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): August 25, 2016 (August 24, 2016)
FORESIGHT ENERGY LP
(Exact name of registrant as specified in its charter)
|
|
|
|
|
|
|
Delaware
|
|
001-36503 |
|
80-0778894
|
|
(State or other jurisdiction
|
|
(Commission
|
|
(IRS Employer
|
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 August 24, 2016, Foresight Energy LLC and Foresight Energy Finance Corporation (wholly owned subsidiaries of Foresight Energy LP (the “ Partnership ”)) (together, the “ Issuers ”), together with Wilmington Savings Fund Society, FSB, the successor trustee (the “ Existing Senior Notes Trustee ”) for the Issuers’ 7.875% Senior Notes due 2021 (the “ Existing Senior Notes ”), entered into a supplemental indenture (the “ Existing Senior Notes Supplemental Indenture ”) providing for an amendment (the “ Proposed Amendment ”) to the indenture governing the Existing Senior Notes (as amended, supplemented or otherwise modified from time to time, the “ Existing Senior Notes Indenture ”).
As previously disclosed by the Partnership, the required noteholder consents under the Existing Senior Notes Indenture for the Proposed Amendment were obtained on August 11, 2016. Accordingly, upon the Issuers obtaining the required noteholder consents for the Proposed Amendment, such noteholder consents became irrevocable in accordance with the terms of the related consent solicitation.
Upon its effectiveness, the Proposed Amendment will amend Section 8.05 of the Existing Senior Notes Indenture (entitled “Satisfaction and Discharge of Indenture” ) by deleting, in its entirety, subsection (2) thereof, which currently requires (as a condition precedent for the satisfaction and discharge of the obligations in respect of the Existing Senior Notes and the Existing Senior Notes Indenture) the absence of an existing Default or Event of Default (each as defined in the Existing Senior Notes Indenture) on the date that an Issuer or guarantor deposits funds with the Existing Senior Notes Trustee for such satisfaction and discharge (and requires further that such deposit not result in a Default or Event of Default under the Existing Senior Notes Indenture or a default under any other instrument to which an Issuer or guarantor is a party or by which an Issuer or guarantor is bound).
The Supplemental Indenture has been executed and delivered by the Issuers and the Existing Senior Notes Trustee and the conditional Proposed Amendment to Section 8.05 of the Existing Senior Notes Indenture that is contained within the Existing Senior Notes Supplemental Indenture will become effective (and shall be deemed effective immediately prior to) the consummation of the previously disclosed exchange offer that is currently being conducted as part of the Partnership’s proposed restructuring.
The foregoing descriptions of the Proposed Amendment, the Existing Senior Notes Supplemental Indenture and the Existing Senior Notes Indenture are qualified in their entirety by reference to the full text of the Existing Senior Notes Supplemental Indenture and the Existing Senior Notes Indenture, each of which is incorporated herein by reference to Exhibit 10.1 and Exhibit 10.2 to this Current Report on Form 8-K, respectively.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements and information in this Current Report on Form 8-K may constitute “ forward-looking statements. ” The words “ propose, ” “ believe, ” “ expect, ” “ anticipate, ” “ plan, ” “ intend, ” “ foresee, ” “ outlook, ” “ estimate, ” “ potential, ” “ continues, ” “ may, ” “ will, ” “ seek, ” “ approximately, ” “ predict, ” “ anticipate, ” “ should, ” “ would, ” “ could ” or other similar expressions are intended to identify forward-looking statements, which are generally not historical in nature. These forward-looking statements are based on our current expectations and beliefs concerning future developments and their potential effect on us. While management believes that these forward-looking statements are reasonable as and when made, there can be no assurance that the future developments affecting us will be those that we anticipate. All comments concerning the proposed restructuring referenced herein are based on the current state of the ongoing related negotiations.
The successful consummation of the restructuring transactions is subject to various conditions, including the successful negotiation of definitive documentation and other conditions that are not within the control of the Partnership or its affiliates. There can be no assurances that the Partnership or any of its affiliates will be able to successfully negotiate or implement any of the proposed restructuring transactions, or if they are able to do so, that such negotiation or implementation will be consistent with the terms described herein.
We continue to experience substantial financial, business, operational and reputational risks that threaten our ability to continue as a going concern and could materially affect our present expectations and projections. For additional information regarding known material factors that could cause our actual results to differ from those contained in or implied by forward-looking statements, please see the sections entitled “Risk Factors” in the Partnership’s: (i) Annual Report on Form 10-K for the year ended December 31, 2015, filed with the SEC on March 15, 2016; and (ii) subsequently filed Quarterly Reports on Form 10-Q.
You are cautioned not to place undue reliance on forward-looking statements, which are made only as of the date hereof. We undertake no obligation to publicly update or revise any forward-looking statements after the date they are made, whether as a result of new information, future events or otherwise, except as required by law.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
|
Exhibit No. |
|
Exhibit Description |
|
|
|
|
|
10.1 |
|
Supplemental Indenture, dated as of August 24, 2016 (to the Indenture dated as of August 23, 2013) , by and among Foresight Energy LLC, Foresight Energy Finance Corporation and Wilmington Savings Fund Society, FSB , as successor trustee. |
|
|
|
|
|
10.2 |
|
Indenture, dated as of August 23, 2013, by and among Foresight Energy LLC, Foresight Energy Finance Corporation, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated herein by reference to Exhibit 4.2 to FELP’s Draft Registration Statement on Form S-1, filed with the SEC on February 18, 2014 (SEC File No. 333-179304)). |
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.
|
|
|
FORESIGHT ENERGY LP
|
|
By: Foresight Energy GP LLC, its general partner |
|
|
|
By: /s/ Robert D. Moore |
|
Robert D. Moore President and Chief Executive Officer |
|
|
|
Date: August 25, 2016
|
EXHIBIT INDEX
|
Exhibit No. |
|
Exhibit Description |
|
|
|
|
|
10.1 |
|
Supplemental Indenture, dated as of August 24, 2016 (to the Indenture dated as of August 23, 2013) , by and among Foresight Energy LLC, Foresight Energy Finance Corporation and Wilmington Savings Fund Society, FSB , as successor trustee. |
|
|
|
|
|
10.2 |
|
Indenture, dated as of August 23, 2013, by and among Foresight Energy LLC, Foresight Energy Finance Corporation, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated herein by reference to Exhibit 4.2 to FELP’s Draft Registration Statement on Form S-1, filed with the SEC on February 18, 2014 (SEC File No. 333-179304)). |
Exhibit 10.1
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this “ Supplemental Indentur e ”) dated as of August 24, 2016 to the Indenture (as defined below), is m ade by and a m ong Foresight Energy LLC , a Delaware limited liability company (“ FELLC ”), Foresight Energy Finance Corporation, a Delaware corporation (the “ Co-Issuer ” and together with FELLC, the “ Issuers ”), and Wilmington Savings Fund Society, FSB, as the successor indenture trustee (in such capacity, the “ Trustee ”) , and a m ends the Indenture, dated as of August 23, 2013, a m ong the Issuers, the guarantors party thereto from time to time and the Trustee (as a m ended and supple m ented from ti m e to ti m e, the “ Indenture ”). Ca p itali ze d t e r m s use d b u t n o t d e f i n e d h e r e in h a v e t h e res p ecti v e m e an in g s set f o rth in t h e I nd e n ture.
RECITALS :
WHEREA S , pursuant to the Conse n t Solicitation State m ent dated August 1, 2016 (as the sa m e m a y be a m end e d, supple m ented or m odified from ti m e to t i m e), the Issuers solicited consents of the Holders o f the Notes to a m end the ter m s of the Indenture as set f orth in Section 1.01 hereof (the “ Proposed Amendment ”);
WHEREA S , pursuant to Section 9.02 of t h e Indenture, the written consent of Holders of at least a m ajo r ity in a g gregate pri n cipal a m ount of the outstanding Notes (the “ Requisite C onsents ”) is sufficient to adopt the Proposed A m end m ent;
WHEREA S , having received the Requisite Consents for the Proposed A m end m en t , the Issuers and the Trustee intend to execute this Supplemental Indenture to a m end the Indenture, subject to the terms and conditions provided herein;
NOW, THEREFOR E , i n consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties mutually covenant and agree for the equal and r a table benefit of the Holders of the Notes as f ollows:
Section 1.01. Amendment to Section 8.05 . Upon the effectiveness of this Section 1.01 pursuant to Section 1.02 hereof, clause (2) of Section 8.05 of the Indenture (“Satisfaction and Discharge of Indenture”) shall hereby be replaced in its entirety with the following:
“ (2) [Reserved] ; ”
Section 1.02. Effectiveness of Section 1.01 . The Amendment to Section 8.05 of the Indenture pursuant to Section 1.01 hereof shall not become effective until (a nd shall be deemed effective immediately prior to) the consummation of the “Exchange Offer,” as such term is defined in that certain Amended and Restated Transaction Support Agreement dated July 22, 2016 (including the transaction term sheet attached thereto as
Exhibit A) by and among the Issuers, Foresight Energy GP LLC, the guarantors party thereto, Foresight Reserves LP, Mr. Christopher Cline, Cline Resources and Development Company, Mr. Michael J. Beyer, Munsen LLC, Filbert Holdings LLC, Candice Cline 2 004 Irrevocable Trust, Alex T. Cline 2004 Irrevocable Trust, Christopher L. Cline 2004 Irrevocable Trust, Kameron N. Cline 2004 Irrevocable Trust and Forest Glen Investments LLC, Murray Energy Corp. and the holders of the Notes party thereto (as amended, s upplemented or otherwise modified from time to time).
Section 1.03. Governing Law . The internal law of the State of New York shall govern and be used to construe this Supplemental Indenture, the Indenture and the Notes.
Section 1.04. Counterparts . The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplement Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 1.05. Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 1.06. The Trustee and Agent . Neither the Trustee nor the Paying Agent shall be responsible in any manner whatsoever for or in respect of the validity, sufficiency or adequacy of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuers.
Section 1.07. Officers’ Certificate. Promptly following the consummation of the Exchange Offer, FELLC will deliver to the Trustee an Officers’ Certificate advising the Trustee that the Exchange Offer has been consummated. For the avoidance of doubt, the delivery of such Officers’ Certificate shall not be a condition precedent to the effectiveness of this Supplemental Indenture or Section 1.01 hereof.
Section 1.08. Supplemental Indenture . This Supplemental Indenture shall form part of the Indenture for all purposes and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
[ Remainder of page intentionally left blank ]
IN W ITNESS W H EREOF, the pa r ties hereto have caused this Suppl e m ental Indenture to be duly executed and attested, all as of the date first above written.
ISSUERS:
Foresight Energy LLC
By:
/s/ Robert D. Moore
Name: Robert D. Moore
Title: President and Chief Executive Officer
Foresight Energy Finance Corporation
By:
/s/ Robert D. Moore
Name: Robert D. Moore
Title: President and Chief Executive Officer
TRUSTEE:
Wilmington Savings Fund Society, FSB, as Trustee
By:
/s/ Raye D. Goldsborough
Name: Raye D. Goldsborough
Title: Assistant Vice President