Attached files
file | filename |
---|---|
EX-4.1 - EXHIBIT 4.1 - Energy Future Holdings Corp /TX/ | ex4-1.htm |
EX-4.2 - EXHIBIT 4.2 - Energy Future Holdings Corp /TX/ | ex4-2.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
8-K
Current
Report
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date
of Report (date of earliest event reported) – January 12, 2010
Energy
Future Holdings Corp.
(Exact
name of registrant as specified in its charter)
Texas
|
1-12833
|
75-2669310
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification No.)
|
Energy
Future Competitive Holdings Company
(Exact
name of registrant as specified in its charter)
Texas
|
1-34543
|
75-1837355
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification No.)
|
Energy
Future Intermediate Holding Company LLC
(Exact
name of registrant as specified in its charter)
Delaware
|
1-34544
|
26-1191638
|
(State
or other jurisdiction of organization)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification No.)
|
Energy
Plaza, 1601 Bryan Street, Dallas, Texas 75201
(Address
of principal executive offices, including zip code)
214-812-4600
(Registrants’
telephone number, including Area Code)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrants under any of the following
provisions (see General Instruction A.2. below):
¨
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
¨
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
¨
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
¨
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Issuance by Energy Future
Holdings Corp. of $500 Million Aggregate Principal Amount of 10.000% Senior
Secured Notes Due 2020
Indenture
On
January 12, 2010, Energy Future Holdings Corp. (“EFH”) entered into an indenture
(the “Indenture”) among EFH, the guarantors named therein and The Bank of New
York Mellon Trust Company, N.A., as trustee. Pursuant to the Indenture, EFH
issued $500,000,000 aggregate principal amount of 10.000% Senior Secured Notes
due 2020 (the “Notes”). The Notes will mature on January 15,
2020. Interest on the Notes is payable in cash in arrears on January
15 and July 15 of each year at a fixed rate of 10.000% per annum, and the
first interest payment is due on July 15, 2010.
The Notes
are guaranteed by Energy Future Competitive Holdings Company (“EFCH”) and Energy
Future Intermediate Holding Company LLC (“EFIH” and together with EFCH, the
“Guarantors”). The guarantee from EFIH is secured by the pledge of all
membership interests and other investments EFIH owns or holds in Oncor Electric
Delivery Holdings Company LLC (“Oncor Holdings”) or any of Oncor Holdings’
subsidiaries (such membership interests and other investments, the
“Collateral”). The guarantee from EFCH is not secured.
The Notes
are senior obligations of EFH and rank equally in right of payment with all
senior indebtedness of EFH. The Notes are effectively subordinated to any
indebtedness of EFH secured by assets of EFH to the extent of the value of the
assets securing such indebtedness and structurally subordinated to all
indebtedness and other liabilities of EFH’s non-guarantor
subsidiaries. The Notes are senior in right of payment to any future
subordinated indebtedness of EFH.
The
guarantees of the Notes (the “Guarantees”) are general senior obligations of
each Guarantor and rank equally in right of payment with all existing and future
senior indebtedness of each Guarantor. The guarantee from EFIH is
effectively senior to all unsecured indebtedness of EFIH to the extent of the
value of the Collateral. The guarantee from EFIH is secured equally and ratably
with approximately $115 million of outstanding secured debt of EFH represented
by EFH’s 9.75% Senior Secured Notes due 2019 and approximately $141 million of
outstanding secured debt of EFIH represented by EFIH’s (and EFIH Finance Inc.’s)
9.75% Senior Secured Notes due 2019 (collectively, the “2019 Notes”). The
Guarantees will be effectively subordinated to all secured indebtedness of each
Guarantor secured by assets other than the Collateral to the extent of the value
of the assets securing such indebtedness and will be structurally subordinated
to any existing and future indebtedness and liabilities of EFH’s subsidiaries
that are not guarantors.
The Notes
and the Indenture restrict EFH’s and its restricted subsidiaries’ ability to,
among other things, make restricted payments, including restricted investments,
incur debt and issue preferred stock, incur liens, permit dividend and other
payment restrictions on restricted subsidiaries, merge, consolidate or sell
assets and engage in transactions with affiliates. These covenants are subject
to a number of important limitations and exceptions. The Notes and the Indenture
also contain customary events of default, including, among others, failure to
pay principal or interest on the Notes or the Guarantees when due. If
an event of default occurs under the Notes and the Indenture, the trustee or the
holders of at least 30% in principal amount outstanding of the Notes may declare
the principal amount on the Notes to be due and payable
immediately.
EFH may
redeem the Notes, in whole or in part, at any time on or after January 15, 2015,
at specified redemption prices, plus accrued and unpaid interest, if any. In
addition, before January 15, 2013, EFH may redeem up to 35% of the aggregate
principal amount of the Notes from time to time at a redemption price of
110.000% of the aggregate principal amount of the Notes, plus accrued and unpaid
interest, if any, with the net cash proceeds of certain equity
offerings. EFH may also redeem the Notes at any time prior to January
15, 2015 at a price equal to 100% of their principal amount, plus accrued and
unpaid interest and a “make-whole” premium. Upon the occurrence of a change in
control, EFH must offer to repurchase the Notes at 101% of their principal
amount, plus accrued and unpaid interest, if any.
The Notes
were offered only to qualified institutional buyers pursuant to Rule 144A under
the Securities Act of 1933, as amended (the “Securities Act”), and outside the
United States to non-U.S. persons pursuant to Regulation S under the Securities
Act. The Notes have not been registered under the Securities Act, or the
securities laws of any state or other jurisdiction, and may not be offered or
sold in the United States without registration or an applicable exemption from
the Securities Act.
EFH
intends to use the net proceeds from the offering for general or other corporate
purposes, which may include, without limitation, working capital needs,
investment in business initiatives, capital expenditures and prepayment or
repurchase of outstanding indebtedness of EFH and/or its
subsidiaries.
A copy of the Indenture is attached
hereto as Exhibit 4.1 and is incorporated herein by reference. The above
description of the Indenture is qualified in its entirety by reference to the
attached Indenture.
Registration Rights
Agreement
On
January 12, 2010, EFH also entered into a registration rights agreement (the
“Registration Rights Agreement”) among EFH, the Guarantors and the initial
purchasers named therein. Pursuant to the Registration Rights
Agreement, EFH and the Guarantors have agreed to use their commercially
reasonable efforts to register with the Securities and Exchange Commission (the
“SEC”) notes having substantially identical terms as the Notes (except for
provisions relating to the transfer restrictions and payment of additional
interest) as part of an offer to exchange such registered notes for the Notes
(the “Exchange Offer”). EFH and the Guarantors are expected to cause the
Exchange Offer to be completed or, if required under special circumstances, to
have one or more shelf registration statements declared effective, within 360
days after the issue date of the Notes. If this obligation is not satisfied (a
“Registration Default”), the annual interest rate on the Notes will increase by
25 basis points for the first 90-day period during which a Registration Default
continues, and thereafter the annual interest rate on the Notes will increase by
50 basis points over the original interest rate for the remaining period during
which the Registration Default continues. If the Registration Default is
corrected, the applicable interest rate on such Notes will revert to the
original level.
A copy of
the Registration Rights Agreement is attached hereto as Exhibit 4.2 and is
incorporated herein by reference. The above description of the Registration
Rights Agreement is qualified in its entirety by reference to the attached
Registration Rights Agreement.
Security
Documents
In
connection with the issuance of the 2019 Notes by EFH and EFIH, respectively,
EFIH entered into a Pledge Agreement, dated as of November 16, 2009,
whereby the Collateral was pledged in favor of The Bank of New York Mellon Trust
Company, N.A. (the “Collateral Trustee”) for the benefit of the Collateral
Trustee, the trustee under each of the indentures relating to the 2019 Notes and
the holders of the 2019 Notes and the holders of any other secured debt
obligations that may be issued in accordance with the indentures governing the
2019 Notes. In addition, EFIH entered into a Collateral Trust
Agreement, dated as of November 16, 2009, among EFIH, The Bank of New York
Mellon Trust Company, N.A., as First Lien Trustee, the other Secured Debt
Representatives named therein and the Collateral Trustee. The
Collateral Trust Agreement governing the pledge of Collateral generally provides
that the holders of a majority of the debt secured by a first priority lien on
the Collateral, including the 2019 Notes and other future debt incurred by EFH
or EFIH secured by the Collateral equally and ratably, have, subject to certain
limited exceptions, the exclusive right to manage, perform and enforce the terms
of the security documents securing the rights of secured debt holders in the
Collateral, and to exercise and enforce all privileges, rights and remedies
thereunder.
In
connection with the issuance of the Notes, on January 12, 2010, the Collateral
Trustee and The Bank of New York Mellon Trust Company, N.A., as New
Representative, entered into a Joinder to the Collateral Trust Agreement and
EFIH entered into an Additional Secured Debt Designation
Agreement. As a result of the Joinder and the Designation by EFIH,
the trustee under the Indenture and the holders of the Notes will benefit from
the pledge of the Collateral under the Pledge Agreement.
The above
description of the material terms of the Pledge Agreement and the Collateral
Trust Agreement is qualified in its entirety by reference to the Pledge
Agreement and the Collateral Trust Agreement, which are incorporated herein by
reference to Exhibits 4.3 and 4.4, respectively, to EFH’s Current Report on Form
8-K, filed with the SEC on November 20, 2009.
This
Current Report on Form 8-K shall not constitute an offer to sell or the
solicitation of an offer to buy the Notes.
Item
2.03. Creation of a Direct Financial
Obligation or an Obligation Under an Off-Balance Sheet Arrangement
of a Registrant.
The information
relating to the Indenture and the Notes set forth under Item 1.01 of this
Current Report on Form 8-K is incorporated by reference in this Item
2.03.
Item
9.01. Financial Statements and
Exhibits.
(d)Exhibit No. Description
4.1
|
Indenture,
dated as of January 12, 2010, among Energy Future Holdings Corp., the
guarantors named therein and The Bank of New York Mellon Trust Company,
N.A.
|
|
4.2
|
Registration
Rights Agreement, dated January 12, 2010, among Energy Future Holdings
Corp., the guarantors named therein and the initial purchasers named
therein.
|
|
4.3
|
Pledge
Agreement, dated as of November 16, 2009, by Energy Future Intermediate
Holding Company LLC (incorporated by reference to Exhibit 4.3 to Energy
Future Holdings Corp.’s Current Report on Form 8-K, filed with the SEC on
November 20, 2009).
|
|
4.4
|
Collateral
Trust Agreement, dated as of November 16, 2009, among Energy Future
Intermediate Holding Company LLC, The Bank of New York Mellon Trust
Company, N.A., as First Lien Trustee, the other Secured Debt
Representatives named therein and The Bank of New York Mellon Trust
Company, N.A., as Collateral Trustee (incorporated by reference to Exhibit
4.4 to Energy Future Holdings Corp.’s Current Report on Form 8-K, filed
with the SEC on November 20, 2009).
|
|
SIGNATURE
|
Pursuant
to the requirements of the Securities Exchange Act of 1934, each registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
ENERGY
FUTURE HOLDINGS CORP.
|
|||
/s/ Stan J. Szlauderbach | |||
|
Name:
Stan J. Szlauderbach
|
||
Title: Senior
Vice President & Controller
|
ENERGY
FUTURE COMPETITIVE HOLDINGS COMPANY
|
|||
/s/ Stan J. Szlauderbach | |||
Name: Stan J. Szlauderbach | |||
Title: Senior Vice President & Controller | |||
ENERGY
FUTURE INTERMEDIATE HOLDING COMPANY LLC
|
|||
/s/ Stan J. Szlauderbach | |||
|
Name:
Stan J. Szlauderbach
|
||
Title: Senior
Vice President & Controller
|
Dated:
January 19, 2010