Berkshire Hathaway Energy (BHE) and Energy Future Holdings (EFH) filed with the U.S. Bankruptcy Court separate objections to Elliott Funds’ motion to adjourn the hearing to consider the motion of EFH/Energy Future Intermediate Holdings (EFIH) merger agreement and related termination fee.
BHE’s objection asserts, “The Movants are effectively seeking to prevent a hearing on the merits of the Merger Agreement by seeking to prevent the Debtors from reaching the milestones set forth in Section 8.2(h)(ii) and (iii), without allowing the Debtors to even have a hearing on the merits of the Merger Agreement. These milestones are (a) entry of the Approval Order (as defined in the Merger Agreement) not later than 45 days after the date of the Merger Agreement, and (b) entry of an order approving the Disclosure Statement by September 5, 2017….Even if Elliott were able to raise the funding that Elliott has indicted it is seeking, Elliott’s contemplated structure would leave the reorganized EFIH with at least $4 billion of senior secured debt and at least $1.5 billion of preferred stock, with the terms of such preferred stock allowing the shareholders to ‘put’ the stock to EFIH in just four years.”
The objection continues, “In contrast, the NextEra proposal left no debt at reorganized EFIH, and the conditions to which BHE has agreed with the PUCT staff and key interveners also leaves no debt at reorganized EFIH….If this Court does not enter the Approval Order by August 21, 2017, which cannot occur if the Motion to Adjourn is granted, BHE will terminate the Merger Agreement and the Movants will have torpedoed the only concrete viable path forward for the Debtors, without even addressing the merits of the Merger Agreement, thereby depriving the Debtors of their day in Court.”
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