PEABODY ENERGY CORP - FORM 8-K - EX-10.1

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8-K - FORM 8-K - PEABODY ENERGY CORP	d280118d8k.htm

Exhibit 10.1


Goldman Sachs Bank USA 200 West Street New York, NY 10282-2198	JPMorgan Chase Bank, N.A. 383 Madison Avenue New York, NY 10179	Credit Suisse Securities (USA) LLC Credit Suisse AG Eleven Madison Avenue New York, NY 10010

	Macquarie Capital (USA) Inc. Macquarie Capital Funding LLC 125 West 55^th Street New York, NY 10019

PERSONAL AND CONFIDENTIAL

January 11, 2017

Peabody Energy Corporation

701 Market Street

St. Louis, Missouri

Attention: Amy Schwetz

Commitment Letter

Ladies and Gentlemen:

Goldman Sachs Bank USA (“Goldman Sachs”), JPMorgan Chase Bank, N.A. (“JPMorgan”), Credit Suisse AG (acting through such of its affiliates or branches as it deems appropriate, “CS”), Credit Suisse Securities (USA) LLC (“CS Securities” and, together with Goldman Sachs and JPMorgan, the “Arrangers”), Macquarie Capital Funding LLC (“Macquarie Lender”, and together with Goldman Sachs, CS and JPMorgan, the “Initial Lenders”) and Macquarie Capital (USA) Inc. (“Macquarie Capital” and, together with Macquarie Lender, “Macquarie”) are pleased to confirm the arrangements for the transactions described herein and on the terms set forth in this letter and the attached Schedule I hereto and Annexes A and B hereto and subject only to the conditions set forth on Annex C hereto (collectively, this “Commitment Letter”), under which (a) the Arrangers are authorized by Peabody Energy Corporation (the “Company” or “you”) to act as joint lead arrangers and joint bookrunners for the Term Loan Facility (as defined below); provided that the Company agrees that JPMorgan may perform its responsibilities hereunder through its affiliate J.P. Morgan Securities LLC, (b) Goldman Sachs is exclusively authorized by the Company to act as syndication agent and administrative agent for the Term Loan Facility, and (c) each Initial Lender, severally and not jointly, commits to provide the principal amount of the Term Loan Facility set forth opposite its name on Schedule I hereto on the Closing Date (as defined below). Annex B is referred to herein as the “Term Sheet”. The Initial Lenders, the Arrangers and Macquarie Capital are referred to herein, collectively, as the “Commitment Parties”, “we” or “us”.

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You have informed us that (a) the Company and a majority of its wholly-owned U.S. subsidiaries and one subsidiary organized under the laws of Gibraltar (collectively, the “Debtors”), have filed voluntary petitions for reorganization under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Eastern District of Missouri (the “Bankruptcy Court”) and (b) the Debtors’ cases in the Bankruptcy Court (the “Bankruptcy Cases”) have been consolidated for purposes of joint administration of each of the Debtors under Case No. 16-42529. You have further informed us that the Debtors intend to emerge from the Bankruptcy Cases pursuant to the Joint Plan of Reorganization of Debtors and Debtors in Possession, Docket No. 1820, as contemplated in that certain Plan Support Agreement, dated as of December 22, 2016 among (A) the Debtors, (B) the First Lien Lender Co-Proponents, the Ad Hoc Secured Committee Members and the Ad Hoc Unsecured Noteholders Group (each as defined therein), (C) any Additional Supporting Parties (as defined therein) that subsequently enters into the Plan Support Agreement and (D) each other person that becomes a party in accordance with Section 8(b) thereof (as amended, waived or supplemented from time to time in a manner that does not result in a failure of the condition described in Section 1 in Annex C hereto, the “Plan Support Agreement”) (such Joint Plan of Reorganization, together with all exhibits, schedules, annexes, supplements and other attachments thereto, in each case, as amended, supplemented or otherwise modified on or prior to the date hereof or as amended, supplemented or otherwise modified from time to time hereafter in a manner that does not result in a failure of the condition described in Section 1 in Annex C hereto, the “Plan”). In connection with, and subject to the confirmation and effectiveness of, the Plan, the Company intends to refinance certain of its and its subsidiaries’ existing indebtedness, substantially on the terms set forth in the Plan (the “Refinancing”) and obtain the following exit financing:

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$1,500.0 million under a senior secured term loan facility (the “Term Loan Facility”) having the terms set forth on Annex B; provided that (a) the aggregate principal amount of the Term Loan Facility shall be reduced by the aggregate principal amount of Notes (as defined in the Fee Letter (as defined below)) including Notes to be issued on or prior to the Closing Date (as defined below) pursuant to a Securities Demand (as defined in the Fee Letter), delivered by the Investment Banks (as defined in the Fee Letter) to the Company and (b) the aggregate principal amount of the Term Loan Facility may be increased as set forth in the Term Sheet (provided that nothing herein shall be deemed to constitute a commitment with respect to such increase, which commitment, if any, shall be set forth in a separate commitment letter);

•

at least $750.0 million of gross cash proceeds from a rights offering (the “Rights Offering”) of equity interests in the Company to eligible holders of the Company’s pre-petition unsecured and second lien creditors under the Plan, which will be contributed to the Company as common equity;

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at least $750.0 million of gross cash proceeds from the issuance of mandatorily convertible preferred stock of the Company under the Plan on substantially the terms described in the Plan (the “Convertible Preferred Stock”);

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the issuance and sale by the Company of no more than $450.0 million (as such amount may be increased by up to $20.0 million pursuant to the terms of the Plan to the extent the Closing Date occurs after April 3, 2017) in aggregate principal amount of second lien notes under the Plan on substantially the terms described in the Plan (the “Second Lien Notes”); provided that the Term Collateral Trust Agreement and the Intercreditor Agreement (each as defined in the Term Sheet) shall be on terms reasonably acceptable to the Commitment Parties;

•

up to $250.0 million of commitments with respect to any combination of an asset based revolving loan facility and/or an accounts receivable securitization facility (collectively, the “A/R Facility”), it being understood that there may be domestic A/R Facilities and/or Australian A/R Facilities; and

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•

at least $600.0 million in unrestricted cash on hand of the Company and its subsidiaries on the effective date of the Plan (the “Minimum Cash Balance”) after giving effect to any distributions to certain holders of claims in accordance with the Plan on the Closing Date.

The Term Loan Facility, together with the Notes, the Rights Offering, the issuance of the Convertible Preferred Stock, the Second Lien Notes, the A/R Facility and the Refinancing and the payment of related fees, commissions and expenses associated therewith and the availability on the Closing Date of the Minimum Cash Balance are collectively referred to as the “Transactions.” The date on which the Term Loan Facility is consummated and the borrowing thereunder occurs is referred to herein as the “Closing Date”.

1.	Titles and Roles; Commitments.

In connection with the foregoing, (a) each of Goldman Sachs, JPMorgan and CS Securities is pleased to confirm its willingness to act, and you hereby appoint each such party to act, as a joint lead arranger and a joint bookrunner to provide the Company with structuring and syndication assistance in connection with the Term Loan Facility, (b) each of JPMorgan, CS and Macquarie Capital is pleased to confirm its willingness to act, and you hereby appoint JPMorgan, CS and Macquarie Capital to act, as co-documentation agents in connection with the Term Loan Facility, (c) Goldman Sachs is pleased to confirm its willingness to act, and you hereby appoint Goldman Sachs to act, as syndication agent in connection with the Term Loan Facility and (d) Goldman Sachs is pleased to confirm its willingness to act (or designate one of its affiliates to act), and you hereby appoint Goldman Sachs to act (or designate one of its affiliates to act), as administrative agent for the Term Loan Facility (the “Administrative Agent”), in each case on the terms contained in this Commitment Letter and subject only to the conditions contained in Annex C to this Commitment Letter. Each of the Company and the Commitment Parties agree that (i) Goldman Sachs shall have lead “left” placement in any and all marketing materials with respect to the Term Loan Facility and shall perform the duties and exercise the authority (including, without limitation, maintaining sole physical books in connection with the syndication of the Term Loan Facility customarily associated with such placement) and (ii) JPMorgan shall have immediate “right” placement in any and all marketing materials with respect to the Term Loan Facility and shall perform the duties and exercise the authority customarily associated with such placement. You agree that no other agents, co-agents or arrangers will be appointed, no other titles will be awarded and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letters referred to below) will be paid in connection with the Term Loan Facility, unless each of the Company and the Commitment Parties shall agree.

Each Commitment Party hereby severally, and not jointly, commits to provide the percentage of the entire principal amount of the Term Loan Facility set forth opposite its name on Schedule 1 hereto on the Closing Date, in each case, subject only to the conditions set forth in Annex C hereto, and upon the satisfaction (or waiver by the Commitment Parties) of such conditions, the funding of the Term Loan Facility shall occur. There are no conditions (implied or otherwise) to the commitments hereunder, and there will be no conditions (implied or otherwise) under the Loan Documents to the funding of the Term Loan Facility on the Closing Date, including compliance with the terms of this Commitment Letter, the Fee Letters (as defined below) or the Loan Documents, except to the extent set forth on Annex C attached hereto.

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Our fees for services related to the Term Loan Facility are set forth in a separate fee letter (the “Fee Letter”) entered into by the Borrower and the Commitment Parties on the date hereof. Certain fees payable to Goldman Sachs are set forth in a separate fee letter (the “Structuring Fee Letter” and, together with the Fee Letter, the “Fee Letters”). This Commitment Letter and the Fee Letters are collectively referred to herein as the “Letters”.

The Company will obtain an order in the Bankruptcy Court (the “Authorization Order”), in form and substance reasonably satisfactory to the Commitment Parties, providing that the Letters shall be approved and effective as of January 11, 2017, authorizing the Debtors to enter into the Letters, to pay the fees and expenses set forth in the Fee Letters, subject to and accordance with the provisions of the Fee Letters, and to undertake and perform all obligations hereunder and in Annex A hereto (including, without limitation, the indemnity obligations referred to herein and in Annex A hereto), which Authorization Order will specifically provide that the payment obligations of the Company hereunder shall be entitled to priority as administrative claims under Sections 503(b) and 507(a)(1) of the Bankruptcy Code, whether or not the Loan Documents are executed or the Term Loan Facility is funded. For the avoidance of doubt, each of the parties hereto acknowledges and agrees that obligations of the Company hereunder are subject to the approval of the Bankruptcy Court.

2.	Syndication.

The Commitment Parties intend and reserve the right to syndicate the Term Loan Facility to a syndicate of banks, financial institutions and other institutional lenders that will participate in the Term Loan Facility reasonably satisfactory to you (such consent not to be unreasonably withheld or delayed) (collectively, the “Lenders”); provided that the Commitment Parties will not syndicate to and no assignments shall be permitted to be made to (x) any financial institutions and entities identified by the Company to the Lead Arrangers by name in writing on or prior to the date hereof or as you and we (or after the Closing Date, you and the Administrative Agent) shall mutually agree after the date hereof, (y) any competitors of the Company or their respective affiliates, in the case of this clause (y), identified by the Company to the Administrative Agent and Lenders by name in writing on or prior to the date hereof or from time to time after the Closing Date or (z) any affiliates of the foregoing that are readily identifiable solely on the basis of the similarity of their names, but excluding (in the case of clauses (y) and (z)) bona fide debt funds (such persons or entities collectively, the “Disqualified Institutions”). Notwithstanding anything herein to the contrary, no designation of any person as a Disqualified Institution shall retroactively disqualify any (i) assignments or participations made to, (ii) any trades entered into with, or (iii) information provided to, such person before it was designated as a Disqualified Institution. You acknowledge and agree that the commencement of syndication shall occur in the discretion of the Arrangers. The Arrangers will manage all aspects of the syndication, including, in each case in consultation with the Company, determining the timing of all offers to potential Lenders, the acceptance of commitments, the amounts offered and the compensation allocated to each Lender. The Arrangers, in consultation with the Company, will determine the final commitment allocations. The Company agrees to use its commercially reasonable efforts to ensure that the Arranger’s syndication efforts benefit from the existing lender relationships of the Company and its subsidiaries. To facilitate an orderly and successful syndication of the Term Loan Facility, you agree that, from the date hereof until the funding under the Term Loan Facility, the Company will not syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of any debt facility or any debt security of the Company and its subsidiaries,including any renewals or refinancings of any existing debt facility or debt security (other than, in each case, the Transactions (including the issuance of the Notes and the Second Lien Notes and the borrowings under the A/R Facility), borrowings under working capital facilities incurred in the ordinary course of business, capital leases, purchase money financings, equipment financings, letter of credit facilities, bank guaranty facilities, bonding facilities,

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intercompany indebtedness and other indebtedness that has otherwise been consented to by the Arrangers) if such syndication or issuance could reasonably be expected to materially impair the primary syndication of the Term Loan Facility, without the prior written consent of the Arrangers.

The Company agrees to cooperate with the Arrangers in connection with (i) the preparation of one or more customary confidential information memoranda containing reasonably available and customary information (collectively, the “Confidential Information Memorandum”) customary for transactions of this type, the Lender Presentation (as defined below) and other customary and readily available marketing materials to be used in connection with the syndication of the Term Loan Facility and using commercially reasonable efforts to obtain prior to the launch of general syndication (a) a public corporate family rating from Moody’s Investor Services, Inc. (“Moody’s”), (b) a public corporate credit rating from Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation (“S&P”) and (c) a public credit rating for the Term Loan Facility and the Notes, as applicable, from each of Moody’s and S&P and (ii) the hosting, with the Arrangers, of up to two meetings with prospective Lenders and a reasonable number of additional one-on-one meetings and meetings held by conference call at times and locations to be agreed by the Arrangers and the Company in connection with the syndication of the Term Loan Facility (including, without limitation, participation by senior management and representatives of the Company in such meetings) and the presentation of one or more customary information packages reasonably acceptable in format and content to the Arrangers (collectively, the “Lender Presentation”) in such meetings. The Company will be solely responsible for the contents of any such Confidential Information Memorandum and Lender Presentation and all other Information (as defined below) delivered to the Arrangers by or on behalf of the Company in connection therewith and acknowledges that each Arranger will be using and relying upon the Information without independent verification thereof. The Company agrees that Information regarding the Term Loan Facility and Information provided by the Company and its subsidiaries (or by their respective authorized representatives on their behalf) to any Arranger in connection with the Term Loan Facility (including, without limitation, draft and execution versions of the Loan Documents, the Confidential Information Memorandum, the Lender Presentation, publicly filed financial statements, and draft or final offering materials relating to contemporaneous issuances by the Company) may be disseminated on a confidential basis to potential Lenders and other persons through one or more internet sites (including an IntraLinks, SyndTrak or other electronic workspace (the “Platform”)) created for purposes of syndicating the Term Loan Facility or otherwise, in accordance with such Arranger’s standard syndication practices, and you acknowledge that none of the Commitment Parties or any of their respective affiliates will be responsible or liable to you or any other person or entity for damages arising from the use by others of any Information or other materials obtained on the Platform except to the extent any such damages arise from the bad faith, gross negligence or willful misconduct of such Commitment Party or any of its respective controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable judgment); provided, however, that in no event will any Commitment Party or any of its respective affiliates have any liability for any indirect, consequential, special or punitive damages. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letters, (i) none of the foregoing language in this Section 2 (including the so-called “clear markets” provision or the other agreements of the Company with respect to the syndication) shall constitute a condition to the commitments hereunder or the funding of the Term Loan Facility on the Closing Date, (ii) you will not be required to provide any information to the extent the provision thereof would violate or waive any attorney-client or other privilege (or otherwise constitutes attorney work product) or violate or contravene any law, rule or regulation; provided that you shall notify the Commitment Parties if any information is withheld in reliance on this clause (ii) and (iii) except as expressly provided in Section 10 of Annex C hereto, neither the commencement nor the completion of the syndication of the Term Loan Facility shall constitute a condition precedent to the Closing Date.

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Notwithstanding the Arrangers’ right to syndicate the Term Loan Facility and receive commitments with respect thereto (but subject to the terms and conditions set forth in this Section 2 and Section 8 of this Commitment Letter), (i) no Initial Lender shall be relieved, released or novated from its obligations to fund the Term Loan Facility on the Closing Date in connection with any syndication, assignment or participation of the Term Loan Facility until after the funding of the Term Loan Facility on the Closing Date has occurred, (ii) no assignment or novation by any Initial Lender shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the Term Loan Facility until the funding of the Term Loan Facility and (iii) unless you otherwise agree in writing, each Initial Lender shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Term Loan Facility, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred; provided that the provisions of this paragraph shall not apply with respect to any assignment by Goldman Sachs to Goldman Sachs Lending Partners LLC, subject to (a) prior written notice to you and (b) execution of a joinder agreement and, thereafter, Goldman Sachs Lending Partners LLC shall constitute a “Commitment Party”, “Initial Lender” and “Arranger”.

The Company acknowledges that certain of the Lenders may be “public side” Lenders (i.e. Lenders that do not wish to receive material non-public information with respect to the Company or its affiliates or securities) (each, a “Public Lender”). At the request of the Arrangers, the Company agrees to prepare an additional version of each of the Confidential Information Memorandum and the Lender Presentation to be used by Public Lenders that does not contain material non-public information (within the meaning of United States federal securities laws) concerning the Company, its subsidiaries or securities. The information to be included in the additional version of the Confidential Information Memorandum and the Lender Presentation will be substantially consistent with the information included in any offering memorandum for the offering of the Notes. It is understood that in connection with your assistance described above, you will provide customary authorization letters to the Commitment Parties authorizing the distribution of the Information to prospective Lenders, containing a representation to the Commitment Parties that the public-side version does not include material non-public information (within the meaning of United States federal securities laws) concerning the Company, its subsidiaries or its securities. In addition, the Company will use commercially reasonable efforts to designate all written Information provided to any Commitment Party by or on behalf of the Company to indicate whether such Information is suitable to make available to Public Lenders (it being understood that (i) the Company is under no obligation to designate any Information “public” or “private” and (ii) if the Company does not indicate that such information contains material non-public information, such Information will be deemed “public”). Notwithstanding the foregoing, the Company acknowledges and agrees that the following documents may be distributed to Public Lenders (unless you promptly notify the Commitment Parties otherwise and provided that you have been given a reasonable opportunity to review such documents): (a) drafts and final versions of the Loan Documents; (b) administrative materials prepared by the Commitment Parties for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) term sheets and notification of changes in the terms of the Term Loan Facility.

3.	Information.

The Company represents and warrants that (i) all written information (other than financial projections, forward looking information, budgets, estimates and information of a general economic or general industry nature), including, for the avoidance of doubt, the Confidential Information Memorandum and the Lender Presentation (the “Information”) provided directly by, or on behalf of, the Company to any Commitment Party in connection with the transactions contemplated hereunder is and will be, at the time

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it was (or hereafter is) furnished, when taken as a whole, complete and correct in all material respects and does not and will not contain, as of the time it was (or hereafter is) furnished, any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto), not materially misleading and (ii) the financial projections that have been or will be made available to the Commitment Parties or the Lenders by or on behalf of the Company have been and will be prepared in good faith based upon assumptions that are believed by the preparer thereof to be reasonable at the time such financial projections are furnished to the Commitment Parties, it being understood and agreed that financial projections are not a guarantee of financial performance and actual results may differ from financial projections and such differences may be material. You agree that if at any time prior to the Closing Date of the Term Loan Facility any of the representations in the preceding sentence would be incorrect in any material respect if the Information and financial projections were being furnished, and such representations were being made, at such time, then you will promptly supplement, or cause to be supplemented, the Information and financial projections so that such representations will be correct in all material respects under those circumstances. In arranging and syndicating the Term Loan Facility, we will be entitled to use and rely on the Information and the financial projections without responsibility for independent verification thereof. We will have no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of the Company or any other party or to advise or opine on any related solvency issues.

4.	Indemnification and Related Matters.

In connection with arrangements such as those contemplated in this Commitment Letter, it is our policy to receive indemnification. The Company agrees to the provisions with respect to our indemnity and other matters set forth in Annex A, which is incorporated by reference into this Commitment Letter.

5.	Assignments.

This Commitment Letter may not be assigned by any party hereto without the prior written consent of each other party hereto (and any purported assignment without such consent will be null and void), is intended to be solely for the benefit of the Commitment Parties and the other parties hereto and, except as set forth in Annex A, is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto; provided that each Commitment Party may assign its commitments and agreements hereunder, in whole or in part, to any affiliate or any other Lender (other than a Disqualified Institution) prior to the Closing Date, subject in each case to the limitations set forth in Section 2 above. This Commitment Letter (including the Schedule and Annexes hereto) may not be amended or any term or provision hereof or thereof waived or otherwise modified except by an instrument in writing signed by each of the parties hereto, and any term or provision hereof may be amended or waived only by a written agreement executed and delivered by all parties hereto.

6.	Confidentiality.

Please note that the Letters and any written communications provided by, or oral discussions with, any Commitment Party in connection with this arrangement are exclusively for the information of the Company and may not be disclosed by you to any third party or circulated publicly without the Commitment Parties’ prior written consent except pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial, administrative or legislative body or committee (including the Bankruptcy Court) (in which case you agree to inform each Commitment Party promptly thereof prior to disclosure to the extent legally permitted to do so and to reasonably cooperate with the Commitment Parties to the extent that they may seek to limit such disclosure or to avoid the requirement for such

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disclosure, including cooperating with the Commitment Parties’ efforts to seek an order or other reliable assurance that confidential treatment will be accorded to designated portions of the disclosed information); provided that we hereby consent to your disclosure of (i) the Letters and such communications and discussions to your officers, directors, agents, employees, representatives, affiliates, legal counsel, auditors and advisors on a confidential basis, (ii) the Letters (a) to the office of the U.S. Trustee and to its representatives and professional advisors (excluding members of the unsecured creditors committee and any other ad hoc committee) who have agreed to treat such information confidentially or are otherwise bound by a confidentiality agreement with the Company, the scope of which includes the Letters and (b) to the extent required in motions (provided that the Fee Letters are filed with the Bankruptcy Court with a request that they be filed under seal), in form and substance reasonably satisfactory to the Arrangers, to be filed with the Bankruptcy Court in connection with obtaining the Authorization Order, (iii) the Letters as required by applicable law or compulsory legal process (in which case you agree to inform each Commitment Party promptly thereof prior to disclosure to the extent legally permitted to do so), (iv) to the extent not otherwise permitted by clauses (i) through (iii), the aggregate fees, without any breakdown in calculation of the fees attributable to the Commitment Parties, the Arrangers and the Lenders in any pleadings filed with the Bankruptcy Court in an effort to obtain the Authorization Order, or in any publicly filed financial statements or statements of sources and uses relating to the Term Loan Facility, (v) in connection with the exercise of any remedy or enforcement of any right under the Letters, (vi) the Letters in any prospectus, other offering document, syndication, marketing material or any public filing (including the existence and the contents of this Commitment Letter and the Term Sheet in a Form 8-K or other Company filing with the Securities and Exchange Commission), in each case solely to the extent required by any applicable law, rule or regulation on the advice of your counsel (but, in each case, not the Fee Letters (unless redacted in a manner satisfactory to the Arrangers) or the contents of the Fee Letters other than the existence thereof and an aggregate disclosure of fees thereunder as part of projections, pro forma information and a generic disclosure of aggregate sources and uses to the extent customary in marketing materials and other disclosures), and (vii) to the extent any such information becomes publicly available other than by reason of disclosure by you, your affiliates or your representatives in violation of this Commitment Letter. You further agree that if the Bankruptcy Court denies your request to file the Letters under seal and requires a redacted version of the Letters to be filed and/or disclosed, you shall provide a redacted version of the Letters reasonably acceptable to the Arrangers and the Bankruptcy Court.

Each Commitment Party agrees that it will treat as confidential all information provided to it hereunder by or on behalf of you or any of your subsidiaries or affiliates except to the extent that such information (a) is publicly available or becomes publicly available other than by reason of disclosure by such Commitment Party, its affiliates or representatives in violation of this Commitment Letter, (b) was received by such Commitment Party from a source (other than the Company or any of its affiliates, advisors, members, directors, employees, agents or other representatives) not known by such Commitment Party to be prohibited from disclosing such information to such Commitment Party by a legal, contractual or fiduciary obligation to the Company and (c) to the extent that such information was already in such Commitment Party’s possession from a source other than the Company or any of its affiliates, advisors, members, directors, employees, agents or other representatives or is independently developed by such Commitment Party without the use of or reference to any such confidential information; provided, however, that nothing herein will prevent such Commitment Party from disclosing any such information (including information regarding Disqualified Institutions) (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process (in which case such person agrees to inform you promptly thereof to the extent not prohibited by law), (b) upon the request or demand of any regulatory authority or any self-regulatory authority having jurisdiction over such person or any of its affiliates, (c) to such

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person’s affiliates and their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other experts or agents who need to know such information and on a confidential basis, (d) to potential and prospective Lenders, assignees, participants and any direct or indirect contractual counterparties to any swap or derivative transaction relating to the Company or its obligations under the Term Loan Facility (other than Disqualified Institutions), in each case, subject to such recipient’s agreement (which agreement may be in writing or by “click through” agreement or other affirmative action on the part of the recipient to access such information and acknowledge its confidentiality obligations in respect thereof pursuant to customary syndication practice) to keep such information confidential on substantially the terms set forth in this paragraph, (e) to ratings agencies who have agreed to keep such information confidential on terms no less restrictive than this paragraph in any material respect or otherwise on terms acceptable to you in connection with obtaining ratings of the Term Loan Facility or (f) for purposes of establishing a “due diligence” defense.

The obligations under the preceding paragraph shall remain in effect until the earlier of (i) one year from the date hereof and (ii) the Closing Date, at which time any confidentiality undertaking in the Loan Documents shall supersede this provision.

After the closing of the Transactions and at the applicable Commitment Party’s expense, each Commitment Party may with the Company’s consent (such consent not to be unreasonably withheld or delayed and such consent not required in the case of clause (ii) where such materials only include public information) (i) place advertisements in periodicals and on the Internet as it may choose and (ii) circulate promotional materials in the form of a “tombstone” or “case study” (and, in each case, otherwise describe the names of any of you or your affiliates and any other information about the Transactions, including the amount, type and closing date of the Term Loan Facility).

7.	Absence of Fiduciary Relationship; Affiliates; Etc.

Each Commitment Party and/or its respective affiliates (each, collectively, a “Financial Institution”) is a full service financial institution engaged, either directly or through affiliates, in a broad array of activities, including commercial and investment banking, financial advisory, market making and trading, investment management (both public and private investing), investment research, principal investment, financial planning, benefits counseling, risk management, hedging, financing, brokerage and other financial and non-financial activities and services globally. In the ordinary course of their various business activities, each Financial Institution, and funds or other entities in which such Financial Institution invests or with which such Financial Institution co-invests, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers. In addition, each Financial Institution may at any time communicate independent recommendations and/or publish or express independent research views in respect of such assets, securities or instruments. Any of the aforementioned activities may involve or relate to assets, securities and/or instruments of the Company and/or other entities and persons which may (i) be involved in transactions arising from or relating to this Commitment Letter or (ii) have other relationships with the Company or its affiliates. In addition, each Financial Institution may provide investment banking, commercial banking, underwriting and financial advisory services to such other entities and persons. The arrangement contemplated by this Commitment Letter may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph, and employees working on the financing contemplated hereby may have been involved in originating certain of such investments and those employees may receive credit internally therefor. Although each Financial Institution, in the course of such other activities and relationships, may acquire information about the transaction contemplated by this Commitment Letter or other entities and persons which may be the subject of the financing contemplated by this Commitment Letter, no Financial Institution shall have any obligation to disclose such information, or the fact that it is in possession of such information, to the Company or to use such information on the Company’s behalf.

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Consistent with each Financial Institution’s policies to hold in confidence the affairs of its customers, no Financial Institution will furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter to any of its other customers. Furthermore, you acknowledge that none of the Financial Institutions or any of their respective affiliates has an obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained or that may be obtained by them from any other person.

Each Financial Institution may have economic interests that conflict with those of the Company, its equity holders and/or its affiliates. You agree that each Commitment Party will act under this Commitment Letter as an independent contractor and that nothing in the Letters or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Commitment Party on the one hand, and the Company, its equity holders or its affiliates, on the other hand. You acknowledge and agree that the transactions contemplated by the Letters (including the exercise of rights and remedies hereunder and under the Fee Letters) are arm’s-length commercial transactions between the Commitment Parties, on the one hand, and the Company, on the other, and in connection therewith and with the process leading thereto, (i) no Commitment Party has assumed an advisory or fiduciary responsibility in favor of the Company, its equity holders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Financial Institution has advised, is currently advising or will advise the Company, its equity holders or its affiliates on other matters) or any other obligation to the Company except the obligations expressly set forth in the Letters and (ii) each Commitment Party is acting solely as a principal and not as the agent or fiduciary of the Company, its management, equity holders, affiliates, creditors or any other person. The Company acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. The Company agrees that it will not assert any claim (and hereby waives any claim) that any Commitment Party has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transactions or the process leading thereto. In addition, each Commitment Party may employ the services of their respective affiliates in providing services and/or performing its obligations hereunder and may exchange with such affiliates information concerning the Company and other companies that may be the subject of this arrangement, and such affiliates will be entitled to the benefits afforded to each Commitment Party hereunder.

In addition, please note that no Financial Institution provides accounting, tax or legal advice. Notwithstanding anything herein to the contrary and the Company (and each employee, representative or other agent of the Company) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Term Loan Facility and all materials of any kind (including opinions or other tax analyses) that are provided to the Company relating to such tax treatment and tax structure. However, any information relating to the tax treatment or tax structure will remain subject to the confidentiality provisions hereof (and the foregoing sentence will not apply) to the extent reasonably necessary to enable the parties hereto, their respective affiliates, and their respective affiliates’ directors and employees to comply with applicable securities laws. For this purpose, “tax treatment” means U.S. federal or state income tax treatment, and “tax structure” is limited to any facts relevant to the U.S. federal income tax treatment of the transactions contemplated by this Commitment Letter but does not include information relating to the identity of the parties hereto or any of their respective affiliates.

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Furthermore, you acknowledge that each Commitment Party and its affiliates may have fiduciary or other relationships whereby such Commitment Party and its affiliates may exercise voting power over securities of various persons, which securities may from time to time include securities of the Company, potential lenders with respect of the Term Loan Facility or others with interests in respect of the Term Loan Facility. You acknowledge that each Commitment Party and its affiliates may exercise such powers and otherwise perform their functions in connection with such fiduciary or other relationships without regard to such Commitment Party’s relationship to you hereunder.

The Company acknowledges and agrees that Goldman Sachs currently holds and makes markets in, and may continue to hold and make markets in, the Company’s bonds, other claims and shares, will be participating in the Company’s issuance of the Convertible Preferred Stock and the Rights Offerings under the Plan, will be backstopping a portion of the Company’s Rights Offering relating to the Plan and will be purchasing Convertible Preferred Stock pursuant to the Company’s proposed private placement relating to the Plan, in each case subject to terms and conditions of the Plan Support Agreement, Rights Offering Backstop Commitment Agreement (as defined in the Plan), Private Placement Agreement (as defined in the Plan) and any related agreements (collectively, the “Public-Side Agreements”) to which Goldman Sachs’ Credit - US Distressed Desk is a party (collectively, the “Public-Side Activities”). The Company further acknowledges and agrees that in connection with the Public-Side Activities, and notwithstanding Goldman Sachs’ potential roles in the Transactions, Goldman Sachs (i) will be acting for its own account as principal with respect to the Public-Side Activities and as a holder and market maker of the Company’s bonds, claims, rights, warrants, common shares or preferred shares (collectively, the “Interests”), (ii) retains all of its rights with respect to the Company and the Interests and may, at its own discretion, take any action or refrain from taking any action (including with respect to the exercise of any rights or remedies), as Goldman Sachs determines is appropriate (including voting for or against any requested amendments, solicitations or settlements) in connection with the Public-Side Activities or its Interests, (iii) is free to participate in any restructuring discussions with the Company and other stakeholders, including, if relevant, financings of the pro forma capital structure and (iv) may otherwise manage its exposure to the Company in accordance with Goldman Sachs’ own interests and objectives, including selling (or otherwise disposing of), hedging or increasing its positions in, the Interests, in each case subject to the terms and conditions of the Public-Side Agreements, to the extent applicable.

The Company further acknowledges and agrees that Goldman Sachs is not acting as the Company’s financial advisor with respect to the Public-Side Activities or the Transactions, and that, in this context, the Company should not rely on Goldman Sachs or any person acting on its behalf. The Company agrees that it will make its own decision regarding the Transactions based upon the Company’s independent assessment of the merits thereof, together with the advice of its counsel and any other independent advisor it may choose to engage.

The Company understands and acknowledges that potential conflicts of interest, or a perception thereof, may arise as a result of Goldman Sachs’ roles in the Transactions, on the one hand, and Goldman Sachs’ Public-Side Activities and actions as a holder of the Interests on the other hand. Notwithstanding the foregoing, the Company agrees that it will not assert any conflicts of interest or similar claims against Goldman Sachs arising out of Goldman Sachs’ various relationships with the Company.

8.	Miscellaneous.

Each Initial Lender’s commitment and each Commitment Party’s agreements hereunder will terminate upon the earliest of: (a) at any time by the Company with or without cause effective upon receipt by the Commitment Parties of notice to that effect from the Company, (b) January 30, 2017, unless as of such date the Authorization Order has been entered and is otherwise in full force and effect, (c) at any time that

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the Plan Support Agreement shall have terminated or been modified in a manner that is materially adverse to the Arrangers or the Lenders without consent of the Arrangers, (d) May 1, 2017, unless as of such date (A) the Bankruptcy Court has entered a final and non-appealable order confirming the Plan, which confirmation order shall be, to the extent material to the Commitment Parties, in form and substance reasonably acceptable to each of the Commitment Parties (the “Confirmation Order”) and (B) the Debtors have emerged from the Bankruptcy Cases, (e) upon the termination, abandonment or withdrawal of, the Plan by the Debtors, and (f) upon the emergence of the Debtors from the Bankruptcy Cases, unless, in the case of clause (f), the closing of the Term Loan Facility, on the terms and subject to the conditions contained herein, has been consummated on or before such date. In addition, the Initial Lenders’ commitments hereunder to provide and arrange the Term Loan Facility will terminate on a dollar-for-dollar basis to the extent of the issuance of the Notes either into escrow (provided that the provisions that allow the release of deposited amounts to the Company shall not be materially more onerous to the Company, taken as a whole, than the conditions to the borrowing of the Term Loan Facility contained in this Commitment Letter) or to the extent the proceeds thereof have been released to the Company.

The provisions set forth under Sections 4 (including Annex A), 6 and 7 hereof and this Section 8 hereof (other than any provision therein that expressly terminates upon execution of the Loan Documents) and the provisions of the Fee Letters will remain in full force and effect regardless of whether Loan Documents are executed and delivered. The provisions set forth in the Fee Letters and under Sections 4 (including Annex A), 6 and 7 hereof and this Section 8 hereof will remain in full force and effect notwithstanding the expiration or termination of this Commitment Letter or our commitments and agreements hereunder and shall terminate in accordance with their terms.

The parties hereto agree that any suit or proceeding arising in respect to any of the Letters or our engagement or commitments hereunder will be tried in the Bankruptcy Court, or in the event the Bankruptcy Court does not exercise jurisdiction, in a court of the United States of America sitting in the Borough of Manhattan or, if that court does not have subject matter jurisdiction, in any state court located in the City and County of New York, and the parties hereto submit to the exclusive jurisdiction of, and to venue in, such court. Any right to trial by jury with respect to any action or proceeding, claim or counterclaim (whether based on tort, contract or otherwise) arising in connection with or as a result of either our commitments or any matter referred to in any of the Letters is hereby waived by the parties hereto. The parties hereto agree 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. Service of any process, summons, notice or document by registered mail or overnight courier addressed to any of the parties hereto at the addresses above shall be effective service of process against such party for any suit, action or proceeding brought in any such court. The Letters and any claim, controversy or dispute arising under or related to the Letters will be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws that would require any other laws to apply.

Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

The Commitment Parties hereby notify the Company that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it, and each Lender, is required to obtain, verify and record information that identifies the Company and each Guarantor (as defined in Annex B), which information includes the name, address and tax identification number of the Company and each such Guarantor and other information that will allow each Commitment Party and each Lender to identify the Company and each such Guarantor in accordance with the Patriot Act. This notice is given in accordance with the requirements of the Patriot Act and is effective for each Commitment Party and each Lender.

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This Commitment Letter may be executed in any number of counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or electronic transmission (in pdf format) will be effective as delivery of a manually executed counterpart hereof. The Letters are the only agreements that have been entered into among the parties hereto with respect to the Term Loan Facility and set forth the entire understanding of the parties with respect thereto and supersede any prior written or oral agreements among the parties hereto with respect to the Term Loan Facility.

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Please confirm that the foregoing is in accordance with your understanding by signing and returning to Goldman Sachs the enclosed copy of this Commitment Letter (together, if not previously executed and delivered, with each Fee Letter), on or before the close of business on January 11, 2017 whereupon the Letters will become binding agreements among us as set forth in the Letters. If the Letters have not been signed and returned as described in the preceding sentence by such date, this offer will terminate on such date. We look forward to working with you on this transaction.


Very truly yours,

GOLDMAN SACHS BANK USA

By:		/s/ Robert Ehudin
		Authorized Signatory