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May 13, 2020 – GACP Finance Co., LLC, as debtor-in-possession ("DIP") FILO lender ("GACP" or the “DIP FILO Lender”), filed a motion asking the Court to enforce its December 12, 2019 final DIP order and thereby protect the "rapidly disappearing" collateral supporting $90.0mn in DIP financing GACP has furnished to the Debtors; including by blocking the Debtors' access to bank accounts that comprise that collateral [Docket No. 431].
In a visceral and eviscerating attack on Debtors engaged in "blatant and unequivocal breaches of the DIP FILO Lender’s only financial covenant," GACP alleges that the Debtors are fiddling the books to pass muster on that financial covenant, the breach of which would be a default under the Debtors' DIP FILO facility. That single covenant including a "Current Asset Test" that requires the Debtors to have $175.0mn in assets backing up borrowings as measured every Friday and reported in a "Current Asset Report."
GACP argues that the assets counted towards the $175.0mn are to be exclusively comprised of coal receivables and inventory; and points to recent reports furnished by the Debtors as suddenly including non-coal assets; "questionable receivables" now included by the Debtors because "without those unauthorized ‘receivables, they would have failed the Current Assets Test under the DIP Credit Agreement."
Arguing that it is "experiencing a catastrophic depletion of its Collateral every day that passes," GACP has requested an urgent hearing to take action on the alleged default and is requesting that (i) the Court enforce Paragraph 16(d) of its Final DIP Order and (ii) prohibit third parties from "interfering with the DIP FILO Lender’s immediate right to exercise its remedy to block or limit withdrawals from any bank accounts that are a part of its Collateral."
Paragraph 16(d) of the final DIP order provides (see also full text below) that GACP may "take any or all of the following actions….(ii) upon the occurrence of an Event of Default …withdraw consent to the Credit Parties’ continued use of Cash Collateral and…block or limit withdrawals from any bank accounts that are a part of the Collateral…"
And the Debtors' response? There has been no response filed with the Court to date, but the rebuttal is pretty clear and perhaps even flagged by GACP's repeated references to negotiating history, the conduct of the parties and prepetition credit arrangements as supporting the proposition that current assets are only to include coal receivables and inventory. The drafting of the DIP credit agreement, however, will give some solace to the Debtors and create some angst for GACP and the attorneys charged with vetting that agreement on GACP's behalf. …and this is why. The DIP credit agreement provides the following relevant definitions.
"Current Assets" means, collectively, Gross Receivables and Gross Inventory, where Gross Inventory means "the Cost of the Inventory of the Credit Parties and "Inventory" means "all extracted Coal owned by any Credit Party." Therefore, the "Gross Inventory" portion of "Current Assets" is pretty clearly all about coal.
"Gross Receivables," however, is another matter altogether, defined as "the then un-paid amount of the true and correct Receivables of the Credit Parties" where "Receivables" means "all rights to the payment of a monetary obligation…owing to any Credit Party, evidenced by Accounts, Instruments, Chattel Paper or General Intangibles (as such terms are defined in Article 9 of the UCC), calculated on a gross basis." Clearly, no specific reference to coal there and receivables getting a broad definition.
The GACP Motion
The GACP motion states: “Debtor Murray Energy Corporation (‘MEC’) and its debtor affiliates (collectively, ‘Debtors’) are engaging in blatant and unequivocal breaches of the DIP FILO Lender’s only financial covenant under the DIP Credit Agreement by including REDACTED of non-coal ‘receivables’ among the ‘Current Assets Report’ they are required to submit weekly. Debtors provided no detailed backup regarding these ‘receivables’ but informed the DIP FILO Lender that they included REDACTED of questionable insider ‘management fees’ due from related parties REDACTED (some were labeled REDACTED), and Debtors failed to provide any information about whether these ‘management fees’ were current or stale. Debtors did this for the first time on April 30, 2020, because without those unauthorized ‘receivables, they would have failed the Current Assets Test under the DIP Credit Agreement.
They did this despite the fact that the parties’ negotiation history and documentation establish that Current Assets were only to comprise coal Receivables and Inventory; despite the fact that Debtors themselves represented to this Court that the basis for the DIP FILO Lender’s financial covenant in the DIP Credit Agreement was to be the same as the borrowing base under the parties’ pre-petition asset-based loan, the composition of which was solely coal assets; and despite the fact that it is a radical departure from Debtors’ long-standing practice of submitting Current Assets Reports that included only coal Receivables and Inventory.
Debtors’ default creates an urgent crisis for the DIP FILO Lender. Debtors’ most recent Current Assets Reports show that the Current Assets supporting the DIP FILO Lender’s loan are rapidly disappearing at an alarming rate, jeopardizing the DIP FILO Lender’s ability to fully recover from the Collateral the amounts due and owing from Debtors on its $90 million loan. Indeed, the coal Receivables and Inventory already are far below the $160 million floor set in the financial covenant (Section 6.7(d)) of the DIP Credit Agreement by an astounding REDACTED and counting. Debtors agreed that the DIP FILO Lender would have the right to immediately exercise remedies upon this default.
Pursuant to Paragraph 16(d) of the Final DIP Order, upon an Event of Default, the DIP FILO Lender is entitled to “block or limit withdrawals from any bank accounts that are a part of the Collateral” for its DIP FILO Loan, without notice. Despite their numerous admissions that the parties understood only coal-based assets were to be included in calculating the Current Assets Test and Debtors’ long history of submitting Current Assets Reports that included only coal assets, Debtors dispute that they have breached the DIP Credit Agreement in submitting the two recent Current Assets Reports containing non-coal “receivables” for the first time. However, in light of the brazen attempt by Debtors to improperly manipulate the Current Assets Report, and in light of the massive disintegration of the DIP FILO Lender’s Collateral already REDACTED below the Current Assets Covenant’s floor, the DIP FILO Lender cannot risk Debtors (or any other party) interfering with its immediate right to protect its Collateral. The DIP FILO Lender is experiencing a catastrophic depletion of its Collateral every day that passes. While mindful of the process set forth in the Final DIP Order, the DIP FILO Lender cannot wait for Debtors to decide whether to challenge that these are (obvious) Events of Default. The DIP FILO Lender therefore respectfully requests that the Court enforce Paragraph 16(d) of its Final DIP Order and enter the Proposed Order precluding any other party from interfering with the DIP FILO Lender’s immediate right to exercise its remedy to block or limit withdrawals from any bank accounts that are a part of its Collateral."
Paragraph 16(d) of Final DIP Order
Paragraph 16(d) reads in full: "The automatic stay provisions of section 362 of the Bankruptcy Code are hereby vacated and modified to the extent necessary to permit the DIP FILO Secured Parties to enforce all of their rights under the applicable DIP Documents in respect to the DIP FILO Loans and take any or all of the following actions, at the same or different time: (i) immediately upon the occurrence of an Event of Default, declare (A) all DIP FILO Obligations to be immediately due, owing and payable, without presentment, demand, protest, or other notice of any kind, all of which are expressly waived by the Credit Parties, notwithstanding anything herein or in any DIP Document to the contrary, and (B) the termination of the applicable DIP Documents as to any future liability or obligation of the DIP Administrative Agent and the applicable DIP FILO Lender (but, for the avoidance of doubt, without affecting any of the DIP FILO Liens or the DIP FILO Obligations), (ii) upon the occurrence of an Event of Default and the giving of five (5) business days’ prior written notice (which shall run concurrently with any notice required to be provided under the DIP Documents) (the “FILO Remedies Notice Period,” and together with the Term Remedies Notice Period, the “Remedies Notice Periods”) via email to counsel to the Debtors, counsel to the DIP Term Lenders, the Creditors’ Committee, and the U.S. Trustee, unless this Court orders otherwise during the FILO Remedies Notice Period after a hearing, (A) whether or not the maturity of any of the DIP FILO Obligations shall have been accelerated, proceed to protect, enforce and exercise all rights and remedies of the DIP FILO Secured Parties under the DIP Documents or applicable law, including, but not limited to, by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in any such DIP Document or any instrument pursuant to which such DIP FILO Obligations are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of any of such DIP FILO Secured Parties, and (B) withdraw consent to the Credit Parties’ continued use of Cash Collateral and exercise all other rights and remedies provided for in the DIP Documents and under applicable law with respect to the DIP FILO Collateral; provided, that no such notice shall be required for any exercise of rights or remedies to block or limit withdrawals from any bank accounts that are a part of the Collateral (including, without limitation, by sending any control activation notices to depositary banks pursuant to any control agreement)."
- Borrower: Murray Energy Corporation (the “Borrower”)
- Guarantors: Murray Energy Holdings Company (“Holdings”). With respect to the DIP FILO Loans (as defined below), all direct and indirect domestic subsidiaries of the Borrower that are guarantors under the prepetition Amended and Restated Revolving Credit Agreement (the “ABL Credit Agreement”), each as a debtor and debtor-in-possession (the “DIP FILO Guarantors”) With respect to the DIP Term Loans (as defined below), all direct and indirect domestic subsidiaries of the Borrower that are guarantors under the prepetition Superpriority Credit and Guaranty Agreement (the “Superpriority Credit Agreement”), each as a debtor and debtor-in-possession, and each other existing and future domestic direct or indirect subsidiary of the Borrower (including, for the avoidance of doubt, Murray Metallurgical Coal Properties, LLC and Murray Metallurgical Coal Properties II, LLC (each, a “Mission Holdco”) and, excluding, (i) Foresight GP, Foresight LP and their respective subsidiaries and (ii) the subsidiaries of any Mission Holdco) (collectively, the “DIP Term Guarantors” and, together with the Borrower and the DIP FILO Guarantors, the “Debtors”)
- Facility Size: $350,000,000.00 of new money term loans (the “DIP Term Loans”) to be provided by the DIP Term Lenders and fully backstopped by the Backstop Parties. $90,000,000.00 of rolled up prepetition Last-Out Loans (under and as defined in the ABL Credit Agreement), equal to the total amount of the outstanding Last-Out Loans, provided by the DIP FILO Lender (the “DIP FILO Loans”).
- DIP FILO Lender: GACP Finance Co., LLC
- Facility Structure: DIP Term Loan with $200,000,000.00 funded upon entry of the Interim DIP Term Order and an additional $150,000,000.00 funded in one draw upon entry of the Final DIP Term Order. DIP FILO Lender to agree that proceeds of DIP Term Loans shall not constitute ABL Collateral or additional ABL Collateral. Entry into the DIP FILO Loans to be effective upon entry of the Interim DIP Term Order, subject to customary challenge rights prior to entry of the Final DIP Term Order.
- DIP FILO Loans Interest Rate: On amounts not rolled up: L + 9.75% On amounts rolled up: L + 9.50%.
- ABL Refinancing: Outstanding prepetition non-FILO ABL obligations under the ABL Credit Agreement to be refinanced by a portion of the DIP Term Facility proceeds
Pre-Petition Secured Indebtedness
- Superpriority Term Loan. The Debtors have a Superpriority Credit and Guaranty Agreement, dated as of June 29, 2018, among Holdings, Murray Energy Corporation, as Borrower, the guarantors from time to time party thereto, the various lenders from time to time party thereto (the “Superpriority Lenders”), and GLAS Trust Company LLC, as administrative agent. As at the Petition date, approximately $1.73bn (including unpaid interest and fees) was outstanding under this facility.
- Prepetition ABL Facility. The Debtors have an Amended and Restated Revolving Credit Agreement, originally dated as of December 5, 2013, as amended and restated as of June 29, 2018 (as amended, restated, modified, or supplemented from time to time prior to the date hereof, the “Prepetition ABL Facility”) among Holdings, Murray Energy Corporation, as Borrower, the guarantors from time to time party thereto, the various lenders from time to time party thereto, and Goldman Sachs USA. As at the Petition date, approximately $60.7mn (excluding unpaid interest and fees) was outstanding under this facility.
- Prepetition ABL FILO Facility. The Debtors have $90.0mn outstanding in FILO obligations (including unpaid interest) under the Prepetition ABL Facility;
- Term Loan. The Debtors have a Credit and Guaranty Agreement, dated as of April 16, 2015, among Holdings, Murray Energy Corporation, as Borrower, the guarantors from time to time party thereto, the various lenders from time to time party thereto (the “Term Loan Lenders”) and Black Diamond Commercial Finance, L.L.C., as successor administrative agent to GLAS Trust Company LLC and Deutsche Bank AG New York Branch. As at the Petition date, approximately $51.1mn (including unpaid interest and fees) was outstanding under this facility.
- 1.5L Notes. Further to an indenture, dated June 29, 2018, by and among Murray Energy Corporation, as Issuer, the guarantors from time to time party thereto, The Bank of New York Mellon Trust, the Debtors issued approximately $490.mn (including unpaid interest) in 12.00% Senior Secured Notes.
- Stub 2L Notes. Further to an indenture, dated May 8, 2014, by and among Murray Energy Corporation, as Issuer, the guarantors from time to time party thereto, The Bank of New York Mellon Trust Company, N.A., as Indenture Trustee, and U.S. Bank National Association, as Collateral Trustee, the Debtors issued $1.9mn (including unpaid interest) in 9.5% Senior Secured Notes.
- 2L Notes. Further to an indenture, dated April 16, 2015, by and among Murray Energy Corporation, as Issuer, the guarantors from time to time party thereto, The Bank of New York Mellon Trust Company, N.A., as Indenture Trustee, and U.S. Bank National Association, as Collateral Trustee, the Debtors issued approximately $298.9mn in obligations (including unpaid interest) in 11.25% Senior Secured Notes.
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