Coal producer Foresight Energy LP (NYSE: FELP) on Dec. 7 announced additional information regarding the opinion in previously announced litigation by the trustee for the bondholders of its 2021 Senior Notes, as well as information regarding discussions with lenders in its secured credit facility.
As previously disclosed, in May the trustee for the bondholders of its 2021 Senior Notes filed suit in the Delaware Court of Chancery alleging that Murray Energy‘s acquisition of a 34% non-controlling interest in Foresight Energy GP LLC and of an option to purchase an additional 46% interest in FEGP triggered a change of control of the 2021 Senior Notes pursuant to its indenture, thereby requiring it to make an offer to purchase the 2021 Senior Notes at 101% of the principal amount tendered plus any accrued and unpaid interest thereon.
On Dec. 4, Vice Chancellor Laster of the Delaware Chancery Court issued his opinion, but not a judgment, stating that an event of default had occurred and that the trustee was entitled to an order requiring Foresight to make an offer to purchase the 2021 Senior Notes at 101% of the principal amount tendered plus any accrued and unpaid interest thereon. A judgment in the case has not yet been rendered.
Said Foresight: “We have commenced discussions with a majority of the holders of our 2021 Senior Notes to attempt to resolve the litigation. Counsel for a majority of the bondholders has communicated to us that, in light of ongoing settlement discussions, such majority bondholders do not intend to instruct the trustee to accelerate the debt. Accordingly, we can provide no assurances that they will not ultimately seek acceleration of the debt in the near future or that settlement negotiations will be successful. In addition, we have commenced discussions with certain lenders under our revolving credit facility to ensure that we have sufficient liquidity to fund our cash operating costs.
“In light of the current conditions and uncertainties, including continuing operational and market challenges and uncertainties regarding the outcome of the litigation and its impact on our liquidity, we are pursuing options to preserve liquidity and it is likely that we will suspend the distribution on our common units, commencing with the quarter ending December 31, 2015. Absent the acceleration of indebtedness and assuming continued lending from our revolving credit facility lenders, we believe we will be able to meet our obligations as they come due.
“If discussions with the bondholders are unsuccessful, it could result in an adverse judgment being rendered. We would seek to get such order stayed while the order is appealed to the Delaware Supreme Court, but such a stay could require posting of a bond. The ability of the Partnership to post such bond would be dependent upon the size of the bond specified by the judge and the liquidity and resources available to the Partnership at the time. If an adverse judgment is rendered and we are unsuccessful on appeal (or in getting the judgment stayed while we appeal), the obligation to pay the senior notes may be accelerated and we may be in default under our other indebtedness and we will continue to pursue all of our options. In addition, if our revolving credit facility lenders are unwilling to lend us sufficient cash to fund our cash operating costs, we may be unable to fund our existing operations.”
Foresight is a leading coal producer in the Illinois Basin region of the United States with control of over three billion tons of coal reserves currently supporting four mining complexes. Foresight’s logistics give each of its mining complexes multiple modes of transportation to reach the end-users for its coal, including rail, barge and truck. Foresight serves both the domestic and international markets.