UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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): July 18, 2016 (July 15, 2016)
FORESIGHT ENERGY LP
(Exact name of registrant as specified in its charter)
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Delaware
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001-36503 |
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80-0778894
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(State or other jurisdiction
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(Commission
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(IRS Employer
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211 North Broadway
Suite 2600
Saint Louis, MO 63102
(Address, including zip code, of principal executive offices)
Registrant’s telephone number, including area code: (314) 932-6160
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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o 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.
On July 15, 2016, Foresight Energy LLC (“FELLC”) and Foresight Energy Finance Corporation (together with FELLC, the “Issuers”), together with Foresight Energy LP (“FELP”), certain other subsidiaries of FELP (collectively, the “Partnership”) and Foresight Energy GP LLC (“FEGP”), entered into the First Amendment to Transaction Support Agreement (as amended, the “Notes Support Agreement”) with certain holders (the “Consenting Noteholders”) of the Issuers’ 7.875% Senior Notes due 2021 (the “Notes”), which extended the termination date for (i) failure to consummate a global restructuring of the Partnership’s indebtedness (the “Restructuring”) contemplated by the Notes Support Agreement or (ii) any condition to the exchange offer contemplated by the Notes Support Agreement becoming incapable of being satisfied, to August 2, 2016. The parties also agreed to enter into documentation necessary to reflect certain modifications to the terms of the Restructuring originally contemplated by the Notes Support Agreement.
On July 17, 2016, Murray Energy Corp. (“Murray”), Foresight Reserves LP (“Reserves”), Christopher Cline and Cline Resources and Development Company (“Cline Development”) each executed a joinder to the Notes Support Agreement (the “Joinder”), whereby such parties agreed, among other things, to support and seek to consummate the Restructuring.
Also on July 17, 2016, the Partnership entered into the Second Amendment to Transaction Support Agreement (as amended, the “Lender Support Agreement”) with certain of the lenders (the “Consenting Lenders”) under the Partnership’s Second Amended and Restated Credit Agreement dated as of August 23, 2013 (the “Credit Agreement”), which (A) extended the termination date for failure to consummate the Restructuring contemplated by the Lender Support Agreement to July 22, 2016 (the “Initial Lender Extension Date”) and (B) permits discussions among the parties thereto and other key constituencies regarding consensual modifications to the terms of the transaction and appropriate steps in furtherance thereof. The Initial Lender Extension Date may be extended to August 5, 2016, or such later date agreed to among the Partnership and the Consenting Lenders constituting “Required Lenders” under the Credit Agreement (“Required Lenders”), subject to the Partnership agreeing to the terms of a modified Restructuring in reasonable detail with certain of its secured and unsecured lenders and FELLC paying each Consenting Lender that has executed the amendment to the Lender Support Agreement an amount to be agreed among FELLC and Required Lenders.
The foregoing descriptions of the amendment to the Notes Support Agreement, the Joinder and the amendment to the Lender Support Agreement are qualified in their entirety by reference to the full text of such agreements, filed herewith as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3, respectively, to this Current Report on Form 8-K and incorporated by reference herein.
As previously disclosed, if an out of court restructuring is not completed, it may be necessary for us to file a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in order to implement a restructuring, or our creditors could force us into an involuntary bankruptcy or liquidation. If a plan of reorganization is implemented in a bankruptcy proceeding, holders of claims and interests with respect to, or rights to acquire, our equity securities would likely be entitled to little or no recovery, and those claims and interests would likely be canceled for little or no consideration. If that were to occur, we anticipate that all, or substantially all, of the value of all investments in our partnership units would be lost and that our unitholders would lose all or substantially all of their investment. It is also likely that our other stakeholders, including our secured and unsecured creditors, would receive substantially less than the amount of their claims.
ITEM 8.01. OTHER EVENTS
The Partnership extended the term of the existing forbearance agreement that was entered into on December 18, 2015 with the Consenting Noteholders (the “Notes Forbearance Agreement”). As a result of the extension, the forbearance period runs through August 2, 2016, unless further extended by the Consenting Noteholders in their sole discretion or unless earlier terminated in accordance with its terms.
Foresight Receiv ables LLC (“Foresight Receivables”), together with the Partnership, extended the term of the forbearance agreement (the “Securitization Forbearance Agreement”) that was entered into on January 27, 2016 with certain lenders (the “Consenting Securitization L enders”) under Foresight Receivables’ receivables financing agreement. As a result of the extension, the forbearance period runs through August 15, 2016, unless further extended by the Consenting Securitization Lenders in their sole discretion or unless e arlier terminated in accordance with its terms.
The extensions are intended to provide additional opportunity to engage in discussions and negotiations with the holders of the Notes and our secured lenders.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits
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Exhibit No. |
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Exhibit Description |
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10.1 |
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First Amendment to Transaction Support Agreement, dated as of July 15, 2016, by and among FEGP, the Partnership and the Consenting Noteholders. |
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10.2 |
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Joinder to Transaction Support Agreement, dated July 17, 2016, by and among Murray, Reserves, Christopher Cline and Cline Development. |
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10.3 |
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Second Amendment to Transaction Support Agreement, dated as of July 17, 2016, by and among the Partnership and the Consenting Lenders. |
SIGNATURE
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.
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Foresight Energy LP |
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By: Foresight Energy GP LLC, its general partner |
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By: /s/ Robert D. Moore |
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Robert D. Moore President and Chief Executive Officer |
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Date: July 18, 2016
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EXHIBIT INDEX
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Exhibit No. |
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Exhibit Description |
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10.1 |
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First Amendment to Transaction Support Agreement, dated as of July 15, 2016, by and among FEGP, the Partnership and the Consenting Noteholders. |
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10.2 |
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Joinder to Transaction Support Agreement, dated July 17, 2016, by and among Murray Energy, Foresight Reserves, Christopher Cline and Cline Development. |
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10.3 |
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Second Amendment to Transaction Support Agreement, dated as of July 17, 2016, by and among the Partnership and the Consenting Lenders. |
Exhibit 10.1
FIRST AMENDMENT
TO TRANSACTION SUPPORT AGREEMENT
First Amendment, dated as of July 15, 2016 (this “ Amendment ”), to that certain Transaction Support Agreement made and entered into as of May 17, 2016 (the “ Transaction Support Agreement ”) by and among (i) Foresight Energy GP LLC, a Delaware limited liability company (“ FEGP ”), (ii) Foresight Energy LLC, a Delaware limited liability company, and Foresight Energy Finance Corporation, a Delaware corporation (collectively, the “ Issuers ”), certain subsidiaries of the Issuers, and Foresight Energy LP, a Delaware limited partnership (“ FELP ” and together with the Issuers, and their subsidiaries, the “ Partnership ”) and (iii) each of the holders (or investment managers or advisors for any of the holders) of the Notes party thereto (together with their successors and permitted assigns, each, a “ Consenting Noteholder ” and, collectively, the “ Consenting Noteholders ”). Capitalized terms used in this Amendment and not otherwise defined shall have the meanings set forth in the Transaction Support Agreement.
RECITALS
WHEREAS , the Issuers are party to that certain Indenture, dated as of August 23, 2013 (as amended, the “ Notes Indenture ”), in respect of the $600,000,000 in aggregate principal amount of 7.875% Senior Notes due 2021, by and among Wilmington Savings Fund Society, FSB as the successor indenture trustee, the Issuers and the guarantors party thereto;
WHEREAS , pursuant to the Transaction Support Agreement, the Parties thereto agreed to support the Transaction contemplated under the Transaction Support Agreement and the Transaction Term Sheet attached thereto;
WHEREAS , the Partnership has requested certain amendments to the Transaction Support Agreement; and
WHEREAS , the parties hereto have agreed to amend the Transaction Support Agreement on the terms and conditions set forth in this Amendment.
NOW, THEREFORE , for and in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
SECTION 1. Amendments to Transaction Support Agreement . Effective as of the Amendment Effective Date, the Partnership and the Consenting Noteholders party hereto hereby amend (i) Section 7(iii) of the Transaction Support Agreement by deleting the reference to “July 15, 2016” appearing therein and replacing such reference with “August 2, 2016” and (ii) Section 7(ix) of the Transaction Support Agreement by deleting the reference to “July 15, 2016” appearing therein and replacing such reference with “August 2, 2016”.
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SECTION 2. Acknowledgements . Each Party hereto acknowledges and agrees that the modifications to the Transaction Term Sheet describ ed in Exhibit A hereto (the “Term Sheet Modifications”) reflect each Party’s agreement to, and understanding of, the material terms of the Transaction. Each Party hereto further agrees to negotiate in good faith amendments to the Transaction Support Agree ment, the Transaction Term Sheet, the Definitive Documents and enter into supplemental documentation, in each case, as necessary and appropriate to reflect the Term Sheet Modifications.
SECTION 3. Effect of Amendment on the Transaction Support Agreement . Except as specifically amended or waived hereby, the terms and provisions of the Transaction Support Agreement are in all other respects ratified and confirmed and remain in full force and effect without modification or limitation. No reference to this Amendment need be made in any notice, writing or other communication relating to the Transaction Support Agreement, and any such reference to the Transaction Support Agreement shall be deemed a reference thereto as amended by this Amendment. Except as specifically amended or waived hereby, this Amendment shall not be deemed or construed (i) to be a consent granted pursuant to, or a waiver, modification or forbearance of, any term or condition of the Transaction Support Agreement, any of the instruments or agreements referred to therein or a waiver of any breach under the Transaction Support Agreement, whether or not known to any Party thereto, or (ii) to prejudice any right or remedy which any Party to the Transaction Support Agreement may now have or have in the future under or in connection with the Transaction Support Agreement, or any of the instruments or agreements referred to therein, as applicable.
SECTION 4. Effectiveness of this Amendment . This Amendment shall become effective and binding on each Party on the date when, and only when, all of the following conditions have been satisfied (such date, the “ Amendment Effective Date ”):
(i) the Consenting Noteholders party hereto receive duly executed signature pages hereto signed by the Partnership;
(ii) counsel to the Partnership receives duly executed signature pages hereto signed by Consenting Noteholders who constitute “Required Consenting Noteholders” as required by Section 13 of the Transaction Support Agreement;
(iii) the Lender Support Agreement shall have been amended in form and substance satisfactory to the Consenting Noteholders and the Consenting Noteholders shall have received a true, correct and complete copy of such amendment; and
(iv) the forbearance agreement dated January 27, 2016 (as amended, extended or otherwise modified from time to time) in respect of the A/R Securitization shall have been amended in form and substance satisfactory to the Consenting Noteholders and the Consenting Noteholders shall have received a true, correct and complete copy of such amendment.
SECTION 5. Governing Law . THIS Amendment AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING NEW YORK GENERAL
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OBLIGATIONS LAW SECTION 5-1401), WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISIONS WHICH WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION .
SECTION 6. Counterparts; Electronic Execution . This Amendment may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement. Delivery of an executed copy of this Amendment shall be deemed to be a certification by each person executing this Amendment on behalf of a party hereto that such person and party hereto has been duly authorized and empowered to execute and deliver this Amendment and each other party hereto may rely on such certification. Execution copies of this Amendment may be delivered by electronic mail (in “.pdf” or “.tif” format), facsimile or otherwise, which shall be deemed to be an original for the purposes of this Amendment.
SECTION 7. Reference to Transaction Support Agreement . All references to the “Transaction Support Agreement”, “thereunder”, “thereof” or words of like import in the Transaction Support Agreement shall mean and be a reference to the Transaction Support Agreement as modified hereby.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have executed and delivered this First Amendment to Transaction Supp ort Agreement as of the date hereof.
FORESIGHT ENERGY LLC, on behalf of itself and each of its subsidiary guarantors
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By: /s/ Robert D. Moore |
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Robert D. Moore President and Chief Executive Officer |
FORESIGHT ENERGY FINANCE CORPORATION
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By: /s/ Robert D. Moore |
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Robert D. Moore President and Chief Executive Officer |
FORESIGHT ENERGY LP
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By: /s/ Robert D. Moore |
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Robert D. Moore President and Chief Executive Officer |
FORESIGHT ENERGY GP LLC
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By: /s/ Robert D. Moore |
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Robert D. Moore President and Chief Executive Officer |
[Signature Page to First Amendment to Notes Transaction Support Agreement]
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Exhibit 10.2
JOINDER TO TRANSACTION SUPPORT AGREEMENT
Each of the undersigned hereby acknowledges that it has reviewed the Transaction Support Agreement (as amended from time to time, the “ Agreement ”) dated as of May 17, 2016, by and among (i) Foresight Energy GP LLC, a Delaware limited liability company (“FEGP”), (ii) Foresight Energy LLC, a Delaware limited liability company, and Foresight Energy Finance Corporation, a Delaware corporation (collectively, the “ Issuers ”), certain subsidiaries of the Issuers, and Foresight Energy LP, a Delaware limited partnership (“FELP” and together with the Issuers and their subsidiaries, the “ Partnership ”) and (iii) each of the noteholders and financial institutions from time to time party thereto (each a “ Consenting Noteholder ” and, collectively, the “ Consenting Noteholders ”). 1
Each of the undersigned hereby agrees to be a Party to the Agreement, to support the Transaction and consummation thereof, and to negotiate in good faith with the Partnership and the Consenting Noteholders to consummate the Transaction, including by negotiating in good faith amendments to the Transaction Support Agreement, the Transaction Term Sheet, the Definitive Documents and enter into supplemental documentation, in each case, as necessary and appropriate to incorporate the modifications set forth in Exhibit A to the First Amendment to the Transaction Support Agreement, dated as of July 15, 2016.
This joinder agreement shall be governed by the governing law set forth in the Agreement.
Date: July 17, 2016
Murray Energy Corp.
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By: /s/ Robert D. Murray |
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Robert D. Murray EVP, COO & CFO |
Foresight Reserves LP
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By: /s/ John Dickinson |
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John Dickinson Authorized Person |
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Defined terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement. |
Christopher Cline
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By: /s/ Christopher Cline |
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Christopher Cline
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Cline Resources and Development Company
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By: /s/ John Dickinson |
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John Dickinson Authorized Person |
Exhibit 10.3
SECOND AMENDMENT
TO TRANSACTION SUPPORT AGREEMENT
This Second Amendment to Transaction Support Agreement (this “ Second Amendment ”), dated as of July 15, 2016, to that certain Transaction Support Agreement made and entered into as of April 18, 2016, as amended by that certain First Amendment dated as of May 6, 2016, (the “ T ransaction Support Agreement ”), by and among (i) Foresight Energy LLC, a Delaware limited liability company (the “ Bo rrower ”), certain subsidiaries thereof, and Foresight Energy LP, a Delaware limited partnership (collectively, the “ Partn ers hip ”) and
(ii) each of the banks and financial institutions from time to time party thereto (each a “ Consenting L ender ,” and collectively, the “ Consen ting L enders ”). Capitalized terms used in this Second Amendment and not otherwise defined shall have the meanings set forth in the Transaction Support Agreement.
RECITALS
WHEREAS , the Borrower entered into that certain Second Amended and Restated Credit Agreement dated as of August 12, 2010, and amended and restated as of August 23, 2013, with Citibank, N.A., the lenders party thereto and the guarantors party thereto;
WHEREAS , pursuant to the Transaction Support Agreement, the Parties thereto agreed to support the Transaction contemplated under the Transaction Support Agreement and the Term Sheets attached thereto;
WHEREAS , the Partnership has requested certain amendments to the Transaction Support Agreement; and
WHEREAS , the parties hereto have agreed to amend the Transaction Support Agreement on the terms and conditions set forth in this Second Amendment.
AGREEMENT
NOW, THEREFORE , for and in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Transaction Support Agreeme nt . Effective as of the Amendment Effective Date (as defined below), the Partnership and the Consenting Lenders party hereto hereby amend and restate Section 7(iii) of the Transaction Support Agreement in its entirety as follows:
“iii. the Partnership fails to consummate the Transaction, including the Amendment, on or before July 22, 2016; provided , that such date may be extended to August 5, 2016, or such later date as agreed among the Partnership and the Consenting Lenders constituting “Required Lenders” under the Credit Agreement, only if the following conditions are satisfied: (i) the execution of (w) a transaction support agreement or similar agreement that replaces the Transaction Support Agreement (or amendment to the Transaction Support Agreement), (x) a replacement transaction support agreement or similar agreement and forbearance
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agreement (or amendments to the existing transaction support agreement and forbearance agreement) from Noteholders holding at least 66.67% of the principal amount of the Notes, (y) amendments to the existing forbearance agreement fr om the Consenting A/R Lenders and (z) a binding transaction support agreement or similar agreement from Foresight Reserves Investor Group, in each case setting forth in reasonable detail the terms of a modified Transaction and in form and substance satisfa ctory to Consenting Lenders that constitute “Required Lenders” under the Credit Agreement and (ii) the payment by the Borrower of a consent fee to each Consenting Lender that has executed that certain Second Amendment to the Transaction Support Agreement d ated as of July 15, 2016 in an amount to be agreed among the Borrower and Consenting Lenders constituting “Required Lenders” under the Credit Agreement.”.
SECTION 2. Acknowledgemen ts . Each of the parties hereto agrees and acknowledges that, notwithstanding anything contained in the Transaction Support Agreement to the contrary, and unless Consenting Lenders constituting “Required Lenders” under the Credit Agreement have notified the Borrower to cease doing so, (x) each Party is authorized and permitted to continue discussions with each other and with other key constituencies regarding consensual modifications to the terms of the Transaction and may take all appropriate steps in furtherance thereof, and (y) discussions and actions taken in respect of such consensual modifications to the terms of the Transaction shall not violate the terms of the Transaction Support Agreement or give rise to a Termination Event thereunder.
SECTION 3. Effect of Amendment on the Transaction Support Agreement . Except as specifically amended or waived hereby, the terms and provisions of the Transaction Support Agreement are in all other respects ratified and confirmed and remain in full force and effect without modification or limitation. No reference to this Second Amendment need be made in any notice, writing or other communication relating to the Transaction Support Agreement, and any such reference to the Transaction Support Agreement shall be deemed a reference thereto as amended by this Second Amendment. This Second Amendment shall not be deemed or construed (i) to be a consent granted pursuant to, or a waiver, modification or forbearance of, any term or condition of the Transaction Support Agreement, any of the instruments or agreements referred to therein or a waiver of any breach under the Transaction Support Agreement, whether or not known to any Party thereto, or (ii) to prejudice any right or remedy which any Party to the Transaction Support Agreement may now have or have in the future under or in connection with the Transaction Support Agreement, or any of the instruments or agreements referred to therein, as applicable.
SECTION 4. Effectiveness of this Second Amendment . This Second Amendment shall become effective and binding on each Party on the date (such date, the “ Am endment Effective D ate”) (i) the Consenting Lenders party hereto receive signature pages hereto signed by the Partnership and (ii) counsel to the Partnership receives signature pages from Consenting Lenders who constitute “Required Consenting Lenders” as defined in the Transaction Support Agreement and “Required Lenders” as defined in the Credit Agreement, as required by Sections 7 and 13 of the Transaction Support Agreement.
SECTION 5. Governing L aw. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
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LAWS OF THE STATE OF NEW YORK (INCLUDING NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401), WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISIONS WHICH WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
SECTION 6. Counterparts; Electronic Executio n. This Second Amendment may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement. Delivery of an executed copy of this Second Amendment shall be deemed to be a certification by each person executing this Second Amendment on behalf of a party hereto that such person and party hereto has been duly authorized and empowered to execute and deliver this Second Amendment and each other party hereto may rely on such certification. Execution copies of this Second Amendment may be delivered by electronic mail (in “.pdf” or “.tif” format), facsimile or otherwise, which shall be deemed to be an original for the purposes of this Second Amendment.
SECTION 7. Reference to Transaction Support Agreeme nt. All references to the “Transaction Support Agreement”, “thereunder”, “thereof” or words of like import in the Transaction Support Agreement shall mean and be a reference to the Transaction Support Agreement as modified hereby and as may in the future be amended, restated, supplemented or modified from time to time.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have executed and delivered this Second Amendment to Transaction Support Agreement as of the date hereof.
FORESIGHT ENERGY LLC, on behalf of itself and each of its subsidiary guarantors
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By: /s/ Robert D. Moore |
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Robert D. Moore President and Chief Executive Officer |
FORESIGHT ENERGY LP
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By: /s/ Robert D. Moore |
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Robert D. Moore President and Chief Executive Officer |
[Signature Page to Second Amendment to Transaction Support Agreement]
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By: Name:
Title:
[Signature Page to Second Amendment to Transaction Support Agreement]
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