AMENDED AND RESTATED TRANSACTION SUPPORT AGREEMENT
Exhibit 10.1
A&R Lender Support Agreement
EXECUTION VERSION
AMENDED AND RESTATED TRANSACTION SUPPORT AGREEMENT
This AMENDED AND RESTATED TRANSACTION SUPPORT AGREEMENT (as amended from time to time, this “Agreement”) is made and entered into as of July 22, 2016 by and among (i) Foresight Energy LLC, a Delaware limited liability company (“Borrower”), certain subsidiaries of Borrower, and Foresight Energy LP, a Delaware limited partnership (collectively, the “Partnership”) and (ii) each of the banks and financial institutions from time to time party hereto (each a “Consenting Lender”, collectively, the “Consenting Lenders” (except that “Consenting Lenders” shall not include any claim held by a Consenting Lender in a fiduciary capacity or held by any other distinct business unit of such Lender other than the business unit expressly identified on the signature pages hereto unless such business unit is or becomes a party to this Agreement)) (iii) Foresight Reserves LP (“Reserves”), Xx. Xxxxxxxxxxx Xxxxx (“Xxxxx”), Xxxxx Resources and Development Company (“Xxxxx R&D”), Xx. Xxxxxxx X. Xxxxx (“Xxxxx”), Xxxxxx LLC (“Xxxxxx”), Filbert Holdings LLC (“Filbert”), Xxxxxxx Xxxxx 2004 Irrevocable Trust (“Xxxxxxx Xxxxx Trust”), Xxxx X. Xxxxx 2004 Irrevocable Trust (“Xxxx Xxxxx Trust”), Xxxxxxxxxxx X. Xxxxx 2004 Irrevocable Trust (“Xxxxxxxxxxx Xxxxx Trust”), and Xxxxxxx X. Xxxxx 2004 Irrevocable Trust (“Xxxxxxx Xxxxx Trust”) and Forest Xxxx Investments LLC (“Forest Xxxx,” together with Reserves, Xxxxx, Xxxxx R&D, Beyer, Munsen, Filbert, Xxxxxxx Xxxxx Trust, Xxxx Xxxxx Trust, Xxxxxxxxxxx Xxxxx Trust and Xxxxxxx Xxxxx Trust, the “Xxxxx Group”); and (iv) Xxxxxx Energy Corp. (“Xxxxxx”). The Partnership, the Consenting Lenders, Xxxxxx and the Xxxxx Group shall each be referred to as a “Party” and collectively as the “Parties.”
Except as otherwise set forth herein, each capitalized term used but not otherwise defined herein shall have the meaning ascribed to such term in the term sheet titled “Foresight Energy LLC Third Amended and Restated Credit Agreement Summary of Principal Terms and Conditions”, attached hereto as Exhibit A, which term sheet shall be deemed to be amended and restated as of the date hereof and all exhibits, schedules and annexes thereto are expressly incorporated by reference herein and made a part of this Agreement as if fully set forth herein (as may be amended, supplemented or modified from time to time in accordance with the terms hereof, the “A&R Amendment Term Sheet”).
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 “Administrative Agent”), the lenders party thereto (the “Lenders”) and the guarantors party thereto (as amended, the “Credit Agreement”, and loans and commitments under such Credit Agreement, the “Debt”, and claims related to such Debt, collectively, the “Debt Claims”, it being understood that Secured Cash Management Agreements (as that term is defined in the Credit Agreement) shall not constitute Debt Claims for purposes of this Agreement);
WHEREAS, the Borrower and Foresight Energy Finance Corporation (collectively, the “Issuers”) are party to that certain Indenture, dated as of August 23, 2013, with Wilmington Savings Fund Society, FSB (the “Trustee”), the holders thereunder (the “Noteholders”) and the
guarantors party thereto (as amended, the “Notes Indenture”, and such notes issued under such Notes Indenture, the “Notes” and claims related to such Notes, collectively, the “Note Claims”);
WHEREAS, the Partnership entered into that certain Transaction Support Agreement, dated as of April 18, 2016 (such date being the “TSA Effective Date”) (as amended by that certain First Amendment to Transaction Support Agreement, dated as of May 6, 2016, and that certain Second Amendment to Transaction Support Agreement, dated as of July 15, 2016, the “Original Support Agreement”) with certain Consenting Lenders, under which the Consenting Lenders agreed to support the Transaction on the terms set forth in the Original Support Agreement;
WHEREAS, the Partnership entered into that certain Transaction Support Agreement, dated as of May 17, 2016 (as amended from time to time, the “Noteholder Support Agreement” and, together with the Original Support Agreement, the “Support Agreements”), with certain Consenting Noteholders and Foresight Energy GP LLC (“FEGP”), under which the Consenting Noteholders agreed to support the Transaction on the terms set forth in the Noteholder Support Agreement;
WHEREAS, the Partnership, FEGP and the Consenting Noteholders entered into that certain First Amendment to Transaction Support Agreement, dated as of July 15, 2016, pursuant to which they agreed to certain modifications to the terms of the Transaction and further agreed to amend and restate the term sheet attached to the Noteholder Support Agreement in accordance with the terms thereof;
WHEREAS, Xxxxxx and the Xxxxx Group each executed a joinder, dated as of July 17, 2016, pursuant to which each agreed to become party to the Noteholder Support Agreement;
WHEREAS, since execution of the Support Agreements, the Partnership, the Consenting Noteholders, the Consenting Lenders, Xxxxxx, the Xxxxx Group and certain other parties in interest (collectively, the “Transaction Parties”) have continued to engage in arm’s-length, good faith discussions regarding a restructuring of the Partnership’s indebtedness and other obligations, including the Partnership’s indebtedness and obligations under the Notes Indenture and the Credit Agreement; and
WHEREAS, each Party desires to amend and restate the Credit Agreement (the “Amendment”) on the terms set forth in the A&R Amendment Term Sheet and enter into the various agreements and transactions in furtherance of a global restructuring of the Partnership’s indebtedness (the “Transaction”), substantially on the terms set forth in the term sheet, attached hereto as Exhibit B, which term sheet and all exhibits, schedules and annexes thereto are expressly incorporated by reference herein and made a part of this Agreement as if fully set forth herein (as amended, supplemented or modified from time to time in accordance with this Agreement, the “A&R Transaction Term Sheet” and, together with the A&R Amendment Term Sheet, the “A&R Term Sheets”).
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NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound hereby, agrees as follows:
AGREEMENT
1.Commitment of the Partnership.
Subject to the Partnership’s fiduciary duties under applicable law and governing documents, as of the TSA Effective Date (as defined below), and for so long as the Termination Date (as defined below) has not occurred, the Partnership agrees to:
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support the Transaction, including the Amendment, as contemplated under this Agreement and the A&R Term Sheets; |
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implement and consummate the Transaction, including the Amendment, in a timely manner and take any and all commercially reasonable and appropriate actions in furtherance of the Transaction and the Amendment as contemplated under this Agreement and the A&R Term Sheets; |
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negotiate in good faith with the Consenting Lenders, Xxxxxx and the Xxxxx Group the Amendment and other definitive documents that are contemplated in the A&R Amendment Term Sheet and/or that are necessary or desirable for the consummation of the Amendment (collectively, the “Definitive Documents”), which shall contain provisions that are consistent with this Agreement, the A&R Term Sheets, and such other provisions as are agreed to by the Required Lenders (as that term is defined in the Credit Agreement), the Partnership, Xxxxxx and the Xxxxx Group (it being understood and agreed that any terms therefore contained in the A&R Amendment Term Sheet shall be deemed to be so acceptable); |
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duties to maximize value for the Partnership; provided that such definitive documents shall contain provisions that are consistent with the A&R Term Sheets and shall otherwise be reasonably satisfactory to the Required Lenders (as that term is defined in the Credit Agreement), Xxxxxx or the members of the Xxxxx Group who are parties to such documents, as applicable, to the extent such documents directly impact such Party; |
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obtain any and all required regulatory and third-party approvals for the Transaction, including the Amendment; |
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not directly or indirectly (i) seek, solicit, support, encourage, propose, assist, consent to, or participate in any discussions regarding the negotiation or formulation of any proposal, offer, dissolution, winding up, liquidation, reorganization, merger, consolidation, business combination, joint venture, partnership, sale of assets, or restructuring of the Partnership other than the Transaction (including the Amendment) (each, an “Alternative Proposal”), (ii) publicly announce its intention not to pursue the Transaction and/or the Amendment or (iii) take any other action that is inconsistent with, or that would reasonably be expected to prevent, interfere with or delay the proposal, solicitation, confirmation, or consummation of the Transaction and/or the Amendment; |
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take no actions inconsistent with this Agreement or the A&R Term Sheets; |
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at the request of any Consenting Lender, promptly deliver to such Lender a list of all Consenting Lenders and appropriate contact information for such Consenting Lenders; and |
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provide the Consenting Lenders, Xxxxxx, the Xxxxx Group or any of their professional advisors with reasonable access to management upon reasonable notice and keep the Consenting Lenders, Xxxxxx and the Xxxxx Group reasonably apprised of any material adverse developments regarding the Partnership’s business operations. |
2.Commitment of Consenting Lenders.
As of the TSA Effective Date, and for so long as the Termination Date has not occurred, each Consenting Lender (severally and not jointly) agrees to:
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support the Transaction, including the Amendment, as contemplated under this Agreement and the A&R Term Sheets; |
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implement and consummate the Transaction, including the Amendment, in a timely manner and take any and all commercially reasonable and appropriate actions in furtherance of the Transaction and the Amendment as contemplated under this Agreement and the A&R Term Sheets; provided, however, that such actions shall be limited to review and negotiation of the applicable Definitive Documents and execution of the same; |
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negotiate in good faith with (i) the Partnership and, as necessary, the other Transaction Parties the Amendment and the Definitive Documents (each of which shall be consistent in all material respects with this Agreement or the Amendment Term Sheet, as applicable, or otherwise in form and substance reasonably acceptable to the Partnership and the Required Lenders (as that term is defined in the Credit Agreement) (it being understood and agreed that any terms therefor contained in the A&R Term Sheets shall be deemed to be acceptable) and (ii) if required by any such Consenting Lender, any third parties and/or contract counterparties (in each case unaffiliated with the Consenting Lenders) as may be necessary or appropriate under the circumstances in furtherance of the Transaction; and |
provided that except as expressly provided herein, this Agreement and all communications and negotiations among the Transaction Parties with respect hereto or any of the transactions contemplated hereunder are without waiver or prejudice to such Parties’ rights and remedies and the Parties hereby expressly reserve all claims, defenses and positions that they may have with respect to each other; and provided further that, except as otherwise expressly set forth in this Agreement, the foregoing provisions will not limit the rights of any Party to appear and participate as a party in interest in any matter to be adjudicated in any case under the Bankruptcy Code (or otherwise) concerning the Partnership. For the avoidance of doubt, each Consenting Lender agrees to support the Transaction, including the Amendment, as set forth herein solely in its capacity as a Lender under the Credit Agreement and not in any other capacity, including as a provider of treasury services to the Partnership or a lender or contract counterparty under any of the Partnership’s other financing or contractual arrangements, and references to Debt Claims herein shall not be deemed to include claims arising in such other capacities.
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3.Commitment of Xxxxxx and the Xxxxx Group.
For so long as the Termination Date has not occurred, Xxxxxx and each member of the Xxxxx Group (severally and not jointly) agrees to:
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support the Transaction as contemplated under this Agreement and the A&R Term Sheets; |
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implement and consummate the Transaction in a timely manner and take any and all commercially reasonable and appropriate actions in furtherance of the Transaction as contemplated under this Agreement and the A&R Transaction Term Sheet; provided, however, that neither Xxxxxx nor any member of the Xxxxx Group is obligated to consummate any part of the Transaction (including the Exchange Offer and Tender Offer) unless and until all of the conditions to the effectiveness thereof set forth in the A&R Transaction Term Sheet and the Offering Memorandum that are for the benefit of such Party have been waived with the prior written consent of such Party or satisfied or will be satisfied or waived contemporaneously with the closing of the Transaction; |
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execute, enter into and take any other steps necessary to consummate the Sponsor Documents, and not exercise or seek to exercise any rights or remedies or assert or bring any claims under or with respect to the Sponsor Documents against the Partnership that is inconsistent with this Agreement or the A&R Term Sheets; |
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negotiate in good faith with (i) the Partnership and, as necessary, the other Transaction Parties the Definitive Documents to which such Party is a party and the Sponsor Documents to which such Party is a party (each of which shall be consistent in all material respects with this Agreement or the A&R Transaction Term Sheet, as applicable, or otherwise in form and substance reasonably acceptable to the Partnership, Xxxxxx and the Xxxxx Group (it being understood and agreed that any terms therefor contained in the A&R Term Sheets shall be deemed to be acceptable) and (ii) if required, any third parties and/or contract counterparties as may be necessary or appropriate under the circumstances in furtherance of the Transaction; and |
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not directly or indirectly (i) seek, solicit, support, propose, assist, encourage, consent to, or participate in any discussions regarding the negotiation or formulation of any Alternative Proposal, (ii) publicly announce its intention not to pursue the Transaction or (iii) take any other action that is inconsistent with, or that would reasonably be expected to prevent, interfere with or delay the proposal, solicitation, confirmation, or consummation of the Transaction; |
provided that anything in this Section 3 or elsewhere in this Agreement to the contrary notwithstanding, Xxxxx shall not be required to contribute any cash consideration or other instruments of value to the Transaction except as may be required pursuant to the Reserves Exchange (as defined in the A/R Transaction Term Sheet).
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4.Representations and Warranties.
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Representations and Warranties of Consenting Lenders. Each Consenting Lender identified on the signature pages hereto as a holder of Debt, represents and warrants on a several (but not joint) basis to the Partnership, Xxxxxx and the Xxxxx Group, that the following are true, correct, and complete as of the TSA Effective Date (or such later date on which a Consenting Lender becomes a party to this Agreement by executing and delivering a Joinder Agreement (as defined below)): |
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Organization; Authority. Such Consenting Lender, if an entity, is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation or incorporation. Such Consenting Lender has all requisite power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by, and perform its obligations under, this Agreement. |
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Binding Obligation. This Agreement constitutes the legally valid and binding obligation of such Consenting Lender, enforceable against it in accordance with its terms. |
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No Other Representations; No Reliance. Except for (a) the representations and warranties made by the Partnership in this Agreement, (b) the representations and warranties made in the Credit Agreement as of the date thereof (as such representations and warranties are modified or supplemented by that certain compliance certificate dated March 23, 2016), and (c) the good faith statements and representations made by the Partnership in materials posted to the Lenders in connection with negotiation of the Transaction and the Amendment, no party has made to such Consenting Lender any express or implied representation or warranty with respect to the Partnership or its subsidiaries or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects, and such Consenting Lender hereby disclaims any such other representations or warranties. Subject to the foregoing exceptions, such Consenting Lender is not relying upon any warranty or representation by, or information from, the Partnership of any sort, oral or written, except the warranties and representations expressly set forth in this Agreement. In particular, and without limiting the generality of the foregoing, such Consenting Lender acknowledges that no representation and warranty is made hereunder with respect to any financial projection. |
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Partnership to the terms of this Agreement as such terms relate to the Debt and, if applicable, such other interests and (B) has full power and authority to act on behalf of, vote, and consent to matters concerning such Debt and, if applicable, other interests in the Partnership as set forth on its signature page and to dispose of, exchange, assign, and transfer such Debt and, if applicable, such other interests in the Partnership, including the power and authority to execute and deliver this Agreement and to perform its obligations hereunder. |
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Indebtedness. As of July 22, 2016, the aggregate outstanding indebtedness (x) under the Credit Agreement is $656.8 million, comprised of $352.5 million of borrowings under the revolving credit facility, $297.8 million of principal amount of term loans, and $6.5 million in letters of credit, (y) under the Notes Indenture is $600 million, and (z) under the A/R Securitization is $13.4 million, and such amounts (together with accrued interest and fees thereon) are outstanding and justly and truly owing by the Borrower without defense, offset or counterclaim. |
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Financial Condition. The financial condition of the Partnership has not materially and adversely changed from that set forth in the Form 10-Q for the quarter ending on March 31, 2016. |
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Organization; Authority. The Partnership is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation. The Partnership has all requisite power and authority to, and all necessary action on such entity’s part has been taken to authorize it to, execute and deliver this Agreement and to carry out the transactions contemplated by, and perform its obligations under, this Agreement. |
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Binding Obligation. This Agreement is the legally valid and binding obligation of the Partnership and is enforceable against the Partnership in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. |
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Governmental Consents. Except as expressly provided in this Agreement, the execution, delivery, and performance by it of this Agreement do not and shall not require any registration or filing with, consent or approval of, or notice to, or other action to, with or by, any federal, state, or other governmental authority or regulatory body other than the Securities Exchange Commission. |
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Other Agreements. The management services agreement between the Partnership and Xxxxxx American Coal, Inc. is in full force and effect and no notice of breach or termination has been received by the Partnership, nor is the Partnership aware of any reason for any such notice. |
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Representations and Warranties of Xxxxxx and the Xxxxx Group. Xxxxxx and each member of the Xxxxx Group each represents and warrants on a several (but not joint) basis to the Partnership and each Consenting Lender that the following are true, correct, and complete as of the A&R Effective Date (as defined herein): |
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Organization; Authority. Xxxxxx and each member of the Xxxxx Group, if an entity, is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation or incorporation. Each of Xxxxxx and each member of the Xxxxx Group has all requisite power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by, and perform its obligations under, this Agreement. |
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Binding Obligation. This Agreement constitutes the legally valid and binding obligation of Xxxxxx and each member of the Xxxxx Group, enforceable against it in accordance with its terms. |
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No Other Representations; No Reliance. Except for the representations and warranties made by the Partnership in this Agreement, no party has made to Xxxxxx or the Xxxxx Group any express or implied representation or warranty with respect to the Partnership or its subsidiaries or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects, and such Party hereby disclaims any such other representations or warranties. Subject to the foregoing exceptions, each of Xxxxxx and each member of the Xxxxx Group is not relying upon any warranty or representation by, or information from, the Partnership of any sort, oral or written, except the warranties and representations expressly set forth in this Agreement. In particular, and without limiting the generality of the foregoing, each of Xxxxxx and each member of the Xxxxx Group acknowledges that no representation and warranty is made hereunder with respect to any financial projection. |
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terms of this Agreement as such terms relate to the Debt or such other interests and (B) has full power and authority to act on behalf of, vote, and consent to matters concerning such Debt or other interests in the Partnership as set forth on its signature page and to dispose of, exchange, assign, and transfer such Debt or such other interests in the Partnership, including the power and authority to execute and deliver this Agreement and to perform its obligations hereunder. |
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Governmental Consents. Except as expressly provided in this Agreement, the execution, delivery, and performance by Xxxxxx and each member of the Xxxxx Group of this Agreement do not and shall not require any registration or filing with, consent or approval of, or notice to, or other action to, with or by, any federal, state, or other governmental authority or regulatory body other than the Securities Exchange Commission. |
5.Covenants of the Parties.
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Subject to the terms and conditions hereof, as of the TSA Effective Date and for so long as the Termination Date has not occurred, and unless compliance is waived in writing by the Required Consenting Lenders (as defined herein), Xxxxxx and the Xxxxx Group, the Partnership agrees as follows: |
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it shall use its commercially reasonable efforts to (A) complete and satisfy the conditions necessary to consummate the Transaction, including the Amendment, as contemplated under this Agreement within the timeframes contemplated under Section 8 herein; and (B) take any and all necessary and appropriate actions in furtherance of the Transaction and the Amendment as contemplated under the A&R Term Sheets; |
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it shall cooperate fully with the Consenting Lenders, Xxxxxx, the Xxxxx Group and each of their respective advisors and shall promptly provide updates to such parties (and promptly respond to any written or oral requests) regarding (A) any potential bankruptcy proceeding to be commenced by the Partnership (including but not limited to issues related to valuation of the Partnership or its assets, asset disposition, bankruptcy-related costs and expenses and creditor recoveries); (B) any contingency planning or any other material actions to be taken by or agreements to be entered into by the Partnership; and (C) any discussions or negotiations regarding any of the foregoing; |
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subject to the Partnership’s fiduciary duties under applicable law and governing documents, it shall take no actions inconsistent with this Agreement or the A&R Term Sheets; and |
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Consenting Lenders, Xxxxxx and the Xxxxx Group of the receipt thereof, with such notice to include the material terms thereof, including the identity of the person, entity or group of persons or entities involved, and the Partnership shall not enter into any confidentiality agreement with party proposing an Alternative Proposal unless such party consents in advance to identifying and providing to the Consenting Lenders (under a reasonably acceptable confidentiality agreement) the information contemplated herein. |
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Subject to the terms and conditions hereof, as of the TSA Effective Date and for so long as the Termination Date has not occurred, and unless compliance is waived in writing by the Partnership, Xxxxxx, each member of the Xxxxx Group, and each Consenting Lender (severally and not jointly), each agrees as follows: |
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it/he shall use its/his commercially reasonable efforts to (A) support, complete, and satisfy the conditions necessary to consummate the Transaction and the Amendment as contemplated under this Agreement and the A&R Term Sheets within the timeframes contemplated under Section 8; (B) take any and all necessary and appropriate actions in furtherance of the Transaction and the Amendment as contemplated under the A&R Term Sheets; and (C) to the extent required by such Party, obtain, file, submit or register any and all required regulatory and/or third-party filings, approvals, registrations or notices that are necessary or advisable to implement and consummate the Transaction and the Amendment; provided, further, that neither Xxxxxx nor any member of the Xxxxx Group is obligated to consummate any part of the Transaction (including the Exchange Offer and Tender Offer) unless and until all of the conditions to the effectiveness thereof set forth in the A&R Transaction Term Sheet and the Offering Memorandum that are for the benefit of such Party have been waived with the prior written consent of such Party or satisfied or will be satisfied or waived contemporaneously with the closing of the Transaction; |
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it/he shall take no actions inconsistent with this Agreement or the A&R Term Sheets; and |
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it/he shall execute and deliver the Definitive Documents or Sponsor Documents, as applicable, to which it/he is to be a party, consummate the Transaction and/or Amendment contemplated thereby and perform its/his respective obligations thereunder. |
6.Transfer of Debt or Other Interests in the Partnership.
As of the TSA Effective Date and until and unless the Termination Date has occurred, no Consenting Lender shall assign or otherwise transfer (“Transfer”) any Debt Claims or other rights and obligations under the Credit Agreement (including all or a portion of its commitments and the loans at the time owing to it), and any purported Transfer shall be null and void and
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without effect, unless the transferee is a Party to this Agreement or has executed a Joinder Agreement, the form of which is attached hereto as Exhibit C, prior to the time any such Transfer is effective and delivered a copy thereof to the Partnership in accordance with the notice provisions set forth herein. Any Transfer that does not comply with the foregoing shall be deemed void ab initio and each Party hereto shall have the right to enforce the voiding of such Transfer. Any Consenting Lender that effectuates a Transfer in compliance with the terms hereof shall have no liability under this Agreement arising from or related to the failure of the transferee to comply with the terms of this Agreement. This Agreement shall in no way be construed to preclude any Consenting Lender from acquiring additional Debt or other claims against or interests in the Partnership; provided that any such additional Debt shall, upon acquisition, automatically be deemed to be subject to all the terms of this Agreement.
Notwithstanding anything to the contrary set forth in this Section 6, (i) the foregoing provisions shall not preclude any Consenting Lender from settling or delivering any Debt Claims to settle any confirmed transaction pending as of the date of such Consenting Lender’s entry into this Agreement (subject to compliance with applicable securities laws and it being understood that such Debt Claims so acquired and held shall be subject to the terms of this Agreement), (ii) a Qualified Marketmaker that acquires any Debt Claims from a Consenting Lender with the purpose and intent of acting as a Qualified Marketmaker for such Debt Claims shall not be required to execute and deliver to counsel a Joinder Agreement or otherwise agree to be bound by the terms and conditions set forth in this Agreement if such Qualified Marketmaker transfers such Debt Claims (by purchase, sale, assignment, participation, or otherwise) within five (5) business days of its acquisition to a Consenting Lender or permitted transferee and the Transfer otherwise is a permitted Transfer, including that such transferee delivers an executed Joinder Agreement to the Partnership no later than two (2) business days after consummation of the Transfer; and (iii) to the extent any Party is acting solely in its capacity as a Qualified Marketmaker, it may Transfer any ownership interests in the Debt Claims that it acquires from a Lender that is not or has not been a Consenting Lender to a transferee that is not a Consenting Lender at the time of such Transfer without the requirement that the transferee be or become a signatory to this Agreement or execute a Joinder Agreement.
As used herein, “Qualified Marketmaker” means an entity that (a) holds itself out to the public or the applicable private markets as standing ready in the ordinary course of business to purchase from customers and sell to customers claims against the Partnership (or enter with customers into long and short positions in claims against the Partnership), in its capacity as a dealer or market maker in claims against the Partnership and (b) is, in fact, regularly in the business of making a market in claims against issuers or borrowers (including debt securities or other debt).
On the effective date of the Amendment, Borrower shall pay an amendment fee (the “Amendment Fee”) to each Consenting Lender that has executed the Original Support Agreement and the Amendment in an aggregate amount equal to (i) 1.00% of such Consenting Lender’s Revolving Credit Commitment (as that term is defined in the Credit Agreement) after giving effect to the reduction of such commitment as contemplated in the A&R Amendment Term Sheet and, without duplication, (ii) 1.00% of all Revolving Loans, Term Loans, Swing
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Line Loans and L/C Obligations (as each term as defined in the Credit Agreement) owed to such Consenting Lender after giving effect to the modifications contemplated in the A&R Amendment Term Sheet; provided that the Consent Fee (as defined herein) shall be credited against the Amendment Fee.
8.Termination.
This Agreement shall terminate (a) at any time by the mutual written consent of the Partnership, the Required Consenting Lenders, Xxxxxx and the Xxxxx Group, (b) automatically upon the occurrence of the event set forth in (iv) hereof, unless waived or otherwise agreed to by the Required Consenting Lenders, Xxxxxx and the Xxxxx Group, (c) automatically upon the occurrence of the event set forth in (iii) hereof, unless waived or otherwise agreed to by Required Consenting Lenders constituting Required Lenders (as that term is defined in the Credit Agreement), Xxxxxx and the Xxxxx Group, (d) automatically upon the occurrence of any of the events set forth in (i), (ii), (v) or (xvii) hereof, unless cured, waived or otherwise agreed to by each Consenting Lender, (e) automatically, three (3) business days’ after the occurrence of any of the events set forth in (vi) – (x) hereof, unless cured, waived or otherwise agreed to by the Required Consenting Lenders, Xxxxxx and the Xxxxx Group, (f) by the Partnership or the Required Consenting Lenders, as applicable, upon three (3) business days’ written notice delivered in accordance herewith of the occurrence of an event set forth in (xi) – (xvi) hereof, unless subsequently cured, waived or otherwise agreed to by the Partnership or the Required Consenting Lenders, as applicable, and (g) by either Xxxxxx or the Xxxxx Group, as applicable, upon three (3) business days’ written notice delivered in accordance herewith of the occurrence of any of the events set forth in (xi) (only to the extent that the inconsistency in (xi) is in a manner that is adverse to Xxxxxx or any member of the Xxxxx Group specifically, as applicable), (xii), (xv) and (xvi) hereof, unless cured, waived or otherwise agreed by Xxxxxx or the Xxxxx Group, as applicable (each of the following events, a “Termination Event”):
Automatic Termination - Immediate.
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the Partnership consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Partnership or any substantial part of the property of the Partnership; |
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the Partnership commences a voluntary case filed under the Bankruptcy Code; |
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the Partnership fails to consummate the Transaction, including the Amendment, on or before August 31, 2016; |
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the Transaction is consummated on the effective date thereof; |
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the commencement of an involuntary case against the Partnership under the Bankruptcy Code (as defined below); |
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Automatic Termination – After Three Business Days.
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the Partnership receives written notice from the Administrative Agent of the occurrence of any Event of Default pursuant to section 8.01(a) of the Credit Agreement; |
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[Reserved]; |
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(x) the forbearance agreement dated January 27, 2016 (as amended, extended or otherwise modified from time to time, the “A/R Securitization Forbearance Agreement”) with certain lenders (the “Consenting A/R Lenders”) in respect of the A/R Securitization is terminated or is otherwise no longer in effect or (y) any other transaction support agreement or similar agreement entered into by the Partnership and any of the other Transaction Parties (other than the Lenders) in support of the Transaction terminates or is otherwise no longer in effect; |
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if by no later than August 1, 2016 the Partnership fails to (A) launch the Exchange Offer (as defined in the A&R Transaction Term Sheet) or (B) obtain amendments to each of the Noteholder Forbearance Agreement and the A/R Securitization Forbearance Agreement that extend any stated termination event set forth therein to a date not earlier than August 31, 2016; |
Termination Upon Three Business Days’ Notice.
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xi. |
any of the Sponsor Documents, the Definitive Documents or other documents in respect of the Transaction are inconsistent with the material terms and conditions set forth in the A&R Term Sheets or this Agreement in a manner that is adverse to the Consenting Lenders, Xxxxxx or any member of the Xxxxx Group that is party thereto, as applicable; |
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xiii. |
the forbearance agreement dated December 18, 2015 (as amended, extended or otherwise modified from time to time, the “Noteholder Forbearance Agreement”) with certain Noteholders in respect of the Notes Indenture is terminated or is otherwise no longer in effect; |
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xiv. |
the occurrence of any Event of Default under section 8.01 of the Credit Agreement after the TSA Effective Date based on events occurring after the |
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TSA Effective Date (but excluding section 8.01(a) thereof and any Event of Default in respect of financial covenants as set forth in section 7.11 thereof); |
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xv. |
any Party delivers written notice of termination following any court of competent jurisdiction or other competent governmental or regulatory authority issuing a final, nonappealable order making illegal or otherwise restricting, preventing, or prohibiting the Transaction in a material way that cannot be reasonably remedied by the Parties; provided, that in no case shall any Party be entitled to terminate this Agreement pursuant to this Section 8 (xv) if (A) such Party’s failure to comply with this Agreement was the primary reason that such order was entered or such restriction, prevention, or prohibition imposed or (B) such Party requested or commenced the action that led to such order; |
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xvi. |
Xxxxxx or any member of the Xxxxx Group (A) proposes or supports an Alternative Proposal, publicly announces its/his intention to pursue an Alternative Proposal, or otherwise breaches its obligations under Section 3(d) or (B) materially breaches any of its/his representations or warranties set forth in this Agreement or any of its/his covenants or other obligations under this Agreement (except to the extent any such breach is covered by any of the other Termination Events set forth in this Section 8); provided, that in no case shall any Party be entitled to terminate this Agreement pursuant to this Section 8(xvi) if such Party’s failure to comply with this Agreement was the primary reason for the occurrence of such Termination Event; and |
Outside Date.
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xvii. |
the Partnership fails to consummate the Transaction, including the Amendment, on or before November 4, 2016. |
The date on which the Agreement terminates shall be referred to as the “Termination Date” and the provisions of this Agreement and the A&R Term Sheets shall terminate on the Termination Date, except as otherwise provided in this Agreement, unless, prior to the Termination Date, the Termination Event is waived, amended or modified in writing on the terms set forth in this Section 8. The first paragraph of this Section 8 and clause (xvii) of this Section 8 shall not be amended without the consent of each Consenting Lender.
For the purposes of this Section 8, any right of the Xxxxx Group or its members to terminate this Agreement pursuant to any provision of this Section 8 is exercisable only by Reserves.
Upon the Termination Date, (i) this Agreement shall forthwith become void and of no further force or effect, (ii) each Party shall (except as otherwise expressly provided in this Agreement) be immediately be released from its commitments, obligations, undertakings, and agreements under or related to this Agreement, (iii) there shall be no liability or obligation on the part of any Party under this Agreement, and (iv) each Party shall have all the rights and remedies that it would have had and shall be entitled to take all actions that it would have been entitled to
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take had it not entered this Agreement; provided that in no event shall any such termination relieve a Party from (A) liability for its breach or non-performance of its obligations hereunder prior to the date of such termination and (B) obligations under this Agreement which by their terms expressly survive termination of the Agreement.
Notwithstanding the foregoing paragraph, immediately upon the occurrence of a Termination Event pursuant to Section 8(x) above, each Consenting Lender that has executed the Original Support Agreement and executes this Agreement shall have earned, and the Partnership shall pay, a fee in an aggregate amount equal to (i) 0.25% of such Consenting Lender’s Revolving Credit Commitment (as that term is defined in the Credit Agreement) after giving effect to the proposed reduction of such commitment as contemplated in the A&R Amendment Term Sheet and, without duplication, (ii) 0.25% of all Revolving Loans, Term Loans, Swing Line Loans and L/C Obligations (as each term as defined in the Credit Agreement) owed to such Consenting Lender after giving effect to the proposed modifications contemplated in the A&R Amendment Term Sheet. For the avoidance of doubt, any fees paid to a Consenting Lender pursuant to this paragraph shall not be credited against such Consenting Lender’s Amendment Fee.
It is understood and agreed by the Parties that money damages would be an insufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to seek specific performance and injunctive or other equitable relief, including attorneys’ fees and costs, as a remedy of any such breach without the necessity of proving the inadequacy of money damages as a remedy, in addition to any other remedy to which such non-breaching Party may be entitled at law or in equity; provided, however, that each Party agrees to waive any requirement for the securing or posting of a bond in connection with such remedy; and provided, further, that other than with respect to the remedy of specific performance, the liability of each Consenting Lender hereunder is subject to section 10.04 of the Credit Agreement.
10.Relationship Among Parties.
Notwithstanding anything herein to the contrary, the duties and obligations of the Parties under this Agreement shall be several and not joint. It is understood and agreed that any Consenting Lender may trade in the Debt Claims or other debt or equity securities of the Partnership without the consent of the Partnership, subject to applicable securities laws and Section 6 hereof. No Party hereto shall have any responsibility with respect to the Transfer of any of the Debt by any other entity by virtue of this Agreement. No prior history, pattern or practice of sharing confidences among or between the Parties shall in any way affect or negate this understanding and agreement. The Consenting Lenders hereby represent and warrant that they have no agreement, arrangement or understanding with respect to acting together for the purpose of acquiring, holding, voting or disposing of any equity securities of the Partnership and do not constitute a “group” within the meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as amended. No action taken by a Consenting Lender pursuant to this Agreement shall be deemed to constitute or to create a presumption by any of the Parties that the Consenting Lenders are in any way acting in concert or as such a “group”. For the avoidance of doubt, the execution of this Agreement by any Consenting Lender shall not create, or be deemed to create,
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any fiduciary or other duties (actual or implied) to any other Consenting Lender other than as expressly set forth in this Agreement.
11.Entire Agreement; Prior Negotiations.
This Agreement, including the A&R Term Sheets, constitutes the entire agreement of the Parties and supersedes all prior agreements (oral or written), negotiations, and documents reflecting such prior negotiations between and among the Parties (and their respective advisors), with respect to the subject matter hereof, except for any confidentiality agreements heretofore executed between or among any of the Parties, which shall continue in full force and effect.
In the event of any conflict among the terms and provisions of (i) either of the A&R Term Sheets and (ii) this Agreement, the terms and provisions of the applicable Term Sheet shall control. In the event of any conflict among the terms and provisions of (i) the A&R Amendment Term Sheet and (ii) the A&R Transaction Term Sheet, the terms and provisions of the A&R Amendment Term Sheet shall control. Notwithstanding the foregoing, nothing contained in this Section 12 shall affect, in any way, the requirements set forth herein for the amendment of this Agreement.
13.Survival.
Notwithstanding the termination of this Agreement pursuant to Section 8 hereof, the acknowledgements, agreements and obligations of the Parties in this Section 13 and Sections 10 and 23 hereof (and any defined terms used in any such Sections), and the proviso in the last paragraph of Section 8, shall survive such termination and shall continue in full force and effect in accordance with the terms hereof.
14.Amendments and Waivers.
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a. |
Except as otherwise provided herein, this Agreement (but not the A&R Term Sheets) may not be modified, amended, supplemented or waived without the prior written consent of the Partnership, the Required Consenting Lenders, Xxxxxx and the Xxxxx Group. As used in this Agreement, “Required Consenting Lenders” means the Consenting Lenders holding more than 50% in aggregate outstanding principal amount of the Debt Claims that are held by all Consenting Lenders (excluding any Consenting Lenders who may be affiliates of the Partnership) as of the date of determination. No course of dealing between or among the Parties shall be deemed effective to modify, amend, or discharge any part of this Agreement or any rights or obligations of any such Party or such holder under or by reason of this Agreement. In determining whether any consent or approval has been given or obtained by the Required Consenting Lenders, the Debt held by any Consenting Lenders that is, at the time of determination, in material breach of its covenants, obligations or representations under this Agreement shall be excluded from such determination. |
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c. |
No material amendment, modification or supplement to the A&R Transaction Term Sheet that is adverse to the Lenders shall be effective without the prior written consent of Consenting Lenders constituting “Required Lenders” as that term is defined in the Credit Agreement and as proscribed by section 10.01 of the Credit Agreement. |
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d. |
No material amendment, modification or supplement to the A&R Term Sheets that is adverse to Xxxxxx or the Xxxxx Group shall be effective without the prior written consent of such Party. |
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e. |
For the purposes of this Section 14, any right of the Xxxxx Group or its members to waive or amend any provision of this Agreement pursuant to any provision of this Section 14 is exercisable only by Reserves. |
15.Independent Analysis.
Each Consenting Lender, Xxxxxx and each member of the Xxxxx Group hereby confirms that it has made its own decision to execute this Agreement based upon its own independent assessment of documents and information available to it, as it deemed appropriate.
16.Cooperation; Further Assurances.
The Parties shall cooperate with each other in good faith and shall coordinate their activities with each other (to the extent practicable and subject to the terms hereof) in respect of (a) all matters concerning the drafting and execution of the Definitive Documents and the implementation of the Transaction and the Amendment, and (b) the pursuit and support of the Transaction and the Amendment. The Parties agree to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be reasonably appropriate or necessary, from time to time, to effectuate the agreements and understandings of the Parties, whether the same occurs before or after the date of this Agreement.
17.GOVERNING LAW. 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 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.
18.WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
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PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19.Consent to Jurisdiction.
Each of the Parties hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of (a) the Delaware Court of Chancery (and any state appellate court therefrom within the State of Delaware), the United States District Court for the District of Delaware and any appellate court from any thereof or, if either such court declines to accept jurisdiction over a particular matter, any other state or federal court in Delaware generally, or (b) the United States District Court for the Southern District of New York and any appellate court from any thereof or, if either such court declines to accept jurisdiction over a particular matter, any other state or federal court in New York generally, in any action or proceeding arising out of or relating to this Agreement or the Credit Agreement, or for recognition or enforcement of any judgment arising therefrom, and further irrevocably and unconditionally agrees that all claims arising out of or relating to this Agreement or the Credit Agreement brought by them shall be brought, and shall be heard and determined, exclusively in the aforementioned Delaware or New York courts. Each Party irrevocably waives any objection as to venue or inconvenient forum. Each Party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20.A&R Effective Date; Conditions to Effectiveness.
This Agreement shall become effective and binding upon each of the Parties at 12:01 a.m. prevailing Eastern Time on the date on which all of the following conditions are satisfied (the “A&R Effective Date”):
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a. |
the Consenting Lenders, Xxxxxx and the Xxxxx Group shall have received duly executed signature pages for this Agreement signed by the Partnership; |
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b. |
the Partnership shall have received duly executed signature pages for this Agreement from (i) Consenting Lenders constituting “Required Lenders” and “Required Revolving Lenders”, as each of those terms is defined in the Credit Agreement, (ii) Xxxxxx, and (iii) each member of the Xxxxx Group; |
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c. |
payment of a consent fee to each Consenting Lender that executes this Agreement in an aggregate amount equal to (i) 0.25% of such Consenting Lender’s Revolving Credit Commitment (as that term is defined in the Credit Agreement) after giving effect to the proposed reduction of such commitment as contemplated in the A&R Amendment Term Sheet and, without duplication, (ii) 0.25% of all Revolving Loans, Term Loans, Swing Line Loans and L/C Obligations (as each term as defined in the Credit Agreement) owed to such Consenting Lender after giving effect to the proposed modifications contemplated in the A&R Amendment Term Sheet (the “Consent Fee”); |
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d. |
each of the representations and warranties made by the Partnership in Section 4 hereof or elsewhere in this Agreement shall be true and correct as of the A&R Effective Date; and |
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e. |
the Noteholder Support Agreement, the Noteholder Forbearance Agreement and the A/R Securitization Forbearance Agreement shall be in full force and effect. |
Upon the A&R Effective Date, the A&R Term Sheets shall be deemed effective for the purposes of this Agreement, and thereafter the terms and conditions therein may only be amended, modified, waived, or otherwise supplemented as set forth in Section 14.
21.No Solicitation.
Notwithstanding anything to the contrary, this Agreement is not and shall not be deemed to be an offer for the issuance, purchase, sale, exchange, hypothecation, or other transfer of securities or a solicitation of an offer to purchase or otherwise acquire securities for purposes of the Securities Act and the Securities Exchange Act.
22.Third-Party Beneficiary.
The terms and provisions of this Agreement are intended solely for the benefit of the Parties hereto and their respective successors and permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person.
23.Successors and Assigns; Severability.
Except as otherwise provided in this Agreement, this Agreement is intended to bind and inure to the benefit of each of the Parties and each of their respective successors, assigns, heirs, executors, administrators and representatives. If any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision hereof and this Agreement shall continue in full force and effect, provided, however, that nothing in this Section 23 shall be deemed to amend, supplement or otherwise modify, or constitute a waiver of, any Termination Event.
24.Counterparts.
This Agreement 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. Execution copies of this Agreement 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 Agreement.
25.Headings.
The section headings of this Agreement are for convenience of reference only and shall not, for any purpose, be deemed a part of this Agreement.
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26.No Waiver of Participation and Preservation of Rights.
Except as provided in this Agreement, nothing herein is intended to, does, or shall be deemed in any manner to waive, limit, impair, or restrict the ability of each of the Lenders to (i) protect and preserve its rights, remedies, and interests, including, but not limited to, its claims against any other Party and any liens or security interests it may have in any assets of the Partnership, (ii) purchase, sell or enter into any transactions in connection with the Debt, subject to the restrictions provided for herein in respect of such Transfers, (iii) enforce any right under the Credit Agreement, subject to the terms hereof, (iv) consult with other Consenting Lenders, the Partnership or any other Transaction Party, or (v) enforce any right, remedy, condition, consent or approval requirement under this Agreement or in any of the Definitive Documents. Without limiting the foregoing sentence in any way, if this Agreement is terminated in accordance with its terms for any reason (other than consummation of the Transaction), the Parties each fully and expressly reserve any and all of their respective rights, remedies, claims, defenses and interests, subject to Sections 8 and 9 in the case of any claim for breach of this Agreement arising prior to termination.
27.Consideration.
The Parties hereby acknowledge that no consideration, other than that specifically described herein and in the Term Sheet and the Definitive Documents shall be due or paid to any Party for its agreement to support the Transaction in accordance with the terms and conditions of this Agreement.
28.Interpretation.
This Agreement is the product of negotiations among the Parties, and the enforcement or interpretation of this Agreement is to be interpreted in a neutral manner. Any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement or any portion of this Agreement, shall not be effective in regard to the interpretation of this Agreement.
29.Several, Not Joint, Claims.
The agreements, representations, warranties and obligations of the Parties to this Agreement are, in all respects, several and not joint.
30.Notices.
All notices, requests, demands, document deliveries and other communications hereunder shall be deemed given if in writing and delivered, if sent by email, facsimile, courier or by registered or certified mail (return receipt requested) to the following addresses, email addresses and facsimile numbers (or at such other addresses, email addresses or facsimile numbers as shall be specified by like notice):
If to the Partnership, to counsel at the following address:
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000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, General Counsel
Email: xxxxxx.xxxxxx@xxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Xxxxx Xxxxxxx Xxxxx and Xxxxxx Xxxxxxxx
Email: xxxxxxxx@xxxxxxxxx.xxx, xxxxxx@xxxxxxxxx.xxx, xxxxxxxxx@xxxxxxxxx.xxx
If to any Consenting Lender, to the address set forth on its signature page.
If to Xxxxxx, to counsel at the following address:
Xxxxxx Energy Corp.
00000 Xxxxxxxx Xxxx
Xx. Xxxxxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. XxXxxx
Email: xxxxxxx@xxxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxxx Xxxxxx
Email: xxxxxxx@xxxxxxxx.xxx
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If to Xxxxx, to the following address:
Xxxxxxx X. Xxxxx
000 Xxxxxx Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx, XX 00000
Email: xxxxxxxxxxxxx@xxxxx.xxx
with a copy (not constituting notice) to:
Xxxxx & Xxxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxx XxXxxx
Fax (000) 000-0000
Email: xxxxxxx@xxxxxxxx.xxx
If to any member of the Xxxxx Group (other than Xxxxx), to the following address:
Xxxxx Group
c/o Foresight Reserves, LP
0000 XXX Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Email: xxxxxxx@xxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Foresight Reserves, LP
0000 XXX Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Email: xxxxxxxx@xxxxxxxx.xxx
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers or other agents, solely in their respective capacity as officers or other agents of the undersigned and not in any other capacity, as of the date first set forth above.
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FORESIGHT ENERGY LLC |
[Signature page to A&R Transaction Support Agreement]
GUARANTORS:
FORESIGHT ENERGY FINANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
FORESIGHT ENERGY SERVICES LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
FORESIGHT COAL SALES LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
FORESIGHT SUPPLY COMPANY LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
HILLSBORO ENERGY LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
MACOUPIN ENERGY LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
[signature page to A&R Transaction Support Agreement]
OENEUS LLC D/B/A SAVATRAN LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
SUGAR CAMP ENERGY, LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
XXXXXXXXXX ENERGY, LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
AMERICAN CENTURY MINERALS LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
AMERICAN CENTURY TRANSPORT LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
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FORESIGHT ENERGY LP |
[Signature page to A&R Transaction Support Agreement]
AGREED BY EACH OF THE
FOLLOWING PARTIES:
XXXXXX ENERGY CORP.
Authorized Signatory:
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: EVP, COO & CFO
Aggregate FELP Units held:
FORESIGHT RESERVES LP
Authorized Signatory:
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
Aggregate FELP Units held:
XXXXXXXXXXX XXXXX
By: /s/ Xxxxxxxxxxx Xxxxx
Name: Xxxxxxxxxxx Xxxxx
Title:
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
[Signature page to A&R Transaction Support Agreement]
XXXXX RESOURCES AND DEVELOPMENT COMPANY
Authorized Signatory:
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Authorized Person
Aggregate FELP Units held:
XXXXXXX X. XXXXX
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title:
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
XXXXXX LLC
Authorized Signatory:
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Manager
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
[Signature page to A&R Transaction Support Agreement]
Authorized Signatory:
By: /s/ Xxxxxx Xxxxxxx ____
Name: Xxxxxx Xxxxxxx
Title: Manager
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
FOREST XXXX INVESTMENTS LLC
Authorized Signatory:
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Manager
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
XXXX X. XXXXX 2004 IRREVOCABLE TRUST
Authorized Signatory:
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
[Signature page to A&R Transaction Support Agreement]
XXXXXXX XXXXX 2004 IRREVOCABLE TRUST
Authorized Signatory:
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
XXXXXXXXXXX X. XXXXX 2004 IRREVOCABLE TRUST
Authorized Signatory:
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
XXXXXXX X. XXXXX 2004 IRREVOCABLE TRUST
Authorized Signatory:
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
Aggregate FELP Units held:
Aggregate Principal Amount of Notes under the Notes Indenture:
[Signature page to A&R Transaction Support Agreement]
AGREED BY EACH OF THE
FOLLOWING PARTIES:
[_________________]
Authorized Signatory:
By:_________________________________
Name:
Title:
Aggregate Principal Amount of Debt under the Credit Agreement: $_______________________
Name and Address of Contact for Notices:
Name:
Address:
Facsimile:
Email:
[Signature page to A&R Transaction Support Agreement]
A&R Amendment Term Sheet
EXECUTION VERSION
EXHIBIT A TO A&R LENDER SUPPORT AGREEMENT
SCHEDULE 6 OF EXHIBIT A TO A&R NOTES SUPPORT AGREEMENT
Foresight Energy LLC
Third Amended and Restated Credit Agreement
Summary of Principal Terms and Conditions
Set forth below is a summary of the principal terms and conditions for the amendment and restatement of the Second Amended and Restated Credit Agreement dated as of August 23, 2013 among Foresight Energy LLC, the letter of credit issuing banks party thereto, the lenders party thereto and Citibank, N.A., as administrative agent and collateral agent (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”). This summary does not purport to summarize all the terms, conditions, representations and other provisions with respect to the amendment and restatement of the Existing Credit Agreement, which, to the extent not specified herein, will be set forth in the Third Amended and Restated Credit Agreement and include additional corrections and modifications to reflect the operational and strategic requirements of the Borrower and its subsidiaries, as may be mutually agreed by the parties, and to include LSTA contractual bail-in language. Any capitalized terms used herein and not otherwise defined shall have the meanings give such terms in the Existing Credit Agreement.
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Borrower: |
Foresight Energy LLC, a Delaware limited liability company (the “Borrower”). |
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Agent: |
Citibank, N.A., as administrative agent and collateral agent for the Senior Facilities (in such capacities, the “Agent”). |
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Senior Facilities: |
(A) Senior secured term loans in an aggregate outstanding principal amount of $297.8 million (the “Term Facility” and the loans thereunder, the “Term Loans”), subject to any reductions prior to the Effective Date (as defined below) as a result of prepayments by the Borrower (including any amortization payments). |
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(B) A senior secured revolving credit facility in an aggregate principal amount of $475 million (reflecting a decrease of $75 million from the Existing Credit Agreement on the Effective Date (the “Revolving Facility Reduction”)) (together with the swingline facility referred to below, the “Revolving Facility” and, together with the Term Facility, the “Senior Facilities”), under which the Borrower may borrow loans from time to time (the “Revolving Loans”). |
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NY 76190361v2
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Same as Existing Credit Agreement (i.e., (i) the Term Facility will mature on August 23, 2020, and will amortize in equal quarterly installments in an amount equal to 0.25% of the original aggregate principal amount of the Term Loans on August 23, 2013, with the balance payable on the maturity date of the Term Facility; and (ii) the Revolving Facility will mature and the commitments thereunder will terminate on August 23, 2018), except that (x) the Revolving Facility will be subject to the mandatory commitment reduction and (y) the Term Loans will have the benefit of the Excess Cash Flow Sweep, in each case as described below under “Mandatory Prepayments and Commitment Reductions”. |
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Guarantees and Collateral: |
Same as Existing Credit Agreement. For the avoidance of doubt, the Collateral will be subject to second priority Liens securing the Exchangeable Notes and the Second Lien Notes and any Refinancing Indebtedness in respect thereof, which junior Liens shall be subject to a customary silent second intercreditor agreement (the “Second Lien Intercreditor Agreement”), materially consistent with the term sheet attached as Schedule 1. |
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4
5
6
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Negative Covenants:
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Same as Existing Credit Agreement, except: (i) the Indebtedness covenant shall be modified to (A) permit the incurrence of (1) up to $300 million aggregate principal amount of second lien senior exchangeable Notes maturing no later than September 30, 2017 and with an interest rate not in excess of 15% per annum, payable in kind (the “Exchangeable Notes”), plus additional principal amounts resulting from any Refinancing Indebtedness in respect thereof, provided, that any such Refinancing Indebtedness (i) shall have a maturity date no earlier than 91 days after the maturity date of the Second Lien Notes, (ii) shall not require payment of interest in cash, and (iii) may only be secured by a lien junior in right of priority to the lien securing the Second Lien Notes, and (2) up to $300 million aggregate principal amount of second lien senior secured notes due August 2021 with an interest rate per annum not in excess of (i) 9% per annum in cash for the first two years and 10% per annum in cash thereafter, plus (ii) 1% per annum payable in kind (the “Second Lien Notes”), plus, in each case, additional principal amounts resulting from the capitalization of accrued and unpaid interest on the Senior Notes at the Effective Date, any paid in kind interest after the Effective Date and any Refinancing Indebtedness in respect thereof, provided that any lien securing such Refinancing indebtedness shall be junior in right of priority to the lien securing the Facilities, (B) correct the cross-reference in clause (l) thereof to refer to Section 7.01(c) of the Credit Agreement and (C) add the following sentence: “The accrual of interest or preferred stock dividends, the accretion or amortization of original issue discount, the payment of interest on any indebtedness in the form of additional indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles and the payment of dividends on preferred stock or Disqualified Equity Interests in the form of additional shares of the same class of preferred stock or Disqualified Equity Interests will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Equity Interests for purposes of this Section 7.02.”; (ii) the Lien covenant shall be modified to permit junior priority Liens on the Collateral to secure the obligations under the Exchangeable Notes and the Second Lien Notes and any Refinancing Indebtedness in respect thereof, which Liens shall be subject to the Second Lien Intercreditor Agreement; (iii) the Restricted Payment covenant shall be modified to (A) prohibit any Restricted Payments by the Borrower during fiscal year 2016, (B) prohibit Restricted Payments (other than permitted Tax Distributions and TRA Distributions described in clause (C) below) from January 1, 2017 until the later to occur of (x) June 30, 2018 and (y) the refinancing of the Revolving Facility and (C) permit Tax Distributions and TRA Distributions by the Borrower during fiscal years 2017 and 2018 and thereafter, provided that Tax Distributions related to cancellation of debt income shall be capped at $15 million per fiscal year; provided, further, that in each case such provisions shall be subject to customary exceptions to permit payments of expenses of the MLP and the General Partner, payments under the MSA and other customary exceptions to be agreed; (iv) the debt prepayment covenant shall be modified to expressly permit (A) the prepayment or redemption of the Exchangeable Notes in connection with the exercise by Xxxxxx Energy Holdings Co., a Delaware corporation, and/or its subsidiaries of the option to purchase 46% of the equity interests of Foresight Energy GP LLC (the “Xxxxxx Option”); provided that such prepayment or redemption may only be consummated with the proceeds of (i) an equity issuance, (ii) a capital contribution or (iii) an incurrence of indebtedness that is unsecured or ranks junior to the Second Lien Notes, does not have any cash interest payments and matures later than the Second Lien Notes, (B) any redemption in respect of any Senior Notes not participating in the exchange offer and permit the satisfaction and discharge of the indenture governing the Senior Notes, (C) the conversion of the Exchangeable Notes into Equity Interests of Foresight Energy LP in accordance with their terms and (D) any permitted refinancing of Indebtedness with Refinancing Indebtedness or the proceeds of Qualified Equity Interests; and (v) the transactions with Affiliates covenant will be modified to permit the transactions to occur concurrently with the effectiveness of the Credit Agreement on the Effective Date. |
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An anti-hoarding provision prohibiting borrowings of Revolving Loans (but not the issuance of letters of credit) under the Revolving Facility if unrestricted cash of the Borrower exceeds $35 million will be added to the Credit Agreement and apply so long as any Revolving Loans are outstanding. |
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7
8
9
10
Applicable Rate
The first clause of the definition of Applicable Rate in Section 1.01 of the Credit Agreement (prior to the proviso therein) will be amended and restated as follows:
“Applicable Rate” means (a) in the case of Term Loans, (i) 5.50% per annum for Eurocurrency Rate Loans and (ii) 4.50% per annum for Base Rate Loans and (b) in the case of the Revolving Loans and Swing Line Loans, the applicable percentage per annum set forth below determined by reference to the Consolidated Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):
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Applicable Rate for Revolving Loan and Swing Line Loans |
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Consolidated Net |
Eurocurrency Rate Loans and Letters of Credit |
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I |
< 2.50 to 1.00 |
3.50% |
2.50% |
0.50% |
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II |
≥2.50 : 1.00 but < 3.00 : 1.00 |
3.75% |
2.75% |
0.50% |
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III |
≥3.00 : 1.00 but < 4.00 : 1.00 |
4.00% |
3.00% |
0.50% |
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IV |
≥4.00 : 1.00 but < 5.00 : 1.00 |
4.25% |
3.25% |
0.50% |
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V |
≥5.00 : 1.00 |
4.50% |
3.50% |
0.50% |
provided that (a) the Applicable Rate will be determined as of the last day of the immediately preceding fiscal quarter, (b) the Applicable Rate determined for any Adjustment Date (including the first Adjustment Date) shall remain in effect until a subsequent Adjustment Date for which the Consolidated Net Leverage Ratio falls within a different level, and (c) if the financial statements and related Compliance Certificate for any fiscal period are not delivered by the date due pursuant to Sections 6.01 and 6.02, the Applicable Rate shall be set at Level V until the date of delivery of such financial statements and Compliance Certificate, after which the Applicable Rate shall be based on the Consolidated Net Leverage Ratio set forth in such Compliance Certificate.
NY 76190361v2
Intercreditor Agreement Term Sheet1
Reference is made to (i) that certain Credit Agreement, dated as of August 12, 2010, amended and restated on December 15, 2011 and August 23, 2013, and amended by Incremental Amendment No. 1 dated as of May 27, 2015, and as further amended, amended and restated, modified or supplemented in connection with the Restructuring (as defined below) and from time to time (the “First Lien Credit Agreement”), between Foresight Energy LLC (the “Borrower”) and certain other parties; and (ii) (A) certain second lien senior exchangeable notes (the “Second Lien Exchangeable Notes”) to be issued by [_______] (the “Issuer”), and (B) certain second lien senior secured notes (the “Second Lien Secured Notes” and, together with the Second Lien Exchangeable Notes, the “Second Lien Notes”) to be issued by the Issuer, all of which Second Lien Notes will be guaranteed by, among others, the Borrower and secured by a junior lien on the Collateral (as defined below).
“Restructuring” means the transactions related to the restructuring of outstanding indebtedness of the Borrower and its affiliates arising as a result of the occurrence of certain events of default thereunder, including, without limitation, indebtedness outstanding under the First Lien Credit Agreement and under the Senior Notes (as defined in the First Lien Credit Agreement). For purposes of this Amended and Restated Term Sheet, the Facilities (as defined in the First Lien Credit Agreement) under the First Lien Credit Agreement (and the facilities provided in any refinancings, substitutions, extensions or replacements thereof) are herein referred to collectively as the “First Lien Credit Facility” and the First Lien Credit Facility together with the Second Lien Notes (and any refinancings, substitutions, extensions or replacements thereof) are referred to herein individually as a “Debt Facility” and collectively as the “Debt Facilities”. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the First Lien Credit Agreement as in effect as of the date hereof.
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1 |
The Second Lien Notes (and any Refinancing Indebtedness thereof) shall be subject to a customary silent second intercreditor agreement, however, all such terms set forth in this Schedule 1 in respect thereof are subject to ongoing negotiation between the Consenting Secured Lenders and the Required Consenting Noteholders; all of such terms shall be acceptable to such parties. |
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First Lien Obligations: |
All obligations of every nature of each Loan Party from time to time owed to the First Lien Claimholders under the applicable secured documents, whether for principal, interest, breakage costs, fees, expenses, premium (if any), payments of early termination of or ordinary course settlement payments under interest rate protection agreements and commodity hedge agreements, indemnification payments, letter of credit reimbursement obligations, and all guarantees of the foregoing.
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The agents, trustees and note holders of the Second Lien Notes (and any refinancings, substitutions, extensions or replacements thereof) (the “Second Lien Noteholders”) and the Second Lien Collateral Agent. The First Lien Claimholders and the Second Lien Claimholders are the “Secured Parties”.
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Second Lien Obligations: |
All obligations of every nature of each Loan Party from time to time owed to the Second Lien Claimholders under the applicable secured documents, whether for principal, interest, breakage costs, fees, expenses, premium (if any), indemnification payments, and all guarantees of the foregoing.
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Collateral: |
The First Lien Obligations and the Second Lien Obligations shall be secured by liens on the same Collateral (other than Excluded Collateral (as defined below)). No Loan Party shall grant any liens on any asset or property to secure obligations under either Debt Facility unless it has granted a lien on such asset or property to secure the other Debt Facility. The Collateral will consist of the following, collectively:
(i)the “Collateral” (as such term is defined in the First Lien Credit Agreement) (the “Credit Facility Collateral”); and (ii)all other existing and future assets and property, and all proceeds thereof, of each Loan Party (other than Excluded Assets (as defined in the Security Agreement referred to in the First Lien Credit Agreement) and real property that is not Material Owned Real Property or Material Leased Real Property (as defined in the First Lien Credit Agreement) (the “Additional Collateral”). |
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Excluded Collateral: |
Notwithstanding anything to the contrary herein, certain accounts (e.g., cash collateral accounts for the benefit of issuing banks) maintained pursuant to the credit documents for the benefit of the First Lien Lender Parties shall solely be for the benefit of the applicable First Lien Lender Parties (“Excluded Collateral”).
Additionally, no First Lien Claimholder or Second Lien Claimholder shall be required to share any amounts received or deemed received by it in respect of any First Lien Obligation or Second Lien Obligation owed to it from separate insurance, credit default swap protection or other protection against loss arranged by such First Lien Claimholder or Second Lien Claimholder (as applicable) for its own account in respect of any such First Lien Obligation or Second Lien Obligation (which amounts shall be for the sole benefit of such First Lien Claimholder or Second Lien Claimholder (as applicable)).
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The Secured Parties’ rights with respect to the Collateral shall be subject only to other liens permitted to exist on the Collateral under the First Lien Credit Agreement.
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Lien Subordination: |
The liens securing the Second Lien Obligations (the “Second Priority Liens”) shall be expressly junior and subordinated in all respects to the liens securing the First Lien Obligations (the “First Priority Liens”), irrespective of the time, order or method of creation, attachment or perfection of such Second Priority Liens or First Priority Liens or any failure, defect or deficiency or alleged failure, defect or deficiency in any of the foregoing.
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Limitations on Enforcement: |
Until the First Lien Obligations have been paid in full in cash:
(i) The Second Lien Claimholders shall not (nor shall they instruct the Second Lien Collateral Agent to) exercise or seek to exercise any rights, power or remedies (including setoff) with respect to, or take any action in respect of, any of the Collateral and shall not (nor shall they instruct the Second Lien Collateral Agent to) institute any action or proceeding (whether judicial or non-judicial) with respect to such rights, powers or remedies.
(ii) None of the Second Lien Claimholders will take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Collateral in contravention of the aforementioned lien priority.
(iii) The Second Lien Claimholders shall recognize the rights of the First Lien Claimholders under the Intercreditor Agreement, including, without limitation, the right of the First Lien Claimholders to vote the claim represented by the Second Lien Obligations to the extent necessary to enforce the Intercreditor Agreement.
At all times prior to the payment in full in cash of the First Lien Obligations, the First Lien Claimholders shall control (as described under the caption “Voting” below) all decisions related to the exercise of remedies in respect of the Collateral (subject to the terms of the First Lien Credit Agreement and the collateral documents entered into to secure the First Lien Obligations (the “First Lien Collateral Documents”) and any amendments and waivers thereunder (subject to customary provisions requiring consent of the First Lien Claimholders and the Second Lien Claimholders)). The First Lien Collateral Agent shall have the right to initiate a vote of the First Lien Claimholders with respect to the exercise of remedies.
No Secured Party will oppose or otherwise contest any lawful exercise by the First Lien Collateral Agent of the right to credit bid the secured obligations at any sale in foreclosure of the liens granted to the First Lien Collateral Agent, for the benefit of the Secured Parties so long as such bid is approved separately by the requisite First Lien Claimholders.
The terms of the Intercreditor Agreement shall govern even if part or all of the First Lien Obligations or Second Lien Obligations or the liens securing payment and performance thereof are not perfected or are avoided, disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise.
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Governing Law; Jurisdiction: |
The State of New York.
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A&R Transaction Term Sheet
EXECUTION VERSION
EXHIBIT A TO A&R NOTES SUPPORT AGREEMENT
EXHIBIT B TO A&R LENDER SUPPORT AGREEMENT
AMENDED AND RESTATED TERM SHEET FOR PROPOSED TRANSACTION
This amended and restated term sheet (including all exhibits, schedules and annexes hereto, as amended, supplemented or otherwise modified from time to time in accordance with the terms of the Amended and Restated Notes Support Agreement (as defined below), this “Amended and Restated Term Sheet”) sets forth certain of the principal terms of a proposed global restructuring of the indebtedness and other obligations of, and certain equity and governance matters relating to, (a) Foresight Energy GP LLC, a Delaware limited liability company (“FEGP”), and (b) Foresight Energy LP, a Delaware limited partnership (“FELP”), Foresight Energy LLC, a Delaware limited liability company (“FELLC”), and their respective subsidiaries (collectively, the “Partnership”) and certain related agreements among Reserves (as defined below), Xxxxxx (as defined below) and certain of their respective affiliates. Such global restructuring, as contemplated by this Amended and Restated Term Sheet, is referred to herein as the “Transaction”.
Capitalized terms used herein without definitions shall have the meanings given to such terms in the Amended and Restated Transaction Support Agreement, dated as of July 22, 2016 (the “Restatement Date”), to which this Amended and Restated Term Sheet is attached as Exhibit A (as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Amended and Restated Notes Support Agreement”).
The Transaction contemplates, among other things: (i) an exchange of the Senior Notes (as defined herein); (ii) amendments and waivers to the Credit Agreement and the Securitization Facility (each as defined herein); (iii) amendments to various corporate governance agreements and related contracts; (iv) the granting of certain releases by and among certain Transaction Parties (as defined below) and (v) related agreements among Reserves, Xxxxxx and certain of their respective affiliates, in each case, on the terms and subject to the conditions set forth in this Amended and Restated Term Sheet and the Amended and Restated Notes Support Agreement. The date on which the Transaction is consummated is called the “Effective Date”.
This Amended and Restated Term Sheet does not include a description of all of the terms, conditions and other provisions that are to be contained in the definitive documentation executed, delivered, filed and/or distributed in connection with the Transaction, all of which remain subject to discussion and negotiation among the Transaction Parties.
THIS AMENDED AND RESTATED TERM SHEET IS NOT AN OFFER OR THE SOLICITATION OF AN OFFER WITH RESPECT TO ANY SECURITIES. ANY SUCH OFFER WILL ONLY BE MADE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS.
THIS AMENDED AND RESTATED TERM SHEET IS BEING PROVIDED AS PART OF A COMPREHENSIVE COMPROMISE AND SETTLEMENT, EACH ELEMENT OF WHICH IS CONSIDERATION FOR THE OTHER ELEMENTS AND AN INTEGRAL ASPECT OF THE PROPOSED TRANSACTION. THIS AMENDED AND RESTATED TERM SHEET IS CONFIDENTIAL AND SUBJECT TO FEDERAL RULE OF EVIDENCE 408. NOTHING IN THIS AMENDED AND RESTATED TERM SHEET SHALL CONSTITUTE OR BE CONSTRUED AS AN ADMISSION OF ANY fact or liability, a stipulation or a waiver, AND EACH statement CONTAINED HEREIN IS MADE without prejudice solely for settlement purposes, with a full reservation as to any rights, remedies or defenses of the PARTNERSHIP AND ALL OTHER TRANSACTION PARTIES.
1
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SUMMARY OF CERTAIN ECONOMIC AND OTHER
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Parties in Interest: |
The Transaction is contemplated by and among: (a)FELP, FELLC, and their respective subsidiaries; (b)Xxxxxx Energy Corp., an Ohio corporation (“Xxxxxx”), Xxxxxxxxxxx Xxxxx, an individual (“Xxxxx”), and Xxxxx Resources and Development Company, a West Virginia corporation (“Development” and, together with Xxxxxx and Xxxxx, the “Significant Equityholders”), and certain investors in, and affiliates and principals of, the Significant Equityholders; (c)FEGP; (d)lenders under the Credit Agreement who hold commitments, loans or other credit extensions under the Credit Agreement in a sufficient amount or percentage to effectuate the amendments and waivers to the Credit Agreement contemplated herein (the “Consenting Secured Lenders”); (e)PNC Bank, National Association, as administrative agent (the “Securitization Agent”) under the Securitization Facility, and lenders under the Securitization Facility who hold commitments, loans or other credit extensions under the Securitization Facility in a sufficient amount or percentage to effectuate the amendments and waivers to the Securitization Facility contemplated herein; (f)the Indenture Trustee (as defined below), the holders of the Senior Notes that are affiliates of the Partnership, and holders of the Senior Notes holding at least 98% of the aggregate principal amount of outstanding Senior Notes not held by affiliates of the Partnership; and (g)the members of FEGP, in their capacities as such, which consist of: (i) Foresight Reserves LP, a Nevada limited partnership (“Reserves”), (ii) Xxxxxx and (iii) Xxxxxxx Xxxxx, an individual (“Xxxxx,” and such members, collectively, the “Members”). The persons and entities described in clauses (a) through (g) shall be referred to herein, collectively, as the “Transaction Parties”. |
22
33
44
55
66
77
88
99
1010
1111
1212
1313
1414
1515
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If a Note Redemption shall not have occurred on or prior to September 30, 2017 (a “Failure to Redeem”), then the following events shall immediately occur pursuant to the FEGP LLC Agreement Amendment and the PSA-Related Amendments, as applicable, without any further action on the part of, or notice to, any person or entity: (a)The changes to the Existing FEGP LLC Agreement described in Schedule 8 hereto shall go into effect; (b)The Option Agreement shall automatically terminate; (c)The MSA shall automatically terminate, upon which Reserves shall pay Xxxxxx a sum of $12.5 million, which shall not be subject to any set-off; (d)The existing chief executive officer of FEGP shall be removed and the Board shall appoint a new chief executive officer of FEGP; and (e)Xxxxxx and its affiliates shall provide transition services to FELP for a period not to exceed 3 months pursuant to a customary transition services agreement to be negotiated among the parties on the same terms as the MSA, without any set-off with respect to employees or otherwise. See Schedule 1 hereto for the Partnership’s projected equity ownership as of September 30, 2017, pro forma for the exchange of the Exchangeable PIK Notes. |
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Projected Transaction Timeline: |
August 1, 2016 = Projected Launch Date of Exchange Offer and the Reserves Tender Offer August 31, 2016 = Projected Effective Date of Transaction |
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2 |
For the avoidance of doubt, for purposes of the releases described in this Amended and Restated Term Sheet, the term “Reserves Investor Group” may include additional investors in Reserves who do not hold any Senior Notes as of the Restatement Date, but may contribute cash as part of the consideration provided by the Reserves Investor Group in connection with the Transaction. |
1616
1717
1818
Pre- and Post-Effective Date and Redemption Date Projected Capitalization
[See attached]
Description of Reserves Tender Offer3
The following description summarizes the material terms of the proposed Reserves Tender Offer.
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· |
Reserves Investor Group offers to purchase up to $105.4 million principal amount of Senior Notes from holders of Senior Notes that are not Reserves, the Reserves Investor Group or affiliates of Reserves or the Reserves Investor Group (such holders, “Eligible Holders”) on the terms described herein in a cash tender offer at a price equal to 100% of the principal amount thereof. The Reserves Investor Group shall not be entitled to receive any portion of the accrued and unpaid interest on the Senior Notes acquired by the Reserves Investor Group in the Reserves Tender Offer. Such accrued and unpaid interest shall be paid to the Eligible Holders who tendered such Senior Notes in the Reserves Tender Offer, such payment to be made in the form of Second Lien Notes. |
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· |
The Reserves Tender Offer will be structured such that the Reserves Investor Group offers to purchase up to the Applicable Percentage (as defined below) of each Eligible Holder’s Senior Notes, based on the amount being certified to Reserves Investor Group as being owned by such Eligible Holder. The “Applicable Percentage” means a fraction, expressed as a percentage, the numerator of which is 106 and the denominator of which is 520. For the avoidance of doubt, in the event Eligible Holders in the aggregate tender less than the full amount of Senior Notes that may be tendered pursuant to the Reserves Tender Offer, the maximum principal amount of Senior Notes that the Reserves Investor Group will purchase from Eligible Holders in the Reserves Tender Offer will be equal to the product of (x) $105.4 million and (y) a fraction, the numerator of which is the principal amount of Senior Notes tendered by Eligible Holders in the aggregate and the denominator of which is $517 million. |
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· |
Each Eligible Holder may only tender all or none of its Senior Notes it is entitled to tender into the Reserves Tender Offer. |
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· |
Reserves Tender Offer will be open for at least 20 business days. |
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The withdrawal deadline will be the 10th business day prior to the expiration of the Reserves Tender Offer. |
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· |
Eligible Holders will only be eligible to participate in the Reserves Tender Offer if they simultaneously elect to tender their remaining Senior Notes into the Exchange Offer. Eligible Holders will be required to certify as to compliance with this requirement. |
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· |
Holders of Senior Notes that are Reserves, members of the Reserves Investor Group or affiliates of Reserves or the Reserves Investor Group will not be eligible to participate in the Reserves Tender Offer and will not constitute Eligible Holders. |
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3 |
Capitalized terms used in this Schedule 2 without definitions shall have the meanings given to such terms in the Amended and Restated Term Sheet to which this Schedule 2 is attached. |
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o |
Substantially concurrent closing of the Exchange Offer without any amendment or waiver adverse to the interests of the Reserves Investor Group (unless consented to by the Reserves Investor Group in its sole discretion). |
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o |
Eligible Holders representing at least 98% of the aggregate principal amount of Senior Notes outstanding held by all such holders tender into the Reserves Tender Offer and the Exchange Offer Senior Notes. |
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o |
Other customary tender offer conditions. |
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· |
Settlement of the purchase will be promptly after expiration of the Reserves Tender Offer and the Exchange Offer and substantially concurrent with (but immediately prior to) the consummation of the Exchange Offer. |
Schedule 3
Second Lien Senior Secured Notes due 2021
Summary of Indicative Terms and Conditions4
THIS AMENDED AND RESTATED TERM SHEET REPRESENTS AN OUTLINE OF TERMS OF CERTAIN INDEBTEDNESS TO BE ISSUED TO THE HOLDERS OF SENIOR NOTES IN THE EXCHANGE OFFER.
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4 |
Definitions used in this Schedule 3 are specific to this Schedule 3 and Schedule 4, and capitalized terms used in this Schedule 3 without definitions shall have the meanings given to such terms in the offering memorandum substantially agreed to among the parties. |
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Schedule 4
$300,000,000 aggregate principal amount of Exchangeable PIK Notes
Summary of Indicative Terms and Conditions15
THIS AMENDED AND RESTATED TERM SHEET REPRESENTS AN OUTLINE OF TERMS OF CERTAIN INDEBTEDNESS TO BE ISSUED TO THE HOLDERS OF SENIOR NOTES IN THE EXCHANGE OFFER.
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5 |
Definitions used in this Schedule 4 are specific to this Schedule 4 and Schedule 3, and capitalized terms used in this Schedule 4 without definitions shall have the meanings given to such terms in the offering memorandum substantially agreed to among the parties. |
Schedule 5
Description of Material Terms of Warrants
The form of Warrant Certificate is attached to this Schedule 5.
EXECUTION VERSION
THE WARRANT(S) EVIDENCED BY THIS CERTIFICATE HAve not BEEN, AND THE securities WHICH MAY BE PURCHASED PURSUANT TO THE EXERCISE OF WARRANT(S) EVIDENCED BY THIS CERTIFICATE (THE “WARRANT Securities,” AND TOGETHER WITH THIS WARRANT, THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (the “Securities Act”), OR ANY STATE SECURITIES LAWS, AND NONE OF the SECURITIES OR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THE SAME ARE REGISTERED AND QUALIFIED IN ACCORDANCE WITH the securities ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR SUCH OFFER, SALE, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION UNDER the securities ACT AND any applicable state securities LAWS. THIS WARRANT CERTIFICATE MUST BE SURRENDERED TO THE Partnership OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, PLEDGE OR OTHER TRANSFER OF WARRANT(S) EVIDENCED BY THIS CERTIFICATE OR ANY INTEREST IN ANY OF THE WARRANT securities.
WARRANT NO.
WARRANT
TO PURCHASE COMMON UNITS
OF
This warrant certificate (this “Warrant Certificate”) certifies that [warrant holder], a [_____ entity], or its registered assigns (the “Holder”), is the owner of a number of warrants (“Warrants”) equal to the Total Number of Warrants, each of which entitles the Holder to purchase from FORESIGHT ENERGY LP, a Delaware limited partnership (the “Partnership”), one duly authorized, validly issued and fully paid and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware Limited Partnership Act (the “Delaware LP Act”)) Common Unit (subject to adjustment in Section 2), at any time or from time to time during the Exercise Period (as defined below), at an exercise price of $0.8928 per Common Unit (subject to adjustment in Section 2, the “Exercise Price”), all on the terms and subject to the conditions hereinafter set forth.
The number of Common Units issuable upon exercise of each such Warrant (the “Number Issuable”), which is initially one (1) Common Unit, is subject to adjustment from time to time pursuant to the provisions of Section 2 of this Warrant Certificate.
Capitalized terms used herein but not otherwise defined shall have the meanings given them in Section 11 hereof.
1
Section 1.Exercise of Warrant. Subject to the last paragraph of this Section 1, the Warrants evidenced hereby may be exercised, in whole or in part, by the Holder at any time or from time to time during the period commencing on the Redemption/Purchase Date and ending at 5:00 p.m., New York City time, on the date immediately preceding the tenth anniversary of the Redemption/Purchase Date (the “Exercise Period”), upon delivery to the Partnership at the registered office of the Partnership set forth in Section 12, of: (a) this Warrant Certificate or any affidavit of loss (accompanied by any indemnity, medallion guarantee or other undertaking or assurance reasonably requested from the Holder by the Partnership, its Transfer Agent or its warrant agent, as the case may be) if the Holder does not have possession of this Warrant Certificate at the time of exercise, (b) a written notice stating that the Holder elects to exercise all or a specified number of Warrants evidenced hereby in accordance with the provisions of this Section 1 and specifying the name or names in which the Holder wishes the certificate or certificates for Common Units to be issued (if certificated) and (c) payment of the Exercise Price for the Common Units issuable upon exercise of such Warrants. Such Exercise Price shall be payable (i) by wire transfer or a certified or official bank check payable to the order of the Partnership or (ii) by electing (and without the payment of the Exercise Price in cash) that the Partnership deduct from the number of Common Units otherwise to be delivered to the Holder upon exercise of the Warrants a number of Common Units equal to the quotient obtained by dividing (x) the aggregate Exercise Price to be paid by (y) the Market Price of one Common Unit on the Business Day which immediately precedes the day of exercise of the Warrants. An exercise of a Warrant in accordance with clause (ii) of the immediately preceding sentence is herein referred to as a “Cashless Exercise” and the Holder shall specify in the written notice provided pursuant to this Section 1 that it is electing to make a Cashless Exercise. The documentation and consideration, if any, delivered in accordance with subsections (a), (b) and (c) of this paragraph are collectively referred to herein as the “Warrant Exercise Documentation.” For the avoidance of doubt, if the Note Redemption does not occur on or prior to September 30, 2017, the Warrants shall not become exercisable, shall have no value (except as contemplated pursuant to Section 2(b)) and shall be surrendered to the Partnership promptly thereafter. No consideration shall be required to be paid by the Partnership or its Affiliates in exchange for such surrender.
As promptly as practicable, and in any event within five Business Days after receipt of the Warrant Exercise Documentation, the Partnership shall: (a) (i) to the extent that the Partnership’s transfer agent (the “Transfer Agent”) is participating in The Depositary Trust Company (“DTC”) Fast Automated Securities Transfer Program, upon the request of the Holder of the Warrants, credit such aggregate number of Common Units to which such Holder is entitled pursuant to such exercise to such Holder’s or its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system, or (ii) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, deliver or cause to be delivered, the certificates, if certificated, or if not certificated then in book-entry form at the Transfer Agent, representing the number of validly issued and fully paid and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act) Common Units properly specified in the Warrant Exercise Documentation, (b) if applicable, deliver or caused to be delivered cash in lieu of any fraction of a Common Unit, as hereinafter provided, and (c) if less than the full number of Warrants evidenced hereby are being exercised, deliver or caused to be delivered, a new warrant certificate or certificates, of like tenor, for the number of Warrants evidenced by this Warrant Certificate, less the number of
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Warrants then being exercised. Such exercise shall be deemed to have been made at the close of business on the date of delivery of all of the Warrant Exercise Documentation so that, to the extent permitted by applicable law, the Person entitled to receive Common Units upon such exercise shall be treated for all purposes as having become the record holder of such Common Units at such time. Any exercise of the Warrants evidenced hereby may be conditioned upon the occurrence of an event or transaction that is specified in a written notice of exercise provided by or on behalf of the Holder pursuant to this Section 1, provided that such conditional exercise is only permitted with respect to events for which notice was required to be provided to the Holder by or on behalf of the Partnership pursuant to Section 3 hereof. Such conditional exercise shall be deemed revoked if such event or transaction does not occur on the date, or within the dates, specified in the applicable notice provided by or on behalf of the Partnership pursuant to Section 3 hereof (if such a notice was provided).
The Partnership shall pay all expenses in connection with, and all taxes and other governmental charges (other than income taxes of the Holder) that may be imposed in respect of, the issue or delivery of any Common Units issuable upon the exercise of the Warrants evidenced hereby. The Partnership shall not be required, however, to pay any tax or other charge imposed in connection with any transfer involved in the issue of any Common Units in any name other than that of the Holder.
In connection with the exercise of any Warrants evidenced hereby, no fractions of Common Units shall be issued, but in lieu thereof the Partnership shall pay a cash adjustment in respect of such fractional interest in an amount equal to such fractional interest multiplied by the Market Price of a Common Unit on the Business Day which immediately precedes the day of exercise. If more than one such Warrant shall be exercised by the Holder thereof at the same time, the number of full Common Units issuable on such exercise shall be computed on the basis of the total number of Warrants so exercised.
(a)Adjustment of Number Issuable and/or Exercise Price. The Number Issuable and/or the Exercise Price shall be subject to adjustment from time to time as follows:
(i)In case the Partnership shall at any time or from time to time after the Issue Date:
(A)pay a dividend or make a distribution on the outstanding Common Units in Common Units;
(B)effect a forward split or subdivision of the outstanding Common Units into a larger number of Common Units; or
(C)effect a reverse split or combination of the outstanding Common Units into a smaller number of Common Units;
then, and in each such case of any of the events described in clauses (A) through (C) above, (I) the Number Issuable in effect immediately
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prior to such event shall be adjusted (and any other appropriate actions shall be taken by the Partnership to effect such adjustment) so that the number of Common Units issuable upon exercise of a Warrant immediately after the occurrence of any such event shall equal the number of Common Units that a record holder of the same number of Common Units for which a Warrant is exercisable immediately prior to the occurrence of such event would own or be entitled to receive after the happening of such event, and (II) the Exercise Price shall be adjusted to be equal to the product of (x) the Exercise Price immediately prior to the occurrence of such event and (y) a fraction (1) the numerator of which is the number of Common Units issuable upon exercise of such Warrant immediately prior to the adjustment in Section 2(a)(i)(I) above and (2) the denominator of which is the number of Common Units issuable upon exercise of such Warrant immediately after the adjustment in Section 2(a)(i)(I) above. An adjustment made pursuant to this Section 2(a)(i) shall become effective retroactively (x) in the case of any such dividend or distribution, to a date immediately following the close of business on the record date for the determination of holders of Common Units entitled to receive such dividend or distribution, or (y) in the case of any such split, subdivision or combination, to the close of business on the date upon which such corporate action becomes effective. Notwithstanding the foregoing, no adjustment to the Number Issuable shall be made pursuant to this Section 2(a)(i) for any event described in this Section 2(a)(i) that occurs prior to the Redemption/Purchase Date; provided, however, that, the Exercise Price shall adjust for any event described in this Section 2(a)(i) that occurs prior to the Redemption/Purchase Date and the Number Issuable shall adjust for any event described in this Section 2(a)(i) that occurs prior to the Redemption/Purchase Date solely for purposes of determining the adjustment to the Exercise Price for such event and any other such event that occurs prior to the Redemption/Purchase Date.
(ii)In case the Partnership shall at any time or from time to time after the Issue Date distribute to any holder of Common Units (including any such distribution made in connection with a consolidation or merger in which the Partnership is the resulting or surviving entity and the Common Units are not changed or exchanged) cash, evidences of indebtedness of the Partnership or another issuer, securities of the Partnership or another issuer or other assets or property (excluding: (i) dividends or other distributions of Common Units for which adjustment is made under Section 2(a)(i); (ii) cash distributions made to the holders of Common Units to enable such holders to pay taxes incurred by such holders as a result of allocations to such holders of items of income and gain arising from the operations of the Partnership and its subsidiaries) and (iii) for the avoidance of doubt, any rights offering made to the holders of Partnership Units in connection with the Note Redemption) or rights, options, securities or warrants to subscribe for or purchase securities of the Partnership or another issuer (excluding: (i) those in respect of which adjustments in the Number Issuable is made pursuant to Section 2(a)(i) or Section 2(a)(iv); and (ii) for the avoidance of doubt, any rights offering made to the holders of Partnership Units in connection with the Note Redemption) (each, a “Distribution”), then, and in each such case,
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(I) the Exercise Price shall be decreased to the Exercise Price determined by multiplying (x) the Exercise Price in effect immediately prior to the Distribution by (y) a fraction, (1) the numerator of which is an amount equal to (A) the Market Price of a Common Unit on the second Business Day preceding the first date on which the Common Units trade regular way without the right to receive such Distribution minus (B) the Fair Market Value of the Distribution (determined as of the date of such Distribution) applicable to one Common Unit and (2) the denominator of which is the Market Price of a Common Unit on the second Business Day preceding the first date on which the Common Units trade regular way without the right to receive such Distribution; and (II) the Number Issuable in effect immediately prior to such Distribution shall be increased (and any other appropriate actions shall be taken by the Partnership to effect such increase) so that the number of Common Units issuable upon exercise of a Warrant immediately after such Distribution shall equal the number of Common Units obtained by dividing (x) the number of Common Units issuable upon exercise of a Warrant immediately prior such Distribution by (y) the fraction described in Section 2(a)(ii)(I)(y) above. Such adjustment shall be made whenever any such Distribution is made and shall become effective retroactively to a date immediately following the close of business on the record date for the determination of unitholders entitled to receive such Distribution.
(iii)In case the Partnership shall at any time or from time to time after the Issue Date make any payment or distribution in respect of any tender offer or exchange offer for Common Units where the Fair Market Value of the consideration per Common Unit when paid by the Partnership exceeds the Market Price of a Common Unit acquired in such tender offer or exchange offer as of the Business Day immediately preceding the first public announcement of the tender offer or exchange offer (the aggregate excess amount for all Common Units acquired in such tender offer or exchange offer, the “Excess Tender Amount”) (excluding a tender offer or exchange offer to effect the Note Redemption), then, and in each such case, (I) the Exercise Price to be in effect after the tender offer or exchange offer expires shall be decreased to the Exercise Price determined by multiplying (x) the Exercise Price in effect immediately prior to the close of business on the expiration date of the tender offer or exchange offer (the “Offer Expiration Date”) by (y) a fraction, (1) the numerator of which is (A) the Market Price of a Common Unit on the Business Day immediately preceding the first public announcement of the tender offer or exchange offer, minus (B) the Excess Tender Amount divided by the number of Common Units outstanding immediately after the expiration of the tender or exchange offer (after giving effect to the purchase or exchange of Common Units), and (2) the denominator of which is the Market Price of a Common Unit on the Business Day immediately preceding the first public announcement of the tender offer or exchange offer; and (II) the Number Issuable shall be increased (and any other appropriate actions shall be taken by the Partnership to effect such increase) so that the number of Common Units issuable upon exercise of a Warrant immediately after the occurrence of such exchange offer or tender offer shall equal the number of Common Units obtained by dividing (x) the number of Common Units issuable
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upon exercise of a Warrant immediately prior to the close of business on the Offer Expiration Date by (y) a fraction, the numerator of which shall be the Exercise Price in effect immediately after such adjustment and the denominator of which shall be the Exercise Price in effect immediately before such adjustment. Such adjustment shall be made whenever any such exchange offer or tender offer is consummated.
(iv)In case the Partnership shall at any time or from time to time after the Issue Date distribute to all holders of Common Units any rights, options or warrants entitling them to purchase, for a period of not more than sixty (60) days after the first date on which the Common Units trade regular way without the right to receive such distribution (such date, the “Ex-Dividend Date”), Common Units for less than the Market Price of Common Units on the Business Day immediately preceding the first public announcement of such distribution, then, and in each such case, (I) the Exercise Price shall be decreased to the Exercise Price determined by multiplying (x) the Exercise Price in effect immediately prior to the close of business on the Ex-Dividend Date, by (y) a fraction, (1) the numerator of which is (A) the number of Common Units outstanding immediately prior to the open of business on the Ex-Dividend Date plus (B) the number of Common Units equal to the quotient obtained by dividing the aggregate exercise price payable to exercise all such rights, options or warrants by the Market Price of a Common Unit on the Business Day immediately preceding the first public announcement of such distribution, and (2) the denominator of which is (A) the number of Common Units outstanding immediately prior to the open of business on the Ex-Dividend Date plus (B) the number of Common Units issuable pursuant to such rights, options or warrants, and (II) the Number Issuable shall be increased (and any other appropriate actions shall be taken by the Partnership to effect such increase) so that the number of Common Units issuable upon exercise of a Warrant immediately after the occurrence of such distribution shall equal the number of Common Units obtained by dividing (x) the number of Common Units issuable upon exercise of a Warrant immediately prior to the close of business on the Ex-Dividend Date by (y) a fraction, the numerator of which shall be the Exercise Price in effect immediately after such adjustment and the denominator of which shall be the Exercise Price in effect immediately before such adjustment. Such adjustment shall be made whenever any such distribution is consummated.
(v)Notwithstanding anything herein to the contrary, no adjustment under this Section 2(a) need be made to the Number Issuable unless such adjustment would require an increase or decrease of at least 1% of the Number Issuable then in effect. Any lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment, which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% of such Number Issuable. Any adjustment to the Number Issuable carried forward and not theretofore made shall be made immediately prior to the exercise of any Warrants
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pursuant hereto or any adjustment or redemption of any Warrants pursuant to Section 2(b).
(vi)The Partnership shall deliver to the Holder promptly following the occurrence of any event or the consummation of any transaction which would result in an increase or decrease in the Number Issuable and/or Exercise Price pursuant to this Section 2(a) a notice thereof, together with a certificate, signed by the chief executive officer, the chief financial officer, the treasurer or an assistant treasurer or the secretary or an assistant secretary of the General Partner, setting forth in reasonable detail the event or transaction requiring the adjustment and the method by which such adjustment was calculated and specifying the increased or decreased Number Issuable and Exercise Price then in effect following such adjustment.
(vii)Notwithstanding anything to the contrary contained in this Section 2(a), the Partnership shall be entitled to make such upward adjustments in the Number Issuable, in addition to those otherwise required by this Section 2(a), as the board of directors of the General Partner in its discretion shall determine to be advisable in order that any equity dividend, split, subdivision or combination of equity interests, distribution of rights or warrants to purchase equity interests or securities or distribution of securities convertible into or exchangeable for Common Units hereafter made by the Partnership to its equityholders shall not be taxable; provided, however, that any such adjustment shall treat all holders of Warrants with similar protections on an equal basis.
(viii)Notwithstanding anything to the contrary contained in this Section 2(a), (x) any adjustment to the Exercise Price or Number Issuable shall be void ab initio (and shall be of no force or effect) to the extent that such adjustment would result in a violation of law by the Partnership as a direct result of such adjustment, and (y) no adjustment to the Exercise Price pursuant to Section 2(a)(ii) or Section 2(a)(iii) shall be made to the extent such adjustment results in an Exercise Price being zero or a negative number (it being understood that any such adjustment to the Exercise Price pursuant to Section 2(a)(ii) or Section 2(a)(iii) that would otherwise result in the Exercise Price being zero or a negative number shall reduce the Exercise Price to $0.01).
(b)Reorganization, Reclassification, Consolidation, Merger or Sale of Assets. In case of any purchase, acquisition, capital reorganization or reclassification in which all of the outstanding Common Units are sold for cash and/or exchanged for other securities or assets (other than as a result of a split, subdivision or combination to which Section 2(a)(i) applies), or in case of any consolidation or merger of the Partnership with or into another Person (other than a consolidation or merger in which the Partnership is the resulting or surviving Person and which does not result in any reclassification or change of outstanding Common Units), or in case of any sale or other disposition to another Person of all or substantially all of the assets of the Partnership, other than a sale/leaseback, mortgage or other similar financing transaction (any of the foregoing, a “Transaction”), the Partnership shall not effect any such Transaction, unless, at the
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Partnership’s option, either (A) the Partnership, or such successor Person or transferee of the Partnership, as the case may be, shall make appropriate provision by amendment of the Warrant Agreement or by the successor Person or transferee executing a replacement warrant agreement so that the Holder of each Warrant then outstanding shall have the right at any time after the consummation of such Transaction, upon exercise or conversion of such Warrant (in lieu of the number of Common Units theretofore deliverable) to receive, at the Exercise Price, the kind and amount of securities, cash and other property receivable upon such Transaction as would be received by a holder of the number of Common Units issuable upon exercise or conversion of the Warrant immediately prior to such Transaction assuming such holder of Common Units did not exercise its rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Transaction (provided that, if the kind or amount of securities, cash and other property receivable upon such Transaction is not the same for each Common Unit in respect of which such rights of election shall not have been exercised (“nonelecting unit”), then for the purposes of this Section 2(b) the kind and amount of securities, cash and other property receivable upon such Transaction for each nonelecting unit shall be deemed to be the kind and amount so receivable per unit by a plurality of the nonelecting units), or (B) simultaneously with the consummation of such Transaction, the Partnership shall redeem the Warrants and pay to the Holder, upon surrender of each such Warrant to the Partnership, in the same form of consideration as is received by holders of Common Units in such Transaction, an amount equal to the positive difference between (y) the Fair Market Value of the consideration that would be received upon such consummation by a holder of the number of Common Units deliverable (immediately prior to such consummation) upon exercise of such Warrants and (z) the aggregate Exercise Price therefor; provided, however, that in the event that the Transaction is an Affiliate Transaction and the consideration that would be received upon the consummation of such Affiliate Transaction by a holder of the number of Common Units issuable upon exercise or conversion of a Warrant immediately prior to such Affiliate Transaction (determined utilizing the assumptions set forth in subclause (A) of this Section 2(b)) is less than or equal to the Exercise Price, the Partnership shall not be permitted to redeem the Warrants pursuant to subclause (B) of this Section 2(b), but shall instead be entitled to elect to redeem the Warrants by paying the Holder the Black-Scholes Value of the Warrants in cash simultaneously with the consummation of such Affiliate Transaction. The provisions of this Section 2(b) similarly shall apply to successive Transactions. Any such amendment or agreement executed by the Partnership or the successor or transferee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 2. Nothing in this Section 2(b) shall have any effect on the exercise of any Warrants made prior to, or in connection with, any Transaction.
In the event that a redemption of Warrants pursuant to this Section 2(b) is consummated prior to the Redemption/Purchase Date, the Total Number of Warrants evidenced by this Warrant Certificate shall be determined (including determining the Total Unit Number and the Total Warrant Number for such purpose) as of immediately prior to the consummation of such Transaction. In furtherance of the foregoing, for purposes of making such determination, the Total Unit Number shall be calculated as of the date of such Transaction prior to giving effect to such Transaction.
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Section 3.Notice of Certain Events. In case at any time or from time to time the Partnership shall declare any dividend or any other distribution to the holders of its Common Units, or shall authorize the granting to the holders of its Common Units of rights, options or warrants to subscribe for or purchase any additional equity interests of any class or any other right, or shall authorize the issuance or sale of any other equity interests or rights which would result in an adjustment to the Number Issuable, or shall commence an exchange offer or tender offer for Common Units, or there shall be any Transaction, then, in any one or more of such cases, the Partnership shall mail (or e-mail) to the Holder at the Holder’s address as it appears on the transfer books of the Partnership, as promptly as practicable (but in any event no later than the date that is ten (10) Business Days prior to the earliest to occur of the record date, the effective date or the commencement date of any of the foregoing), a notice stating (a) the date on which a record is to be taken for the purpose of such dividend or grant of distribution, rights, options or warrants or, if a record is not to be taken, the date as of which the holders of the Common Units of record to be entitled to such dividend, distribution, rights, options or warrants are to be determined, (b) the date of issuance of such equity interests or rights, (c) the date of the commencement of any such exchange offer or tender offer and the Offer Expiration Date, or (d) the date on which such Transaction is expected to become effective. Until such time that the Partnership publicly discloses the information that is the subject of any notice provided pursuant to this Section 3, the Holder shall keep (and shall cause its agents and Affiliates to keep) such notice and its contents confidential and shall not publicly disclose (and shall cause its agents and Affiliates not to publicly disclose) such notice or its contents to any person (provided that the Holder may disclose such notice and its contents to its agents, Affiliates and advisors for the purpose of seeking financial, legal or other advice reasonably related to such notice and its contents, and the Holder and its agents, Affiliates and advisors may disclose such notice and its contents as may be required by law, regulation or court order). In case of any event described in Section 2(b), such notice also shall specify the date as of which it is expected that the holders of the Common Units of record shall be entitled to exchange their Common Units for equity interests or other securities or property or cash deliverable upon such reorganization, reclassification, consolidation, merger, sale or conveyance.
Section 4.Authorized Units. The Partnership covenants and agrees that all Common Units which may be issued upon the exercise of the Warrants evidenced hereby will be duly authorized, validly issued and fully paid and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act) upon issuance and will be free and clear of all liens and will not be subject to any pre-emptive or similar rights.
Section 5.Registered Holder. The person in whose name this Warrant Certificate is registered shall be deemed the owner hereof and of the Warrants evidenced hereby for all purposes. The Holder of this Warrant Certificate, in its capacity as such, shall not be entitled to any rights whatsoever as a holder of Common Units, except as herein provided or as provided in the Partnership Agreement.
Section 6.Certain Transfer and Exercise Provisions.
(a)Transfer Provisions. Any transfer of the rights represented by this Warrant Certificate shall be effected by the surrender of this Warrant Certificate, along with the form of assignment attached hereto as Exhibit A, properly completed and
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executed by the Holder hereof, at the registered office of the Partnership as set forth in Section 12, subject to the restrictions below. Thereupon, the Partnership shall issue in the name or names specified by the Holder hereof and, in the event of a partial transfer, in the name of the Holder hereof, a new warrant certificate or certificates evidencing the right to purchase such number of Common Units as shall be equal to the then applicable Number Issuable.
(b)Legends. If applicable, the Common Units shall be imprinted with a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THE SAME ARE REGISTERED AND QUALIFIED IN ACCORDANCE WITH SAID ACT AND ANY OTHER APPLICABLE STATE SECURITIES LAWS OR SUCH OFFER, SALE, TRANSFER OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION UNDER SUCH ACT AND ANY OTHER APPLICABLE STATE SECURITIES LAWS.
(c)Transfer Restrictions. Before any proposed sale, pledge, or transfer of any of the Warrants evidenced by this Warrant Certificate or any Common Units issuable upon exercise of any of the Warrants evidenced by this Warrant Certificate, unless there is in effect a registration statement under the Securities Act, covering the proposed transaction, the Holder shall give notice to the Partnership of the Holder’s intention to effect such sale, pledge, or other transfer. Each such notice shall describe the manner and circumstances of the proposed sale, pledge, or transfer in sufficient detail and the Holder must deliver evidence reasonably satisfactory to counsel to the Partnership to the effect that the proposed sale, pledge, or transfer of the restricted securities (as defined in Rule 144(a)(3) of the Securities Act) may be effected without registration under the Securities Act (a certificate in the form of Exhibit B hereto being deemed to be satisfactory) and, if requested by the Partnership, an opinion of counsel reasonably satisfactory to the Partnership and its counsel that such disposition is exempt from the registration and prospectus delivery requirements of the Securities Act (an opinion in the form of Exhibit C hereto being deemed to be satisfactory), whereupon the Holder shall be entitled to sell, pledge, or transfer the securities in accordance with the terms of the notice given by the Holder to the Partnership; provided, however, that the Partnership shall pay or reimburse the Holder for any costs or expenses reasonably incurred by the Holder in obtaining any such opinion (up to a maximum amount $1,000 per opinion). The Partnership will not require such evidence in any transaction in which Holder distributes the Warrant or Common Units to an affiliate of such Holder for no consideration. Each certificate evidencing the restricted securities transferred as above provided shall bear, except if such transfer is made pursuant to Rule 144 under the Securities Act, the appropriate restrictive legend set forth above to the extent applicable.
Section 7.Denominations. The Partnership covenants that it will, at its expense, promptly upon surrender of this Warrant Certificate at the registered office of the Partnership as set forth in Section 12, execute and deliver to the Holder a new warrant certificate
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or certificates in denominations specified by the Holder for an aggregate number of Warrants equal to the number of Warrants evidenced by this Warrant Certificate.
Section 8.Replacement of Warrants. Upon receipt of evidence satisfactory to the Partnership of the loss, theft, destruction or mutilation of this Warrant Certificate and, in the case of loss, theft or destruction, upon delivery of an indemnity reasonably satisfactory to the Partnership and the Transfer Agent, or, in the case of mutilation, upon surrender and cancellation thereof, the Partnership will issue a new warrant certificate of like tenor for a number of Warrants equal to the number of Warrants evidenced by this Warrant Certificate.
Section 9.Governing Law. THIS WARRANT CERTIFICATE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 10.Rights Inure to Registered Holder. The Warrants evidenced by this Warrant Certificate will inure to the benefit of and be binding upon the Holder and the Partnership and their respective successors and permitted assigns. Nothing in this Warrant Certificate shall be construed to give to any Person other than the Partnership and the Holder any legal or equitable right, remedy or claim under this Warrant Certificate, and this Warrant Certificate shall be for the sole and exclusive benefit of the Partnership and such Holder. Nothing in this Warrant Certificate shall be construed to give the Holder any rights as a holder of Common Units until such time, if any, as the Warrants evidenced by this Warrant Certificate are exercised in accordance with the provisions hereof, except as herein provided and as provided in the Partnership Agreement.
Section 11.Definitions. For the purposes of this Warrant Certificate, the following terms shall have the meanings indicated below:
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly Controlling, Controlled by or under direct or indirect common Control with such specified Person.
“Affiliate Transaction” means (a) any Transaction where, prior to the consummation of the Transaction, Persons that are Affiliates of the Partnership immediately prior to the Transaction either own or have an arrangement or understanding with any party to the Transaction or any such party’s Affiliates that provides such Affiliates of the Partnership with the right or opportunity to own, after the consummation of the Transaction (other than an arrangement or understanding that is made available to all holders of Common Units), directly or indirectly, 20% or more of the total voting power of the securities of, or 20% or more of the total economic interests in, the succeeding, acquiring, resulting or transferee Person, or (b) any Transaction where Persons that are Affiliates of the Partnership immediately prior to the consummation of such Transaction own, directly or indirectly, a majority of the total voting power of the securities of, or a majority of the total economic interests in, the succeeding, acquiring, resulting or transferee Person after giving effect to such Transaction. For purposes of
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this definition, an Affiliate of the Partnership shall include any trust or other entity that is formed or established for the benefit of any family members of an Affiliate of the Partnership.
“Applicable Percentage” means [__]%.6
“Black-Scholes Value” means, as of the date the Partnership elects to redeem the Warrants in connection with an Affiliate Transaction pursuant to the last proviso of Section 2(b), the value of the Warrants, as reasonably determined by the board of directors of the General Partner in good faith, calculated using the Black-Scholes method for valuing options with the following inputs: (a) volatility shall be 50%, (b) the risk free rate shall be the then current effective U.S. Federal government interest rate for a bond or note with a remaining time to maturity equal to the amount of time remaining in the Exercise Period as of such date, (c) the exercise price shall be the Exercise Price, (d) the term of the Warrants shall be the amount of time remaining in the Exercise Period as of such date and (e) the underlying security price for purposes of the Black-Scholes calculation shall be the greater of (i) the daily volume-weighted average price of a Common Unit for the thirty (30) consecutive trading days immediately prior to the Affiliate Transaction and (ii) the value of the consideration received in respect of each outstanding Common Unit pursuant to the Affiliate Transaction.
“Business Day” means any day other than a Saturday, Sunday or other day on which the NYSE is authorized or required by law or executive order to close.
“Cashless Exercise” has the meaning given it in Section 1.
“Common Units” means the limited partnership interests in the Partnership defined as “Common Units” under and pursuant to the Partnership Agreement.
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and the policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Distribution” has the meaning given it in Section 2(a)(ii).
“DTC” has the meaning given it in Section 1.
“Exchange Act” has the meaning given it in Section 6(d)(ii).
“Exchangeable PIK Note” means any exchangeable PIK note issued by Foresight Energy LLC, a Delaware limited liability company, and Foresight Energy Finance Corporation, a Delaware corporation, pursuant to the Exchangeable PIK Note Indenture.
“Exchangeable PIK Note Indenture” means that certain Indenture, dated as of [●], 2016, by and among Foresight Energy LLC, a Delaware limited liability company, Foresight
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Note to Draft: The “Applicable Percentage” will be equal to a percentage, expressed as a fraction, (i) the numerator of which is the aggregate principal amount of Second Lien Notes that are owned or held by the Holder on the Issue Date and (ii) the denominator of which is the aggregate principal amount of Second Lien Notes that are outstanding on the Issue Date (excluding any Second Lien Notes owned or held by Reserves, the Reserves Investor Group or any affiliates of Reserves or the Reserves Investor Group). |
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Energy Finance Corporation, a Delaware corporation, and the trustee named therein, as amended, supplemented or otherwise modified from time to time.
“Exercise Price” has the meaning given it in the first paragraph hereof.
“Exercise Period” has the meaning given it in Section 1.
“Fair Market Value” means (a) in the case of cash, the amount of such cash, (b) in the case of a security, the Market Price of such security, and (c) in the case of any assets or property (other than cash or securities), the amount which a willing buyer, under no compulsion to buy, would pay a willing seller, under no compulsion to sell, for such assets or property in an arm’s-length transaction but in all events without application of any minority, illiquidity, transfer or voting restriction, or similar discounts or reductions, as reasonably determined in good by the board of directors of the General Partner.
“General Partner” means Foresight Energy GP LLC, the general partner of the Partnership.
“Holder” has the meaning given it in the first paragraph hereof.
“Issue Date” means [●], 2016.
“Market Price” of each Common Unit or any other securities means, on any date specified herein: (a) if the Common Units or such securities are then listed or admitted to trading on any national securities exchange, the average of the high and low trading prices of the Common Units or such other securities on such date as reported by such national securities exchange; (b) if the Common Units or such other securities are not then listed or admitted to trading on any national securities exchange but are designated as a national market system security, the average of the high and low sale prices of the Common Units or such other securities on such date; (c) if there shall have been no trading on such date or if the Common Units or such other securities are not so designated, the average of the last quoted bid and asked prices per Common Unit or per such other security in the over-the-counter market on the relevant date as reported by Pink OTC Markets Inc. or a similar quotation reporting organization; or (d) if none of (a), (b) or (c) is applicable, the Fair Market Value of each Common Unit or such other security reasonably determined in good faith by the board of directors of the General Partner.
“Note Redemption” means either a Note Retirement or a Xxxxxx Purchase (each as defined in the Exchangeable PIK Notes Indenture), or a combination of the two resulting in the purchase or other retirement of all (but not less than all) of the Exchangeable PIK Notes (subject to the right of Foresight Reserves LP, a Nevada limited partnership (“Reserves”), to elect to have Exchangeable PIK Notes it holds, in lieu of being redeemed or purchased, be, simultaneously with the closing of such Note Retirement or Xxxxxx Purchase, exchanged for Common Units or exchanged for certain refinancing debt or securities pursuant to the terms of the Letter Agreement (as defined in the Exchangeable PIK Notes Indenture)), on or prior to September 30, 2017.
“Number Issuable” has the meaning given it in the second paragraph hereof.
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“NYSE” means the New York Stock Exchange, Inc.
“Offer Expiration Date” has the meaning given it in Section 2(a)(iii).
“Partnership” has the meaning given it in the first paragraph hereof.
“Partnership Agreement” means the First Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of June 23, 2014, by and among the partners of the Partnership, as amended, supplemented or otherwise modified from time to time.
“Partnership Units” means, collectively, the Common Units and the Subordinated Units.
“Person” means any individual, corporation, limited liability company, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind.
“Redemption/Purchase Date” means the date on which the Note Redemption has been consummated.
“Subordinated Units” means the limited partnership interests in the Partnership defined as “Subordinated Units” under and pursuant to the Partnership Agreement.
“Total Number of Warrants” means the product of (a) the Applicable Percentage and (b) the Total Warrant Number.
“Total Unit Number” means, as of the Redemption/Purchase Date, the sum (without duplication) of: (a) the total number of issued and outstanding Partnership Units as of such date after giving effect to the consummation of the Note Redemption, (b) all Partnership Units that are issued or issuable in connection with the Note Redemption (including any (x) Partnership Units issued or issuable in connection with any financing transaction consummated by, or any investment made in, the Partnership or any of its subsidiaries in connection with the Note Redemption, but excluding any Partnership Units issued in a rights offering in connection therewith, and (y) Partnership Units issued or issuable to Reserves (or any of its nominees, assignees or designees) pursuant to any contract or other arrangement to provide Reserves (or any of its nominees, assignees or designees) with a minimum amount or percentage of the Common Units that are outstanding after giving effect to the consummation of the Note Redemption), (c) all Partnership Units that are issuable upon the full conversion, exchange or exercise of any option, warrant, indebtedness or security issued, issuable, incurred or that may be incurred in connection with the Note Redemption (including any option, warrant, indebtedness or security issued, issuable, incurred or that may be incurred in connection with any financing transaction consummated by, or any investment made in, the Partnership or any of its subsidiaries in connection with the Note Redemption), assuming the maximum amount of Partnership Units are issued in connection with any such conversion, exchange or exercise, and (d) in the event that the Note Redemption is consummated by, either in whole or in part, the acquisition of Exchangeable PIK Notes by Xxxxxx Energy Corp., an Ohio Corporation (“Xxxxxx”), an Affiliate of Xxxxxx or a group of Persons which includes Xxxxxx or any of its Affiliates, the total number of Common Units that are issued or issuable upon exchange of all
14
Exchangeable PIK Notes that exchange for Common Units in connection with the Note Redemption (including any Exchangeable PIK Notes held by Reserves that Reserves elects to have exchanged for Common Units in connection with the Note Redemption) (such exchange to be determined based on the terms of the Exchangeable PIK Notes Indenture as in effect immediately prior to the Redemption/Purchase Date (but after giving effect to any adjustment to the exchange price of the Exchangeable PIK Notes made upon the occurrence of a Note Redemption, as described therein)). Promptly following the Redemption/Purchase Date (but in no event later than three (3) Business Days following the Redemption/Purchase Date), the Partnership shall notify the Holder of the Total Unit Number and the Total Warrant Number (such notification to include reasonably detailed calculations of such numbers).
“Total Warrant Number” means the number of Warrants equal to the quotient obtained by dividing (a) the product of (i) the Total Unit Number and (ii) .045, by (b) .955.
“Transaction” has the meaning given it in Section 2(b).
“Transfer” means any voluntary or involuntary attempt to sell, assign, transfer, grant a participation in, pledge or otherwise dispose of any Warrants, or the consummation of any such transaction, or taking a pledge of, any of the Warrants; provided, however, that a transaction that is a pledge shall not be deemed to be a Transfer, but a foreclosure pursuant thereto shall be deemed to be a Transfer. The term “Transferred” shall have a correlative meaning.
“Transfer Agent” has the meaning given it in Section 1.
“Warrant Agreement” shall mean that certain Warrant Agreement, dated as of [●], 2016, between the Partnership and [American Stock Transfer & Trust Company, LLC.]
“Warrants” have the meaning given it in the first paragraph hereof.
“Warrant Certificate” has the meaning given it in the first paragraph hereof.
“Warrant Exercise Documentation” has the meaning given it in Section 1.
Section 12.Notices. All notices, demands and other communications provided for or permitted hereunder shall be made in writing and shall be by electronic mail (“e-mail”), registered or certified first-class mail, return receipt requested, courier services or personal delivery, (a) if to the Holder, at the Holder’s last known address (including e-mail address) appearing on the transfer books of the Partnership or the Partnership’s warrant agent; and (b) if to the Partnership, at its registered office located at 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xxxxx Xxxxx, XX 00000, Attention: General Counsel; or such other address as shall have been furnished to the party giving or making such notice, demand or other communication. All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; when sent by e-mail, if delivered by e-mail transmission; one Business Day following the date delivered to a courier with overnight delivery requested, if delivered by a recognized commercial overnight courier service guaranteeing next Business Day delivery; and three Business Days after being deposited in the mail, postage prepaid, if mailed.
15
Section 13. Listing on Exchange. If at any time the Common Units shall be listed on any national securities exchange or automated quotation system, the Partnership shall use its commercially reasonable efforts to cause to be listed, and keep listed (so long as the Common Units shall be so listed on such exchange or automated quotation system) any Common Units issuable upon exercise of the Warrants.
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IN WITNESS WHEREOF, the Partnership has caused this Warrant Certificate to be duly executed as of the Issue Date.
By: Foresight Energy GP, LLC, its general partner
By:
Name:
Title:
[Warrant Certificate Signature Page]
[Form of Assignment Form]
[To be executed upon assignment of Warrants]
The undersigned hereby assigns and transfers this Warrant Certificate to _________________ whose Social Security Number or Tax ID Number is _________________ and whose record address is __________________________________, and irrevocably appoints _________________ as agent to transfer this security on the books of the Partnership. Such agent may substitute another to act for such agent.
Signature:
Signature Guarantee:
Date:
Form of Back-Up Certificate
[Name and Address of Recipient]
Attn: [__________]
Ladies and Gentlemen:
The undersigned proposes to sell [________] warrants (“Warrants”) to purchase common units of Foresight Energy LP, a Delaware limited partnership (the “Partnership”), pursuant to Rule 144 under the Securities Act of 1933, as amended (“Rule 144”). In connection with the sale of the Warrants, the undersigned represents and warrants to you as follows:
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1. |
The Warrants are “restricted securities,” as that term is used in Rule 144(a)(3) and the undersigned acquired and fully paid for the Warrants on [__________]. |
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2. |
The undersigned is not now, and has not been during the preceding three months, an officer, director, or more than 10% unitholder of the Partnership or in any other way an “affiliate” of the Partnership (as that term is defined in Rule 144(a)(1)). |
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4. |
[To the best of the undersigned’s knowledge, the Partnership has complied with the reporting requirements of Rule 144(c)(1).]10 |
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12 |
Note to Draft: Bracketed text to be used if the Partnership has previously been a shell company and has satisfied the requirements of Rule 144(i)(2). |
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6. |
This transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act of 1933, as amended. |
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7. |
The undersigned has read Rule 144 and is familiar with it. |
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8. |
The undersigned is not aware of any material, non-public information about the Partnership. |
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9. |
The undersigned understands that you are relying upon the representations contained in this letter. |
Very truly yours,
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By: |
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Name: |
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Title: |
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Form of Legal Opinion
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[Name and Address of Recipient] Attn: [__________]
Ladies and Gentlemen:
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We are counsel to [___________] (“Seller”), and have recently received a communication relating to the proposed transfer of an aggregate of [________] warrants (the “Warrants”) to purchase common units of Foresight Energy LP, a Delaware limited partnership (the “Partnership”). We understand that all such Warrants are restricted securities within the meaning of Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”).
In connection with the opinion hereinafter expressed, we have relied upon the representations of Seller contained in its certification to us as of the date hereof. In addition, we have assumed, without any independent investigation, the truth, accuracy and completeness of the Partnership’s filings with the United States Securities and Exchange Commission filed pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, we are of the opinion that the transfer of the Warrants from Seller to the transferee is exempt from the registration requirements of the Securities Act.
Attorneys involved in the preparation of this opinion are admitted to practice law in the State of New York and we do not purport to be experts on, or to express any opinion herein concerning, any law other than the laws of the State of New York and the federal laws of the United States of America.
We are furnishing this letter to you solely for your benefit in connection with the transfer of the Warrants. This letter is not to be relied on by or furnished to any other person or used, circulated, quoted or otherwise referred to for any other purpose. We do not undertake by delivery of this opinion or otherwise to advise you of any change in any matter set forth herein, whether based on a change in law or a change in any fact arising subsequent to the date hereof that might affect the opinion expressed herein.
Very truly yours,
Schedule 6
Description of Amendments to the Credit Agreement
The following description summarizes the material terms of the proposed amendments to the Credit Agreement. This description is also attached as Exhibit A to the Amended and Restated Lender Support Agreement (as defined in the Amended and Restated Notes Support Agreement).
EXECUTION VERSION
EXHIBIT A TO A&R LENDER SUPPORT AGREEMENT
SCHEDULE 6 OF EXHIBIT A TO A&R NOTES SUPPORT AGREEMENT
Foresight Energy LLC
Third Amended and Restated Credit Agreement
Summary of Principal Terms and Conditions
Set forth below is a summary of the principal terms and conditions for the amendment and restatement of the Second Amended and Restated Credit Agreement dated as of August 23, 2013 among Foresight Energy LLC, the letter of credit issuing banks party thereto, the lenders party thereto and Citibank, N.A., as administrative agent and collateral agent (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”). This summary does not purport to summarize all the terms, conditions, representations and other provisions with respect to the amendment and restatement of the Existing Credit Agreement, which, to the extent not specified herein, will be set forth in the Third Amended and Restated Credit Agreement and include additional corrections and modifications to reflect the operational and strategic requirements of the Borrower and its subsidiaries, as may be mutually agreed by the parties, and to include LSTA contractual bail-in language. Any capitalized terms used herein and not otherwise defined shall have the meanings give such terms in the Existing Credit Agreement.
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Borrower: |
Foresight Energy LLC, a Delaware limited liability company (the “Borrower”). |
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Agent: |
Citibank, N.A., as administrative agent and collateral agent for the Senior Facilities (in such capacities, the “Agent”). |
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Senior Facilities: |
(A) Senior secured term loans in an aggregate outstanding principal amount of $297.8 million (the “Term Facility” and the loans thereunder, the “Term Loans”), subject to any reductions prior to the Effective Date (as defined below) as a result of prepayments by the Borrower (including any amortization payments). |
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(B) A senior secured revolving credit facility in an aggregate principal amount of $475 million (reflecting a decrease of $75 million from the Existing Credit Agreement on the Effective Date (the “Revolving Facility Reduction”)) (together with the swingline facility referred to below, the “Revolving Facility” and, together with the Term Facility, the “Senior Facilities”), under which the Borrower may borrow loans from time to time (the “Revolving Loans”). |
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1
2
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Same as Existing Credit Agreement (i.e., (i) the Term Facility will mature on August 23, 2020, and will amortize in equal quarterly installments in an amount equal to 0.25% of the original aggregate principal amount of the Term Loans on August 23, 2013, with the balance payable on the maturity date of the Term Facility; and (ii) the Revolving Facility will mature and the commitments thereunder will terminate on August 23, 2018), except that (x) the Revolving Facility will be subject to the mandatory commitment reduction and (y) the Term Loans will have the benefit of the Excess Cash Flow Sweep, in each case as described below under “Mandatory Prepayments and Commitment Reductions”. |
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Guarantees and Collateral: |
Same as Existing Credit Agreement. For the avoidance of doubt, the Collateral will be subject to second priority Liens securing the Exchangeable Notes and the Second Lien Notes and any Refinancing Indebtedness in respect thereof, which junior Liens shall be subject to a customary silent second intercreditor agreement (the “Second Lien Intercreditor Agreement”), materially consistent with the term sheet attached as Schedule 1. |
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3
4
5
6
7
8
9
10
Applicable Rate
The first clause of the definition of Applicable Rate in Section 1.01 of the Credit Agreement (prior to the proviso therein) will be amended and restated as follows:
“Applicable Rate” means (a) in the case of Term Loans, (i) 5.50% per annum for Eurocurrency Rate Loans and (ii) 4.50% per annum for Base Rate Loans and (b) in the case of the Revolving Loans and Swing Line Loans, the applicable percentage per annum set forth below determined by reference to the Consolidated Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):
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Applicable Rate for Revolving Loan and Swing Line Loans |
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Consolidated Net |
Eurocurrency Rate Loans and Letters of Credit |
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I |
< 2.50 to 1.00 |
3.50% |
2.50% |
0.50% |
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II |
≥2.50 : 1.00 but < 3.00 : 1.00 |
3.75% |
2.75% |
0.50% |
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III |
≥3.00 : 1.00 but < 4.00 : 1.00 |
4.00% |
3.00% |
0.50% |
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IV |
≥4.00 : 1.00 but < 5.00 : 1.00 |
4.25% |
3.25% |
0.50% |
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V |
≥5.00 : 1.00 |
4.50% |
3.50% |
0.50% |
provided that (a) the Applicable Rate will be determined as of the last day of the immediately preceding fiscal quarter, (b) the Applicable Rate determined for any Adjustment Date (including the first Adjustment Date) shall remain in effect until a subsequent Adjustment Date for which the Consolidated Net Leverage Ratio falls within a different level, and (c) if the financial statements and related Compliance Certificate for any fiscal period are not delivered by the date due pursuant to Sections 6.01 and 6.02, the Applicable Rate shall be set at Level V until the date of delivery of such financial statements and Compliance Certificate, after which the Applicable Rate shall be based on the Consolidated Net Leverage Ratio set forth in such Compliance Certificate.
Intercreditor Agreement Term Sheet13
Reference is made to (i) that certain Credit Agreement, dated as of August 12, 2010, amended and restated on December 15, 2011 and August 23, 2013, and amended by Incremental Amendment No. 1 dated as of May 27, 2015, and as further amended, amended and restated, modified or supplemented in connection with the Restructuring (as defined below) and from time to time (the “First Lien Credit Agreement”), between Foresight Energy LLC (the “Borrower”) and certain other parties; and (ii) (A) certain second lien senior exchangeable notes (the “Second Lien Exchangeable Notes”) to be issued by [_______] (the “Issuer”), and (B) certain second lien senior secured notes (the “Second Lien Secured Notes” and, together with the Second Lien Exchangeable Notes, the “Second Lien Notes”) to be issued by the Issuer, all of which Second Lien Notes will be guaranteed by, among others, the Borrower and secured by a junior lien on the Collateral (as defined below).
“Restructuring” means the transactions related to the restructuring of outstanding indebtedness of the Borrower and its affiliates arising as a result of the occurrence of certain events of default thereunder, including, without limitation, indebtedness outstanding under the First Lien Credit Agreement and under the Senior Notes (as defined in the First Lien Credit Agreement). For purposes of this Amended and Restated Term Sheet, the Facilities (as defined in the First Lien Credit Agreement) under the First Lien Credit Agreement (and the facilities provided in any refinancings, substitutions, extensions or replacements thereof) are herein referred to collectively as the “First Lien Credit Facility” and the First Lien Credit Facility together with the Second Lien Notes (and any refinancings, substitutions, extensions or replacements thereof) are referred to herein individually as a “Debt Facility” and collectively as the “Debt Facilities”. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the First Lien Credit Agreement as in effect as of the date hereof.
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13 |
The Second Lien Notes (and any Refinancing Indebtedness thereof) shall be subject to a customary silent second intercreditor agreement, however, all such terms set forth in this Schedule 1 in respect thereof are subject to ongoing negotiation between the Consenting Secured Lenders and the Required Consenting Noteholders; all of such terms shall be acceptable to such parties. |
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The agents, trustees and note holders of the Second Lien Notes (and any refinancings, substitutions, extensions or replacements thereof) (the “Second Lien Noteholders”) and the Second Lien Collateral Agent. The First Lien Claimholders and the Second Lien Claimholders are the “Secured Parties”.
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Second Lien Obligations: |
All obligations of every nature of each Loan Party from time to time owed to the Second Lien Claimholders under the applicable secured documents, whether for principal, interest, breakage costs, fees, expenses, premium (if any), indemnification payments, and all guarantees of the foregoing.
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Collateral: |
The First Lien Obligations and the Second Lien Obligations shall be secured by liens on the same Collateral (other than Excluded Collateral (as defined below)). No Loan Party shall grant any liens on any asset or property to secure obligations under either Debt Facility unless it has granted a lien on such asset or property to secure the other Debt Facility. The Collateral will consist of the following, collectively:
(iii)the “Collateral” (as such term is defined in the First Lien Credit Agreement) (the “Credit Facility Collateral”); and (iv)all other existing and future assets and property, and all proceeds thereof, of each Loan Party (other than Excluded Assets (as defined in the Security Agreement referred to in the First Lien Credit Agreement) and real property that is not Material Owned Real Property or Material Leased Real Property (as defined in the First Lien Credit Agreement) (the “Additional Collateral”). |
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Excluded Collateral: |
Notwithstanding anything to the contrary herein, certain accounts (e.g., cash collateral accounts for the benefit of issuing banks) maintained pursuant to the credit documents for the benefit of the First Lien Lender Parties shall solely be for the benefit of the applicable First Lien Lender Parties (“Excluded Collateral”).
Additionally, no First Lien Claimholder or Second Lien Claimholder shall be required to share any amounts received or deemed received by it in respect of any First Lien Obligation or Second Lien Obligation owed to it from separate insurance, credit default swap protection or other protection against loss arranged by such First Lien Claimholder or Second Lien Claimholder (as applicable) for its own account in respect of any such First Lien Obligation or Second Lien Obligation (which amounts shall be for the sole benefit of such First Lien Claimholder or Second Lien Claimholder (as applicable)).
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3
4
5
6
7
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Each of the Second Lien Claimholders will agree to hold in trust and promptly turn over to the First Lien Collateral Agent any payments or other distributions received in contravention of the Intercreditor Agreement regardless of their source or form. For the avoidance of doubt, no mandatory or voluntary prepayments of Second Lien Obligations will be permitted prior to the discharge in full in cash of the First Lien Obligations.
If, for any reason, a Secured Party does not have a valid and perfected lien (either directly or through any applicable Collateral Agent) on any portion of the Collateral, proceeds on such portion received by the other Secured Parties will be paid over to the extent necessary to reflect the distribution provisions above as if all Secured Parties held such a lien.
If any Second Lien Claimholder obtains knowledge of or is notified by the First Lien Collateral Agent that a payment or distribution made to a First Lien Claimholder is rescinded for any reason whatsoever, such Second Lien Claimholder shall promptly pay or remit to the First Lien Collateral Agent any payment or distribution received by it in respect of any Collateral subject to any First Priority Liens securing such First Lien Obligations, and the provisions set forth in the Intercreditor Agreement shall be reinstated as if such payment or distribution had not been made, until the payment and satisfaction in full of the First Lien Obligations.
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Restrictions on Amendments: |
Without the prior written consent of the First Lien Collateral Agent, no collateral documents entered into to secure the Second Lien Obligations (such collateral documents, the “Second Lien Collateral Documents”) may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Second Lien Collateral Document, would be prohibited by, or would require any Loan Party to act or refrain from acting in a manner that would violate, any of the terms of the Intercreditor Agreement.
In the event that the First Lien Claimholders or the First Lien Collateral Agent enters into any amendment, waiver or consent in respect of any of the First Lien Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First Lien Collateral Document or changing in any manner the rights of the First Lien Collateral Agent, the First Lien Claimholders, the Borrower or any other Loan Party thereunder (including the release of any liens in Collateral to the extent permitted as described below under “Release of Liens”), then such amendment, waiver or consent shall apply automatically to any comparable provision of the comparable Second Lien Collateral Document without the consent of the Second Lien Collateral Agent or any Second Lien Claimholder and without any action by the Second Lien Collateral Agent, the Borrower or any other Loan Party.
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On the Effective Date (to be defined as the date of consummation of certain transactions), each of the Secured Parties will recognize the existence and the permissibility of the other Secured Parties and their respective debt and/or lien obligations and rights.
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Release of Liens: |
The Intercreditor Agreement will provide that in the event the First Lien Collateral Agent releases its lien on and/or sells all or any portion of Collateral that is (a) permitted to be sold or transferred pursuant to the First Lien Credit Agreement, (b) sold in a foreclosure or similar transactions in accordance with the terms of the First Lien Credit Agreement or (c) Excluded Collateral, in each case, the Second Priority Lien on such Collateral shall be automatically released without the consent of any of the Second Lien Claimholders or the Second Lien Collateral Agent being required, such release being made free and clear of all liens of the Secured Parties, and each Second Lien Claimholder shall be deemed to have consented to such release or sale.
In addition, the requirement that a Second Priority Lien attach to, or be perfected with respect to, Collateral shall be waived automatically and without further action so long as the requirement that a First Priority Lien attach to, or be perfected with respect to, such property or assets is waived by the First Lien Collateral Agent.
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9
10
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No Objection: |
No Second Lien Claimholder will object to or oppose a sale or other disposition of any Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code if the First Lien Claimholders shall have consented to such sale or disposition of such Collateral and all First Priority Liens and Second Priority Liens will attach to the proceeds of the sale.
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Each of the Second Lien Claimholders will waive any claim such Second Lien Claimholders may have against the First Lien Administrative Agent, the First Lien Collateral Agent or any other First Lien Claimholders (or their representatives) arising out of any election by the First Lien Administrative Agent, First Lien Collateral Agent or any First Lien Claimholders, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code.
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Plan support: |
Without the consent of the First Lien Claimholders, the Second Lien Claimholders will not propose or support any plan that does not contemplate payment of the First Lien Obligations in full in cash or is otherwise inconsistent with the Intercreditor Agreement.
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Separate grants: |
Each of the First Lien Claimholders and the Second Lien Claimholders will agree that (a) the grants of liens under the First Lien Collateral Documents and the Second Lien Collateral Documents are separate and distinct grants and (b) First Lien Obligations and Second Lien Obligations must be separately classified in any bankruptcy.
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Rights As Unsecured Creditors: |
The First Lien Claimholders may exercise rights and remedies as unsecured creditors against any of the Loan Parties.
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Insurance: |
The First Lien Collateral Agent shall have the sole right (subject to the Borrower’s rights under the First Lien Credit Agreement, and the other documents relating thereto) to adjust and settle insurance claims with respect to the Collateral and approve awards granted with respect to the Collateral in any condemnation or similar proceeding.
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Purchase Right: |
If an Event of Default under and as defined in the First Lien Credit Agreement has occurred and is continuing and the amount of any claim or claims in respect of any First Lien Obligations has been determined, the Second Lien Claimholders will be permitted within an agreed exercise period to purchase the entire amount of such claim or claims at par plus any accrued interest (and payment of any outstanding fees and expenses) from such First Lien Claimholders during a call period to be agreed.
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Interpretation: |
For the avoidance of doubt, any determinations as to whether a First Lien Obligation has been paid in full in cash hereunder shall be made without taking into account any limitations on such obligations imposed by the United States Bankruptcy Code or other applicable insolvency law. |
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Governing Law; Jurisdiction: |
The State of New York.
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11
Description of Amendments to the Securitization Facility
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The following description summarizes the material terms of the proposed amendments to the Securitization Facility.
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Maturity |
1/12/2018 (no change from existing maturity date)
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Facility Limit |
$50 million held entirely by PNC
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Pricing
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All-in Drawn: 1-month LIBOR + 250 bps (30 day moving average of 30 day LIBOR to avoid breakage costs on weekly settlement)
All-in LC Fee: 265 bps
Amendment Fee: 100 bps
Administrative Agent Fee: $125,000
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Settlement/ Reporting Frequency |
Weekly reporting/settlement
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Structural Modifications |
Lock in 15% Foreign Obligor Eligibility at PNC/Credit Agricole, regardless of credit rating
PNC will have full discretion to take control of Huntington account and mandate more frequent settlement
70% cap on eligible receivables to be removed
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Other |
Waiver of Termination Event associated with cross-default, change in control provision and all disclosed covenant defaults, breaches of reps and warranties, etc; bring down of reps and warrants to be made as of the restructuring effective date
Required on-site due diligence
Permit a second annual field exam at Borrower's expense if deemed necessary by PNC/Credit Agricole
Amendment to the definition of Government Obligors to clarify the existing eligibility
$100,000 fee for forbearance through August 15, 2016
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Schedule 8
Description of Amendments to Governance and Affiliate Documents14
The following description summarizes the material terms of (a) the proposed amendments to each of the Existing FEGP LLC Agreement, the Existing FELP LP Agreement, the PSA, the MSA, the Call/Put Agreement and the Option Agreement, (b) certain approvals, authorizations and other actions to be adopted and/or taken by the Board, and (c) the Equity Adjustment Agreement, the Colt Assignment and the Letter Agreements, all of which shall be in form and substance acceptable to the Required Consenting Noteholders.
FEGP Governance Documents Modifications:
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Board Observer: |
The Existing FEGP LLC Agreement shall be amended to provide for the appointment of a Board observer, mutually agreed upon by the Required Consenting Noteholders and the Partnership, which Board observer shall (subject to such observer’s agreement to be bound by reasonable confidentiality obligations and subject further to agreed exceptions for privilege and conflicts of interest) be entitled to (i) attend all meetings of each Governing Body (including, without limitation, the Synergy and Conflicts Committee), and (ii) receive copies of all materials (including written consents) given to members of any Governing Body at the same time such materials are provided to such members. Any such observer may be replaced only by holders of a majority in principal amount of the Second Lien Notes. |
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Waiver of Preemptive Rights: |
Each of Xxxxxx and Reserves will waive its rights under Section 6.6(e)(iv) of the Existing FEGP LLC Agreement in respect of the issuance of any Common Units in connection with the exchange of Exchangeable PIK Notes or exercise of Warrants. |
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Synergy and Conflicts Committee: |
The Board shall adopt resolutions to create a Synergy and Conflicts Committee with the responsibilities set forth on Schedule 9. In addition the members of the Board that are Independent Directors shall nominate, and the Board shall appoint, a chief accounting officer of FEGP that is not affiliated with any Significant Equityholder. |
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14 |
Capitalized terms used in this Schedule 8 without definitions shall have the meanings given to such terms in the Amended and Restated Term Sheet to which this Schedule 8 is attached. |
PSA-Related Modifications:
FELP LP Agreement Amendment:
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Limited Preemptive Right: |
Section 5.8 of the Existing FELP LP Agreement shall be amended such that the preemptive right set forth therein does not apply to the issuance of Common Units upon conversion of the Exchangeable PIK Notes or the exercise of Warrants. |
Equity Adjustment Agreement:
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Reserves to be issued Common Units by FELP to get Reserves’ ownership of 25% of Common Units, subject to $25 million cap on value transferred. |
Letter Agreements:
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(1) A letter agreement governing the rights of Reserves with respect to its Exchangeable PIK Notes upon a Note Redemption or exercise by the Xxxxxx Group of the Purchase Right and (2) a letter agreement governing the release by Xxxxxx Xxxxxx and Xxxxxx Xxxxx of potential fraudulent conveyance claims against Reserves (and its affiliates). |
Colt Assignment:
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An agreement between Colt LLC and Xxxxxx American Coal, Inc. pursuant to which Colt LLC indefeasibly assigns to Xxxxxx American Coal, Inc. certain minimum royalty payments under certain coal mining leases. |
Schedule 9
Description of Material Responsibilities of Synergy and Conflicts Committee15
The Synergy and Conflicts Committee shall be comprised of the three independent members of the Board that constitute Independent Directors. Replacement of any members of the Synergy and Conflicts Committee shall be in accordance with the Existing FEGP LLC Agreement, as amended by the FEGP LLC Agreement Amendment (as amended, the “FEGP LLC Agreement”), so long as such members are only Independent Directors.
The Synergy and Conflicts Committee shall be responsible for (i) reviewing, approving, or denying approval of any unbudgeted affiliate or synergy transactions involving the Partnership, in each case having a value in excess of $5 million; and (ii) reviewing, approving, or denying approval of any transaction which would, if consummated, provide financing for or be materially related to the redemption of the Exchangeable PIK Notes and will be delegated all right, power and authority of the Board in respect thereof.
The Synergy and Conflicts Committee shall also serve as the general conflicts committee of the Board.
To the extent permitted by the FEGP LLC Agreement, the Synergy and Conflicts Committee shall (i) have the right to retain independent financial and legal advisors of its own choosing, (ii) be empowered to act on behalf of the Partnership independently of any affiliates or interested directors, and (iii) have the power to enforce the decision made by it (including any decision to reject any proposed transaction with any affiliate of the Partnership).
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15 |
Capitalized terms used in this Schedule 9 without definitions shall have the meanings given to such terms in the Amended and Restated Term Sheet to which this Schedule 9 is attached. |
Schedule 10
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(2) |
Excludes Second Lien Notes to be issued in the Transaction in consideration of accrued and unpaid interest on the Senior Notes. |
Form of Joinder
The undersigned hereby acknowledges that it has reviewed and understands the A&R Transaction Support Agreement, dated as of July [22], 2016 (as amended, supplemented or otherwise modified from time to time, the “Agreement”)16 by and among by and among Foresight Energy LLC, a Delaware limited liability company (“Foresight Energy”), certain subsidiaries of Foresight Energy, and Foresight Energy LP (collectively, the “Partnership”) and the undersigned Lenders (as defined therein, and together with their permitted successors and assigns, each a “Consenting Lenders” and, collectively, the “Consenting Lenders”), (iii) Foresight Reserves LP (“Reserves”), Xx. Xxxxxxxxxxx Xxxxx (“Xxxxx”); Xxxxx Resources and Development Company (“Xxxxx R&D”), Xx. Xxxxxxx X. Xxxxx (“Xxxxx”), Xxxxxx LLC (“Xxxxxx”), Filbert Holdings LLC (“Filbert”), Xxxxxxx Xxxxx 2004 Irrevocable Trust (“Xxxxxxx Xxxxx Trust”), Xxxx X. Xxxxx 2004 Irrevocable Trust (“Xxxx Xxxxx Trust”), Xxxxxxxxxxx X. Xxxxx 2004 Irrevocable Trust (“Xxxxxxxxxxx Xxxxx Trust”), and Xxxxxxx X. Xxxxx 2004 Irrevocable Trust (“Xxxxxxx Xxxxx Trust”) and Forest Xxxx Investments LLC (“Forest Xxxx,” together with Reserves, Xxxxx, Xxxxx R&D, Beyer, Munsen, Filbert, Xxxxxxx Xxxxx Trust, Xxxx Xxxxx Trust, Xxxxxxxxxxx Xxxxx Trust and Xxxxxxx Xxxxx Trust, the “Xxxxx Group”); and (iv) Xxxxxx Energy Corp. (“Xxxxxx”), and agrees to be bound as a Consenting Lender by the terms and conditions thereof binding on the Consenting Lenders for as long as the Agreement is in place.
The undersigned hereby makes the representations and warranties of the Consenting Lender set forth in Section 4(a) of the Agreement to each other Party, effective as of the date hereof.
This joinder agreement shall be governed by the governing law set forth in the A&R Transaction Support Agreement.
Date: _________________, 2016
[Consenting Lender]
By:_________________________________
Name:
Title:
Debt held (in principal face value) under the Credit Agreement: $
Attention:
Fax:
Email:
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Defined terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement. |
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