Lead Arranger

and Book Runner:

   Citigroup Global Markets Inc. (the “ Arranger ”).
DIP Facilities:   

Financial accommodations, as follows:

 

Term Loan Facility : A senior secured superpriority non-amortizing term loan facility in an aggregate principal amount of $500 million (the “ Term Facility ”; the loans made thereunder, the “ Loans ”) to be made available to the Company, $200 million of which will be available at Closing after the entry of the Interim Order (as defined below) and $300 million of which will be available after the entry of the final order of the Bankruptcy Court authorizing the DIP Facilities in substantially the form of the Interim Order (as defined below), with only such modifications as are satisfactory to the Administrative Agent (the “ Final Order ”).

 

L/C Facility : A letter of credit facility in the amount of $100 million for new letters of credit that shall be cash collateralized in an amount equal to 102% of the face amount of letters of credit issued thereunder (the “ L/C Facility ”); provided that letters of credit issued under the L/C Facility (each, an “ L/C Facility Letter of Credit ” and each issuer thereof, an “ L/C Issuer ”) shall not be issued to replace or backstop any outstanding letters of credit issued under the Prepetition Credit Agreement (as defined below).

 

Bonding Accommodation Facility : Accommodation for bonding requests by relevant state authorities (“ Bonding Requests ”) in an aggregate principal amount of $200 million in the form of (or any combination of):

 

(i) a carve-out from the Collateral (as defined below) with superpriority claim status, subject only to the Carve-Out (as defined below), entitling the authority making any Bonding Request to receive proceeds of Collateral first in priority before distribution to any Lender or other prepetition secured creditor (the “ Bonding Carve-Out ”); and/or

 

 

2   For the avoidance of doubt, the existing letters of credit under the Prepetition Credit Agreement shall not be “rolled up” under any of the DIP Facilities postpetition.

 

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(ii) a letter of credit facility (the “ Bonding L/C Facility and, together with the Bonding Carve-Out, the “ Bonding Accommodation Facility ”) which shall be cash collateralized in an amount equal to 102% of the face amount of letters of credit issued under the Bonding L/C Facility (each, a “ Bonding Letter of Credit ”).

 

Without limiting the foregoing, the Company may obtain additional availability for state bonding requests under the Bonding L/C Facility, the Bonding Carve-Out or the L/C Facility upon approval by the Required Lenders.

DIP Facility Termination Date:   

The termination date with respect to the DIP Facilities shall be the earliest of (a) the Scheduled Termination Date (as defined below), (b) 45 days after the entry of the Interim Order if the Final Order has not been entered prior to the expiration of such 45-day period, (c) the substantial consummation (as defined in Section 1101 of the Bankruptcy Code and which for purposes hereof shall be no later than the “effective date” thereof) of a plan of reorganization filed in the Cases that is confirmed pursuant to an order entered by the Bankruptcy Court, (d) the acceleration of the loans and the termination of commitments with respect to the DIP Facilities in accordance with the DIP Loan Documents (as defined below) and (e) a sale of all or substantially all of the assets of the Company (or the Company and the Guarantors) pursuant to Section 363 of the Bankruptcy Code.

 

Scheduled Termination Date ” means the date that is 12 months after the Closing Date (as defined below); provided that such date may, at the election of the Company, be extended by up to an additional 6 months so long as, at the time such extension shall become effective, (w) there shall exist no default under the DIP Loan Documents (as defined below), (x) the representations and warranties of the Loan Parties therein shall be true and correct in all material respects (or in the case of representations and warranties with a “materiality” qualifier, true and correct in all respects) immediately prior to, and after giving effect to, such extension, (y) the Company shall have paid or caused to be paid to the Administrative Agent for the account of each Lender an extension fee in an amount equal to 2.50% of such Lender’s outstanding exposure under the Term Facility at such time and (z) the Company shall have delivered to the Administrative Agent an updated DIP budget covering the additional period to be effected by such extension.

Purpose:    For working capital and general corporate purposes of the Loan Parties and their subsidiaries, to cash collateralize letters of credit under the L/C Facility or Bonding L/C Facility and to pay fees and expenses incurred in connection with the transactions contemplated hereby; provided that no letter of credit shall be issued under the L/C Facility (or as a Bonding Request) the purpose of which would be to replace or backstop any letter of credit outstanding under the Prepetition Credit Agreement.
DIP Loan Documents:    The DIP Facilities will be documented in a single credit and guarantee agreement and shall be secured pursuant to a single security agreement. The documents referred to in the preceding sentence are referred to as the “ DIP Loan Documents ”.

 

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   The DIP Loan Documents shall reflect the terms and provisions set forth in this term sheet and shall be otherwise in form and substance reasonably satisfactory to the Arranger.
Cash Management:    The Loan Parties shall, not later than the date that is 45 days following the Closing Date (or such later date as the Administrative Agent shall agree in its discretion), cause all deposit accounts and securities accounts of the Loan Parties, subject to customary exceptions to be agreed, to be subject to control agreements for the benefit of the Lenders satisfactory to the Administrative Agent in its reasonable discretion; provided , however , that the separately identified deposit account established by Global Center to hold up to $250 million designated for funding foreign operations (the “ Designated Global Center Account ”) shall not be subject to a control agreement. For the avoidance of doubt, such control agreements shall not be for the benefit of the Prepetition Lenders or the Prepetition Administrative Agent. Allocation of expenses among unencumbered cash and cash collateral of the Prepetition Lenders subject to further agreement among the Required Participating DIP Lenders and the Administrative Agent.
Interest Rates and Fees:    As set forth on Annex A attached hereto and in the Fee Letter.
Mandatory Prepayments:   

Solely with respect to the Loan Parties, mandatory prepayments of the Loans (and, if applicable, mandatory termination of unused Term Facility commitments) shall be required with 100% of the net cash proceeds from (a) issuance of any indebtedness (with exceptions for permitted indebtedness) and (b) sales or other dispositions (including casualty events) of any assets (excluding (i) sales of inventory in the ordinary course of business and (ii) any sale of an equity interest in Lively Grove Energy Partners, LLC, the owner of the Company’s 5.06% interest in Prairie State Energy Campus Management, Inc., and other exceptions to be agreed) exceeding the Threshold Amount (as defined below). For the avoidance of doubt, (x) there will be no prepayment fee for any mandatory prepayments and (y) none of the “Four Star” assets of the Company or its subsidiaries may be sold or otherwise disposed of without the consent of the Required Lenders (as defined below).

 

Threshold Amount ” means net cash proceeds in excess of $30 million (in the aggregate) resulting from sales or other dispositions (including casualty events) of any assets (excluding (a) sales of inventory in the ordinary course of business and (b) any sale of an equity interest in Lively Grove Energy Partners, LLC, the owner of the Company’s 5.06% interest in Prairie State Energy Campus Management, Inc., and other exceptions to be agreed).

Voluntary Prepayments:    The Company may, upon at least two business days’ notice and at the end of any applicable interest period (or at other times with the payment of applicable breakage costs), prepay in full or in part, without premium or penalty (other than such breakage costs), the DIP Facilities.

 

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Security and Priority:    In the case of each Loan Party that is a Debtor, the obligations of the Company under the DIP
  

Facilities, and the obligations of each Guarantor in respect of its guarantee of such obligations, shall, subject to the Carve-Out (as defined below), at all times:

 

(a) pursuant to Section 364(c)(1) of the Bankruptcy Code, be entitled to superpriority administrative expense claim status in the Case of such Loan Party (the “ DIP Superpriority Claims ”);

 

(b) pursuant to Section 364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority security interest and lien on the Collateral of such Loan Party (i) to the extent such Collateral is not subject to valid, perfected and non-avoidable liens as of the Petition Date and (ii) with respect to the Interim Order, excluding claims and causes of action under Chapter 5 of the Bankruptcy Code and proceeds thereof (collectively “ Avoidance Actions ”) (it being understood that the Final Order shall grant a perfected security interest in proceeds of successful Avoidance Actions for the benefit of the DIP Facilities);

 

(c) pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by a perfected junior-priority security interest and lien on the Collateral of such Loan Party to the extent that such Collateral is subject to valid, perfected and unavoidable liens in favor of third parties that were in existence immediately prior to the Petition Date, or to valid and unavoidable liens in favor of third parties that were in existence immediately prior to the Petition Date that were perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than the existing liens that secure obligations of such Loan Party under (i) the Prepetition Credit Agreement or (ii) the Second Lien Notes Indenture, which existing liens will be primed by the liens described in clause (d) below), junior to the priority of such liens in favor of such third parties; and

 

(d) pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a perfected first priority priming security interest and lien on the Collateral of such Loan Party (such security interest and lien, the “ Priming Lien ”);

 

in each case to the extent that such Collateral is subject to existing liens that secure the obligations of such Loan Party under (i) the Prepetition Credit Agreement or (ii) the Second Lien Notes Indenture (collectively, the “ Primed Liens ”).

 

The Priming Lien (a) shall be senior in all respects to the interests in such property of (i) the Prepetition Lenders under the Prepetition Credit Agreement and of the other “secured parties” referenced therein) (the “ Prepetition Credit Agreement Primed Parties ”) and the related security documents and (ii) the holders of the Second Lien Notes (the “ Second Lien Notes Primed Parties ”) under the Second Lien Notes Indenture and the related security agreements and (b) shall also be senior to any liens granted to provide adequate protection in respect of any of the Primed Liens. The Primed Liens shall be primed by and made subject and subordinate to the Priming Liens, but the Priming Liens shall not prime liens, if any, to which the Primed Liens are subject at the time of the commencement of the Cases (other than any such liens that are themselves Primed Liens).

 

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All of the liens described above shall be effective and perfected upon entry of the Interim Order.

 

In addition, in the case of Global Center, the obligations in respect of its guarantee of the Company’s obligations under the DIP Facilities shall be secured by a perfected first-priority (subject to certain exceptions to be agreed) security interest and lien on its Collateral; provided that the DIP Facilities shall not be secured by, and the Lenders shall not have a lien on, the Designated Global Center Account or any of the funds therein.

 

Collateral ” means all owned or hereafter acquired assets and property of the Loan Parties (including, without limitation, inventory, accounts receivable (if any), real property, plant, equipment, rights under leases and other contracts, patents, copyrights, trademarks, tradenames and other intellectual property and capital stock of subsidiaries), and the proceeds thereof, subject to customary exceptions to be agreed but to include without limitation, for the avoidance of doubt, all cash and cash equivalents of the Loan Parties and any intercompany loans held by the Loan Parties, subject, in the case of liens on the equity interests of P&L Receivables Company and any intercompany notes issued in connection with the A/R Facility Amendment, to intercreditor arrangements with the A/R Agent. Notwithstanding the foregoing, all “Receivables Assets” (as defined in the Prepetition Credit Agreement) sold or otherwise transferred to P&L Receivables Company in connection with the A/R Facility Agreement shall not constitute Collateral; provided that any such assets that are reconveyed to the Loan Parties pursuant to the terms of the documentation governing the A/R Facility shall become Collateral.

Carve-Out :    The “Carve-Out” is an amount equal to the sum of (i) all fees required to be paid to the clerk of the Bankruptcy Court and to the Office of the United States Trustee under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate (without regard to the notice set forth in (iii) below); (ii) fees and expenses of up to $25,000 incurred by a trustee under section 726(b) of the Bankruptcy Code (without regard to the notice set forth in (iii) below); and (iii) allowed and unpaid claims for unpaid fees, costs, and expenses (the “ Professional Fees ”) incurred by persons or firms retained by the Debtors or the official committee of unsecured creditors in the Cases (the “ Creditors’ Committee ”), if any, whose retention is approved by the Bankruptcy Court pursuant to Section 327 and 1103 of the Bankruptcy Code (collectively, the “ Professional Persons ”), which shall be paid to the extent allowed by the Bankruptcy Court, that are incurred (A) at any time before delivery by the Administrative Agent of a Carve-Out Trigger Notice (as defined below), whether allowed by the Bankruptcy Court prior to or after delivery of a Carve-Out Trigger Notice (the “ Pre-Trigger Date Fees ”), which shall be paid to the extent allowed by the Bankruptcy Court; and (B) after the occurrence (the “ Trigger Date ”) and during the continuance of an event of default under the DIP Loan Documents and delivery of notice (the “ Carve-Out Trigger Notice ”) thereof (which may be by email) to the Debtors, the Debtors’ counsel, the United States Trustee, and lead counsel for the Creditors’ Committee, if any, in an aggregate amount not to exceed $7.5 million (the amount set forth in this clause (iii)(B)

 

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being the “ Post-EoD Carve-Out Amount ”); provided that nothing herein shall be construed to impair the ability of any party to object to the fees, expenses, reimbursement or compensation described in clauses (iii)(A) or (iii)(B) above, on any grounds.

 

Notwithstanding the foregoing, the Carve-Out shall not include, apply to or be available for any fees or expenses incurred by any party in connection with, (a) the investigation, initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation (i) against any of the Lenders, the Administrative Agent or the Prepetition Lenders (whether in such capacity or otherwise) or (ii) challenging the amount, validity, perfection, priority or enforceability of or asserting any defense, counterclaim or offset to, the obligations and the liens and security interests granted under the DIP Loan Documents or the Prepetition Credit Agreement, including, in each case, without limitation, for lender liability or pursuant to section 105, 510, 544, 547, 548, 549, 550, or 552 of the Bankruptcy Code, applicable non-bankruptcy law or otherwise; (b) attempts to modify any of the rights granted to the Lenders or the Administrative Agent; (c) attempts to prevent, hinder or otherwise delay any of the Lenders’ or the Administrative Agent’s assertion, enforcement or realization upon any Collateral in accordance with the DIP Loan Documents and the Final Order other than to seek a determination that an event of default has not occurred or is not continuing; or (d) paying any amount on account of any claims arising before the commencement of the Cases unless such payments are approved by an order of the Bankruptcy Court.

 

For the avoidance of doubt and notwithstanding anything to the contrary herein or in the DIP Loan Documents, the Carve-Out shall be senior to all liens and claims securing the DIP Loan Documents, any adequate protection liens, if any, and the superpriority claims, and any and all other liens or claims securing the DIP Facilities (it being understood and agreed that the Carve-Out shall not apply to the cash-collateralized Bonding Letters of Credit or the cash-collateralized L/C Facility Letters of Credit).

Material Leases :   

To the extent liens and consents are not available with respect to Material Leases (as defined below), the following protections will apply:

 

(a) The consent of the Administrative Agent is necessary for any rejection of a Material Lease pursuant to Section 365 of the Bankruptcy Code, which consent shall not be unreasonably withheld, and the Administrative Agent may compel the Company to assume and assign that lease to a replacement lessee of the Administrative Agent’s choosing.

 

(b) Upon an event of default under the DIP Loan Documents, the Administrative Agent may compel the Company to assume and assign any Real Property Lease, pursuant to Section 365 of the Bankruptcy Code, to a replacement lessee of the Administrative Agent’s choosing , or as collateral securing the DIP Facilities.

 

(c) The Administrative Agent may credit bid amounts outstanding under the DIP Facilities at any sale or assignment of any Real Property Lease, including sales or assignments compelled by the Administrative Agent.

 

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(d) Any order of the Bankruptcy Court approving assumption of any Real Property Lease must specifically provide that the Company shall be authorized to assign such lease pursuant to and enjoy the protections of Section 365(f) of the Bankruptcy Code.

 

(e) If, in connection with any compelled assumption of a lease pursuant to paragraph (a), the Company must cure monetary defaults under that lease, the Administrative Agent may pay cure costs with funds posted to any collateral account established under the DIP Facilities.

 

Material Lease ” shall mean any Real Property Lease or other contractual obligations in respect of Material Leased Real Property.

 

Material Leased Real Property ” means any Real Property subject to a Real Property Lease with a Loan Party, as lessee, with annual minimum royalties, rents or any similar payment obligations in excess of $1 million in the most recently ended fiscal year.

 

Real Property Lease ” shall mean any lease, license, letting, concession, occupancy agreement, sublease, farm-in, farm-out, joint operating agreement, easement or right of way to which such Person is a party and is granted a possessory interest in or a right to use or occupy all or any portion of the Real Property (including, without limitation, the right to extract coal, minerals oil, natural gas and other hydrocarbons and their constituents from any portion of Real Property not owned in fee by such Person) and every amendment or modification thereof, including with respect to the Loan Parties, without limitation, the leases with respect to Real Property and any contractual obligation with respect to any of the foregoing.

 

Real Property ” shall mean, collectively, all right, title and interest of the Company (including, without limitation, any leasehold, mineral estate, or Coal, oil, natural gas or other hydrocarbon and their constituents leasehold) in and to any and all parcels of real property owned or operated by the Company, whether by lease, license or other use agreement, together with, in each case, all Improvements and appurtenant fixtures (including, without limitation, all preparation plants or other Coal processing facilities and loadout and other transportation facilities), easements and other property and rights incidental to the ownership, lease or operation thereof.

Adequate Protection:   

Prepetition Credit Agreement Primed Parties . Pursuant to sections 361, 363(e) and 364(d)(1) of the Bankruptcy Code, the parties to Prepetition Credit Agreement whose liens will be primed as described above, and whose collateral (including cash collateral) will be authorized for use by the Loan Parties (collectively, the “ Prepetition Credit Agreement Primed Parties ”), will receive as adequate protection solely to the extent of the aggregate diminution in value of their first priority liens under the Prepetition Credit Agreement and for the use of cash collateral:

 

(a) current cash payment of (i) [75%] of the non-default rate interest (in respect of outstanding principal amounts of loans and on the capitalized secured hedge portfolio) and (ii) reasonable fees and expenses of professionals, in each case, to

 

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be paid from the cash collateral of the Prepetition Lenders and subject to recharacterization as principal payments and/or disgorgement to the extent it is determined that the Prepetition Credit Agreement Primed Parties are undersecured,

 

(b) replacement or, if applicable, new liens on the Collateral that are junior to the liens securing the DIP Facilities (in the same relative priority as the Prepetition Facilities) but senior to the adequate protection liens granted to the Second Lien Notes Primed Parties as described below,

 

(c) superpriority claims as provided for in section 507(b) of the Bankruptcy Code that are junior to the DIP Superpriority Claims,

 

(d) a stipulation in the Interim Order and the Final Order that the amount of the “Principal Property Cap” (as defined in the Prepetition Credit Agreement) shall be fixed as of the Petition Date, and

 

(e) delivery of all reports and notices set forth under “Financial Reporting Requirements” and “Other Reporting Requirements” below, in each case when and as required under the DIP Facilities;

 

provided that (x) the adequate protection package described in the above paragraphs (a) through (e) may be amended, modified or terminated and (y) the First Lien Adequate Protection Milestones (as defined below) may be amended, modified or extended, in each case, as to the Prepetition Credit Agreement Primed Parties only by order of the Bankruptcy Court or the prior written consent of (i) the Prepetition Credit Agreement Primed Parties holding greater than 50% of the aggregate principal amount of outstanding loans and participations in outstanding letters of credit under the Prepetition Credit Agreement and (ii) the Required Participating DIP Lenders. The milestones described in clauses b, c, d, f and g below in the “Milestones” section shall be referred to as the “ First Lien Adequate Protection Milestones ”.

 

Second Lien Notes Primed Parties . Pursuant to sections 361, 363(e) and 364(d)(1) of the Bankruptcy Code, the Second Lien Notes Primed Parties whose liens will be primed as described above, and whose cash collateral will be authorized for use by the Loan Parties, will be entitled to receive, as adequate protection, replacement or, if applicable, new liens on the Collateral that are junior to the liens securing the DIP Facilities (in the same relative priority as the Prepetition Facilities) and to the adequate protection liens granted to the Prepetition Credit Agreement Primed Parties as described above, solely to the extent of the aggregate diminution in value of their liens. For the avoidance of doubt, the Second Lien Notes Primed Parties will not receive cash payments for interest or reimbursement of professional fees.

Termination of Consent to Use of Cash Collateral:    If, at any time, (i) a plan of reorganization shall be confirmed in any of the Cases that is not reasonably acceptable to the “Required Lenders” under the Prepetition Credit Agreement, (ii) [reserved], (iii), all or substantially all of the assets of the Loan Parties are sold (iv) the maturity of the DIP Facilities is accelerated,

 

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   (v) [reserved] or (vi) other than in connection with the CNTA Dispute 3 or any dispute with respect to what constitutes unencumbered cash as of the Petition Date, the Company or any direct or indirect affiliate or subsidiary of the Company commences any action, including the filing of any pleading, against any of the prepetition secured parties with respect to any of the obligations or liens under the Prepetition Credit Agreement, 4 then, in the case of each of (i) through (vi), the Prepetition Credit Agreement Primed Parties may, upon a minimum of five business days’ written notice to the Company, commence a proceeding in the Bankruptcy Court to determine the Company’s right to use cash collateral, it being understood that any prior consent of the Prepetition Credit Agreement Parties to the Company’s use of cash collateral shall be deemed automatically withdrawn on the fifth business day following the commencement of such proceeding; provided, however, that pending a hearing and ruling on such proceeding, the Company may continue to use cash collateral in accordance with the Interim Order or Final Order (as applicable).
Conditions Precedent to the Initial Extension of Credit:    The initial extension of credit (the “ Closing ”; the date on which the Closing occurs, the “ Closing Date ”) under each of the DIP Facilities shall be subject only to the following conditions (and the conditions set forth under “Conditions Precedent to Each Credit Extension” below):
  

a.      

   The DIP Loan Documents (x) shall be in form and substance consistent with this term sheet and reasonably satisfactory to the Company and its counsel and the Administrative Agent and its counsel and (y) shall have been executed and delivered by each party thereto.
  

b.      

   The Petition Date shall have occurred, and each Loan Party shall be a debtor and a debtor-in-possession. All “first day orders” and “second day orders” (including a cash management order) shall be reasonably satisfactory in form and substance to the Administrative Agent.
  

c.      

   Not later than five days following the Petition Date, the Administrative Agent shall have received a signed copy of an order of the Bankruptcy Court in form and substance satisfactory to the Administrative Agent (the “ Interim Order ”), authorizing and approving the making of the Loans, the issuance of the Bonding Letters of Credit, the issuance of the L/C Facility Letters of Credit and the granting of the superpriority claims and liens and other liens referred to above under the heading “Security and Priority”, which Interim Order shall not have been vacated, reversed, modified, amended or stayed. The Interim Order and the Final Order shall contain provisions granting the adequate protection liens described under “Adequate Protection” above and related adequate protection claims, in each case junior to the liens and claims granted to secure the DIP Facilities.

 

3   “CNTA Dispute” means a dispute concerning Section 6.16(g) of the Prepetition Credit Agreement and any issues related thereto, including the identities of the mines that are Principal Properties as of the Petition Date. The Lenders and the Loan Parties agree that the Participating DIP Lenders shall have standing to be heard in connection with all matters related to the CNTA Dispute.
4   The consequences of such an action (whether an event of default under the DIP Facilities or a trigger to the termination of consent to use of cash collateral) are an open point to be discussed.

 

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   d.    No trustee or examiner shall have been appointed with respect to the Loan Parties, any of their subsidiaries or their respective properties.
   e.    All costs, fees, expenses (including, without limitation, legal fees and expenses) and other compensation contemplated by the DIP Loan Documents or otherwise required to be paid to the Administrative Agent and the Lenders on or before the Closing shall have been paid.
   f.    The Arranger and the Administrative Agent shall have received and be reasonably satisfied with (i) the audited annual consolidated financial statements of the Company for the year ended December 31, 2015, (ii) monthly projections for the 12 months after the Closing Date dated as of a date not more than five business days prior to the Closing Date and in a form customary for “DIP budgets” and (iii) a cash flow forecast for the 13-week period ending after the Closing Date dated as of a date not more than five business days prior to the Closing Date; provided that the Arranger and the Administrative Agent acknowledge that they have received the audited annual consolidated financial statements of the Company for the year ended December 31, 2015.
   g.    The A/R Facility shall have been amended on terms substantially consistent with those in effect as of the Closing Date to permit such facility to continue to operate during the course of the Cases and to provide maturity date that is not earlier than the Scheduled Termination Date (or a new or replacement receivables securitization facility reasonably satisfactory to the Administrative Agent shall have become effective).
   h.    The Administrative Agent shall be satisfied in its reasonable judgment that there shall not occur as a result of, and after giving effect to, the initial extension of credit under the DIP Facilities, a default (or any event which with the giving of notice or lapse of time or both would be a default) under any of the Loan Parties’ or their respective domestic subsidiaries’ debt instruments and other material agreements which (i) in the case of the Loan Parties’ debt instruments and other material agreements, would permit the counterparty thereto to exercise remedies thereunder (in the case of Loan Parties that are Debtors, on a post-petition basis) or (ii) in the case of the debt instruments and other material agreements of any domestic subsidiary that is not a Loan Party, could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below).
   i.    The Administrative Agent shall have received customary closing deliverables, including reasonably satisfactory opinions of independent counsel to the Loan Parties, addressing such matters as the Lenders shall reasonably request.
   j.    Since December 31, 2015, there shall not have occurred or there shall not exist any event, condition, circumstance or contingency that, individually or in the aggregate, (i) has had or could reasonably be expected to have, a material adverse effect on (A) the business, operations, properties, assets or financial condition of the Company and its subsidiaries, taken as a whole (other than as customarily occurs as a result of events leading up to and

 

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      following the commencement of a proceeding under chapter 11 of the Bankruptcy Code and the commencement of the Cases, including, without limitation, the receipt of a going concern qualification or loss of self-bonding) or (B) the ability of the Loan Parties to perform their respective material obligations under the DIP Loan Documents or (ii) has resulted in, or could reasonably be expected to result in, a material impairment of the validity or enforceability of, or a material impairment of the material rights, remedies or benefits available to Lenders, the administrative agent or the collateral agent under any DIP Loan Document (any of the foregoing being a “ Material Adverse Effect ”).
   k.    There shall exist no unstayed action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality (other than the Cases, any dispute over self-bonding or intercreditor litigation) that could reasonably be expected to have a Material Adverse Effect.
   l.    All necessary governmental and third party consents and approvals necessary in connection with the DIP Facilities and the transactions contemplated thereby shall have been obtained (without the imposition of any adverse conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the DIP Facilities or the transactions contemplated thereby.
   m.    Each Lender that has requested the same shall have received “know your customer” and similar information.
   n.    The collateral agent, for the benefit of the Lenders, shall have the valid and perfected liens on the security interests in the Collateral of the Loan Parties contemplated by the “Security and Priority” section above; provided that notwithstanding the foregoing, the Loan Parties shall be required to deliver, within 60 days of the entry of the Interim Order, Uniform Commercial Code financing statements, executed intellectual property security agreements and real property mortgages (in each case, to the extent such financing statements, security agreements or real property mortgages cannot be delivered prior to the Closing Date after the exercise of commercially reasonable efforts), in each case in suitable form for filing, and provisions reasonably satisfactory to the Administrative Agent for the payment of all fees and taxes for such filings shall have been duly made.
   o.    The Administrative Agent shall have received endorsements (to the extent such endorsements can be delivered prior to Closing after the exercise of commercially reasonable efforts) naming the Administrative Agent, on behalf of the Lenders, as an additional insured and loss payee, as applicable, under all insurance policies to be maintained with respect to the Collateral.
Conditions Precedent to Each Credit Extension:    On the funding date of each Loan (and on (a) the date of issuance of any Bonding Letter of Credit, (b) the date of issuance of any L/C Facility Letter of Credit and (c) the date of granting of any superpriority claim under the Bonding

 

  -12-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

   Carve-Out) (i) there shall exist no default under the DIP Loan Documents, (ii) the representations and warranties of the Loan Parties therein shall be true and correct in all material respects (or in the case of representations and warranties with a “materiality” qualifier, true and correct in all respects) immediately prior to, and after giving effect to, such funding, issuance or granting, (iii) the making of such Loan (or the issuance of such Bonding Letter of Credit, the issuance of such L/C Facility Letter of Credit or the granting of such superpriority claim) shall not violate any requirement of law and shall not be enjoined, temporarily, preliminarily or permanently, (iv) the making of such Loan (or the issuance of such Bonding Letter of Credit, the issuance of such L/C Facility Letter of Credit or the granting of such superpriority claim) shall not result in the aggregate outstandings under the Term Facility or the Bonding Accommodation Facility (as applicable) exceeding the amount authorized by the Interim Order or the Final Order, as applicable, and (v) the Interim Order or Final Order, as the case may be, shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed in any respect.
Representations and Warranties:    The DIP Loan Documents will contain representations and warranties in form and substance customary for debtor-in-possession financings and the specific transaction (which will be applicable to the Loan Parties and their respective subsidiaries and subject to certain exceptions and qualifications to be agreed) and shall be based on those set forth in the Prepetition Credit Agreement, as modified to reflect the status of the DIP Facilities as debtor-in-possession facilities, including the following: existence, qualification and power; authorization and no contravention; governmental authorization; binding effect; financial statements and no material adverse effect; litigation; no default; ownership and identification of property; environmental compliance; insurance; taxes; ERISA compliance; subsidiaries; margin regulations and Investment Company Act; disclosure; compliance with laws; anti-corruption, sanctions and terrorism laws; intellectual property, licenses, etc.; security documents; and mines.
Affirmative Covenants:    The DIP Loan Documents will contain affirmative covenants in form and substance customary for debtor-in-possession financings and the specific transaction, subject to, where appropriate, materiality thresholds, carve-outs and exceptions to be agreed (which will be applicable to the Loan Parties and their respective domestic subsidiaries), and shall be based on those set forth in the Prepetition Credit Agreement, as modified to reflect the status of the DIP Facilities as debtor-in-possession facilities, including the following:
   a.    Financial statements.
   b.    Certificates and other information.
   c.    Notices.
   d.    Payment of tax obligations.
   e.    Preservation of existence.

 

  -13-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

   f.    Maintenance of properties.
   g.    Maintenance of insurance.
   h.    Compliance with laws.
   i.    Books and records.
   j.    Inspection rights.
   k.    Use of proceeds.
   l.    Additional Guarantors.
   m.    Preparation of environmental reports.
   n.    Certain long-term liabilities and environmental reserves.
   o.    Covenant to give security.
   p.    Use of commercially reasonable efforts to obtain credit ratings in respect of the Term Facility from each of Standard & Poor’s Rating Services and Moody’s Investor Service, Inc., in each case prior to the Final Order entry date.
Milestones:    The DIP Loan Documents shall require compliance with the following milestones:
   a.    Not later than 120 days following the Petition Date, the Company shall deliver to the Administrative Agent, which shall upon the request of a Lender deliver to such Lender, a five-year business plan [in accordance with the parameters set forth in the DIP Loan Documents] 5 in respect of its U.S. operations (the “ U.S. Business Plan ”), which U.S. Business Plan shall be on a monthly basis for 2016 and 2017; provided that the Company shall, not later than 60 days following the Petition Date, deliver to the Administrative Agent, which shall upon the request of a Lender deliver to such Lender, a written update setting forth in reasonable detail the Company’s progress in formulating the U.S. Business Plan and any material developments with respect thereto since the Petition Date.
   b.    Not later than 120 days following the Petition Date, the Company shall deliver to the Administrative Agent, which shall upon the request of a Lender deliver to such Lender, a five-year business plan [in accordance with the parameters set forth in the DIP Loan Documents] 6 in respect of its Australian operations (the “ Australian Business Plan ”), which Australian Business Plan shall be on a monthly basis for 2016 and 2017 and shall include, without limitation, (i) a determination, if any, of mining complexes

 

5   Open point subject to discussion. Agreed-upon parameters for the U.S. Business Plan shall be specified in the DIP Loan Documents. Citi to identify specifically what would be encompassed in the U.S. Business Plan.
6   Open point subject to discussion. Agreed-upon parameters for the Australian Business Plan shall be specified in the DIP Loan Documents. Citi to identify specifically what would be encompassed in the Australian Business Plan.

 

  -14-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

  

or interests thereon of such Australian operations to be sold, assigned, abandoned or otherwise disposed of in connection with the reorganization of the Company and the other Loan Parties and (ii) an assessment of the financial impact of the cessation of operations at, or the disposition of, any assets of such Australian operations, if any; provided that the Company shall, not later than 60 days following the Petition Date, deliver to the Administrative Agent, which shall upon the request of a Lender deliver to such Lender, a written update setting forth in reasonable detail the Company’s progress in formulating the Australian Business Plan and any material developments with respect thereto since the Petition Date.

 

c.      Not later than 180 days following the Petition Date, the Bankruptcy Court shall have entered a final determination of the “Principal Property Cap” and which of the Company’s U.S. Mine complexes are “Principal Properties” (as such terms are defined in the Prepetition Credit Agreement) of the Prepetition Lenders; provided that a declaratory judgment action seeking such a determination shall be commenced by the Company by the date that is 30 days after the Petition Date.

 

d.      Not later than 210 days following the Petition Date, the Company shall file with the Bankruptcy Court (x) a plan of reorganization that provides for the payment in full in cash and full discharge of the Loan Parties’ obligations under the DIP Facilities at emergence and for full releases of the Lenders, the L/C Issuers and the Administrative Agent (each in their capacities as such) that are customarily contained in a plan of reorganization (an “ Acceptable Plan of Reorganization ”) and (y) a disclosure statement with respect thereto.

 

e.      Not later than 270 days following the Petition Date, the Bankruptcy Court shall enter an order approving a disclosure statement with respect to an Acceptable Plan of Reorganization.

 

f.       Not later than 330 days following the Petition Date, the Bankruptcy Court shall enter an order confirming an Acceptable Plan of Reorganization.

 

g.      Not later than 360 days following the Petition Date, the confirmed Acceptable Plan of Reorganization shall be effective.

Negative

Covenants:

   The DIP Loan Documents will contain negative covenants in form and substance customary for debtor-in-possession financings and the specific transaction and where appropriate, subject to materiality thresholds, carve-outs and exceptions to be agreed (which will be applicable to the Loan Parties and their respective domestic subsidiaries), and shall be based on those set forth in the Prepetition Credit Agreement, as modified (and tightened) to reflect the status of the DIP Facilities as debtor-in-possession facilities, including the following:
  

a.      Limitations on liens.

  

b.      [Limitations on investments (including a $250 million cap on investments in the Debtors’ foreign subsidiaries in support of the Company’s foreign operations, subject to increase of up to $200 million upon the consent of the

 

  -15-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

  

Required Lenders (as defined below), which investments shall be required to be made by Global Center in the form of a new secured intercompany loan (the “ Global Center Intercompany Loan ”). 7 ]

  

c.      Limitations on indebtedness.

  

d.      Limitations on fundamental changes, including mergers and transfers of all or substantially all assets.

  

e.      Limitations on asset dispositions (including sale-leaseback transactions and dispositions to non-Loan Parties).

  

f.       Limitations on restricted payments (including (i) payments on account of equity interests, (ii) payments of junior or subordinated debt and (iii) restricted investments).

  

g.      Limitations on changes in nature of business.

  

h.      Limitations on burdensome agreements.

  

i.       Limitations on transactions with affiliates.

  

j.       Limitations on use of proceeds (including with respect to margin regulations and anti-corruption, sanctions and terrorism laws).

  

k.      Limitations on negative pledge clauses.

  

l.       Limitations on use of cash, including funding of non-Debtor subsidiaries, to be agreed.

  

m.     Limitations on modifications of organizational documents and other indebtedness.

  

n.      Limitations on bonding superpriority claims (other than in compliance with the terms of the DIP Loan Documents).

  

o.      Limitations on the activities of Global Center (as set forth under “Foreign Funding” below).

Financial

Covenants: 8

  

The DIP Facilities will contain only the following financial covenants: 9

 

a.      Maximum cumulative capital expenditures of the Loan Parties, to be tested monthly; such covenant levels to be set with a [●]% variance from the initial DIP budget.

  

 

7   Mechanics and details for funding Australia TBD..
8   To the extent that the six-month maturity extension option is exercised, compliance in months 13 through 18 will be tested on a trailing twelve-month basis.
9   Open point to be discussed. Citi to propose covenant levels for discussion and negotiation.

 

  -16-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

  

b.      Minimum cumulative consolidated EBITDA (to be defined in the DIP Loan Documents) of the Loan Parties, to be tested monthly; such covenant levels to be set with a [●]% variance from the initial DIP budget.

  

c.      Minimum Liquidity (as defined below) of the Loan Parties of $[●], to be tested at all times.

   Liquidity ” shall be defined as the sum of unrestricted cash and cash equivalents of the Loan Parties (but excluding, for the avoidance of doubt, (i) any restricted cash, (ii) any cash pledged as collateral to secure Bonding Letters of Credit or L/C Facility Letters of Credit and (iii) any cash held by Global Center that is not required by the DIP Loan Documents to be made subject to an account control agreement in favor of the Lenders).
Rating Covenant:    The Borrower shall use reasonable commercial efforts to maintain a minimum credit rating for the DIP Facility of Ba3 from Moody’s and/or BB- from S&P or a similar rating from any other acceptable rating agency, which may be a private rating.

Financial

Reporting

Requirements:

  

The Company shall provide the Administrative Agent:

 

(a) commencing with the month ending May 31, 2016, monthly unaudited consolidated financial statements of the Company and its subsidiaries (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) within 20 days after the end of each fiscal month, certified by the Company’s chief financial officer, chief accounting officer or treasurer;

 

(b) quarterly unaudited consolidated financial statements of the Company and its subsidiaries (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) within 45 days of quarter-end for the first 3 fiscal quarters of the fiscal year, certified by the Company’s chief financial officer, chief accounting officer or treasurer;

 

(c) annual audited consolidated financial statements of the Company (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) and its subsidiaries within 90 days of year-end, certified with respect to such consolidated statements by Ernst & Young or other independent certified public accountants reasonably acceptable to the Administrative Agent;

 

(d) copies of all reports on Form 10-K, 10-Q or 8-K filed by the Company or its subsidiaries with the Securities and Exchange Commission;

 

(e) 13-week cash flow forecasts, on a rolling 13-week basis, updated on a bi-weekly basis; and

 

(f) promptly after delivery thereof to Global Center, copies of any “Cash Flow Projections” delivered pursuant to the Global Center Intercompany Loan.

 

  -17-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

Other Reporting Requirements:    The DIP Loan Documents will contain other reporting requirements customarily found in the Administrative Agent’s loan documents for similar debtor-in-possession financings and other reporting requirements reasonably deemed by the Administrative Agent appropriate to the specific transaction, including, without limitation, with respect to litigation, contingent liabilities, ERISA or environmental events and notice and delivery of certain filings made by any of the Loan Parties in the Cases.
Events of Default:    The DIP Loan Documents will contain events of default (with, where appropriate, customary grace periods and exceptions) in form and substance appropriate for debtor-in-possession financings and the specific transaction (which will be applicable only to the Loan Parties and their respective domestic subsidiaries), and shall be based on those set forth in the Prepetition Credit Agreement, as modified to reflect the status of the DIP Facilities as debtor-in-possession facilities, including the following,
  

a.      Failure to pay principal, interest or any other amount when due.

  

b.      Representations and warranties incorrect in any material respect when made or deemed made.

  

c.      Failure to comply with covenants (including milestones).

  

d.      Cross-default to payment defaults on other indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition), or default or event of default with respect to other indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition) if the effect is to accelerate or permit acceleration in excess of an amount to be mutually agreed upon, and cross-acceleration to any material indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition).

  

e.      Judgments (in the case of Loan Parties other than Global Center, to the extent incurred post-petition) in excess of $10 million that is not stayed, reversed, overturned, withdrawn or settled for a lower amount within five days of such judgment.

  

f.       The occurrence of certain ERISA events, other than events relating to claims of withdrawal liability from multiemployer pension plans, if any, that result in liabilities in an amount in excess of $10 million that are not reduced, overturned, withdrawn or settled for a lower amount within five days of the occurrence of such events.

  

g.      Actual or asserted (by any Loan Party or any affiliate thereof) invalidity or impairment of any DIP Loan Document (including the failure of any lien to remain perfected).

 

h.      Change of ownership or control.

  

i.       Invalidity of DIP Loan Documents or DIP Collateral Documents.

 

  -18-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

  

j.       (i) The entry of an order dismissing any of the Cases or converting any of the Cases to a case under chapter 7 of the Bankruptcy Code, or any filing by the Company of a motion or other pleading seeking entry of such an order;

 

(ii) a trustee, responsible officer or an examiner under Bankruptcy Code section 1104 (other than a fee examiner) is appointed or elected in the Company’s Case, the Company applies for, consents to, or acquiesces in, any such appointment, or the Bankruptcy Court shall have entered an order providing for such appointment, in each case without the prior written consent of the Lenders in their sole discretion;

 

(iii) the entry of an order staying, reversing, vacating or otherwise modifying the Interim Order or the Final Order, in each case in a manner adverse in any material respect to the Administrative Agent or the Lenders, or the filing by the Company of an application, motion or other pleading seeking entry of such an order;

 

(iv) the entry of an order in any of the Cases appointing an examiner having expanded powers (beyond those set forth under Sections 1106(a)(3) and (4) of the Bankruptcy Code);

 

(v) [reserved];

 

(vi) the entry of an order (that is not otherwise stayed, reversed, overturned, withdrawn or settled within five days of the entry of such order) in any of the Cases granting relief from any stay of proceeding (including, without limitation, the automatic stay) so as to allow a third party to proceed against any material assets of the Loan Parties in excess of $10 million.

 

(vii) the entry of a final non-appealable order in the Cases charging any of the Collateral under Section 506(c) of the Bankruptcy Code against the Lenders without the consent of the Administrative Agent, or the commencement of other actions that is materially adverse to the Administrative Agent’s or the Lenders’ rights and remedies under the applicable DIP Facility in any of the Cases or inconsistent with the applicable DIP Loan Documents. For the avoidance of doubt, nothing in this subclause (vii) shall relate to charging of any collateral of the Prepetition Lenders under Section 506(c) of the Bankruptcy Code;

 

(viii) the entry of an order in any of the Cases seeking authority to obtain financing under Section 364 of the Bankruptcy Code (other than the DIP Facilities or in the ordinary course of the Loan Parties’ businesses), unless such financing would repay in full in cash all obligations under the DIP Facilities upon consummation thereof;

 

(ix) the entry of an order in any of the Cases granting adequate protection to any other person, subject to customary exceptions to be mutually agreed; 10 or

 

(x) the filing or support of any pleading by any Loan Party seeking, or otherwise consenting to, any of the matters set forth in clauses (i) through (ix) above.

 

10   Citi to propose exceptions for Company review and discussion.

 

  -19-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

 

k.      The making of any payments in respect of prepetition obligations other than (i) as permitted by the Interim Order or the Final Order, (ii) as permitted by any “first day” orders reasonably satisfactory to the Administrative Agent or (iii) as permitted by any other order of the Bankruptcy Court in amounts reasonably satisfactory to the Administrative Agent.

 

l.       Use of the Collateral, including without limitation cash collateral, in a manner inconsistent with any budgets submitted pursuant to a cash collateral order.

 

m.     The entry of the Final Order shall not have occurred within 45 days after entry of the Interim Order.

 

n.      An order of the Bankruptcy Court granting, other than in respect of the DIP Facilities and the Carve-Out or the Bonding Carve Out or as otherwise permitted under the applicable DIP Loan Documents, any claim entitled to superpriority administrative expense claim status in the Cases pursuant to Section 364(c)(1) of the Bankruptcy Code pari passu with or senior to the claims of the Administrative Agent and the Lenders under the DIP Facilities, or the filing by the Company of a motion or application seeking entry of such an order.

 

o.      Other than with respect to the Carve-Out or the Bonding Carve Out and the liens provided for in the DIP Facilities or in connection with the A/R Facility Agreement, the Company shall create or incur, or the Bankruptcy Court enters an order granting, any claim that is pari passu with or senior to any liens under the DIP Facilities, the adequate protection liens and adequate protection obligations granted under the Interim Order or the Final Order.

 

p.      Noncompliance by any Loan Party or any of its subsidiaries with the terms of the Interim Order or the Final Order.

 

q.      The Loan Parties or any of their subsidiaries, or any person claiming by or through the Loan Parties any of their subsidiaries, shall obtain court authorization to commence, or shall commence, join in, assist or otherwise participate as an adverse party in any suit or other proceeding against the Administrative Agent or any of the Lenders relating to the DIP Facilities, unless such suit or other proceeding is in connection with the enforcement of the DIP Loan Documents against the Administrative Agent or Lenders.

 

r.       A plan of reorganization shall be confirmed in any of the Cases that is not an Acceptable Plan of Reorganization, or any order shall be entered that dismisses any of the Cases and does not provide for termination of the unused commitments under the DIP Facilities and payment in full in cash of the Loan Parties’ obligations under the DIP Facilities, or any of the Loan Parties or any of their subsidiaries shall file, propose, support, or fail to contest in good faith the filing or confirmation of such a plan or the entry of such an order.

 

  -20-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

  

s.      The Company shall file any motion seeking authority to consummate the sale of assets of any Loan Party (other than any such sale that is permitted under the DIP Loan Documents) pursuant to Section 363 of the Bankruptcy Code having a value in excess of $15 million, without the consent of the Administrative Agent and the Required Lenders, or the Company shall file (or fail to oppose) any motion seeking an order authorizing the sale of all or substantially all of the assets of the Loan Parties (unless such sale would result in the repayment in full in cash of all obligations under the DIP Facilities upon consummation thereof).

  

t.       Bankruptcy or insolvency of Global Center.

   In addition to other customary rights and remedies of a secured party under the DIP Facilities, the Administrative Agent (upon the direction of the Required Lenders) shall have the right to “credit bid” the Loans during any sale of Collateral, including without limitation, sales occurring under Section 363 of the Bankruptcy Code or included as part of any reorganization plan subject to confirmation of such reorganization plan, following an event of default.
Expenses and Indemnification:   

The Company and each Guarantor shall jointly and severally pay or reimburse the Administrative Agent and the Arranger for all reasonable, documented, out-of-pocket costs and expenses incurred by the Administrative Agent and the Arranger (including reasonable attorneys’ fees and expenses) in connection with (i) the preparation, negotiation and execution of the DIP Loan Documents; (ii) the syndication and funding of the Loans and any issuance of Bonding Letters of Credit or L/C Facility Letters of Credit; (iii) the creation, perfection or protection of the liens under the DIP Loan Documents (including all search, filing and recording fees); and (iv) the ongoing administration of the DIP Loan Documents (including the preparation, negotiation and execution of any amendments, consents, waivers, assignments, restatements or supplements thereto), including, for the avoidance of doubt, the fees and expenses of Davis Polk & Wardwell LLP, Centerview Partners LLC and Zolfo Cooper LLC.

 

The Company and each Guarantor shall jointly and severally pay or reimburse all reasonable, documented, out-of-pocket expenses costs and expenses of the Participating DIP Lenders, including but not limited to reasonable legal fees and expenses (the reasonable fees and expenses of Kramer Levin Naftalis & Frankel LLP, Pachulski Stang Ziehl & Jones LLP, Kirkland & Ellis LLP, O’Melveny & Myers LLP, local counsel, and counsel in Australia) and reasonable fees and expenses of any other advisors (including but not limited to the reasonable fees and expenses of Houlihan Lokey, Inc. and Ducera Partners) incurred in connection with any aspect of the Cases, including in connection with the CNTA dispute, the DIP Facilities, and in preparation of the Cases.

 

The Company and each Guarantor further agrees to jointly and severally pay or reimburse the Administrative Agent and each of the L/C Issuers and (subject to the limitations set forth in this sentence) the Lenders for all reasonable, documented, out-of-pocket costs and expenses (including (A) reasonable attorneys’ and financial advisors’ fees and expenses incurred by the

 

  -21-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

  

Administrative Agent and the L/C Issuers and (B) solely upon and after an event of default, reasonable attorneys’ fees for the Lenders [in an amount not to exceed $5 million] 11 ), in each case in connection with (i) the enforcement of the DIP Loan Documents; (ii) any refinancing or restructuring of the DIP Facilities in the nature of a “work-out”; and (iii) any legal proceeding relating to or arising out of the Facilities or the other transactions contemplated by the DIP Loan Documents.

 

The DIP Loan Documents will contain customary indemnification provisions (including coverage of environmental liabilities) by the Company and each Guarantor (jointly and severally) in favor of the Administrative Agent, the Arranger, each Lender, each L/C Issuer and each of their respective affiliates and the respective officers, directors, employees, agents, advisors, attorneys and representatives of the foregoing.

Assignments and Participations:    Assignments must be in a minimum amount of $1 million (or, if less, the remaining commitments and/or Loans of any assigning Lender) and are subject to the consent of the Administrative Agent, except, in each case, with respect to any assignment to a Lender, an affiliate of such a Lender or a fund engaged in investing in commercial loans that is advised or managed by such a Lender. Participations will be permitted subject to customary limitations on voting rights, except with respect to matters requiring consent from all Lenders or all affected Lenders.
Required Lenders:    (i) Lenders holding greater than 50% of the outstanding commitments and/or exposure under the Term Facility, and (ii) with respect to the items set forth on Annex B , the Required Participating DIP Lenders (collectively, the “ Required Lenders ”).

Required

Participating DIP

Lenders

   Participating DIP Lenders holding not less than 50% of the outstanding Loans, unutilized commitments and exposure under the Term Facility held by the Participating DIP Lenders.
Amendments:    All amendments, modifications and waivers of the DIP Loan Documents shall require the consent of the Required Lenders, except in the case of amendments, modifications or waivers to be agreed requiring consent from (x) all Lenders or all affected Lenders or (y) a supermajority of the Lenders, as the case may be; provided, however, that in the event any such amendment, modification, or waiver affects the Participating DIP Lenders, the consent of the Required Participating DIP Lenders shall be required.
Miscellaneous:    The DIP Loan Documents will include (i) standard yield protection provisions (including, without limitation, provisions relating to compliance with risk-based capital guidelines, increased costs (including Dodd-Frank and Basel III related gross-ups notwithstanding the date of enactment of the applicable law or regulation thereunder, subject to prompt notice requirements) and payments free and clear of withholding taxes (subject to customary qualifications)), (ii) waivers of consequential damages and jury trial and (iii) normal agency, set-off and sharing language.

 

11   Open point subject to discussion.

 

  -22-  


SUBJECT TO FRE 408

CONFIDENTIAL

 

Foreign Funding:    Funding of foreign operations by Global Center shall be capped at $250 million, subject to increase by an additional $200 million with the consent of the Required Lenders, and must be provided in the form of a new secured intercompany loan. 12 Global Center shall not be permitted to incur any liens or any indebtedness and shall not be permitted to engage in any business other than (x) holding cash contributed to Global Center pre-petition by the Company and (y) lending such funds to the Company’s foreign operations in the form of a new secured intercompany loan. For the avoidance of doubt,(i) the equity interests of Global Center will be pledged as collateral for the DIP Facilities and (ii) no liens shall be granted for the benefit of the Prepetition Lenders on the cash held by Global Center or on the equity interests of Global Center. Global Center shall be required to fund foreign operations exclusively from amounts held in the Designated Global Center Account before providing any such funding from any other source. 13 For the avoidance of doubt, nothing in the DIP Facilities or related orders of the Bankruptcy Courtshall prevent the charging of any collateral of the Prepetition Lenders under Section 506(c) of the Bankruptcy Code with respect to funding the Debtors’ domestic or foreign operations with unencumbered assets or the proceeds thereof.

Governing Law

and Submission to Exclusive

Jurisdiction:

   State of New York (and, to the extent applicable, the Bankruptcy Code).

Counsel to

Administrative

Agent:

   Davis Polk & Wardwell LLP.

 

12   Company point.
13   Mechanics and details for funding Australia TBD.

 

  -23-  


ANNEX A

$500,000,000 Senior Secured Debtor-In-Possession Term Loan Facility

$100,000,000 Senior Secured Debtor-In-Possession L/C Facility

$200,000,000 Bonding Accommodation Facility

Interest Rates And Fees

 

Term Facility

Interest Rates:

  

Loans will bear interest, at the option of the Company, at one of the following rates:

 

(i) the Applicable Margin (as defined below) plus the Base Rate, payable monthly in arrears; or

   (ii) the Applicable Margin plus the current LIBO Rate as quoted by the Administrative Agent, adjusted for reserve requirements, if any, and subject to customary change of circumstance provisions, for interest periods of one, two, three or six months (the “ LIBO Rate ”), payable at the end of the relevant interest period, but in any event at least quarterly; provided that the LIBO Rate shall be not less than 1.00% (the “ LIBOR Floor ”).
   Applicable Margin ” means (x) 8.00% per annum , in the case of Base Rate Loans, and (y) 9.00% per annum , in the case of LIBO Rate Loans.
   Base Rate ” means the highest of (i) Citibank, N.A.’s base rate, (ii) the Federal Funds Effective Rate plus 1/2 of 1% and (iii) the LIBO Rate for an interest period of one month (giving effect to the LIBOR Floor) plus 1.00%.
   Interest shall be calculated on the basis of the actual number of days elapsed in a 360-day year (or a 365/366-day year, in the case of Base Rate Loans).
Default Interest:    During the continuance of an event of default under the DIP Loan Documents, Loans will bear interest at an additional 2% per annum .

Administrative

Agent and

Arranger Fees

   In no event shall aggregate fees payable to Administrative Agent and Arranger exceed 1.0% of total DIP Facilities.

Bonding

Letter of

Credit Fees:

   A fronting fee in the amount of 0.25% on the outstanding face amount of each Bonding Letter of Credit shall be payable to the issuer of such Bonding Letter of Credit. In addition, the Company will pay to each Bonding Letter of Credit issuer its standard opening, amendment, presentation, wire and other administration charges applicable to each such Bonding Letter of Credit.
L/C Facility Fees:    A fronting fee in the amount of 0.25% on the outstanding face amount of each L/C Facility Letter of Credit shall be payable to the issuer of such L/C Facility Letter of Credit. In addition, the Company will pay to each L/C Facility Letter of Credit issuer its standard opening, amendment, presentation, wire and other administration charges applicable to each such L/C Facility Letter of Credit.

 

   


SUBJECT TO FRE 408

CONFIDENTIAL

 

Term Facility

Upfront Fee:

   The Company shall pay or cause to be paid, for the account of each Lender in respect of the Term Facility, a participation fee (which may take the form of original issue discount) equal to [    %] of such Lender’s commitments under the Term Facility as set forth in the DIP Loan Documents as commitments under the Term Facility are funded, such fees to be earned and due and payable on the respective funding dates.

 

  A-2  


SUBJECT TO FRE 408

CONFIDENTIAL

 

ANNEX B

$500,000,000 Senior Secured Debtor-In-Possession Term Loan Facility

$100,000,000 Senior Secured Debtor-In-Possession L/C Facility

$200,000,000 Bonding Accommodation Facility

Items requiring consent of Required Participating DIP Lenders

 

(i) modifications to financial covenants,

 

(ii) waivers of events of default,

 

(iii) increases in investments, including investments to Global Center and investments in the Debtors’ foreign subsidiaries beyond the initial $250 million,

 

(iv) increases to the principal amount of the DIP Facilities, including increases to or other material changes in the Bonding Accommodation Facility or the Bonding Carve-Out or L/C Facility,

 

(v) to the extent subject to the approval of the Required Lenders, approval of the U.S. and Australian and US business plans,

 

(vi) extensions of, or other modifications to, the milestones,

 

(vii) consent to sale of “Four Star” assets; consents to sales of assets in excess of $15 million pursuant to Section 363 of the Code; credit bidding the DIP Facilities and other modifications to the asset sale covenant,

 

(viii) any changes to the provisions related to or involving determinations or other matters in respect of CNTA or Section 6.16(g) of the Prepetition Credit Agreement,

 

(ix) amendments or other modifications to the expense reimbursement provisions relating to the Participating DIP Lenders,

 

(x) provision of any additional adequate protection to the Prepetition Lenders,

 

(xi) amendment of any provisions related to termination of the use of cash collateral,

 

(xii) any actions that would affect the Participating DIP Lenders disproportionately and adversely, and

 

(xiii) [others to be mutually agreed based upon review of definitive documentation].

 

   

Exhibit 99.10

DPW DRAFT 04/12/2016

SUBJECT TO FRE 408

CONFIDENTIAL

$500,000,000 Senior Secured Debtor-In-Possession Term Loan Facility

$100,000,000 Senior Secured Debtor-In-Possession L/C Facility

$200,000,000 Bonding Accommodation Facility

Summary of Terms and Conditions

 

Borrower:    Peabody Energy Corporation, a Delaware corporation (the “ Company ”), as a debtor and debtor-in-possession in a proceeding (the “ Company’s Case ”) under chapter 11 of the United States Bankruptcy Code (the “ Bankruptcy Code ”) to be filed in the United States Bankruptcy Court for the Eastern District of Missouri (the “ Bankruptcy Court ”).
Guarantors:   

The obligations of the Company under the DIP Facilities (as defined below) will be guaranteed by (x) each of the Company’s direct and indirect domestic subsidiaries that will be debtors and debtors-in-possession (each of such subsidiaries and the Company, a “ Debtor ”) (other than Peabody IC Funding Corp., Peabody IC Holdings, LLC, Peabody Holdings (Gibraltar) Limited and Peabody Investments (Gibraltar) Limited) in proceedings (together with the Company’s Case, the “ Cases ”) under chapter 11 of the Bankruptcy Code filed contemporaneously and jointly administered with the Company’s Case and (y) Global Center for Energy & Human Development, LLC (“ Global Center ”) (the persons described in the foregoing clauses (x) and (y), collectively, the “ Guarantors ”). 1

 

The Company and the Guarantors are referred to herein as “ Loan Parties ” and each as a “ Loan Party ”.

 

The date of commencement of the Cases is referred to herein as the “ Petition Date ”.

Lenders:    Financial institutions or entities identified by the Arranger (as defined below) in consultation with the Company (the “ Lenders ”). An aggregate principal amount of $60 million of the Term Facility (as defined below) shall be made available to funds managed by Centerbridge Partners, Aurelius Capital Management, Elliott Management Corporation and Capital Research and Management Company (the “ Unsecured DIP Lenders ”).
Certain Prepetition Secured Debt Facilities:    A/R Facility : That certain Fifth Amended and Restated Receivables Purchase Agreement, dated as of March 25, 2016, by and among P&L Receivables Company, LLC, as seller, the Company, as initial servicer, the sub-servicers party thereto, PNC Bank, National Association, as administrator (the “ A/R Agent ”) and LC bank, and the other parties thereto (the “ A/R Facility Agreement ”).

 

1  

The Guarantors will include the direct and indirect subsidiaries of the Company holding the “Four Star” assets previously released in anticipation of the Bowie sale. The domestic subsidiaries that will not be debtors or Guarantors are P&L Receivables Company, LLC; Sterling Centennial Missouri Insurance Corp.; and Newhall Funding Company (Massachusetts trust with no assets).

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

  

First Lien Credit Agreement : A first lien senior secured term and revolving loan facility made available to the Company pursuant to that certain Amended and Restated Credit Agreement, dated as of September 24, 2013, by and among the Company, the lenders and L/C issuers party thereto (the “ Prepetition Lenders ”), Citibank, N.A., as administrative agent (in such capacity, the “ Prepetition Administrative Agent ”) and swing line lender, and the other agents and arrangers party thereto (as amended, supplemented or otherwise modified prior to the date hereof, the “ Prepetition Credit Agreement ”).

 

Second Lien Notes Indenture : That certain Indenture, dated as of March 16, 2015, among the Company, the subsidiary guarantors party thereto and U.S. Bank National Association, as trustee and collateral agent (as amended, supplemented or otherwise modified prior to the date hereof, the “ Second Lien Notes Indenture ”), pursuant to which the Company issued $1,000 million aggregate principal amount of its 10% Senior Secured Second Lien Notes due 2022 (the “ Second Lien Notes ”).

Administrative Agent:    An affiliate of the Arranger shall act as administrative agent in respect of the DIP Facilities (as defined below) (the “ Administrative Agent ”).
Sole Lead Arranger and Book Runner:    Citigroup Global Markets Inc. (the “ Arranger ”).
DIP Facilities:   

Financial accommodations, as follows:

 

Term Loan Facility : A senior secured superpriority non-amortizing term loan facility in an aggregate principal amount of $500 million (the “ Term Facility ”; the loans made thereunder, the “ Loans ”) to be made available to the Company, $200 million of which will be available at Closing after the entry of the Interim Order (as defined below) and $300 million of which will be available after the entry of the final order of the Bankruptcy Court authorizing the DIP Facilities in substantially the form of the Interim Order (as defined below), with only such modifications as are satisfactory to the Administrative Agent (the “ Final Order ”).

 

L/C Facility : A letter of credit facility in the amount of $100 million for new letters of credit that shall be cash collateralized in an amount equal to 102% of the face amount of letters of credit issued thereunder (the “ L/C Facility ”); provided that letters of credit issued under the L/C Facility (each, an “ L/C Facility Letter of Credit ” and each issuer thereof, an “ L/C Issuer ”) shall not be issued to replace or backstop any outstanding letters of credit issued under the Prepetition Credit Agreement (as defined below).

 

Bonding Accommodation Facility : Accommodation for bonding requests by relevant state authorities (“ Bonding Requests ”) in an aggregate principal amount of $200 million in the form of (or any combination of):

 

(i) a carve-out from the Collateral (as defined below) with superpriority claim status, subject only to the Carve-Out (as defined below), entitling the authority

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

  

making any Bonding Request to receive proceeds of Collateral first in priority before distribution to any Lender or other prepetition secured creditor (the “ Bonding Carve-Out ”); and/or

 

(ii) a letter of credit facility (the “ Bonding L/C Facility and, together with the Bonding Carve-Out, the “ Bonding Accommodation Facility ”; the Term Facility, the L/C Facility and the Bonding Accommodation Facility, collectively, the “ DIP Facilities ”) which shall be cash collateralized in an amount equal to 102% of the face amount of letters of credit issued under the Bonding L/C Facility (each, a “ Bonding Letter of Credit ” and, together with each L/C Facility Letter of Credit, a “ Letter of Credit ”).

 

Notwithstanding anything to the contrary set forth herein, the aggregate face amount of all Letters of Credit at any time outstanding shall not be permitted to exceed $50 million, which maximum amount shall not be permitted to be amended or waived without the consent of the Required Lenders (as defined below).

DIP Facility Termination Date:   

The termination date with respect to the DIP Facilities shall be the earliest of (a) the Scheduled Termination Date (as defined below), (b) 45 days after the entry of the Interim Order if the Final Order has not been entered prior to the expiration of such 45-day period (as such period may be extended with the consent of the Required Lenders), (c) the substantial consummation (as defined in Section 1101 of the Bankruptcy Code and which for purposes hereof shall be no later than the “effective date” thereof) of a plan of reorganization filed in the Cases that is confirmed pursuant to an order entered by the Bankruptcy Court, (d) the acceleration of the loans and the termination of commitments with respect to the DIP Facilities in accordance with the DIP Loan Documents (as defined below) and (e) a sale of all or substantially all of the assets of the Company (or the Company and the Guarantors) pursuant to Section 363 of the Bankruptcy Code.

 

Scheduled Termination Date ” means the date that is 12 months after the Closing Date (as defined below); provided that such date may, at the election of the Company, be extended by up to an additional 6 months so long as, at the time such extension shall become effective, (w) there shall exist no default under the DIP Loan Documents (as defined below), (x) the representations and warranties of the Loan Parties therein shall be true and correct in all material respects (or in the case of representations and warranties with a “materiality” qualifier, true and correct in all respects) immediately prior to, and after giving effect to, such extension, (y) the Company shall have paid or caused to be paid to the Administrative Agent for the account of each Lender an extension fee in an amount equal to 2.50% of such Lender’s outstanding exposure under the Term Facility at such time and (z) the Company shall have delivered to the Administrative Agent an updated DIP budget covering the additional period to be effected by such extension.

Purpose:    For working capital and general corporate purposes of the Loan Parties and their subsidiaries, to cash collateralize letters of credit under the L/C Facility or Bonding L/C Facility and to pay fees and expenses incurred in connection with the transactions contemplated hereby; provided that no letter of credit shall be

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

   issued under the L/C Facility (or as a Bonding Request) the purpose of which would be to replace or backstop any letter of credit outstanding under the Prepetition Credit Agreement.
DIP Loan Documents:   

The DIP Facilities will be documented in a single credit and guarantee agreement and shall be secured pursuant to a single security agreement. The documents referred to in the preceding sentence are referred to as the “ DIP Loan Documents ”.

 

The DIP Loan Documents shall reflect the terms and provisions set forth in this term sheet and shall be otherwise in form and substance reasonably satisfactory to the Arranger.

Cash Management:    The Loan Parties shall, not later than the date that is 45 days following the Closing Date (or such later date as the Administrative Agent shall agree in its discretion), cause all deposit accounts and securities accounts of the Loan Parties, subject to customary exceptions to be agreed, to be subject to control agreements for the benefit of the Lenders satisfactory to the Administrative Agent in its reasonable discretion; provided , however , that the separately identified deposit account established by Global Center to hold up to $250 million designated for funding foreign operations (the “ Designated Global Center Account ”) shall not be subject to a control agreement. For the avoidance of doubt, such control agreements shall not be for the benefit of the Prepetition Lenders or the Prepetition Administrative Agent. Each party in interest, including each Unsecured DIP Lender, reserves all rights with respect to the allocation of expenses among unencumbered cash and cash collateral of the Prepetition Lenders.
Interest Rates and Fees:    As set forth on Annex A attached hereto and in the Fee Letter.
Mandatory Prepayments:   

Solely with respect to the Loan Parties, mandatory prepayments of the Loans (and, if applicable, mandatory termination of unused Term Facility commitments) shall be required with 100% of the net cash proceeds from (a) issuance of any indebtedness (with exceptions for permitted indebtedness) and (b) sales or other dispositions (including casualty events) of any assets (excluding (i) sales of inventory in the ordinary course of business and (ii) any sale of an equity interest in Lively Grove Energy Partners, LLC, the owner of the Company’s 5.06% interest in Prairie State Energy Campus Management, Inc., and other exceptions to be agreed) exceeding the Threshold Amount (as defined below), subject in the case of casualty events to certain customary reinvestment rights. For the avoidance of doubt, (x) there will be no prepayment fee for any mandatory prepayments and (y) none of the “Four Star” assets of the Company or its subsidiaries may be sold or otherwise disposed of without the consent of the Required Lenders (as defined below).

 

Threshold Amount ” means net cash proceeds in excess of $30 million (in the aggregate) resulting from sales or other dispositions (including casualty events) of any assets (excluding (a) sales of inventory in the ordinary course of business and (b) any sale of an equity interest in Lively Grove Energy Partners, LLC, the owner of the Company’s 5.06% interest in Prairie State Energy Campus Management, Inc., and other exceptions to be agreed).

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

Voluntary Prepayments:    The Company may, upon at least three business days’ notice and at the end of any applicable interest period (or at other times with the payment of applicable breakage costs), prepay in full or in part, without premium or penalty (other than such breakage costs), the DIP Facilities.
Security and Priority:   

In the case of each Loan Party that is a Debtor, the obligations of the Company under the DIP Facilities, and the obligations of each Guarantor in respect of its guarantee of such obligations, shall, subject to the Carve-Out (as defined below), at all times:

 

(a) pursuant to Section 364(c)(1) of the Bankruptcy Code, be entitled to superpriority administrative expense claim status in the Case of such Loan Party (the “ DIP Superpriority Claims ”);

 

(b) pursuant to Section 364(c)(2) of the Bankruptcy Code, be secured by a perfected first priority security interest and lien on the Collateral of such Loan Party (i) to the extent such Collateral is not subject to valid, perfected and non-avoidable liens as of the Petition Date and (ii) with respect to the Interim Order, excluding claims and causes of action under Chapter 5 of the Bankruptcy Code and proceeds thereof (collectively “ Avoidance Actions ”) (it being understood that the Final Order shall grant a perfected security interest in proceeds of successful Avoidance Actions for the benefit of the DIP Facilities);

 

(c) pursuant to Section 364(c)(3) of the Bankruptcy Code, be secured by a perfected junior-priority security interest and lien on the Collateral of such Loan Party to the extent that such Collateral is subject to valid, perfected and unavoidable liens in favor of third parties that were in existence immediately prior to the Petition Date, or to valid and unavoidable liens in favor of third parties that were in existence immediately prior to the Petition Date that were perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code (other than the existing liens that secure obligations of such Loan Party under (i) the Prepetition Credit Agreement or (ii) the Second Lien Notes Indenture, which existing liens will be primed by the liens described in clause (d) below), junior to the priority of such liens in favor of such third parties; and

 

(d) pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured by a perfected first priority priming security interest and lien on the Collateral of such Loan Party (such security interest and lien, the “ Priming Lien ”);

 

in each case to the extent that such Collateral is subject to existing liens that secure the obligations of such Loan Party under (i) the Prepetition Credit Agreement or (ii) the Second Lien Notes Indenture (collectively, the “ Primed Liens ”).

 

The Priming Lien (a) shall be senior in all respects to the interests in such property of (i) the Prepetition Lenders under the Prepetition Credit Agreement and of the other “secured parties” referenced therein) (the “ Prepetition Credit Agreement Primed Parties ”) and the related security documents and (ii) the

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

  

holders of the Second Lien Notes (the “ Second Lien Notes Primed Parties ”) under the Second Lien Notes Indenture and the related security agreements and (b) shall also be senior to any liens granted to provide adequate protection in respect of any of the Primed Liens. The Primed Liens shall be primed by and made subject and subordinate to the Priming Liens, but the Priming Liens shall not prime liens, if any, to which the Primed Liens are subject at the time of the commencement of the Cases (other than any such liens that are themselves Primed Liens).

 

All of the liens described above shall be effective and perfected upon entry of the Interim Order.

In addition, in the case of Global Center, the obligations in respect of its guarantee of the Company’s obligations under the DIP Facilities shall be secured by a perfected first-priority (subject to certain exceptions to be agreed) security interest and lien on its Collateral; provided that the DIP Facilities shall not be secured by, and the Lenders shall not have a lien on, the Designated Global Center Account or any of the funds therein.

 

Collateral ” means all owned or hereafter acquired assets and property of the Loan Parties (including, without limitation, inventory, accounts receivable (if any), real property, plant, equipment, rights under leases and other contracts, patents, copyrights, trademarks, tradenames and other intellectual property and capital stock of subsidiaries), and the proceeds thereof, subject to customary exceptions to be agreed but to include without limitation, for the avoidance of doubt, all cash and cash equivalents of the Loan Parties and any intercompany loans held by the Loan Parties, subject, in the case of liens on the equity interests of P&L Receivables Company and any intercompany notes issued in connection with the A/R Facility Amendment, to intercreditor arrangements with the A/R Agent. Notwithstanding the foregoing, all “Receivables Assets” (as defined in the Prepetition Credit Agreement) sold or otherwise transferred to P&L Receivables Company in connection with the A/R Facility Agreement shall not constitute Collateral; provided that any such assets that are reconveyed to the Loan Parties pursuant to the terms of the documentation governing the A/R Facility shall become Collateral.

Carve-Out:    The “Carve-Out” is an amount equal to the sum of (i) all fees required to be paid to the clerk of the Bankruptcy Court and to the Office of the United States Trustee under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate (without regard to the notice set forth in (iii) below); (ii) fees and expenses of up to $25,000 incurred by a trustee under Section 726(b) of the Bankruptcy Code (without regard to the notice set forth in (iii) below); and (iii) allowed and unpaid claims for unpaid fees, costs, and expenses (the “ Professional Fees ”) incurred by persons or firms retained by the Debtors or the official committee of unsecured creditors in the Cases (the “ Creditors’ Committee ”), if any, whose retention is approved by the Bankruptcy Court pursuant to Section 327 and 1103 of the Bankruptcy Code (collectively, the “ Professional Persons ”), which shall be paid to the extent allowed by the Bankruptcy Court, that are incurred (A) at any time before delivery by the Administrative Agent of a Carve-Out Trigger Notice (as defined below), whether allowed by the Bankruptcy Court prior to or after delivery of a Carve-Out

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

  

Trigger Notice (the “ Pre-Trigger Date Fees ”), which shall be paid to the extent allowed by the Bankruptcy Court; and (B) after the occurrence (the “ Trigger Date ”) and during the continuance of an event of default under the DIP Loan Documents and delivery of notice (the “ Carve-Out Trigger Notice ”) thereof (which may be by email) to the Debtors, the Debtors’ counsel, the United States Trustee, and lead counsel for the Creditors’ Committee, if any, in an aggregate amount not to exceed $7.5 million (the amount set forth in this clause (iii)(B) being the “ Post-EoD Carve-Out Amount ”); provided that nothing herein shall be construed to impair the ability of any party to object to the fees, expenses, reimbursement or compensation described in clauses (iii)(A) or (iii)(B) above, on any grounds.

 

Notwithstanding the foregoing, the Carve-Out shall not include, apply to or be available for any fees or expenses incurred by any party in connection with, (a) the investigation, initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation (i) against any of the Lenders, the Administrative Agent, the Prepetition Lenders or the holders of the Second Lien Notes (whether in such capacity or otherwise) or (ii) challenging the amount, validity, perfection, priority or enforceability of or asserting any defense, counterclaim or offset to, the obligations and the liens and security interests granted under the DIP Loan Documents, the Prepetition Credit Agreement or the Second Lien Notes, including, in each case, without limitation, for lender liability or pursuant to Section 105, 510, 544, 547, 548, 549, 550, or 552 of the Bankruptcy Code, applicable non-bankruptcy law or otherwise; (b) attempts to modify any of the rights granted to the Lenders or the Administrative Agent; (c) attempts to prevent, hinder or otherwise delay any of the Lenders’ or the Administrative Agent’s assertion, enforcement or realization upon any Collateral in accordance with the DIP Loan Documents and the Final Order other than to seek a determination that an event of default has not occurred or is not continuing; or (d) paying any amount on account of any claims arising before the commencement of the Cases unless such payments are approved by an order of the Bankruptcy Court.

 

For the avoidance of doubt and notwithstanding anything to the contrary herein or in the DIP Loan Documents, the Carve-Out shall be senior to all liens and claims securing the DIP Loan Documents, any adequate protection liens, if any, and the superpriority claims, and any and all other liens or claims securing the DIP Facilities (it being understood and agreed that the Carve-Out shall not apply to the cash-collateralized Bonding Letters of Credit or the cash-collateralized L/C Facility Letters of Credit).

Material Leases:   

To the extent liens and consents are not available with respect to Material Leases (as defined below), the following protections will apply:

 

(a) Thirty days’ advance notice to the Administrative Agent is necessary for any rejection of a Material Lease (or, during the continuance of an event of default, a Real Property Lease) pursuant to Section 365 of the Bankruptcy Code, during which 30 days the Administrative Agent shall be permitted to find an acceptable (in the Administrative Agent’s good faith and reasonable discretion) replacement lessee (which may include the Administrative Agent or its affiliates) and compel the Company to assume and assign that lease to such replacement lessee.

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

  

(b) Upon an event of default under the DIP Loan Documents, the Administrative Agent may compel the Company to assume and assign any Real Property Lease, pursuant to Section 365 of the Bankruptcy Code, to a replacement lessee of the Administrative Agent’s choosing , or as collateral securing the DIP Facilities.

 

(c) The Administrative Agent may credit bid amounts outstanding under the DIP Facilities at any sale or assignment of any Real Property Lease, including sales or assignments compelled by the Administrative Agent.

 

(d) Any order of the Bankruptcy Court approving assumption of any Real Property Lease must specifically provide that the Company shall be authorized to assign such lease pursuant to and enjoy the protections of Section 365(f) of the Bankruptcy Code.

 

(e) If, in connection with any compelled assumption of a lease pursuant to paragraph (a), the Company must cure monetary defaults under that lease, the Administrative Agent may pay cure costs with funds posted to any collateral account established under the DIP Facilities.

 

Material Lease ” shall mean any Real Property Lease or other contractual obligations in respect of Material Leased Real Property.

 

Material Leased Real Property ” means any Real Property subject to a Real Property Lease with a Loan Party, as lessee, with annual minimum royalties, rents or any similar payment obligations in excess of $1 million in the most recently ended fiscal year.

 

Real Property Lease ” shall mean any lease, license, letting, concession, occupancy agreement, sublease, farm-in, farm-out, joint operating agreement, easement or right of way to which such Person is a party and is granted a possessory interest in or a right to use or occupy all or any portion of the Real Property (including, without limitation, the right to extract coal, minerals oil, natural gas and other hydrocarbons and their constituents from any portion of Real Property not owned in fee by such Person) and every amendment or modification thereof, including with respect to the Loan Parties, without limitation, the leases with respect to Real Property and any contractual obligation with respect to any of the foregoing.

 

Real Property ” shall mean, collectively, all right, title and interest of the Company (including, without limitation, any leasehold, mineral estate, or Coal, oil, natural gas or other hydrocarbon and their constituents leasehold) in and to any and all parcels of real property owned or operated by the Company, whether by lease, license or other use agreement, together with, in each case, all Improvements and appurtenant fixtures (including, without limitation, all preparation plants or other Coal processing facilities and loadout and other transportation facilities), easements and other property and rights incidental to the ownership, lease or operation thereof.

 

-8-


SUBJECT TO FRE 408

CONFIDENTIAL

 

Adequate Protection:   

Prepetition Credit Agreement Primed Parties . Pursuant to Sections 361, 363(e) and 364(d)(1) of the Bankruptcy Code, the parties to Prepetition Credit Agreement whose liens will be primed as described above, and whose collateral (including cash collateral) will be authorized for use by the Loan Parties (collectively, the “ Prepetition Credit Agreement Primed Parties ”), will receive as adequate protection on account of their first priority liens under the Prepetition Credit Agreement and for the use of cash collateral:

 

(a) current cash payment of (i) non-default rate interest (in respect of outstanding principal amounts of loans and on the capitalized secured hedge portfolio) and (ii) reasonable fees and expenses of professionals, in the case of (i), subject to recharacterization as principal payments (solely upon a motion by the Debtors, the Creditors’ Committee or any other party in interest); provided that if, at any time following the Closing Date, Liquidity (as defined below) or projected Liquidity (according to the most recently delivered 13-week cash flow forecast) shall be less than $400 million, the Company shall either (x) agree with the Prepetition Credit Agreement Primed Parties that it shall cease making any cash payments described in clause (i) of this paragraph (a) until such time as such condition no longer exists or (y) petition the Bankruptcy Court for the relief described in the foregoing clause (x).

 

(b) to the extent of diminution in value of their collateral, as provided in the Bankruptcy Code, replacement or, if applicable, new liens on the Collateral that are junior to the liens securing the DIP Facilities (in the same relative priority as the Prepetition Facilities) but senior to the adequate protection liens granted to the Second Lien Notes Primed Parties as described below,

 

(c) to the extent of diminution in value of their collateral, as provided in the Bankruptcy Code, superpriority claims as provided for in Section 507(b) of the Bankruptcy Code that are junior to the DIP Superpriority Claims,

 

(d) a decree in the Interim Order and the Final Order that after the Petition Date the “Principal Property Cap” (as defined in the Prepetition Credit Agreement) shall be neither increased nor reduced (it being understood that except as set forth in this sentence, the rights of all parties shall be reserved with respect to the CNTA Dispute, 2 including the interpretation and calculation of the “Principal Property Cap”), and

 

(e) delivery of all reports and notices set forth under “Financial Reporting Requirements” and “Other Reporting Requirements” below, in each case when and as required under the DIP Facilities;

 

provided that (x) the adequate protection package described in the above paragraphs (a) through (e) may be amended, modified or terminated and (y) the First Lien Adequate Protection Milestones (as defined below) may be amended, modified or extended, in each case, as to the Prepetition Credit Agreement Primed Parties only by order of the Bankruptcy Court or the prior written consent of the Prepetition Credit Agreement Primed Parties holding greater than

 

2  

“CNTA Dispute” means a dispute concerning Section 6.16(g) of the Prepetition Credit Agreement and any issues related thereto, including the identities of the mines that are Principal Properties as of the Petition Date. The Unsecured DIP Lenders shall have standing to be heard in connection with the CNTA Dispute.

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

  

50% of the aggregate principal amount of outstanding loans and participations in outstanding letters of credit under the Prepetition Credit Agreement; provided , however , that nothing herein shall be read to impact the rights of any other constituencies, including the Unsecured DIP Lenders, to object to any such amendments or modifications. The milestones described in clauses (b), (c), (d), (f) and (g) below in the “Milestones” section shall be referred to as the “ First Lien Adequate Protection Milestones ”.

 

Second Lien Notes Primed Parties . Pursuant to Sections 361, 363(e) and 364(d)(1) of the Bankruptcy Code, the Second Lien Notes Primed Parties whose liens will be primed as described above, and whose cash collateral will be authorized for use by the Loan Parties, will be entitled to receive, as adequate protection, replacement or, if applicable, new liens on the Collateral that are junior to the liens securing the DIP Facilities (in the same relative priority as the Prepetition Facilities) and to the adequate protection liens granted to the Prepetition Credit Agreement Primed Parties as described above, solely to the extent of the aggregate diminution in value of their liens. For the avoidance of doubt, the Second Lien Notes Primed Parties will not receive cash payments for interest or reimbursement of professional fees.

 

In addition, the Interim Order and the Final Order shall provide for customary prepetition secured lender protections for the Lenders and Prepetition Lenders including, but not limited to, protections regarding Sections 506(c) and 552(b) of the Bankruptcy Code (subject to entry of the Final Order), the equitable doctrine of marshaling and limitations on the use of collateral.

 

Termination of Consent to Use of Cash Collateral:    If, at any time, (i) a plan of reorganization shall be confirmed in any of the Cases that is not reasonably acceptable to the “Required Lenders” under the Prepetition Credit Agreement, (ii) any of the Loan Parties or any of their subsidiaries shall, in the Bankruptcy Court, file, propose, support, or fail to contest in good faith the filing or confirmation of such a plan, (iii) all or substantially all of the assets of the Loan Parties are sold, (iv) the maturity of the DIP Facilities is accelerated, (v) the Company fails to meet any First Lien Adequate Protection Milestone or (vi) other than in connection with the CNTA Dispute or any dispute with respect to what constitutes unencumbered cash as of the Petition Date, the Company or any direct or indirect affiliate or subsidiary of the Company commences any action, including the filing of any pleading, against any of the prepetition secured parties with respect to any of the obligations or liens under the Prepetition Credit Agreement, then, in the case of each of (i) through (vi), the Prepetition Credit Agreement Primed Parties may, upon a minimum of five business days’ written notice to the Company, commence a proceeding in the Bankruptcy Court to determine the Company’s right to use cash collateral, it being understood that any prior consent of the Prepetition Credit Agreement Parties to the Company’s use of cash collateral shall be deemed automatically withdrawn on the fifth business day following the commencement of such proceeding in the event that the Bankruptcy Court shall not have ruled on such proceeding by such fifth business day.

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

Conditions Precedent to the Initial Extension of Credit:    The initial extension of credit (the “ Closing ”; the date on which the Closing occurs, the “ Closing Date ”) under each of the DIP Facilities shall be subject to the following conditions (and the conditions set forth under “Conditions Precedent to Each Credit Extension” below):
   a.    The DIP Loan Documents (x) shall be in form and substance consistent with this term sheet and reasonably satisfactory to the Company and its counsel and the Administrative Agent and its counsel and (y) shall have been executed and delivered by each party thereto.
   b.    The Petition Date shall have occurred, and each Loan Party shall be a debtor and a debtor-in-possession. All “first day orders” and “second day orders” (including a cash management order) shall be reasonably satisfactory in form and substance to the Administrative Agent.
   c.    Not later than five business days following the Petition Date, the Administrative Agent shall have received a signed copy of an order of the Bankruptcy Court in form and substance satisfactory to the Administrative Agent (the “ Interim Order ”), authorizing and approving the making of the Loans, the issuance of the Bonding Letters of Credit, the issuance of the L/C Facility Letters of Credit and the granting of the superpriority claims and liens and other liens referred to above under the heading “Security and Priority”, which Interim Order shall not have been vacated, reversed, modified, amended or stayed. The Interim Order and the Final Order shall contain provisions granting the adequate protection liens described under “Adequate Protection” above and related adequate protection claims, in each case junior to the liens and claims granted to secure the DIP Facilities.
   d.    No trustee or examiner shall have been appointed with respect to the Loan Parties, any of their subsidiaries or their respective properties.
   e.    All costs, fees, expenses (including, without limitation, legal fees and expenses) and other compensation contemplated by the DIP Loan Documents or otherwise required to be paid to the Administrative Agent and the Lenders on or before the Closing shall have been paid.
   f.    The Arranger and the Administrative Agent shall have received and be reasonably satisfied with (i) monthly projections for the 12 months after the Closing Date dated as of a date not more than five business days prior to the Closing Date and in a form customary for “DIP budgets” and (ii) a cash flow forecast for the 13-week period ending after the Closing Date dated as of a date not more than five business days prior to the Closing Date.
   g.    The A/R Facility shall have been amended on terms substantially consistent with those in effect as of the Closing Date to permit such facility to continue to operate during the course of the Cases and to provide maturity date that is not earlier than the Scheduled Termination Date (or a new or replacement receivables securitization facility reasonably satisfactory to the Administrative Agent shall have become effective).
   h.    The Administrative Agent shall be satisfied in its reasonable judgment that there shall not occur as a result of, and after giving effect to, the initial extension of credit under the DIP Facilities, a default (or any event which with the giving of notice or lapse of time or both would be a default) under

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

      any of the Loan Parties’ or their respective domestic subsidiaries’ debt instruments and other material agreements which (i) in the case of the Loan Parties’ debt instruments and other material agreements, would permit the counterparty thereto to exercise remedies thereunder (in the case of Loan Parties that are Debtors, on a post-petition basis) or (ii) in the case of the debt instruments and other material agreements of any domestic subsidiary that is not a Loan Party, could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below).
   i.    The Administrative Agent shall have received customary closing deliverables, including reasonably satisfactory opinions of independent counsel to the Loan Parties, addressing such matters as the Lenders shall reasonably request.
   j.    Since December 31, 2015, there shall have been no material adverse effect on (i) the business, operations, properties, assets or financial condition of the Company and its domestic subsidiaries taken as a whole (in each case other than as a result of events leading up to and following the commencement of a proceeding under chapter 11 of the Bankruptcy Code and the commencement of the Cases, including, without limitation, the receipt of a going concern qualification or loss of self-bonding), (ii) the ability of the Loan Parties to perform their respective material obligations under the DIP Loan Documents or (iii) the validity or enforceability of any DIP Loan Document or the rights and remedies of the Administrative Agent or the Lenders thereunder (any of the foregoing being a “ Material Adverse Effect ”).
   k.    There shall exist no unstayed action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality (other than the Cases, any dispute over self-bonding or intercreditor litigation) that could reasonably be expected to have a Material Adverse Effect.
   l.    All necessary governmental and third party consents and approvals necessary in connection with the DIP Facilities and the transactions contemplated thereby shall have been obtained (without the imposition of any adverse conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the DIP Facilities or the transactions contemplated thereby.
   m.    Each Lender that has requested the same shall have received “know your customer” and similar information.
   n.    The collateral agent, for the benefit of the Lenders, shall have the valid and perfected liens on the security interests in the Collateral of the Loan Parties contemplated by the “Security and Priority” section above; provided that notwithstanding the foregoing, the Loan Parties shall be required to deliver, within 60 days of the entry of the Interim Order, Uniform Commercial Code financing statements, executed intellectual property security agreements and

 

-12-


SUBJECT TO FRE 408

CONFIDENTIAL

 

      real property mortgages (in each case, to the extent such financing statements, security agreements or real property mortgages cannot be delivered prior to the Closing Date after the exercise of commercially reasonable efforts), in each case in suitable form for filing, and provisions reasonably satisfactory to the Administrative Agent for the payment of all fees and taxes for such filings shall have been duly made.
   o.    The Administrative Agent shall have received endorsements (to the extent such endorsements can be delivered prior to Closing after the exercise of commercially reasonable efforts) naming the Administrative Agent, on behalf of the Lenders, as an additional insured and loss payee, as applicable, under all insurance policies to be maintained with respect to the Collateral.
Conditions Precedent to Each Credit Extension:    On the funding date of each Loan (and on (a) the date of issuance of any Bonding Letter of Credit, (b) the date of issuance of any L/C Facility Letter of Credit and (c) the date of granting of any superpriority claim under the Bonding Carve-Out) (i) there shall exist no default under the DIP Loan Documents, (ii) the representations and warranties of the Loan Parties therein shall be true and correct in all material respects (or in the case of representations and warranties with a “materiality” qualifier, true and correct in all respects) immediately prior to, and after giving effect to, such funding, issuance or granting, (iii) the making of such Loan (or the issuance of such Bonding Letter of Credit, the issuance of such L/C Facility Letter of Credit or the granting of such superpriority claim) shall not violate any requirement of law and shall not be enjoined, temporarily, preliminarily or permanently, (iv) the making of such Loan (or the issuance of such Bonding Letter of Credit, the issuance of such L/C Facility Letter of Credit or the granting of such superpriority claim) shall not result in the aggregate outstandings under the Term Facility or the Bonding Accommodation Facility (as applicable) exceeding the amount authorized by the Interim Order or the Final Order, as applicable, and (v) the Interim Order or Final Order, as the case may be, shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed in any respect.
Representations and Warranties:    The DIP Loan Documents will contain representations and warranties in form and substance customary for debtor-in-possession financings and the specific transaction (which will be applicable to the Loan Parties and their respective subsidiaries and subject to certain exceptions and qualifications to be agreed) and shall be based on those set forth in the Prepetition Credit Agreement, as modified to reflect the status of the DIP Facilities as debtor-in-possession facilities, including the following: existence, qualification and power; authorization and no contravention; governmental authorization; binding effect; financial statements and no material adverse effect; litigation; no default; ownership and identification of property; environmental compliance; insurance; taxes; ERISA compliance; subsidiaries; margin regulations and Investment Company Act; disclosure; compliance with laws; anti-corruption, sanctions and terrorism laws; intellectual property, licenses, etc.; security documents; and mines.
Affirmative Covenants:    The DIP Loan Documents will contain affirmative covenants in form and substance customary for debtor-in-possession financings and the specific transaction, subject to, where appropriate, materiality thresholds, carve-outs and

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

   exceptions to be agreed (which will be applicable to the Loan Parties and their respective domestic subsidiaries), and shall be based on those set forth in the Prepetition Credit Agreement, as modified to reflect the status of the DIP Facilities as debtor-in-possession facilities, including the following:
   a.    Financial statements.
   b.    Certificates and other information.
   c.    Notices.
   d.    Payment of tax obligations.
   e.    Preservation of existence.
   f.    Maintenance of properties.
   g.    Maintenance of insurance.
   h.    Compliance with laws.
   i.    Books and records.
   j.    Inspection rights.
   k.    Use of proceeds.
   l.    Additional Guarantors.
   m.    Preparation of environmental reports.
   n.    Certain long-term liabilities and environmental reserves.
   o.    Covenant to give security.
   p.    Use of commercially reasonable efforts to obtain credit ratings in respect of the Term Facility from each of Standard & Poor’s Rating Services and Moody’s Investor Service, Inc., in each case prior to the Final Order entry date.
   q.    Upon the occurrence of any event of default under the Global Center Intercompany Loan arising from an Insolvency Event (as defined therein) in respect of any obligor thereunder [and to the extent such Insolvency Event results from the appointment of a voluntary administrator in respect of such person or any of its assets], 3 Global Center shall be required to take all actions reasonably requested by the Administrative Agent to protect Global Center’s rights and remedies under the Global Center Intercompany Loan and the security interests in the collateral securing the same, including, to the extent it is entitled to do so, appointing a receiver in respect of the assets of

 

3  

Under discussion.

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

      the applicable persons that are the subject of such Insolvency Event within five days following a request therefor (in each case to the extent not in contravention of applicable local law). 4
Milestones:    The DIP Loan Documents shall require compliance with the following milestones:
   a.    Not later than 120 days following the Petition Date, the Company shall deliver to the Administrative Agent a five-year business plan reasonably acceptable to the Required Lenders (as defined below), subject to a negative consent process, in respect of its U.S. operations (the “ U.S. Business Plan ”), which U.S. Business Plan shall be on a monthly basis for 2016 and 2017; provided that the Company shall, not later than 60 days following the Petition Date, deliver to the Administrative Agent a written update setting forth in reasonable detail the Company’s progress in formulating the U.S. Business Plan and any material developments with respect thereto since the Petition Date.
   b.    Not later than 120 days following the Petition Date, the Company shall deliver to the Administrative Agent a five-year business plan reasonably acceptable to the Required Lenders (as defined below), subject to a negative consent process, in respect of its Australian operations (the “ Australian Business Plan ”), which Australian Business Plan shall be on a monthly basis for 2016 and 2017 and shall include, without limitation, (i) a determination, if any, of mining complexes or interests thereon of such Australian operations to be sold, assigned, abandoned or otherwise disposed of in connection with the reorganization of the Company and the other Loan Parties and (ii) an assessment of the financial impact of the cessation of operations at, or the disposition of, any assets of such Australian operations, if any; provided that the Company shall, not later than 60 days following the Petition Date, deliver to the Administrative Agent a written update setting forth in reasonable detail the Company’s progress in formulating the Australian Business Plan and any material developments with respect thereto since the Petition Date.
   c.    Not later than 180 days following the Petition Date, the Bankruptcy Court shall have entered a final determination of the “Principal Property Cap” and which of the Company’s U.S. Mine complexes are “Principal Properties” (as such terms are defined in the Prepetition Credit Agreement) of the Prepetition Lenders; provided that a declaratory judgment action seeking such a determination shall be commenced by the Company (without prejudice to the rights of the Prepetition Lenders to commence such a declaratory judgment action or any other proceeding) by the date that is 30 days after the Petition Date.
  

d.

   Not later than 210 days following the Petition Date, the Company shall file with the Bankruptcy Court (x) a plan of reorganization that provides for the payment in full in cash and full discharge of the Loan Parties’ obligations under the DIP Facilities at emergence and for full releases of the Lenders, the

 

4  

Under discussion.

 

-15-


SUBJECT TO FRE 408

CONFIDENTIAL

 

      L/C Issuers and the Administrative Agent (each in their capacities as such) that are customarily contained in a plan of reorganization (an “ Acceptable Plan of Reorganization ”) and (y) a disclosure statement with respect thereto.
   e.    Not later than 270 days following the Petition Date, the Bankruptcy Court shall enter an order approving a disclosure statement with respect to an Acceptable Plan of Reorganization.
   f.    Not later than 330 days following the Petition Date, the Bankruptcy Court shall enter an order confirming an Acceptable Plan of Reorganization.
   g.    Not later than 360 days following the Petition Date, the confirmed Acceptable Plan of Reorganization shall be effective.
Negative Covenants:    The DIP Loan Documents will contain negative covenants in form and substance customary for debtor-in-possession financings and the specific transaction and where appropriate, subject to materiality thresholds, carve-outs and exceptions to be agreed (which will be applicable to the Loan Parties and their respective domestic subsidiaries), and shall be based on those set forth in the Prepetition Credit Agreement, as modified (and tightened) to reflect the status of the DIP Facilities as debtor-in-possession facilities, including the following:
   a.    Limitations on liens.
   b.    Limitations on investments (including a $250 million cap on investments in the Debtors’ foreign subsidiaries in support of the Company’s foreign operations, subject to increase of up to $200 million upon the consent of the Supermajority Lenders (as defined below) (it being understood that the Company shall be required to give at least [●] days’ prior notice to the Lenders of any such investment and that the rights of any party in interest to raise any objection to such investment shall be fully reserved), which investments shall be required to be made by Global Center in the form of a new secured intercompany loan (the “ Global Center Intercompany Loan ”).
   c.    Limitations on indebtedness.
   d.    Limitations on fundamental changes, including mergers and transfers of all or substantially all assets.
   e.    Limitations on asset dispositions (including sale-leaseback transactions and dispositions to non-Loan Parties).
   f.    Limitations on restricted payments (including (i) payments on account of equity interests, (ii) payments of junior or subordinated debt and (iii) restricted investments).
   g.    Limitations on changes in nature of business.

 

-16-


SUBJECT TO FRE 408

CONFIDENTIAL

 

   h.    Limitations on burdensome agreements.
   i.    Limitations on transactions with affiliates.
   j.    Limitations on use of proceeds (including with respect to margin regulations and anti-corruption, sanctions and terrorism laws).
   k.    Limitations on negative pledge clauses.
   l.    Restrictions on each of Peabody IC Funding Corp., Peabody IC Holdings, LLC, Peabody Holdings (Gibraltar) Limited and Peabody Investments (Gibraltar) Limited.
   m.    Limitations on modifications of organizational documents and other indebtedness.
   n.    Limitations on bonding superpriority claims (other than in compliance with the terms of the DIP Loan Documents).
   o.    Restrictions on Global Center and the Designated Global Center Account (as defined below) (as set forth under “Foreign Funding” below).
   p.    Anti-terrorism laws and sanctions.
Financial Covenants:   5    The DIP Facilities will contain only the following financial covenants:
   a.    Maximum cumulative capital expenditures of the Loan Parties, to be tested monthly beginning on May 31, 2016; such covenant levels to be set for each period with a cumulative variance from the DIP budget equal to the amount specified opposite such period in the following table:

 

Period Ending

   Cumulative Variance

May 31, 2016 6

   $7.5 million

June 30, 2016

   $8.0 million

July 31, 2016, August 31, 2016 and September 30, 2016

   $8.5 million

Thereafter

   17.5% cumulative variance
from the DIP budget

 

5   To the extent that the six-month maturity extension option is exercised, compliance in months 13 through 18 will be tested on a trailing twelve-month basis.
6  

To cover the period from and including April 1, 2016 to and including May 31, 2016.

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

   b.    Minimum cumulative consolidated operational EBITDAR (to be defined in the DIP Loan Documents) of the Loan Parties, to be tested monthly beginning May 31, 2016; such covenant levels to be set for each period with a cumulative variance from the DIP budget equal to the amount specified opposite such period in the following table:

 

Period Ending

   Cumulative Variance

May 31, 2016

   $12.5 million

June 30, 2016

   $17.5 million

July 31, 2016

   $25.0 million

August 31, 2016

   $27.5 million

September 30, 2016

   $30.0 million

Thereafter

   17.5% cumulative variance
from the DIP budget

 

   c.    Minimum Liquidity (as defined below) of the Loan Parties of $300 million, to be tested on a weekly basis each Friday (but, in the event that Liquidity or projected Liquidity (according to the most recently delivered 13-week cash flow forecast) shall be less than a threshold of $400 million (which threshold may be reduced on a dollar-for-dollar basis to no lower than $350 million pursuant to the mechanism set forth in the proviso to this paragraph) at any point, with reporting to occur on a daily basis at the end of each day until such condition no longer exists) beginning with the first Friday that is two business days after the entry of the Final Order; provided that such minimum Liquidity amount (and the daily reporting threshold described in the parenthetical clause above) shall automatically be reduced on a dollar-for-dollar basis by up to $50 million of prepayments of Loans or unused Term Facility commitments from the proceeds of certain “resource management” surplus land sales (other than any such proceeds included in the initial DIP budget) as required under the terms set forth in “Mandatory Prepayments” above.
   Liquidity ” shall be defined as the sum of unrestricted cash and cash equivalents of the Loan Parties (but excluding, for the avoidance of doubt, (i) any restricted cash or cash equivalents, (ii) any cash or cash equivalents pledged as collateral to secure Bonding Letters of Credit or L/C Facility Letters of Credit (but only to the extent such cash or cash equivalents described in this clause (ii) exceed $50 million) and (iii) any cash or cash equivalents held by Global Center).
Financial Reporting   

The Company shall provide the Administrative Agent:

 

(a) commencing with the month ending May 31, 2016, monthly unaudited

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

Requirements:   

consolidated financial statements of the Company and its subsidiaries (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) within 20 days after the end of each fiscal month, certified by the Company’s chief financial officer, chief accounting officer or treasurer;

 

(b) quarterly unaudited consolidated financial statements of the Company and its subsidiaries (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) within 45 days of quarter-end for the first 3 fiscal quarters of the fiscal year, certified by the Company’s chief financial officer, chief accounting officer or treasurer;

 

(c) annual audited consolidated financial statements of the Company (together with consolidating financial statements of the Loan Parties, the Australian subsidiaries, and all other subsidiaries) and its subsidiaries within 90 days of year-end, certified with respect to such consolidated statements by Ernst & Young or other independent certified public accountants reasonably acceptable to the Administrative Agent;

 

(d) copies of all reports on Form 10-K, 10-Q or 8-K filed by the Company or its subsidiaries with the Securities and Exchange Commission;

 

(e) 13-week cash flow forecasts, on a rolling 13-week basis, updated on a bi-weekly basis, accompanied by a written statement setting forth the amount of cash and cash equivalents held by Global Center and the current amount outstanding in respect of the Global Center Intercompany Loan;

 

(f) promptly after delivery thereof to Global Center, copies of any “Cash Flow Projections” delivered pursuant to the Global Center Intercompany Loan;

 

(g) weekly (and daily, if applicable) certificates in respect of compliance with the minimum Liquidity financial covenant; and

 

(h) quarterly updates to the DIP budget.

Other Reporting Requirements:    The DIP Loan Documents will contain other reporting requirements customarily found in the Administrative Agent’s loan documents for similar debtor-in-possession financings and other reporting requirements reasonably deemed by the Administrative Agent appropriate to the specific transaction, including, without limitation, with respect to litigation, contingent liabilities, ERISA or environmental events and notice and delivery of certain filings made by any of the Loan Parties in the Cases.
Events of Default:    The DIP Loan Documents will contain events of default (with, where appropriate, customary grace periods and exceptions) in form and substance appropriate for debtor-in-possession financings and the specific transaction (which will be applicable only to the Loan Parties and their respective domestic subsidiaries), and shall be based on those set forth in the Prepetition Credit Agreement, as modified to reflect the status of the DIP Facilities as debtor-in-possession facilities, including the following,

 

-19-


SUBJECT TO FRE 408

CONFIDENTIAL

 

   a.    Failure to pay principal, interest or any other amount when due.
   b.    Representations and warranties incorrect in any material respect when made or deemed made.
   c.    Failure to comply with covenants (including milestones).
   d.    Cross-default to payment defaults on other indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition), or default or event of default with respect to other indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition) if the effect is to accelerate or permit acceleration in excess of an amount to be mutually agreed upon, and cross-acceleration to any material indebtedness (in the case of Loan Parties other than Global Center, to the extent incurred post-petition).
   e.    Judgments (in the case of Loan Parties other than Global Center, to the extent incurred post-petition) in excess of $10 million that is not stayed, reversed, overturned, withdrawn or settled for a lower amount within 30 days of such judgment.
   f.    The occurrence of certain ERISA events, other than events relating to claims of withdrawal liability from multiemployer pension plans, if any, that result in liabilities in an amount in excess of $10 million that are not reduced, overturned, withdrawn or settled for a lower amount within five days of the occurrence of such events.
  

g.

   Actual or asserted (by any Loan Party or any affiliate thereof) invalidity or impairment of any DIP Loan Document (including the failure of any lien to remain perfected).
   h.    Change of ownership or control (including the Company’s ceasing to own, directly or indirectly, 100% of the outstanding equity interests of Global Center).
  

i.

  

(i) The entry of an order dismissing any of the Cases or converting any of the Cases to a case under chapter 7 of the Bankruptcy Code, or any filing by the Company of a motion or other pleading seeking entry of such an order;

 

(ii) a trustee, responsible officer or an examiner under Bankruptcy Code section 1104 (other than a fee examiner) is appointed or elected in the Company’s Case, the Company applies for, consents to, or acquiesces in, any such appointment, or the Bankruptcy Court shall have entered an order providing for such appointment, in each case without the prior written consent of the Lenders in their sole discretion;

 

(iii) the entry of an order staying, reversing, vacating or otherwise modifying the Interim Order or the Final Order, in each case in a manner adverse in any material respect to the Administrative Agent or the Lenders, or the filing by the Company of an application, motion or other pleading seeking entry of such an order;

 

-20-


SUBJECT TO FRE 408

CONFIDENTIAL

 

     

(iv) the entry of an order in any of the Cases appointing an examiner having expanded powers (beyond those set forth under Sections 1106(a)(3) and (4) of the Bankruptcy Code);

 

(v) the entry of an order in any of the Cases denying or terminating use of cash collateral by the Loan Parties and such order’s remaining unstayed for more than three business days;

 

(vi) the entry of an order (that is not otherwise stayed, reversed, overturned, withdrawn or settled within five days of the entry of such order) in any of the Cases granting relief from any stay of proceeding (including, without limitation, the automatic stay) so as to allow a third party to proceed against any material assets of the Loan Parties in excess of $10 million.

 

(vii) the entry of a final non-appealable order in the Cases charging any of the Collateral under Section 506(c) of the Bankruptcy Code against the Lenders without the consent of the Administrative Agent, or the commencement of other actions that is materially adverse to the Administrative Agent’s or the Lenders’ rights and remedies under the applicable DIP Facility in any of the Cases or inconsistent with the applicable DIP Loan Documents;

 

(viii) the entry of an order in any of the Cases seeking authority to obtain financing under Section 364 of the Bankruptcy Code (other than the DIP Facilities or in the ordinary course of the Loan Parties’ businesses), unless such financing would repay in full in cash all obligations under the DIP Facilities upon consummation thereof;

 

(ix) the entry of an order in any of the Cases granting adequate protection to any other person, subject to customary exceptions to be mutually agreed; or

 

(x) the filing or support of any pleading by any Loan Party seeking, or otherwise consenting to, any of the matters set forth in clauses (i) through (ix) above.

   j.    The making of any payments in respect of prepetition obligations other than (i) as permitted by the Interim Order or the Final Order, (ii) as permitted by any “first day” orders reasonably satisfactory to the Administrative Agent or (iii) as permitted by any other order of the Bankruptcy Court in amounts reasonably satisfactory to the Administrative Agent.
   k.    Use of the Collateral, including without limitation cash collateral, in a manner inconsistent with any budgets submitted pursuant to a cash collateral order.
   l.    The entry of the Final Order shall not have occurred within 45 days after entry of the Interim Order (or such later date as is agreed by the Required Lenders).

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

   m.    An order of the Bankruptcy Court granting, other than in respect of the DIP Facilities and the Carve-Out or the Bonding Carve Out or as otherwise permitted under the applicable DIP Loan Documents, any claim entitled to superpriority administrative expense claim status in the Cases pursuant to Section 364(c)(1) of the Bankruptcy Code pari passu with or senior to the claims of the Administrative Agent and the Lenders under the DIP Facilities, or the filing by the Company of a motion or application seeking entry of such an order.
   n.    Other than with respect to the Carve-Out or the Bonding Carve Out and the liens provided for in the DIP Facilities or in connection with the A/R Facility Agreement, the Company shall create or incur, or the Bankruptcy Court enters an order granting, any claim that is pari passu with or senior to any liens under the DIP Facilities, the adequate protection liens and adequate protection obligations granted under the Interim Order or the Final Order.
   o.    Noncompliance by any Loan Party or any of its subsidiaries with the terms of the Interim Order or the Final Order.
   p.    The Loan Parties or any of their subsidiaries, or any person claiming by or through the Loan Parties any of their subsidiaries, shall obtain court authorization to commence, or shall commence, join in, assist or otherwise participate as an adverse party in any suit or other proceeding against the Administrative Agent or any of the Lenders relating to the DIP Facilities, unless such suit or other proceeding is in connection with the enforcement of the DIP Loan Documents against the Administrative Agent or Lenders.
   q.    A plan of reorganization shall be confirmed in any of the Cases that is not an Acceptable Plan of Reorganization, or any order shall be entered that dismisses any of the Cases and does not provide for termination of the unused commitments under the DIP Facilities and payment in full in cash of the Loan Parties’ obligations under the DIP Facilities, or any of the Loan Parties or any of their subsidiaries shall file, propose, support, or fail to contest in good faith the filing or confirmation of such a plan or the entry of such an order.
  

r.

   The Company shall file any motion seeking authority to consummate the sale of assets of any Loan Party (other than any such sale that is permitted under the DIP Loan Documents) pursuant to Section 363 of the Bankruptcy Code having a value in excess of $15 million, without the consent of the Administrative Agent and the Required Lenders, or the Company shall file (or fail to oppose) any motion seeking an order authorizing the sale of all or substantially all of the assets of the Loan Parties (unless such sale would result in the repayment in full in cash of all obligations under the DIP Facilities upon consummation thereof).
   s.    Actual or asserted invalidity or impairment of the Global Center Intercompany Loan.
   t.    Bankruptcy or insolvency of Global Center.

 

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SUBJECT TO FRE 408

CONFIDENTIAL

 

   In addition to other customary rights and remedies of a secured party under the DIP Facilities, the Administrative Agent (upon the direction of the Required Lenders) shall have the right to “credit bid” the Loans during any sale of Collateral, including without limitation, sales occurring under Section 363 of the Bankruptcy Code or included as part of any reorganization plan subject to confirmation of such reorganization plan, following an event of default.
   Upon the occurrence of an event of default under the Loan Documents, the Company shall agree to enter into good-faith negotiations with any interested party in respect of a possible refinancing of the DIP Facilities.
Expenses and Indemnification:    The Company and each Guarantor shall jointly and severally pay or reimburse the Administrative Agent and the Arranger for all reasonable, documented, out-of-pocket costs and expenses incurred by the Administrative Agent and the Arranger (including reasonable attorneys’ fees and expenses) in connection with (i) the preparation, negotiation and execution of the DIP Loan Documents; (ii) the syndication and funding of the Loans and any issuance of Bonding Letters of Credit or L/C Facility Letters of Credit; (iii) the creation, perfection or protection of the liens under the DIP Loan Documents (including all search, filing and recording fees); and (iv) the ongoing administration of the DIP Loan Documents (including the preparation, negotiation and execution of any amendments, consents, waivers, assignments, restatements or supplements thereto), including, for the avoidance of doubt, the fees and expenses of Davis Polk & Wardwell LLP, Centerview Partners LLC and Zolfo Cooper LLC.
   Subject to entry of the Final Order, the Company and each Guarantor shall jointly and severally pay or reimburse all reasonable, documented, out-of-pocket expenses of the Unsecured DIP Lenders incurred in the 12 months following the Petition Date in connection with the Cases (but limited to $500,000 in any calendar month, subject to unlimited carry-forwards of unused amounts); provided that such expenses shall be charged against, and first payable from, cash or other assets determined by a final order of the Bankruptcy Court to be unencumbered by any prepetition lien or security interest.
   Subject to entry of the Final Order, the Unsecured DIP Lenders shall be granted an allowed administrative expense claim (which allowed administrative expense claim shall be junior to each of the Fees Carve-Out, the Bonding Carve-Out, the DIP Superpriority Claim and any superpriority claims granted in respect of adequate protection) to the extent that the reasonable, documented, out-of-pocket expenses of the Unsecured DIP Lenders incurred in connection with the Cases exceed the maximum amounts described in the immediately preceding paragraph; provided that the amount of such allowed administrative expense claim shall not exceed $6 million.
   The Company and each Guarantor further agrees to jointly and severally pay or reimburse the Administrative Agent and each of the L/C Issuers and (subject to the limitations set forth in this sentence) the Lenders for all reasonable, documented, out-of-pocket costs and expenses (including (A) reasonable attorneys’ and financial advisors’ fees and expenses incurred by the Administrative Agent and the L/C Issuers and (B) solely upon and after an event of default, reasonable attorneys’ fees for the Lenders (but only in respect of any

 

-23-


SUBJECT TO FRE 408

CONFIDENTIAL

 

   Lender or group of Lenders holding, individually or in the aggregate, more than 33.33% of the aggregate Loans and commitments outstanding at such time)), in each case in connection with (i) the enforcement of the DIP Loan Documents; (ii) any refinancing or restructuring of the DIP Facilities in the nature of a “work-out”; and (iii) any legal proceeding relating to or arising out of the Facilities or the other transactions contemplated by the DIP Loan Documents.
   The DIP Loan Documents will contain customary indemnification provisions (including coverage of environmental liabilities) by the Company and each Guarantor (jointly and severally) in favor of the Administrative Agent, the Arranger, each Lender, each L/C Issuer and each of their respective affiliates and the respective officers, directors, employees, agents, advisors, attorneys and representatives of the foregoing.
Certain Matters in Respect of the Interim Order and the Final Order:    None of the Unsecured DIP Lenders nor any of their respective affiliates shall, and none of the Unsecured DIP Lenders nor any of their respective affiliates shall permit their respective advisors to, object to entry of the Interim Order or the Final Order or any provision thereof or any of the terms or provisions of the DIP Loan Documents; provided that the Unsecured DIP Lenders and their respective affiliates, and their and their respective affiliates’ advisors, shall be permitted to object to entry of the Final Order solely to the extent such Final Order provides for a waiver of Sections 506(c) or 552(b) of the Bankruptcy Code or of marshaling, in each case for the benefit of prepetition lenders.
Assignments and Participations:    Assignments must be in a minimum amount of $1 million (or, if less, the remaining commitments and/or Loans of any assigning Lender) and are subject to the consent of the Administrative Agent, except, in each case, with respect to any assignment to a Lender, an affiliate of such a Lender or a fund engaged in investing in commercial loans that is advised or managed by such a Lender. Participations will be permitted subject to customary limitations on voting rights, except with respect to matters requiring consent from all Lenders or all affected Lenders.
Required Lenders:   

Lenders holding greater than (i) 50% of the outstanding commitments and/or exposure under the Term Facility and (ii) with respect to any Tranche Voting Matter (as defined below), 50% of the outstanding Loans and unutilized commitments under the Term Facility held by the Unsecured DIP Lenders (collectively, the “ Required Lenders ”).

 

Tranche Voting Matter ” shall mean any amendment, modification or waiver of the DIP Loan Documents that would (i) add or change any provision relating to or involving determinations or other matters in respect of the “Principal Property Cap” under the Prepetition Credit Agreement or the CNTA Dispute, (ii) change any provision relating to expense reimbursement in respect of the Unsecured DIP Lenders or (iii) expressly affect the Unsecured DIP Lenders (in their capacity as Lenders under the DIP Facilities) directly, materially, adversely and disproportionately in relation to the other Lenders.

Supermajority Lenders:    Lenders holding greater than (i) 75% of the outstanding commitments and/or exposure under the Term Facility and (ii) with respect to any Tranche Voting Matter, 50% of the outstanding Loans and unutilized commitments under the Term Facility held by the Unsecured DIP Lenders (collectively, the “ Supermajority Lenders ”)

 

-24-


SUBJECT TO FRE 408

CONFIDENTIAL

 

Amendments:   

All amendments, modifications and waivers of the DIP Loan Documents shall require the consent of the Required Lenders, except in the case of amendments, modifications or waivers to be agreed requiring consent from all Lenders or all affected Lenders; provided that, without limiting the generality of the foregoing, no amendment, modification or waiver of the DIP Loan Documents shall (x) increase the aggregate principal amount of any of the DIP Facilities without the consent of each Lender, (y) permit Global Center to make any investment without the consent of the Supermajority Lenders (it being further understood that the Company shall be required to give at least [●] days’ prior notice to the Lenders of any investment and that the rights of any party in interest to raise any objection to such investment shall be fully reserved) or (z) modify or waive any provision set forth under “Financial Covenants” above without the consent of the Supermajority Lenders.

 

For the avoidance of doubt, all parties in interest reserve all rights with respect to any cash transferred to any non-Debtor prior to the Petition Date.

Miscellaneous:    The DIP Loan Documents will include (i) standard yield protection provisions (including, without limitation, provisions relating to compliance with risk-based capital guidelines, increased costs (including Dodd-Frank and Basel III related gross-ups notwithstanding the date of enactment of the applicable law or regulation thereunder, subject to prompt notice requirements) and payments free and clear of withholding taxes (subject to customary qualifications)), (ii) waivers of consequential damages and jury trial and (iii) normal agency, set-off and sharing language.
Foreign Funding:    Funding of foreign operations by Global Center shall be capped at $250 million, subject to increase by an additional $200 million with the consent of the Supermajority Lenders, and must be provided in the form of a new secured intercompany loan. Global Center shall not be permitted to (i) incur any liens or any indebtedness, (ii) amend or waive the Global Center Intercompany Loan in any manner that would (A) release or subordinate the liens on all or substantially all of the collateral thereunder or (B) forgive or reduce the principal amount of any loans thereunder or subordinate in right of payment a material portion of such loans or (iii) engage in any business other than (A) holding cash contributed to Global Center pre-petition by the Company and (B) lending such funds to the Company’s foreign operations in the form of the Global Center Intercompany Loan. For the avoidance of doubt, (x) the equity interests of Global Center will be pledged as collateral for the DIP Facilities and (y) no liens shall be granted for the benefit of the Prepetition Lenders on the cash held by Global Center or on the equity interests of Global Center. Global Center shall be required to fund foreign operations exclusively from amounts held in the Designated Global Center Account before providing any such funding from any other source.
Governing Law and Submission to Exclusive Jurisdiction:    State of New York (and, to the extent applicable, the Bankruptcy Code).

 

-25-


SUBJECT TO FRE 408

CONFIDENTIAL

 

Counsel to Administrative Agent:    Davis Polk & Wardwell LLP.

 

-26-


ANNEX A

$500,000,000 Senior Secured Debtor-In-Possession Term Loan Facility

$100,000,000 Senior Secured Debtor-In-Possession L/C Facility

$200,000,000 Bonding Accommodation Facility

Interest Rates And Fees

 

Term Facility Interest Rates:   

Loans will bear interest, at the option of the Company, at one of the following rates:

 

(i) the Applicable Margin (as defined below) plus the Base Rate, payable monthly in arrears; or

   (ii) the Applicable Margin plus the current LIBO Rate as quoted by the Administrative Agent, adjusted for reserve requirements, if any, and subject to customary change of circumstance provisions, for interest periods of one, two, three or six months (the “ LIBO Rate ”), payable at the end of the relevant interest period, but in any event at least quarterly; provided that the LIBO Rate shall be not less than 1.00% (the “ LIBOR Floor ”).
   Applicable Margin ” means (x) 8.00% per annum , in the case of Base Rate Loans, and (y) 9.00% per annum , in the case of LIBO Rate Loans.
   Base Rate ” means the highest of (i) Citibank, N.A.’s base rate, (ii) the Federal Funds Effective Rate plus 1/2 of 1% and (iii) the LIBO Rate for an interest period of one month (giving effect to the LIBOR Floor) plus 1.00%.
   Interest shall be calculated on the basis of the actual number of days elapsed in a 360-day year (or a 365/366-day year, in the case of Base Rate Loans).
Default Interest:    During the continuance of an event of default under the DIP Loan Documents, Loans will bear interest at an additional 2% per annum .
Bonding Letter of Credit Fees:    A fronting fee in the amount of 0.25% on the outstanding face amount of each Bonding Letter of Credit shall be payable to the issuer of such Bonding Letter of Credit. In addition, the Company will pay to each Bonding Letter of Credit issuer its standard opening, amendment, presentation, wire and other administration charges applicable to each such Bonding Letter of Credit.
L/C Facility Fees:    A fronting fee in the amount of 0.25% on the outstanding face amount of each L/C Facility Letter of Credit shall be payable to the issuer of such L/C Facility Letter of Credit. In addition, the Company will pay to each L/C Facility Letter of Credit issuer its standard opening, amendment, presentation, wire and other administration charges applicable to each such L/C Facility Letter of Credit.
Term Facility Upfront Fee:    The Company shall pay or cause to be paid, for the account of each Lender in respect of the Term Facility, a participation fee (which may take the form of original issue discount) equal to 5.0% of such Lender’s commitments under the Term Facility as set forth in the DIP Loan Documents as commitments under the Term Facility are funded, such fees to be earned and due and payable on the respective funding dates. 


SUBJECT TO FRE 408

CONFIDENTIAL

 

Term Facility Exit Fee:    2.0%, payable upon all prepayments or repayments.

 

A-2

Exhibit 99.11

 

LOGO      News Release
    

 

CONTACT:

 

U.S. / International

Beth Sutton

+1 (314) 342-4351

 

Australia

Michelle Constantine

+61 7 3333 5670

FOR IMMEDIATE RELEASE

April 13, 2016

AMID PROLONGED INDUSTRY DOWNTURN, PEABODY ENERGY TAKES MAJOR STEP TO STRENGTHEN LIQUIDITY AND REDUCE DEBT THROUGH CHAPTER 11 PROTECTION

 

  Peabody Energy Corporation and majority of U.S. entities file for voluntary Chapter 11 protection

 

  Operations expected to continue in ordinary course of business; Australian platform not part of filing

 

  Action targeted toward significant debt reduction and improvement in fixed charges

 

  Comprehensive approach intended to reposition company for long term success

 

  Secured/unsecured lender group led by Citigroup to provide $800 million in debtor-in-possession financing

ST. LOUIS, April 13 – Taking a major step to strengthen liquidity and reduce debt amid an unprecedented industry downturn, Peabody Energy Corporation (NYSE: BTU) today voluntarily filed petitions under Chapter 11 for the majority of its U.S. entities in the United States Bankruptcy Court for the Eastern District of Missouri. 1  Through this process, the company intends to reduce its overall debt level, lower fixed charges, improve operating cash flow and position the company for long-term success, while continuing to operate under the protection of the court process.

All of the company’s mines and offices are continuing to operate in the ordinary course of business and are expected to continue doing so for the duration of the process. No Australian entities are included in the filings, and Australian operations are continuing as usual.

“This was a difficult decision, but it is the right path forward for Peabody. We begin today to build a highly successful global leader for tomorrow,” said Peabody President and Chief Executive Officer Glenn Kellow. “Through today’s action, we will seek an in-court solution to Peabody’s substantial debt burden amid a historically challenged industry backdrop. This

 

1  

Including the following international entity: Peabody Holdings (Gibraltar) LTD.


process enables us to strengthen liquidity and reduce debt, build upon the significant operational achievements we’ve made in recent years and lay the foundation for long-term stability and success in the future.”

In connection with the process, Peabody has obtained $800 million in debtor-in-possession financing facilities, which were arranged by Citigroup and include participation of a number of the company’s secured lenders and unsecured noteholders. The facilities include a $500 million term loan, a $200 million bonding accommodation facility and a cash collateralized $100 million letter of credit facility, and are subject to court approval as well as limitations as set out in the company’s filings. In addition to the company’s existing cash position, Peabody believes that it has sufficient liquidity to operate its business worldwide post-petition and to continue the flow of goods and services to its customers in the ordinary course post-petition.

Peabody also announced today that the planned sale of the company’s New Mexico and Colorado assets was terminated after the buyer was unable to complete the transaction.

The factors affecting the global coal industry in recent years have been unprecedented. Industry pressures in recent years include a dramatic drop in the price of metallurgical coal, weakness in the Chinese economy, overproduction of domestic shale gas and ongoing regulatory challenges.

Still, multiple third-party estimates project that both the U.S. and global coal demand will stabilize. U.S. gas prices are projected to rebound from recent lows. Globally, thermal coal is expected to continue to fuel hundreds of existing coal generating plants as well as scores more that are under construction. Coal currently fuels approximately 40 percent of global electricity and is expected to be an essential source of global electricity generation and steel making for many decades to come.

“A company like Peabody with safe, efficient operations will be well positioned to serve coal demand that will continue in the United States and around the world,” said Kellow. “We are a leading producer and reserve holder in our core regions of the Powder River Basin, Illinois Basin and Australia. Peabody has a new management team, outstanding workforce, unmatched asset base and strong underlying operational performance that represent a key driver in the company’s future success.”

In 2015, all of Peabody’s U.S. operations were cash-flow positive, the Australian platform earned more than the prior year despite lower prices for coal and the company’s administrative expenses and capital investments were at the lowest levels in nearly a decade.

Kellow noted that, throughout this process, the company will continue to be guided by its mission and values that include safety, customer focus, leadership, people, excellence, integrity and sustainability. The company also continues to take aggressive steps to improve the business with actions consistent with its core priorities in the operational, financial and portfolio areas.


This process does not change Peabody’s approach toward best practices in mining and its focus on sustainability to create high-quality land restoration for generations that follow. The company sees its land restoration as an essential part of the mining process, takes great pride in the work it does and has been consistently recognized for these programs. In addition, Peabody intends to continue to work with the applicable state governments and federal agencies to meet its reclamation obligations.

Peabody has filed pleadings, referred to as “first day” motions, with the U.S. Bankruptcy Court. These motions are expected to enable the company to continue, among other things, paying employee wages and providing healthcare and other benefits without interruption.

Also, as required under New York Stock Exchange regulations, trading in shares of the company stock on the NYSE is expected to be suspended immediately.

The company also has established a call center for questions: 866-967-1783 if calling from within the U.S. or 310-751-2683 if calling from outside the U.S. or Canada. If calling from Australia: 1300 386 742 and +61 3 9415 4613 if calling from outside of Australia.

Peabody is committed to communicating with stakeholders during this process. Additional information on the process can be found at PeabodyEnergy.com on the Chapter 11 Protection tab. Information about the claims process, as well as copies of the court petitions and first day motions (which contain information that has not previously been made public), will be available at www.kccllc.net/Peabody , which can also be linked through our website. In addition, we are posting on our website a declaration of our chief financial officer in support of our first day motions. This declaration includes, among other things, information about: our capital structure, including our current debt, employee and other obligations; our recent financial performance and the events leading to the filing; discussions with creditors and our current liquidity. Additional information regarding the voluntary filings, as well as an Australian intercompany credit facility, is described in our Current Report on Form 8-K filed with the Securities and Exchange Commission and is expected to be available the morning of April 13, 2016.

Related to these activities, Peabody has retained Jones Day as its legal advisor, Lazard Fréres & Co. LLC as its investment banker and financial advisor, and FTI Consulting Inc. as its restructuring advisor.

Peabody Energy is the world’s largest private-sector coal company and a Fortune 500 company. The company serves metallurgical and thermal coal customers in 25 countries on six continents. For further information, visit PeabodyEnergy.com.

-End-

Certain statements included on this release are forward-looking as defined in the Private Securities Litigation Reform Act of 1995. The company uses words such as “anticipate,” “believe,” “expect,” “may,” “forecast,” “project,” “should,”


“estimate,” “plan,” “outlook,” “target,” “likely,” “will,” “to be” or other similar words to identify forward-looking statements. These forward-looking statements are made as of the date the release was filed and are based on numerous assumptions that the company believes are reasonable, but these assumptions are open to a wide range of uncertainties and business risks that may cause actual results to differ materially from expectations. These factors are difficult to accurately predict and may be beyond the company’s control. Factors that could affect the company’s results include, but are not limited to: supply and demand for the company’s coal products; sustained depressed levels or further declines in coal prices; competition in coal markets; price volatility, particularly in international seaborne products and in the company’s trading and brokerage businesses; the company’s ability to continue as a going concern, including the company’s ability to confirm a plan of reorganization that restructures our debt obligations to address the company’s liquidity issues and allow emergence from the Chapter 11 proceedings; the company’s ability to access adequate debtor-in-possession financing or use cash collateral; the court’s rulings in the Chapter 11 proceedings and the outcome of the Chapter 11 process in general; the effect of the Chapter 11 filings on the company’s relationships with third parties, regulatory authorities and employees; the potential adverse effects of the Chapter 11 process on the company’s liquidity, results of operations, or business prospects; the company’s ability to execute its business and restructuring plan; increased administrative and legal costs related to the Chapter 11 process and other litigation and the inherent risks involved in a bankruptcy process; risks associated with third-party motions in the Chapter 11 proceedings, which may interfere with the company’s plan of reorganization and restructuring generally; our ability to successfully consummate the planned divestiture of our interest in the Prairie State Energy Campus; the cost, availability and access to capital and financial markets, including the ability to secure new financing after emerging from the Chapter 11 process; the risk that the Chapter 11 filing will disrupt or impede our operations in Australia; our ability to appropriately secure our obligations for reclamation, federal and state workers’ compensation, federal coal leases and other obligations related to our operations, including our ability to utilize self-bonding and/or successfully access the commercial surety bond market; customer procurement practices and contract duration; the impact of alternative energy sources, including natural gas and renewables; global steel demand and the downstream impact on metallurgical coal prices; lower demand for our products by electric power generators; the impact of weather and natural disasters on demand, production and transportation; reductions and/or deferrals of purchases by major customers and the company’s ability to renew sales contracts; credit and performance risks associated with customers, suppliers, contract miners, co-shippers, and trading, bank and other financial counterparties; geologic, equipment, permitting, site access, operational risks and new technologies related to mining; transportation availability, performance and costs; availability, timing of delivery and costs of key supplies, capital equipment or commodities such as diesel fuel, steel, explosives and tires; impact of take-or-pay arrangements for rail and port commitments for the delivery of coal; successful implementation of business strategies, including, without limitation, the actions we are implementing to improve our organization and respond to current market conditions; negotiation of labor contracts, employee relations and workforce availability, including, without limitation, attracting and retaining key personnel; changes in postretirement benefit and pension obligations and their related funding requirements; replacement and development of coal reserves; effects of changes in interest rates and currency exchange rates (primarily the Australian dollar); effects of acquisitions or divestitures; economic strength and political stability of countries in which the company has operations or serves customers; legislation, regulations and court decisions or other government actions, including, but not limited to, new environmental and mine safety requirements, changes in income tax regulations, sales-related royalties, or other regulatory taxes and changes in derivative laws and regulations; our ability to obtain and renew permits necessary for our operations; litigation or other dispute resolution, including, but not limited to, claims not yet asserted; any additional liabilities or obligations that the company may have as a result of the bankruptcy of Patriot Coal Corporation, including, without limitation, as a result of litigation filed by third parties in relation to that bankruptcy; litigation, including claims not yet asserted; terrorist attacks or security threats, including, but not limited to, cybersecurity threats; impacts of pandemic illnesses; and other risks detailed in the company’s reports filed with the SEC. The company does not undertake an obligation to update its forward-looking statements except as required by law.