================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarter ended September 30, 2004
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
------------------
0001261679 MSW Energy Holdings LLC Delaware 14-1873119
0001261680 MSW Energy Finance Co., Inc. Delaware 20-0047886
Commission (Exact name of each (State or other (I.R.S. Employer
File Number registrant as specified in jurisdiction of Identification
its charter) incorporation or Number)
organization)
c/o American Ref-Fuel Company LLC
155 Chestnut Ridge Road
Montvale , New Jersey 07645
Phone No. 800-727-3835
(Address, including zip code, and telephone number, including area code, of the
registrants' principal executive offices)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Act):
MSW Energy Holdings LLC: yes [ ] no [X]
MSW Energy Finance Co., Inc: yes [ ] no [X]
Indicate the number of shares outstanding of each of the registrants'
classes of common stock, as of the latest practicable date.
MSW Energy Holdings LLC: None
MSW Energy Finance Co., Inc: 100 shares of Common Stock
Documents Incorporated by Reference: None
MSW Energy Finance Co., Inc. meets the conditions set forth in General
Instruction H 1(a) and (b) of Form 10-Q and is therefore filing this Form 10-Q
with the reduced disclosure format.
1
TABLE OF CONTENTS
Part I FINANCIAL INFORMATION.............................................................................................3
Item 1. Consolidatd Financial Statements.................................................................................3
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations...........................24
Item 3. Quantitative and Qualitative Disclosures about Market Risk......................................................36
Item 4. Controls and Procedures.........................................................................................38
PART II OTHER INFORMATION...............................................................................................38
Item 1. Legal Proceedings...............................................................................................38
Item 2. Unregistered Sale of Equity Securities and Use of Proceeds......................................................38
Item 3. Defaults Upon Senior Securities.................................................................................38
Item 4. Submission of Matters to a Vote of Security Holders.............................................................38
Item 5. Other Information...............................................................................................39
Item 6. Exhibits and Reports on Form 8-K................................................................................40
SIGNATURES
SAFE HARBOR STATEMENT
This Form 10-Q contains "forward-looking statements" intended to qualify
for safe harbor from liability established by the Private Securities Litigation
Reform Act of 1995. Forward-looking statements should be read with the
cautionary statements and important factors included in this Form 10-Q at Part
I, Item 2- "Management's Discussion and Analysis of Financial Condition and
Results of Operations - Risk Factors." Forward-looking statements are all
statements other than statements of historical fact, including without
limitation those that are identified by the use of the words "anticipates,"
"estimates," "expects," "intends," "plans," "predicts" and similar expressions.
2
Part I FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
3
MSW ENERGY HOLDINGS LLC AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands)
Assets
September 30, 2004 December 31, 2003
------------------ -----------------
Current assets (unaudited)
Cash and cash equivalents $ 72,683 $ 3,633
Restricted cash and short-term investments 94,191 2,444
Accounts receivable, net of allowance for doubtful accounts of
$1,672 and $0, respectively 74,591 -
Prepaid expenses and other current assets 10,198 76
------------------ -----------------
Total current assets 251,663 6,153
------------------ -----------------
Long-term assets
Property, plant and equipment, net 1,202,412 -
Intangible assets, net 544,008 7,821
Goodwill 2,175 -
Investment in Ref-Fuel Holdings - 372,672
Restricted cash and long-term investments 94,403 5,001
Other long-term assets 8,744 -
------------------ -----------------
Total long-term assets 1,851,742 385,494
------------------ -----------------
Total assets $ 2,103,405 $ 391,647
================== =================
Liabilities and Members' Equity
Current liabilities
Accounts payable and other current liabilities $ 42,501 $ 556
Accounts payable to related party - 480
Current portion of long-term debt 83,159 -
Accrued interest payable 21,716 5,667
Other current liabilities 2,500 500
------------------ -----------------
Total current liabilities 149,876 7,203
------------------ -----------------
Long-term liabilities
Long-term debt 1,213,569 200,000
Other long-term liabilities 220,330 24,333
Long-term deferred tax 20,288 -
------------------ -----------------
Total long-term liabilities 1,454,187 224,333
------------------ -----------------
Total liabilities 1,604,063 231,536
------------------ -----------------
Commitments and contingencies (Notes 12 and 13)
Minority Interest in Consolidated Subsidiary 362,478 -
------------------ -----------------
Members' equity
Total members' equity 136,864 160,111
------------------ -----------------
Total liabilities and members' equity $ 2,103,405 $ 391,647
================== =================
The accompanying notes are an integral part of these consolidated financial statements.
4
MSW ENERGY HOLDINGS LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited, in thousands)
For the Three For the Three For the Nine
Months Ended Months Ended Months Ended
September 30, September 30, September 30,
2003 2004 2004
-------------- ------------- -------------
Revenues
Waste disposal and related services $ - $ 73,004 $ 122,124
Energy - 36,208 58,527
Other - 3,746 5,759
-------------- -------------- ----------------
Total net revenues - 112,958 186,410
Expenses
Operating - 44,430 75,139
Depreciation and amortization - 16,820 27,993
General and administrative 602 9,269 17,024
(Gain) loss on asset retirements - (218) 618
-------------- -------------- ----------------
Operating (loss) income (602) 42,657 65,636
Interest income 79 890 1,419
Interest expense (5,008) (17,274) (35,566)
Equity in net earnings of unconsolidated
affiliate - Ref-Fuel Holdings 10,950 - 6,545
Minority interests in net income of
subsidiaries - (15,502) (23,498)
Other, net - 3 105
-------------- -------------- ----------------
Income before income taxes 5,419 10,774 14,641
Income tax provision - 1,427 1,640
-------------- -------------- ----------------
Net income 5,419 9,347 13,001
Other comprehensive loss - - (211)
-------------- -------------- ----------------
Comprehensive income $ 5,419 $ 9,347 $ 12,790
============== ============== ================
The accompanying notes are an integral part of these consolidated financial statements.
5
MSW ENERGY HOLDINGS LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF MEMBERS' EQUITY
(Unaudited, in thousands)
Members' Accumulated Other
Interests Comprehensive Income Total
------------ -------------------- ---------------
Balance, January 1, 2004 $160,111 $ - $160,111
Assumption of tax liability
(see Note 11) (16,348) - (16,348)
Distribution to members (19,900) - (19,900)
Unrealized gain on
investments from the
consolidation of Ref-Fuel
Holdings - 211 211
Comprehensive income 13,001 (211) 12,790
------------ -------------------- ---------------
Balance, September 30, 2004 $136,864 $ - $136,864
============ ==================== ===============
The accompanying notes are an integral part of these consolidated financial statements.
6
MSW ENERGY HOLDINGS LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited, in thousands)
From Inception For the Nine
(June 30, 2003) to Months Ended
September 30, 2003 September 30, 2004
------------------ -----------------
Cash flows from operating activities
Net income $5,418 $13,001
Adjustments to reconcile net income to net cash (used in) provided by
operating activities:
Depreciation and amortization 268 42,363
Deferred taxes - 18,588
Revenue contract levelization - 9,002
Equity earnings in unconsolidated affiliate - Ref-Fuel
Holdings, net of amortization (10,950) (6,545)
Distributions from Ref-Fuel Holdings 10,731 31,374
Loss on asset retirements - 618
Minority interest in consolidated subsidiaries, net of
Distributions - 18,478
Changes in assets and liabilities:
Accounts receivable, net 250 (3,277)
Prepaid expenses and other current assets 38 1,475
Other long-term assets - 292
Accounts payable and current liabilities (20,357) (666)
Accounts payable affiliates - (480)
Accrued interest payable 1,134 (6,643)
Other long-term liabilities 491 (12,616)
---------------- ------------
Net cash (used in) provided by operating activities (12,977) 104,964
---------------- ------------
Cash flows from investing activities
Change in restricted cash and investments, net (5,024) (42,007)
Additions of property, plant and equipment - (8,534)
Proceeds from sale of assets - 20
Cash from consolidation of unconsolidated subsidiary
(Note 3) - 40,238
---------------- ------------
Net cash used in investing activities (5,024) (10,283)
---------------- ------------
Cash flows from financing activities
Payment of financing cost (377) -
Payment of long-term debt - (5,731)
Distributions paid to members (500) (19,900)
---------------- ------------
Net cash used in financing activities (877) (25,631)
---------------- ------------
Net (decrease) increase in cash and cash equivalents (18,878) 69,050
Cash and cash equivalents, beginning of period 22,511 3,633
---------------- ------------
Cash and cash equivalents, end of period $3,633 $72,683
================ ============
The accompanying notes are an integral part of these consolidated financial statements.
7
MSW Energy Holdings LLC and Subsidiaries
Notes to Consolidated Financial Statements
- --------------------------------------------------------------------------------
1. Organization and Basis of Presentation
MSW Energy Holdings LLC (MSW Energy Holdings and collectively hereinafter
with its subsidiaries, referred to as the Company), a Delaware limited liability
company formed in March 2003 and its consolidated wholly-owned subsidiaries, MSW
Energy Finance Co., Inc. (MSW Finance), a Delaware corporation, and MSW Energy
Hudson LLC (MSW Hudson), a Delaware limited liability company, were organized
for the purpose of acquiring and holding a 50% interest in Ref-Fuel Holdings LLC
(Ref-Fuel Holdings) from Duke Energy Corp. (Duke). The initial acquisition of
Ref-Fuel Holdings (the initial closing) was completed on June 30, 2003. MSW
Finance, a wholly-owned subsidiary, was organized for the sole purpose of acting
as co-issuer with MSW Energy Holdings of $200 million aggregate principal amount
of 8 1/2% senior secured notes due September 1, 2010 (Senior Notes). Other than
serving as co-issuer, MSW Finance does not conduct operations of its own and has
no assets.
At the initial closing, MSW Energy Holdings acquired MSW Hudson, which
holds a 49.8% membership interest in Ref-Fuel Holdings. MSW Energy Holdings has
agreed to acquire Duke Energy Erie, LLC (or Erie), an indirect, wholly-owned
subsidiary of Duke, that holds an additional 0.2% membership interest in
Ref-Fuel Holdings, within two years and six months after its purchase of MSW
Hudson.
On August 31, 2004, United American Energy Holdings Corp. (UAE Holdings
Corp.), the indirect parent of MSW Energy Holdings II LLC (MSW Energy Holdings
II) and managing member of the Company, and certain investment funds affiliated
with Credit Suisse First Boston Private Equity, Inc. (CSFB Private Equity) and
certain funds managed by AIG Global Investment Corp. (AIGGIC) effected a series
of transactions that resulted in UAE Holdings Corp. becoming the indirect parent
of the Company (the August 31 Transactions).
Prior to the August 31 Transactions, and as a result of a series of
transactions known as the Equalization Transactions, which were consummated on
April 30, 2004, affiliates of CSFB Private Equity and certain funds managed by
AIGGIC beneficially owned approximately 60% and 40%, respectively, of the equity
interests in each of the Company and UAE Holdings Corp., and UAE Holdings Corp.
owned a 0.01% managing member interest in the Company.
The Equalization Transactions also resulted in UAE Holdings Corp. assuming
full control of the management and operations of the Company and Ref-Fuel
Holdings through its interests in the Company and MSW Energy Holdings II. The
other 50% interest in Ref-Fuel Holdings is owned directly and indirectly by MSW
Energy Holdings II, pursuant to a separate series of transactions (UAE Merger)
completed on December 12, 2003, whereby MSW Energy Holdings II acquired its
membership interest in Ref-Fuel Holdings.
As a result of the Equalization Transactions, the Company has effective
control of Ref-Fuel Holdings, and is therefore consolidating its results of
operations and cash flows for the period from May 1, 2004, and the balance sheet
as of April 30, 2004.
The Company's sole source of operating cash flow relates to its indirect
49.8% membership interest in Ref-Fuel Holdings. Ref-Fuel Holdings is a holding
company whose sole source of operating cash flow relates to its 100% membership
interest in American Ref-Fuel Company LLC (American Ref-Fuel, ARC, or ARC LLC).
8
American Ref-Fuel owns partnerships that develop, own and operate
waste-to-energy facilities, which combust municipal solid waste and produce
energy in the form of electricity and steam. Through such partnerships, American
Ref-Fuel owns or controls six waste-to-energy facilities located in the
northeastern United States (the ARC operating facilities). The subsidiaries of
American Ref-Fuel that operate the ARC operating facilities (the ARC operating
companies) derive revenues principally from disposal or tipping fees received
for accepting waste and from the sale of electricity and steam produced by those
facilities. ARC subsidiaries include: (a) American Ref-Fuel Company (Ref-Fuel
Management); (b) TransRiver Marketing Company, L.P. (TransRiver); (c) American
Ref-Fuel Company of Hempstead (Hempstead); (d) American Ref-Fuel Company of
Essex County (Essex); (e) American Ref-Fuel Company of Southeastern Connecticut
(Seconn); (f) American Ref-Fuel Company of Niagara, L.P. (Niagara); (g) American
Ref-Fuel Company of Semass, L.P. (Ref-Fuel Semass); (h) American Ref-Fuel
Operations of Semass, L.P. (Semass Operator); (i) American Ref-Fuel Company of
Delaware Valley, L.P. (Delaware Valley) (collectively referred to as the
American Ref-Fuel Partnerships).
The accompanying condensed consolidated financial statements are unaudited.
In the opinion of management, such statements include all adjustments, including
normal recurring accruals and adjustments, necessary for a fair presentation of
the results for the period presented. The accounting policies followed during
interim periods reported are in conformity with accounting principles generally
accepted in the United States of America; however, certain information and
footnote disclosures normally included in financial statements have been
condensed or omitted pursuant to the rules and regulations of the Securities and
Exchange Commission. These consolidated financial statements should be read in
conjunction with the financial statements and notes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 2003. The
Company believes that the disclosures included are adequate and provide
sufficient information. The results of operations for the interim periods are
not necessarily indicative of the results that might be expected for future
interim periods or for a full year.
2. Significant Accounting Policies
Principles of Consolidation
The accompanying consolidated financial statements include accounts of MSW
Energy Holdings, its wholly-owned subsidiaries and Ref-Fuel Holdings. Prior to
the Equalization Transactions, the Company's investment in Ref-Fuel Holdings was
accounted for using the equity method. As a result of the Equalization
Transactions, the Company has effective control of Ref-Fuel Holdings and as of
April 30, 2004, is consolidating its results of operations, cash flows and
balance sheet. All significant intercompany transactions and accounts have been
eliminated.
Reclassifications
Certain reclassifications have been made to the prior year to conform to
the current year's presentation.
Estimates
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires
management to make estimates and assumptions that affect the (a) reported
amounts of assets and liabilities at the date of the financial statements; (b)
disclosures of contingent assets and liabilities at the date of the financial
statements; and (c) the reported amounts of revenues and expenses recognized
during the reporting period. Significant management estimates include the
estimated lives of long-lived assets, allowances for doubtful accounts
receivable, estimated useful lives and fair value adjustments of net tangible
and intangible assets, liabilities for self-insurance and certain landfill
liabilities. Such estimates are revised as necessary when additional information
becomes available. Actual results could differ from those estimates.
9
Cash and Cash Equivalents
Cash and cash equivalents include cash balances and unrestricted short-term
investments with original maturities of three months or less.
Restricted Cash and Investments
The Company is required to maintain cash and investment balances that are
restricted by provisions of its debt, operational or lease agreements. These
amounts are held by financial institutions in order to comply with contractual
provisions requiring such reserves.
Restricted cash and investments are invested in accounts earning market
rates; therefore, the carrying value approximates fair value. Restricted cash
and investments are excluded from cash and cash equivalents in the accompanying
financial statements, and changes in these assets are characterized as investing
activities in the consolidated statements of cash flows. Restricted cash and
investments include certain investments stated at amortized cost, which
approximates market, including debt securities that are classified as
''held-to-maturity'' because the Company has the intent and ability to hold the
securities to maturity. The Company accounts for marketable securities in
accordance with SFAS Statement No. 115, "Accounting for Certain Investments in
Debt and Equity Securities". Under the provisions of this statement, investments
that are classified as available-for-sale are marked to market with unrealized
gains and losses reported as a component of other comprehensive income.
Property, Plant and Equipment
Property, plant and equipment are stated at cost. The Company provides for
depreciation of its assets using the straight-line method over the estimated
useful lives.
Routine repairs and maintenance are charged against current operations.
Expenditures that increase value, increase capacity or extend useful lives are
capitalized.
When property and equipment are retired, sold, or otherwise disposed of,
the cost, net of accumulated depreciation, is removed from the accounts and any
resulting gain or loss is included in operating income for the period.
The Company maintains a supply of various spare parts integral to its
operations. Certain spare parts that are not expected to be used within the
upcoming year have been classified as long-term spare parts inventory within
property, plant and equipment.
Landfill costs, including original acquisition cost and incurred
construction costs, are amortized over the estimated capacity of the landfill
based on a per-unit basis as landfill space is consumed.
In accordance with SFAS No. 144, "Accounting for the Impairment or Disposal
of Long-Lived Assets", management periodically reviews long-lived assets and
intangibles whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable. If factors indicate that an
asset should be evaluated for possible impairment, management compares estimated
undiscounted future operating cash flows associated with the asset to its
carrying amount. If the carrying amount of the asset is greater than
undiscounted future operating cash flows, an impairment loss is calculated and
recognized. The effect of any impairment would be to expense the difference
between the fair value of such asset and its carrying value.
10
Goodwill
Goodwill represents the total consideration paid in excess of the fair
value of the net tangible and identifiable intangible assets acquired and the
liabilities assumed. In accordance with the provisions of Financial Accounting
Standard (FAS No. 142), "Goodwill and Other Intangible Assets", the Company
performs an annual fair value test of its recorded goodwill for its reporting
units using a discounted cash flows approach.
Intangible Assets
Energy contract intangibles represent the amount by which the contract
rates in long-term energy sales contracts held by certain subsidiaries of the
Company exceeded fair value on the dates that these subsidiaries were acquired.
These contract related intangibles are amortized into income as a reduction of
energy revenues on a straight-line basis over the remaining terms of the
applicable contracts, which range from six to sixteen years.
Waste contract intangibles represent the amount by which the contract rates
in long-term waste sales contracts held by Hempstead exceeded fair value on the
dates that the partnership was acquired. These contract related intangibles are
being amortized into income as a reduction of waste revenues on a straight-line
basis through 2009, the term of the applicable contracts.
The Company has intangible assets relating to Nitrous Oxide (NOx) emission
allowances. These assets have indefinite lives and, as such, are not amortized.
Consistent with all the Company's intangible assets, these are reviewed under
the provisions of FAS 142 for potential impairment on an annual basis.
Deferred financing costs represent certain capitalizable costs incurred by
the Company to finance its long-term debt obligations. These costs are amortized
to interest expense over the life of the related debt using the effective
interest rate method.
Equity Method Investment
The Company's investment in Ref-Fuel Holdings was accounted for using the
equity method of accounting prior to the Equalization Transactions. As a result,
the accompanying consolidated results of operations include the Company's share
of net earnings in "Equity in net earnings of Ref-Fuel Holdings" for the period
up to April 30, 2004.
Other Liabilities
Other current and other long-term liabilities primarily consist of (a) fair
value adjustments related to certain operating leases and long-term waste
contracts acquired by the Company; (b) deferred revenue; (c) accruals for
certain long-term incentive plans; (d) energy contract levelization; and (e) the
Duke agreement liability (see Note 3).
The fair value adjustment related to the operating lease represents the
amount by which future rent payments on the Delaware Valley facility lease
exceeded the fair market value of that facility as of the acquisition dates.
This amount is being amortized as a decrease in facility rent expense on a
straight-line basis through 2019, the end of the associated lease.
11
The fair value adjustment related to the acquired long-term waste contracts
represents the amount by which costs of disposal and processing of waste
delivered pursuant to certain long-term waste contracts held by Semass
Partnership and Essex exceeded estimated contract revenues at their respective
acquisition dates. These costs are being amortized as an increase to waste
disposal revenues using the straight-line method over the term of the applicable
contracts.
Landfill closure and postclosure costs are also included in other long-term
liabilities. The Company accrues landfill closure and postclosure costs as the
remaining permitted space of the landfill is consumed over the expected life
cycle of the landfill.
The Company is accounting for the long-term power contracts at the Semass
Partnership in accordance with EITF Issues 91-6 "Revenue Recognition of
Long-Term Power Sales Contracts" and EITF 96-17 "Revenue Recognition under
Long-Term Power Sales Contracts That Contain both Fixed and Variable Pricing
Terms", which require the Company to recognize power revenues under these
contracts as the lesser of (a) amounts billable under the respective contracts;
or (b) an amount determinable by the kilowatt hours made available during the
period multiplied by the estimated average revenue per kilowatt hour over the
term of the contract. The determination of the lesser amount is to be made
annually based on the cumulative amounts that would have been recognized had
each method been applied consistently from the beginning of the contract. The
difference between the amount billed and the amount recognized is included in
other long-term liabilities.
Revenue Recognition
The Company recognizes revenue from two major sources: waste disposal
services and energy production. Revenue from waste disposal services is
recognized as waste is received, and revenue from energy production is
recognized as the energy is delivered.
Concentration of Credit Risk
The Company invests excess cash and funds held in trust in bank deposit
accounts, commercial paper, certificates of deposit and money market investments
with a limited number of financial institutions.
The Company has exposure to credit risk in accounts receivable as the
Company disposes of waste for and sells power to a limited number of customers.
The Company believes adequate reserves are maintained for potential credit
losses. Furthermore, these and other customers are primarily located in the
northeastern region of the United States of America.
Unamortized Debt Premium
Unamortized debt premium represents the increase in the fair value of the
Company's debt recorded as a result of the UAE Merger. These costs are amortized
to interest expense over the life of the related debt using the effective
interest method.
Income Taxes
As the Company is a limited liability company, it is not directly subject
to Federal and State income taxes; rather its income or loss is required to be
included in the income tax returns of its member. After the August 31
Transactions the Company's member is UAE Holdings Corp., which is a C
corporation for tax purposes. As a result, the Company is required to provide
for Federal and State income taxes as if it were a tax paying entity. For the
period ended September 30, 2004, the Company's provision reflects one month of C
corporation taxes that its member is responsible for on the income of the
Company, and the taxes of Ref-Fuel Holdings LLC subsequent to the Equalization
Transactions.
12
The Company accounts for income taxes under the asset and liability method.
The provision for income taxes includes deferred income taxes resulting from
items reported in different periods for income tax and financial statement
purposes. Deferred income tax assets and liabilities represent the expected
future tax consequences of the differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases. The effects of changes in tax rates on deferred income tax assets and
liabilities are recognized in the period that includes the enactment date.
Fair Value of Financial Instruments
Unless disclosed otherwise, all other financial instruments of the Company
are stated at cost, which management believes approximates fair market value.
Push-down Accounting
Upon consummation of the UAE Merger and taking into account the Company's
June 30, 2003 acquisition of membership interests in Ref-Fuel Holdings,
affiliates of CSFB Private Equity and AIGGIC (the Control Group) owns, directly
and indirectly, 99.8% of the membership interests in Ref-Fuel Holdings (and
exercise voting power with respect to the remaining 0.2% interest). Emerging
Issues Task Force (EITF) Topic D-97, "Push-Down Accounting", requires that
Ref-Fuel Holdings' financial statements reflect this change in ownership.
Accordingly, the aggregate excess of purchase price over the net assets acquired
by the Company on June 30, 2003 was pushed-down to Ref-Fuel Holdings and its
subsidiaries on December 12, 2003.
Prior to push-down on December 12, 2003, identifiable intangible assets
were included in ''Investment in Ref-Fuel Holdings'' on the Company's
consolidated balance sheet and were amortized on a straight-line basis over
their estimated useful lives. As a result of push-down accounting, the excess of
the purchase price paid by the Company over the Company's share of members'
equity of Ref-Fuel Holdings on the acquisition date has been allocated to the
Company's proportionate share of the fair value of the assets acquired and
liabilities assumed, based on an independent valuation of Ref-Fuel Holdings (see
Note 3).
3. Acquisition of Membership Interests in Ref-Fuel Holdings
Pursuant to an equity purchase agreement between MSW Energy Holdings and
Duke, the Company agreed to acquire Duke's 50% membership interest in Ref-Fuel
Holdings in two separate closings. At the initial closing on June 30, 2003, MSW
Energy Holdings acquired MSW Hudson (formerly Duke Energy Hudson, LLC), which
holds a 49.8% membership interest in Ref-Fuel Holdings. The Company has agreed
to acquire Duke Energy Erie, LLC (Erie), a wholly-owned subsidiary of Duke that
holds an additional 0.2% membership interest in Ref-Fuel Holdings, at a second
closing to occur at a future date within two years and six months after the
initial closing. At the initial closing, the Company entered into a voting
agreement with Erie, pursuant to which Erie granted the Company the right to
vote the 0.2% membership interest in Ref-Fuel Holdings held by Erie until such
time as the membership interest in Erie is transferred to MSW Energy Holdings.
As a result, MSW Energy Holdings has direct or indirect voting control of 50% of
the membership interests in Ref-Fuel Holdings after the initial closing.
13
The aggregate cash purchase price for both the initial and second closing
was $326.8 million, excluding acquisition related costs of $15 million and
obligations assumed of $23 million. The purchase price payment for the second
closing will be $1.3 million which has been recorded in other long-term
liabilities on the accompanying consolidated balance sheet. The purchase price
paid at the initial closing was financed with proceeds from the Company's
offering of Senior Notes, together with capital contributions made by the
Company's two members of $75.0 million each. The purchase price payable at the
second closing is expected to be financed by cash on hand or capital
contributions from the members.
The Company's share of members' equity of Ref-Fuel Holdings acquired as of
June 30, 2003 was $144.9 million. As required by push-down accounting, the
excess purchase price of $218.6 million was allocated to the Company's
proportionate share of the fair values of the assets acquired and liabilities
assumed based on an independent valuation of Ref-Fuel Holdings tangible assets,
property, plant and equipment, identifiable intangible assets and debt. The
amounts allocated to tangible and intangible assets are amortized using the
straight-line method over the estimated useful lives of the underlying assets or
obligations ranging from ten to twenty years. Debt is being amortized based on
the effective interest rate method over the life of the obligations.
A summary of the allocation of purchase price to the fair value of the
assets acquired by the Company and the Company's underlying investment in
Ref-Fuel Holdings' members' equity at June 30, 2003 is as follows (in
thousands):
Ref-Fuel Holdings' members' equity acquired $ 144,933
Fixed assets and other adjustments 76,363
Identifiable intangible assets, net 154,068
Goodwill (12,050)
Other long-term assets (2,892)
Long-term debt (22,405)
Other long-term liabilities 25,465
-----------
Purchase price for acquisition of 49.8% of Ref-Fuel Holdings $ 363,482
===========
In connection with the acquisition, the Company has entered into an
agreement (the Duke Agreement) with Duke Capital, an affiliate of Duke, under
which the Company agreed to pay Duke Capital certain future fees in exchange for
Duke Capital's agreement to remain obligated under an existing support agreement
related to Ref-Fuel Holdings. The amounts payable under the Duke Agreement are
subordinate to the Company's other long-term debt obligations and escalate over
time. A portion of this balance is deposited into a restricted account for the
benefit of Duke Capital. The Company is in compliance with all of its
obligations under this agreement. This liability is included in other current
and long-term liabilities, and represents the present value of the obligation
under the Duke Agreement. At September 30, 2004, the balance was $24.6 million
and $23.5 million at December 31, 2003.
As described in Note 1, the Equalization Transactions consummated on April
30, 2004 resulted in the Company acquiring a controlling interest in Ref-Fuel
Holdings, which requires consolidation.
Pro Forma Information
The following results represent the unaudited pro forma results as if MSW
Energy Holdings' acquisition of its interests in Ref-Fuel Holdings, the
Equalization Transactions and the August 31 Transactions had occurred on January
1, 2003. These results are presented for informational purposes only, and are
not necessarily indicative of the actual results that would have resulted had
the acquisition, the Equalization Transactions and the August 31 Transactions
actually occurred on January 1, 2003 (in thousands, unaudited):
14
Pro Forma Pro Forma
For the Nine For the Nine
Months Ended Months Ended
September 30, 2004 September 30, 2003
------------------- ------------------
Revenues
Waste disposal and related services $211,620 $209,265
Energy 100,093 98,922
Other 12,234 10,073
-------------------- --------------------
Total net revenues 323,947 318,260
-------------------- --------------------
Expenses
Operating 148,460 145,948
Depreciation and amortization 50,836 51,057
General and administrative 31,521 35,049
Loss on asset retirements 960 1,717
-------------------- --------------------
Operating income 92,170 84,489
Interest income 2,403 2,400
Interest expense (50,448) (50,719)
Loss on early extinguishment of debt - (3,292)
Minority interests in net income of
subsidiaries (29,744) (24,046)
Other income (expenses), net 225 (384)
-------------------- --------------------
Net income before taxes 14,606 8,448
Taxes (5,843) (3,379)
-------------------- --------------------
Net income $8,763 $5,069
===================== ===================
4. Equity Investment in Ref-Fuel Holdings
Prior to the Equalization Transactions, the Company recorded its investment
in Ref-Fuel Holdings as an equity investment. Ref-Fuel Holdings condensed
financial information prior to April 30, 2004 is included for informational
purposes.
15
Summarized condensed balance sheet information of Ref-Fuel Holdings, is as
follows (in thousands):
As of As of
April 30, 2004 December 31, 2003
-------------------- -----------------------
(unaudited)
Current assets $ 177,397 $ 233,151
Noncurrent assets 1,879,198 1,894,757
Current liabilities 147,068 133,358
Noncurrent liabilities 1,218,780 1,253,250
Members' Equity 690,747 741,300
Summarized statement of operations information for Ref-Fuel Holdings is as
follows (unaudited, in thousands):
For the Four
Months Ended
April 30, 2004
--------------
Revenues $ 137,537
Operating income 26,534
Net earnings 12,753
Company's equity in net earnings 6,545
5. Property, Plant and Equipment
Property, plant and equipment consist of the following (in thousands):
Useful Life September 30, 2004 December 31, 2003
------------- ---------------------------------------
(unaudited)
Plant and equipment 2-50 years $1,163,443 $-
Land 3,813 -
Leasehold improvements Up to 17 years 44,562 -
Landfill 13 years 15,470 -
Spare parts 12,253 -
Construction in progress 12,180 -
------------------ -----------------
Total property, plant and
equipment 1,251,721 -
Accumulated depreciation (49,309) -
------------------ -----------------
Property, plant and equipment,
net $1,202,412 $-
===============-== =================
16
6. Intangible Assets
Intangible assets consist of the following (in thousands):
Useful Life September 30, 2004 December 31, 2003
------------------ ------------------ -----------------
(unaudited)
Energy contracts 6-16 years $522,430 $ -
Waste contracts 6 years 23,600 -
Financing costs 7 years 8,382 8,382
Emissions credits Indefinite 38,910 -
Other intangibles Indefinite 3,599 -
------------------ -----------------
596,921 8,382
Accumulated amortization (52,913) (561)
------------------ -----------------
Intangible assets, net $544,008 $7,821
================== =================
7. Goodwill
Goodwill consists of the following (in thousands):
September 30, 2004 December 31, 2003
------------------ -----------------
(unaudited)
Beginning balance $ - $-
Goodwill from the consolidation of Ref-Fuel
Holdings 2,175 -
------------------ -----------------
Ending balance $2,175 $-
================== =================
8. Accounts Payable and Other Current Liabilities
Accounts payable and other current liabilities consist of the following (in
thousands):
September 30, 2004 December 31, 2003
------------------ -----------------
(unaudited)
Accounts payable $27,384 $556
Incentive plan accruals 4,083 -
Compensation liabilities 6,624 -
Other 4,410 -
------------------ -----------------
$42,501 $556
================== =================
17
9. Financing Arrangements
Long-term debt obligations of the Company consist of the following (in
thousands):
Final
Interest Rate Maturity September 30, 2004 December 31, 2003
------------- -------- ------------------ -----------------
(unaudited)
Senior Notes 8.5% 2010 $ 200,000 $ 200,000
------------------ -----------------
Ref-Fuel Holdings debt
ARC Senior Notes 6.26% 2015 253,300 -
Niagara Series 2001 5.45 - 5.625% 2015 165,010 -
Seconn Corporate Credit Bonds - 1992 Series A 6.45% 2022 30,000 -
Seconn Corporate Credit Bonds - ARC-I Series A and ARC-11 Series A 5.50% 2015 13,500
Hempstead Corporate Credit Bonds 5.00% 2010 42,670 -
Hempstead project debt 4.40%-5.00% 2009 133,278 -
Essex project debt 5.32%-7.48% 2020 108,662 -
Seconn project debt 5.125%-5.50% 2015 53,499 -
Semass Series 2001A 5.50%-5.625% 2016 134,345 -
Semass Series 2001B 5.00%-5.50% 2010 104,385 -
------------------ -----------------
Subtotal 1,038,649 -
------------------ -----------------
Other obligations 294 -
------------------ -----------------
Total debt at par value 1,238,943 200,000
Unamortized debt premium, net 57,785 -
Current portion (83,159) -
------------------ -----------------
Total long-term debt obligations $ 1,213,569 $ 200,000
================== =================
In June 2003, the Company issued $200.0 million aggregate principal amount
of 8 1/2 % senior secured notes due 2010 (Senior Notes). Interest on the Senior
Notes accrues at 8 1/2 % per annum, beginning from the date of issuance and is
payable on March 1st and September 1st of each year, commencing on September 1,
2003. Interest only is payable throughout the term of the Senior Notes with
principal and unpaid interest payable at maturity on September 1, 2010. Holders
of Senior Notes may require the Company to repurchase the Senior Notes upon a
change in control or if the Company receives any proceeds from certain
financings or asset sales by Ref-Fuel Holdings and its subsidiaries.
The indenture for the Senior Notes provides for certain restrictive
covenants including, among other things, restrictions on incurrence of
indebtedness, certain payments to related and unrelated parties, acquisitions
and asset sales.
Certain of the debt agreements held by the Company contain restrictions on
cash distributions and new borrowings. Substantially all of the assets and
revenues of the facilities owned or controlled and operated by subsidiaries of
the Company are pledged to trustees under the terms of the debt agreements. In
addition, the terms of the documents governing these obligations limit the
business activities and the circumstances and timing of making partnership
distributions. In the event of any bankruptcy or liquidation the Ref-Fuel
Holdings debt would be repaid prior to the repayment of the Senior Notes.
18
10. Other Long-Term Liabilities
Other long-term liabilities consist of the following (in thousands):
Amortization
Period December 31,
(years) September 30, 2004 2003
------------ ------------------ ----------------
(unaudited)
Waste contracts acquired 9-17 $120,243 $ -
Operating lease acquired 14 42,094 -
Duke liability 22,086 23,026
Energy contract levelization 12 17,961 -
Landfill liabilities 13 10,575 -
Deferred revenue 8-20 3,780 -
Other 1,307 1,307
Incentive plan accruals 2,284 -
------------------ ----------------
$220,330 $24,333
================== ================
See Note 15 for amortization of certain other long-term liabilities.
11. Income Taxes
The components of the provision for income taxes, for the three and nine
months ended September 30, 2004 consist of the following (in thousands,
unaudited):
For the Three Months Ended For the Nine Months Ended
September 30, 2004 September 30, 2004
--------------------- -------------------
Current provision $ 290 $ 503
Deferred provision 1,137 1,137
--------------------- -------------------
Total consolidated income tax expense $1,427 $1,640
===================== ===================
A reconciliation of the statutory federal income tax expense with the
corporation's actual effective combined federal and state income tax expense for
the three and nine months ended September 30, 2004 is as follows (unaudited):
For the Three Months For the Nine Months
Ended Ended
September 30, 2004 September 30, 2004
--------------------- -------------------
Statutory federal income tax rate 35.0% 35.0%
State tax rate, net of federal benefit 5.3% 5.3%
Tax attributable to Ref-Fuel Holdings'
corporate subsidiaries 6.2% 6.2%
Income prior to the August 31 Transactions
not subject to entity-level tax (33.3)% (35.3)%
--------------------- -------------------
Net combined effective federal and state
income tax rate 13.2% 11.2%
===================== ===================
19
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amount used for income tax purposes. The deferred income tax
liability included in the consolidated financial statements as of September 30,
2004 is comprised of the following (in thousands, unaudited):
September 30, 2004
Investment in Ref-Fuel Holdings $31,163
Accrued liabilities (10,052)
Net operating loss carryforward (823)
-------------------
Total $20,288
===================
12. Operational and Other Agreements
The ARC operating facilities operate under various long-term service
agreements, the terms of which extend from 2009 through 2020. These service
agreements require the projects to provide disposal services for waste delivered
by counterparties to these agreements at prices determined by various formulas
contained in such agreements.
Duke and Allied Waste Industries, Inc. (Allied) are each obligated to fund
one-half of certain cash shortfalls and other liabilities of Essex arising out
of operating the project, including certain environmental claims. Essex and ARC
LLC entered into agreements with Duke and Allied requiring Essex and ARC LLC to
reimburse, indemnify and defend Duke and Allied from any liability in respect to
these obligations.
In order to provide ARC LLC with an additional source of funds to meet
calls on its project support obligations, MSW Energy Holdings and UAE Holdings
Corp. entered into the Equity Contribution Agreement pursuant to which each of
them have agreed to provide up to $50 million in equity capital to ARC LLC.
13. Commitments and Contingencies
Environmental and Regulatory Risk
The Company operates in an environmentally sensitive industry and is
subject to extensive federal, state and local laws and regulations adopted for
the protection of the environment. The laws and regulations primarily applicable
to the Company are those related to discharge of emissions into the air and
management of solid waste but can also include those related to water use,
discharges to water, wetlands preservation and hazardous waste management.
Certain of these laws have extensive and complex requirements relating to
obtaining construction and operating permits, monitoring, record keeping and
reporting. While management believes that it is in substantial compliance with
permits and other applicable environmental laws relating to the Company, its
facilities, from time to time, may not be in full compliance with all such laws.
20
Noncompliance with environmental laws and regulations can result in the
imposition of civil or criminal fines or penalties. In some instances,
environmental laws also may impose clean-up or other remedial obligations in the
event of a release of pollutants or contaminants into the environment. The
Company incurs operating costs and capital expenditures related to various
environmental protection and monitoring programs. Such expenditures have not had
a material adverse effect on the Company's consolidated financial position or
results of operations. However, federal, state and local regulatory authorities
may consider proposals to restrict or tax certain emissions, which proposals, if
adopted, could impose additional costs on the operation of the Company.
In August 2004, USEPA notified American Ref-Fuel Company of Essex County
that it was potentially liable under CERCLA Section 107(a) for response actions
in the Lower Passaic River Study Area (LPRSA), a 17 mile stretch of river in
northern New Jersey. Ref-Fuel is one of at least 52 Potentially Responsible
Parties (PRPs) named thus far. USEPA alleges that hazardous substances found in
the LPRSA were being released from Ref-Fuel's Essex County facility site, which
abuts the river. USEPA's notice letter states that Ref-Fuel may be liable for
costs related to a proposed $10 million study of the Lower Passaic River and for
unspecified natural resource damages. Considering the history of industrial and
other discharges into the LPRSA from other sources, including named PRPs,
Ref-Fuel believes that its contribution will be determined to be de minimus;
however, it is not possible at this time to predict that outcome with certainty
or to estimate Ref-Fuel Holdings'liability for the study or any eventual natural
resource damage.
Landfill Agreements
Semass Partnership, a subsidiary of Ref-Fuel Semass, has a waste management
agreement (the WMA) dated May 25, 1982, as amended, with the Carver, Marion,
Wareham Regional Refuse Disposal District (CMW). The WMA allows Semass
Partnership to utilize a portion of a landfill (the CMW Landfill), which CMW
leases from Wankinco River, Inc. (Wankinco).
Beginning in May 1997, Wankinco provided several notices purportedly
terminating the lease on the CMW Landfill based upon an allegation that the
lease term automatically expired due to alleged failures to strictly comply with
the terms of the lease. In June 1997, Semass Partnership and CMW filed suit
against Wankinco and A. D. Makepeace Company, Inc., Wankinco's parent company,
seeking a declaratory judgment that Semass Partnership and CMW may continue to
operate the CMW Landfill. Trial of the matter before the court was completed in
2001 and a decision was received by the Company in December 2002, which decided
virtually all issues in favor of the Semass Partnership. The Semass Partnership
avoided both forfeiture of possession and any liability for damages due to
landfill operations. Wankinco appealed in January 2003, and on August 19, 2004,
the Appellate Court upheld the Trial Courts decision in respect of all decisions
related to the alleged lease violations. One ruling unrelated to lease
forfeiture or damages for unlawful possession was remanded because the Judge's
ruling that Semass had not engaged in "an unfair and deceptive act or practice"
applied the law conjunctively rather than disjunctively (as required by the
law). The Appellate Court affirmed the Judge's ruling that there was no
unfairness, but remanded the question of deception for further findings since
the Appellate Court, due to the use of the conjunctive rather than disjunctive,
was unable to infer that the Judge did not find a compensable deceptive act.
Management believes that the Judge's ruling on remand will clarify this issue in
favor of the Company. In addition, Wankinco appealed the Appellate Court's
decision on the lease issues to the Supreme Judicial Court of Massachusetts and,
on September 30, 2004, the Supreme Judicial Court denied Wankinco's Application
for Further Appellate Review. Accordingly, except for the remand discussed
above, the favorable decisions received by Semass have become final and
nonappealable. Apart from this decision, the Semass Partnership and Wankinco
continue litigating several other actions involving regulatory issues at the
landfill.
21
Management believes that the ultimate resolution of these matters will not
have a material adverse impact on the results of operations, future cash flows
or financial position of the Company.
In March 1990, the Semass Partnership, CMW and Wankinco entered into an
agreement related to the CMW Landfill, as amended (the Settlement Agreement),
which requires, among other things, the Semass Partnership to make annual
deposits into an environmental protection trust fund (the Fund) in lieu of
obtaining environmental impairment liability insurance for the CMW Landfill. The
Semass Partnership is required under the Settlement Agreement to deposit
$500,000 annually into the Fund, payable in equal quarterly installments.
Certain additional deposits are required subject to the availability of cash in
accordance with the Loan Agreement. The Semass Partnership's obligation to make
deposits into the Fund ceases when the Fund reaches a balance of $20.0 million.
Proceeds from the Fund are to be used primarily for remediation of the CMW
Landfill in the event of environmental damage. The Semass Partnership and
Wankinco are each entitled to receive one-half of the balance of the Fund upon
final closure of the CMW Landfill and receipt of required governmental
approvals. During the years ended December 31, 2003 and 2002, the Semass
Partnership made the required quarterly deposits into the Fund and charged
operations for one-half of the deposits into the Fund, representing one-half of
the balance of the Fund which will be disbursed to Wankinco upon final closure
of the CMW Landfill. Additional charges to operations may be required in future
years if any disbursements are required from the Fund to remediate any
environmental damages. To date, management is not aware of any such
environmental damages.
Future Minimum Payments Under Operating Leases
Delaware Valley leases the Delaware Valley Project pursuant to an operating
lease that expires in July 2019. In certain default circumstances under such
lease, Delaware Valley (and ARC LLC by virtue of a guaranty) become obligated to
pay a contractually specified "stipulated loss" value that declines over time
and was approximately $171.4 million as of September 30, 2004.
The Company also leases office space for its Montvale, New Jersey
headquarters pursuant to an operating lease expiring in August 2007.
Other Matters
The Company is involved in various claims or litigation in the ordinary
course of business. Management believes that the ultimate resolution of these
matters, either individually or in the aggregate, will not have a material
adverse impact on the future results of operations, cash flows or financial
position of the Company.
The Company is required to provide financial assurance to government
agencies under applicable environmental and procurement regulations relating to
the landfill operations and waste disposal contract.
14. Related Party Transactions
In the ordinary course of business, the Company's subsidiaries hold
insurance policies with affiliates of AIGGIC, for which the AIGGIC affiliated
insurance companies receive customary annual premiums.
22
15. Supplemental Disclosure of Cash Flow Information
Depreciation and amortization expense included in the Statements of Cash
Flows for the nine months ended September 30, 2004 consists of the following
expenses (revenues) (in thousands, unaudited):
From Inception For the Nine
(June 30, 2003) to Months Ended
Asset / liability Statement of operations September 30, 2003 September 30, 2004
- ------------------------------------------------------------------------------------------------------------------------
Property, plant and equipment Depreciation and amortization (1) $ - $27,993
Energy contracts Energy revenues - 24,008
Long-term waste contracts Waste disposal and related services - (4,029)
Lease Operating expenses (rent expense) - (275)
Debt Interest expense 268 (5,318)
Deferred revenue Waste disposal and related services and
energy revenues - (16)
---------------------------------
Total $ 268 $42,363
=================================
(1) Includes amortization of intangible assets
Noncash investing and financing activities:
Cash from the consolidation of Ref-Fuel Holdings at April 30, 2004 $ - $40,238
Cash paid for interest $8,500 $44,854
16. Subsequent Event - Name Change
Effective October 15, 2004, UAE Holdings Corp. changed its name to American
Ref-Fuel Holdings Corp.
23
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
OVERVIEW
The following discussion contains forward-looking statements. These
statements are based on current plans and expectations and involve risks and
uncertainties that could cause actual future activities and results of
operations to be materially different from those set forth in the
forward-looking statements. Important factors that could cause actual results to
differ include risks set forth in "Risk Factors," below. The following should be
read in conjunction with the financial statements and related notes included
elsewhere in this report. As of April 30, 2004, we hold a 49.8% indirect
controlling membership interest in Ref-Fuel Holdings and the results of
operations have been consolidated from that period.
The following is a discussion of the financial condition and results of
operations for the three and nine months ended September 30, 2004. This
discussion should be read in connection with our historical consolidated
financial statements and notes thereto included in the Annual Report on Form
10-K for the year ended December 31, 2003, as well as the historical financial
statements of Ref-Fuel Holdings and the supplemental pro forma information that
follows.
General
We were formed and acquired our interest in Ref-Fuel Holdings in June 2003.
Because we were not yet in existence, there are no financial results for the
nine months ended September 30, 2003 comparable to the data for the nine months
ended September 30, 2004. For comparative results, see Supplemental Pro Forma
Information which follows.
24
The following summarizes the historical financial information for MSW
Energy Holdings as of and for the three months ended September 30, 2003 and 2004
and nine months ended September 30, 2004 (unaudited, in thousands):
For the For the For the
Three Months Ended Three Months Ended Nine Months Ended
September 30, 2004 September 30, 2003 September 30, 2004
------------------- ------------------ -------------------
Statement of Operations Data:
Net revenues $112,958 $ - $ 186,410
Equity in net earnings of Ref-Fuel Holdings - 10,950 6,545
Operating expenses (44,430) - (75,139)
Depreciation and amortization expense (16,820) - (27,993)
Administrative and general expense (9,269) (602) (17,024)
Gain (Loss) on asset retirement 218 (618)
Interest income 890 79 1,419
Interest expense (17,274) (5,008) (35,566)
Minority interest in net income of subsidiaries (15,502) - (23,498)
Other income, net 3 - 105
Income taxes (1,427) - (1,640)
--------------------- ------------ -------------
Net income $ 9,347 $ 5,419 $ 13,001
--------------------- ------------ -------------
Cash Flow Data:
Cash provided by operating activities $ 104,964
Cash used in investing activities (10,283)
Cash used in financing activities (25,631)
Balance Sheet Data:
Total assets $2,103,405
Total debt 1,296,728
Minority interest in consolidated subsidiaries 362,478
Total members' equity 136,864
Results of Operations
For the three months ended September 30, 2004 as compared to the three
months ended September 30, 2003
Net revenues. Net revenues of $113.0 million for the three months ended
September 30, 2004 represent Ref-Fuel Holdings three month results. Of that
amount, $73.0 million is attributable to waste disposal and related services
revenue, $36.2 million is attributable to energy revenue and $3.7 million is
attributable to other revenue. There were no revenues during the same period in
2003, because the results from Ref-Fuel Holdings were accounted for under the
equity method of accounting.
Equity in earnings of Ref-Fuel Holdings. Prior to the Equalization
Transactions, which were consummated on April 30, 2004, we accounted for our
investment in Ref-Fuel Holdings under the equity method of accounting. As a
result of the Equalization Transactions, we are consolidating these results
after April 30, 2004 and therefore no equity in earnings of Ref-Fuel Holdings is
shown on our financial statements for the three months ended September 30, 2004.
Equity in earnings of Ref-Fuel Holdings at September 30, 2003 was $11.0 million.
Operating expenses. Operating expenses of $44.4 million for the three
months ended September 30, 2004 represents Ref-Fuel Holdings' operational
expenses.
25
Depreciation and amortization expense. Depreciation and amortization
expense of $16.8 million for the three months ended September 30, 2004
represents Ref-Fuel Holdings' depreciation and amortization expenses.
Administrative and general expense. Administrative and general expense of
$9.3 million for the three months ended September 30, 2004 represents Ref-Fuel
Holdings' general and administrative expenses of $9.2 million and $0.1 million
attributable to MSW Energy Holdings' other activities. Administrative and
general expense for the three months ended September 30, 2003 was $0.6 million.
Loss on asset retirement. Loss on asset retirement of $(0.2) million for
the three months ended September 30, 2004 represents Ref-Fuel Holdings' loss.
Interest income. The majority of the interest income of $0.9 million for
the three months ended September 30, 2004 represents Ref-Fuel Holdings' interest
income. Interest income for the three months ended September 30, 2003 was $0.1
million.
Interest expense. Interest expense of $17.3 million for the three months
ended September 30, 2004 represents Ref-Fuel Holdings' interest expense in the
amount of $12.2 and interest expense of $5.1 million, which represents the
interest on our 8.5% Senior Notes due 2010 ($4.3 million), the accretion of our
Duke liability ($0.5 million) and amortization of deferred financing costs ($0.3
million). Interest expense for the three months ended September 30, 2003
amounted to $5.0 million.
Income taxes. Income taxes expense of $1.4 million for the three months
ended September 30, 2004, represents the tax liability using the effective tax
rate of 13.2% for the quarter.
For the Nine Months Ended September 30, 2004
Net revenues. Net revenues of $186.4 million for the nine months ended
September 30, 2004 represent the consolidated results of operations of Ref-Fuel
Holdings for the five-month period ended September 30, 2004. As indicated above,
as a result of the Equalization Transactions, Ref-Fuel Holdings' results of
operations are consolidated as of April 30, 2004. These revenues represent
$122.1 million of waste disposal and related services revenue, $58.5 million of
energy revenue and $5.8 million of other revenue.
Equity in earnings of Ref-Fuel Holdings. Equity in net earnings of Ref-Fuel
Holdings represents our share in the net earnings of Ref-Fuel Holdings for the
four months ended April 30, 2004, of $6.5 million. Prior to the Equalization
Transaction, which were consummated on April 30, 2004, we accounted for our
investment under the equity method of accounting. As a result of these
transactions, we are consolidating these results after April 30, 2004.
Operating expenses. As a result of the Equalization Transactions, Ref-Fuel
Holdings' results of operations are consolidated as of April 30, 2004.
Therefore, the operating expenses of $75.1 million for the nine months ended
September 30, 2004 represents Ref-Fuel Holdings' operational expenses for the
five months ended September 30, 2004.
Depreciation and amortization expense. As a result of the Equalization
Transactions, Ref-Fuel Holdings' results of operations are consolidated as of
April 30, 2004. Therefore, the depreciation and amortization expense of $28.0
million for the nine months ended September 30, 2004 represents Ref-Fuel
Holdings' depreciation and amortization expenses for the five months ended
September 30, 2004.
Administrative and general expense. As a result of the Equalization
Transactions, Ref-Fuel Holdings' results of operations are consolidated as of
April 30, 2004. Therefore, the administrative and general expense of $17.0
million for the nine months ended September 30, 2004 represents Ref-Fuel
Holdings' general and administrative expenses of $16.0 million for the five
months ended September 30, 2004, and $1.0 million attributable to MSW Energy
Holdings other activities.
26
Loss on asset retirement. As a result of the Equalization Transactions,
Ref-Fuel Holdings' results of operations are consolidated as of April 30, 2004.
Therefore, the loss on asset retirement of $0.6 million for the nine months
ended September 30, 2004 represents Ref-Fuel Holdings' loss for the five months
ended September 30, 2004.
Interest income. As a result of the Equalization Transactions, Ref-Fuel
Holdings' results of operations are consolidated as of April 30, 2004.
Therefore, the majority of the interest income of $1.4 million for the nine
months ended September 30, 2004 represents Ref-Fuel Holdings' interest income
for the five months ended September 30, 2004.
Interest expense. As a result of the Equalization Transactions, Ref-Fuel
Holdings' results of operations are consolidated as of April 30, 2004.
Therefore, the interest expense of $35.6 million for the nine months ended
September 30, 2004 represents Ref-Fuel Holdings' interest expense in the amount
of $20.4 million for the five months ended September 30, 2004, and the interest
expense for the nine months ended September 30, 2004 attributable to MSW Energy
Holdings of $15.2 million, which represents the interest on our 8.5% Senior
Notes due 2010 ($12.8 million), the accretion of our Duke liability ($1.6
million) and amortization of deferred financing costs ($0.9 million).
Income taxes. Income taxes expense of $1.6 million for the nine months
ended September 30, 2004, represents the tax liability using the effective tax
rate of 11.2% for the nine month period.
Cash Flow Activities
As a result of the Equalization Transactions, the Company has effective
control of Ref-Fuel Holdings, and is therefore consolidating its results of
operations and cash flows for the five months and the balance sheet as of
September 30, 2004. The Company is required to maintain cash and investment
balances that are restricted by provisions of its debt, operational or lease
agreements. These amounts are held by financial institutions in order to comply
with contractual provisions requiring such reserves.
Operating Activities
Our net cash provided by operating activities of $105.0 million for the
period for the nine months ended September 30, 2004 relates primarily to cash
earnings, the distributions received from Ref-Fuel Holdings of $31.4 million in
2004, offset by the payment of $8.5 million of interest on our Senior Notes.
Investing Activities
Our net cash used in investing activities of $10.3 million for the nine
months ended September 30, 2004 relates to cash from consolidation of Ref-Fuel
Holdings which represented its April 30, 2004 balance of $40.2 million offset by
the change in our restricted cash balance of $41.9 million and capital additions
of $8.6 million during the five months ended September 30, 2004.
27
Financing Activities
Our net cash used in financing activities of $25.6 million for the nine
months ended September 30, 2004 relates to distributions paid to members of
$19.9 million and payments on long-term debt of $5.7 million during the five
months ended September 30, 2004.
Supplemental Pro Forma Information
The following results represent the pro forma results as if MSW Energy
Holdings' acquisition of its interests in Ref-Fuel Holdings and the Equalization
Transactions had occurred on January 1, 2003. These results are presented for
informational purposes only, and are not necessarily indicative of the actual
results that would have resulted had the acquisition and the Equalization
Transactions actually occurred on January 1, 2003. (In thousands):
Pro Forma Pro Forma
For the Nine For the Nine
Months Ended Months Ended
September 30, 2004 September 30, 2003
-------------------- ------------------
Revenues
Waste disposal and related services $211,620 $209,265
Energy 100,093 98,922
Other 12,234 10,073
-------------------- ------------------
Total net revenues 323,947 318,260
--------------------- -----------------
Expenses
Operating 148,460 145,948
Depreciation and amortization 50,836 51,057
General and administrative 31,521 35,049
Loss on asset retirements 960 1,717
--------------------- -----------------
Operating income 92,170 84,489
Interest income 2,403 2,400
Interest expense (50,448) (50,719)
Loss on early extinguishment of debt - (3,292)
Minority interests in net income of subsidiaries (29,744) (24,046)
Other income (expenses), net 225 (384)
--------------------- -----------------
Net income before taxes 14,606 8,448
Income taxes (5,843) (3,379)
--------------------- -----------------
Net income $8,763 $5,069
===================== =================
Comparison of the Unaudited Pro Forma Nine Months ended September 30, 2004
and 2003
Total Net Revenues. Total pro forma net revenues were $323.9 million for
the nine months ended September 30, 2004, an increase of $5.7 million, or 1.8%,
from the same period for the prior year. Increases in waste revenues of $5.3
million were attributable to an increase in waste processed at the facilities.
One of the Ref-Fuel Holdings facilities performed a planned major turbine
overhaul in the second quarter of 2004, which contributed to the decrease in
power revenues of $1.4 million, which was offset by increased steam sales of
$2.3 million for the period ended September 30, 2004, as compared to the prior
period. Metals pricing increased over the prior year, resulting in an increase
of $5.7 million in other revenues, which was partially offset by the expiration
of an ash reuse marketing arrangement in the first quarter of 2004, decreasing
revenues by $4.1 million, as compared to the prior year period.
28
Expenses. Operating expenses were $148.5 million for the nine months ended
September 30, 2004, an increase of $2.5 million, or 2% from the prior year
period. The most significant factors contributing to the increases were
increased facility maintenance expenses performed during scheduled outages,
which accounted for a $1.7 million increase and the cost of materials which
increased by $1.8 million. Host fees increased by $1.1 million because the
Company began operations in a new cell of its landfill, and external engineering
consulting increased by $0.4 million. These increases were partially offset by a
$2.5 million decrease in ash disposal expense due to the expiration of an ash
reuse deal in the first quarter of 2004 and a $0.6 million decrease in landfill
expense on decreased landfill volumes.
General and administrative. General and administrative expenses were $31.5
million for the nine months ended September 30, 2004, a decrease of $3.5
million, or 10%, from the prior year's period due a decrease of $1.8 million in
severance costs, a decrease of $1.5 million in a long-term compensation plan, a
$0.3 million decrease in bad debt expense and $0.3 million decrease in office
rental expense. These decreases were partially offset by a $0.4 million increase
in miscellaneous general and employee expenses.
Debt Covenant
The indenture under which our Senior Notes were issued requires, among
other things, but subject to certain exceptions, that we not permit any
restricted payment unless certain ratio covenants based on our proportionate
ownership of Ref-Fuel Holdings have been met. We are presenting proportionate
adjusted data, including proportionate total cash and cash equivalents and
reserves, proportionate total debt, proportionate interest expense and
proportionate adjusted earnings before interest, taxes, depreciation and
amortization (Adjusted EBITDA) because these twelve-month results are used in
the calculation of the restrictive covenants contained in the indenture
governing our Senior Notes.
The unaudited summary condensed consolidated statements of operations data,
MSW Energy Holdings other data and proportionate other data for the twelve
months ended September 30, 2004, have been prepared as if the UAE Merger had
occurred on October 1, 2003. Accordingly, the following table includes the
effects of push-down accounting on Ref-Fuel Holdings as if the UAE Merger had
occurred on October 1, 2003.
The following table includes certain items that are not measures under
generally accepted accounting principles and are not intended to supplant the
information provided in accordance with generally accepted accounting
principles. Furthermore, these measures may not be comparable to those used by
other companies. The following tables should be read in conjunction with our
historical financial statements and related notes.
29
Additionally, as required under the indenture agreement, the activity of
Ref-Fuel Holdings is separate from MSW Energy Holdings incremental activity in
the following calculations (in thousands).
Twelve Months Ended
September 30,
2004
---------------------
MSW Energy Holdings other data
Proportionate other data
Proportionate Adjusted EBITDA (1) 137,206
Proportionate interest expense (2) 41,989
---------------------
Ratio of proportionate Adjusted EBITDA to proportionate
interest expense (3) 3.3x
=====================
(1) Proportionate Adjusted EBITDA is defined as 49.8% of the Adjusted EBITDA of
Ref-Fuel Holdings. Adjusted EBITDA (as calculated below) is not a
measurement of financial performance under generally accepted accounting
principles and should not be considered as an alternative to cash flow from
operating activities or as a measure of liquidity or an alternative to net
income as indicators of our operating performance or any other measures of
performance derived in accordance with generally accepted accounting
principles.
Proportionate Adjusted EBITDA for the last twelve months ended September
30, 2004 is calculated by subtracting the results for the nine months ended
September 30, 2003 from the twelve months ended December 31, 2003, and then
adding the nine months ended September 30, 2004, as follows (in thousands):
Pro Forma Actual Pro Forma
Nine Months Twelve Months Nine Months
Year Ended Ended Ended Ended
December 31, September 30, September 30, September 30,
2003 2003 2004 2004
------------ -------------- -------------- --------------
Ref-Fuel Holdings:
Operating income $127,737 $ 85,482 $ 93,163 $135,418
Depreciation and amortization 68,094 51,057 50,836 67,873
Loss on retirements 2,207 1,717 960 1,450
------------ -------------- -------------- --------------
EBITDA 198,038 138,256 144,959 204,741
Fair value adjustment amortization
and revenue levelization adjustments 69,608 52,326 53,491 70,773
------------ -------------- -------------- --------------
Adjusted EBITDA $267,646 $190,582 $198,450 $275,514
============ ============== ==============
MSW Energy Holdings ownership percentage 49.8%
--------------
MSW Energy Holdings Proportionate Adjusted EBITDA $137,206
==============
30
(2) Proportionate interest expense is defined as 49.8% of the pro forma
interest expense for Ref-Fuel Holdings plus 100% of our pro forma interest
expense.
The following table reconciles MSW Energy Holdings Proportionate Interest
Expense (in thousands):
Twelve Months
Ended
September 30,
2004
-------------------
Ref-Fuel Holdings interest expense $49,676
MSW Energy Holdings ownership percentage 49.8%
-------------------
Ref-Fuel Holdings proportionate interest expense 24,739
MSW Energy Holdings incremental interest expense 17,250
-------------------
MSW Energy Holdings proportionate interest expense $41,989
===================
(3) Proportionate Adjusted EBITDA to proportionate interest expense is defined
as the quotient of proportionate Adjusted EBITDA divided by proportionate
interest expense.
Critical Accounting Policies
Our management is responsible for our financial statements and has
evaluated the accounting policies to be used in their preparation. Our
management believes these policies to be reasonable and appropriate. The
following discussion identifies those accounting policies that we believe will
be critical in the preparation of our financial statements, the judgments and
uncertainties affecting the application of those policies, and the possibility
that materially different amounts will be reported under different conditions or
using different assumptions.
Principles of Consolidation. The accompanying consolidated financial
statements include accounts of MSW Energy Holdings, its wholly-owned
subsidiaries and Ref-Fuel Holdings. Prior to the Equalization Transactions, the
Company's investment in Ref-Fuel Holdings was accounted for using the equity
method. As a result of the Equalization Transactions, the Company has effective
control of Ref-Fuel Holdings and, as of April 30, 2004, is consolidating its
results. All significant intercompany transactions and accounts have been
eliminated.
Use of Estimates in Preparing Financial Statements. The preparation of
financial statements in conformity with accounting principles generally accepted
in the United States of America requires management to make estimates and
assumptions that affect: (a) the reported amounts of assets and liabilities at
the date of the financial statements; (b) the disclosures of contingent assets
and liabilities at the date of the financial statements; and (c) the reported
amounts of revenues and expenses recognized during the reporting period. Such
estimates may be subsequently revised as necessary when additional information
becomes available. Actual results could differ from those estimates.
Goodwill. Goodwill represents the total consideration paid in excess of the
fair value of the net tangible and identifiable intangible assets acquired and
the liabilities assumed. In accordance with the provisions of Financial
Accounting Standard (FAS No. 142), "Goodwill and Other Intangible Assets", the
Company performs an annual fair value test of its recorded goodwill for its
reporting units using a discounted cash flows approach.
31
Intangible Assets. Energy contract intangibles represent the amount by
which the contract rates in long-term energy sales contracts held by certain
subsidiaries of the Company exceeded fair value on the dates that these
subsidiaries were acquired. These contract related intangibles are amortized
into income as a reduction of energy revenues on a straight-line basis over the
remaining terms of the applicable contracts, which range from six to sixteen.
Waste contract intangibles represent the amount by which the contract rates
in long-term waste sales contracts held by Hempstead exceeded fair value on the
dates that the partnership was acquired. These contract related intangibles are
being amortized into income as a reduction of waste revenues on a straight-line
basis through 2009, the term of the applicable contracts.
The Company has intangible assets relating to Nitrous Oxide (NOx) emission
allowances. These assets have indefinite lives and, as such, are not amortized.
Consistent with all the Company's intangible assets, these are reviewed under
the provisions of FAS 142 for potential impairment on an annual basis.
Deferred financing costs represent certain capitalizable costs incurred by
the Company to finance its long-term debt obligations. These costs are amortized
to interest expense over the life of the related debt.
Equity Method Investment. The Company's investment in Ref-Fuel Holdings was
accounted for using the equity method of accounting prior to the Equalization
Transactions. As a result, the accompanying consolidated results of operations
include the Company's share of net earnings in "Equity in net earnings of
Ref-Fuel Holdings" for the period up to April 30, 2004.
Other Liabilities. Landfill closure and postclosure costs are included in
other long-term liabilities. The Company accrues landfill closure and
postclosure costs as the remaining permitted space of the landfill is consumed
over the expected life cycle of the landfill.
Revenue Recognition. The Company recognizes revenue from two major sources:
waste disposal services and energy production. Revenue from waste disposal
services is recognized as waste is received, and revenue from energy production
is recognized as the energy is delivered.
The Company is accounting for the long-term power contracts at the Semass
Partnership in accordance with EITF Issues 91-6 "Revenue Recognition of
Long-Term Power Sales Contracts" and EITF 96-17 "Revenue Recognition under
Long-Term Power Sales Contracts That Contain both Fixed and Variable Pricing
Terms", which require the Company to recognize power revenues under these
contracts as the lesser of (a) amounts billable under the respective contracts;
or (b) an amount determinable by the kilowatt hours made available during the
period multiplied by the estimated average revenue per kilowatt hour over the
term of the contract. The determination of the lesser amount is to be made
annually based on the cumulative amounts that would have been recognized had
each method been applied consistently from the beginning of the contract. The
difference between the amount billed and the amount recognized is included in
other long-term liabilities.
Concentration of Credit Risk. The Company invests excess cash and funds
held in trust in bank deposit accounts, commercial paper, certificates of
deposit and money market investments with a limited number of financial
institutions.
The Company has exposure to credit risk in accounts receivable as the
Company disposes of waste for and sells power to a limited number of customers.
The Company believes adequate reserves are maintained for potential credit
losses. Furthermore, these and other customers are primarily located in the
northeastern region of the United States of America.
32
Income Taxes. As the Company is a limited liability company, it is not
directly subject to Federal and State income taxes; rather its income or loss is
required to be included in the income tax returns of its member. After the
August 31 Transactions the Company's member is UAE Holdings Corp., which is a C
corporation for tax purposes. As a result, the Company is required to provide
for Federal and State income taxes as if it were a tax paying entity. For the
period ended September 30, 2004, the Company's provision reflects one month of C
corporation taxes that its member is responsible for on the income of the
Company, and the taxes of Ref-Fuel Holdings LLC subsequent to the Equalization
Transactions.
The Company accounts for income taxes under the asset and liability method.
The provision for income taxes includes deferred income taxes resulting from
items reported in different periods for income tax and financial statement
purposes. Deferred income tax assets and liabilities represent the expected
future tax consequences of the differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases. The effects of changes in tax rates on deferred income tax assets and
liabilities are recognized in the period that includes the enactment date.
Effect of New Accounting Standard
In January 2003, the FASB issued FIN 46, Consolidation of Variable Interest
Entities, and a revised interpretation of FIN 46 (FIN 46R) in December 2003
(collectively "FIN 46"). FIN 46 addresses consolidation of variable interest
entities. FIN 46 provides guidance for determining when a primary beneficiary
should consolidate a variable interest entity or equivalent structure that
functions to support the activities of the primary beneficiary. The provisions
of FIN 46 are effective immediately for all variable interest entities created
after January 31, 2003. It applies in the first year or interim period ending
after December 15, 2003 to variable interest entities in which an enterprise
holds a variable interest that it acquired before February 1, 2003. Management
has evaluated FIN 46 and its related guidance and determined that it does not
have any impact on our consolidated financial statements
Contractual Obligations and Commercial Commitments
The following table sets forth our contractual obligations outstanding as
of September 30, 2004 (in thousands):
Contractual Obligations More
Less than 1 than 5
Total Year 1-3 Years 3-5 Years Years
----- ---- --------- --------- -----
Long-Term Debt Obligations $1,296,728 $ 83,159 $157,052 $185,243 $871,274
Operating Lease Obligations 147,596 14,178 27,681 41,074 64,663
Unconditional Purchase Obligations 1,307 (1) - 1,307 - -
Other Long-Term Obligations 68,485 9,281 9,630 7,500 42,074
------------- ------------ ---------- ---------- ----------
Total $1,514,116 $106,618 $195,670 $233,817 $978,011
============= ============ ========== ========== ==========
(1) Represents unconditional purchase obligation associated with the
Acquisition of $1,307 due at the second closing.
33
RISK FACTORS
Any of the following risks could materially adversely affect our business,
financial condition or results of operations.
Our indenture imposes significant operating and financial restrictions on us.
The indenture governing our outstanding debt contains restrictive covenants
that limit our ability to engage in activities that may be in our long-term best
interests. These restrictions limit our ability and the ability of any
restricted subsidiaries to do the following, among other things:
o incur additional indebtedness;
o create liens;
o pay dividends or make other equity distributions;
o purchase or redeem capital stock;
o make investments;
o sell assets or consolidate or merge with or into other companies; and
o engage in transactions with affiliates.
Our failure to comply with those covenants could result in an event of
default which, if not cured or waived, could result in the acceleration of all
of our debt. Moreover, it is possible that in the future the owners of MSW
Energy Holdings and MSW Energy Holdings II could determine to merge those
companies with each other or into Ref-Fuel Holdings. While such a merger would
be required to comply with the terms of the indenture, a result would be an
increase in the amount of indebtedness of the successor.
Risk Relating to Ref-Fuel Holdings' and American Ref-Fuel's Business
American Ref-Fuel's revenues depend on the operation of the ARC operating
facilities.
American Ref-Fuel's receipt of distributions from the ARC operating
companies and TransRiver are dependent on the successful operation of the ARC
operating facilities. The operation of the ARC operating facilities involves
many risks, including:
o the breakdown or failure of equipment or processes;
o the difficulty or inability to find suitable replacement parts for
equipment;
o the performance of the ARC operating facilities below expected levels
of waste throughput, electric or steam generation or efficiency;
o the unavailability of sufficient quantities of waste;
o decreases in the fees for solid waste disposal;
34
o decreases in the demand or market prices for recovered ferrous and
nonferrous metal;
o disruption in the transmission of electricity generated;
o labor disputes;
o operator error;
o catastrophic events such as hurricanes, earthquakes, floods and acts
of terrorism that damage or destroy the facilities or the area in
which the facilities are located;
o changes in law or application of law (including any applicable
environmental laws or permit requirements); and
o the exercise of the power of eminent domain.
While American Ref-Fuel will maintain insurance to protect against certain
of these risks, the insurance may not cover all of these risks and the proceeds
of the insurance may not fully compensate for damages to the ARC operating
facilities and the ARC operating facilities' lost revenues or increased
expenses. A decrease or elimination of revenues generated by the ARC operating
facilities or an increase in the costs of operating the ARC operating facilities
could decrease or eliminate funds available to American Ref-Fuel to make
distributions to Ref-Fuel Holdings which, in turn, would decrease or eliminate
the funds available to Ref-Fuel Holdings to make distributions to us, which
would adversely affect our financial condition.
American Ref-Fuel depends on performance by third parties under contractual
arrangements.
American Ref-Fuel depends on third parties to, among other things, purchase
the electric and steam energy produced by the ARC operating facilities, and
supply and deliver the waste and other goods and services necessary for the
operation of the ARC operating facilities. The viability of the ARC operating
facilities and the ability of American Ref-Fuel to make distributions to
Ref-Fuel Holdings depend significantly upon the performance by third parties in
accordance with the long-term contracts entered into by the ARC operating
companies and the third parties in connection with the ARC operating facilities.
If the third parties to those contracts do not perform their obligations,
or are excused from performing their obligations because of nonperformance by
the ARC operating companies or other parties to the documents, or due to force
majeure events or changes in laws or regulations, the ARC operating companies
may not be able to secure alternate arrangements on substantially the same
terms, if at all, for the services provided under the contracts. Furthermore,
the ability of the ARC operating companies and TransRiver to make distributions
to American Ref-Fuel may be adversely affected, which may adversely affect our
financial condition. In addition, the bankruptcy or insolvency of a participant
or third party in the ARC operating facilities could result in nonpayment or
nonperformance of that party's obligations to the ARC operating companies and
could adversely affect the ability of American Ref-Fuel to make distributions to
Ref-Fuel Holdings which, in turn would decrease or eliminate the funds available
to Ref-Fuel Holdings to make distributions to us, which would decrease or
eliminate the funds available to us.
35
Item 3. Quantitative and Qualitative Disclosures about Market Risk
American Ref-Fuel's operations are concentrated in one region.
All of the ARC operating facilities are located in the northeastern United
States. The entrance of new competitors into the market or the expansion of
existing competitors could have a material adverse effect on distributions
available to American Ref-Fuel from the ARC operating companies and, ultimately,
on our financial condition.
American Ref-Fuel depends on a significant supply of solid waste.
If the ARC operating facilities do not obtain a supply of solid waste at
prices and quantities that are sufficient to operate the ARC operating
facilities at their expected operating levels, it will adversely affect the
operations of American Ref-Fuel and its ability to make distributions to
Ref-Fuel Holdings, which would adversely affect our financial condition. One or
more of the following factors could impact the price and supply of waste:
o defaults by waste suppliers under their contracts;
o a decline in solid waste supply due to increased recycling;
o composting of municipal solid waste;
o legal prohibitions against disposal of certain types of solid waste in
WTE facilities; or
o increased competition from landfills, recycling facilities and
transfer stations.
In addition, state and local governments mandate recycling and waste
reduction at the source and the scope of these recycling and waste reduction
mandates may be enlarged in the future. The ARC operating companies may not be
successful in obtaining sufficient quantities of waste at adequate prices for
the successful operation of the ARC operating facilities. Failure to obtain
sufficient waste could have a material adverse effect on distributions available
to American Ref-Fuel from the ARC operating companies and, ultimately, on our
financial condition.
Failure to comply with environmental permitting and governmental
regulations would adversely affect American Ref-Fuel's operations.
The ARC operating facilities are subject to extensive federal, state and
local laws and regulations related to the environment, health and safety and
associated compliance and permitting obligations (including those related to the
use, storage, handling, discharge, emission and disposal of municipal solid
waste and other waste, pollutants or hazardous substances or wastes, or
discharges and air and other emissions) as well as land use and development.
Environmental laws also impose obligations to clean up contaminated properties
or to pay for the cost of such remediation, often upon parties that did not
actually cause the contamination. While we believe that we, Ref-Fuel Holdings
and ARC are currently in compliance with applicable environmental laws in all
material respects, it is possible that such conditions impacting the ARC
operating facilities could be discovered in the future or that such conditions
could be created by future spills or releases. Compliance with these laws,
regulations and obligations could require substantial capital expenditures.
Failure to comply could result in the imposition of penalties, fines or
restrictions on operations and/or remedial liabilities. The costs and
liabilities of any of these results could adversely affect the operations of one
or more of the ARC operating facilities. Environmental laws and regulations may
also limit American Ref-Fuel's ability to operate the ARC operating facilities
at maximum capacity or at all. These laws, regulations and obligations could
change with the promulgation of new laws and regulations or a change in the
interpretation of existing laws and regulations, which could result in
substantially similar risks. Stricter environmental regulations could materially
affect American Ref-Fuel's cash flow and its ability to make distributions to
Ref-Fuel Holdings, which would have an adverse effect on our financial
condition.
36
The costs of addressing future environmental requirements at the ARC
operating facilities or at disposal facilities where ARC operating facilities
have disposed of waste are difficult to estimate. Although American Ref-Fuel
reports that it believes that all of its operations are compliant in all
material respects with the requirements of environmental laws and regulations,
the ARC operating facilities may not at all times be in compliance with all
applicable environmental laws and regulations and steps to bring American
Ref-Fuel's facilities into compliance may limit American Ref-Fuel's ability to
make distributions to Ref-Fuel Holdings.
Certain environmental permits for the ARC operating facilities are subject
to periodic renewal or reissuance. Regulatory authorities may not renew or
reissue the permits. In addition, any renewed or reissued environmental permit
may contain new, more stringent requirements resulting in the need for
additional capital and operating expenditures due to additions to or
modifications of the ARC operating facilities in order to bring the ARC
operating facilities into compliance with the renewed or reissued permits'
terms. Certain environmental permits contain terms that can result in periodic
adjustment of operating limits, which can result in reduced revenue. Any of the
following events could adversely affect the amount of distributions available to
American Ref-Fuel and the ability of American Ref-Fuel to make distributions to
Ref-Fuel Holdings:
o loss of environmental permits;
o reduction in allowed operations;
o failure or delay in the renewal or reissuance of environmental
permits;
o any increase in operating costs resulting from any renewed or reissued
environmental permit; and
o any expenditures, penalties, restrictions and/or liabilities resulting
from any other non-compliance.
Changes in electricity regulation could have an adverse impact on American
Ref-Fuel.
The ARC operating companies derive a significant amount of revenue from the
sale of electric power. The electric power generation business is subject to
substantial regulation and the ARC operating companies are required to comply
with numerous laws and regulations in order to sell the power generated from the
ARC operating facilities. These laws and regulations could be revised and new
laws and regulations could be adopted. The power purchase agreements with
respect to each ARC operating facility could be adversely affected if amendments
to, or a repeal of, existing regulations with respect to the production of
energy were enacted that reduce the benefits currently afforded under the power
purchase agreements. A reduction in benefits could adversely affect the amount
of distributions available to American Ref-Fuel and its ability to make payment
of the principal of and premium, if any, and interest on its debt and to make
cash distributions to Ref-Fuel Holdings. American Ref-Fuel's business could be
materially and adversely affected by statutory or regulatory changes or
administrative or judicial interpretations of existing statutes, regulations or
licenses that impose more comprehensive or stricter energy regulation on
American Ref-Fuel.
37
Item 4. Controls and Procedures
MSW Energy Holdings
As of September 30, 2004, the Chief Executive Officer and Chief Financial
Officer of MSW Energy Holdings evaluated the effectiveness of its disclosure
controls and procedures pursuant to applicable Exchange Act Rules. Based upon
that evaluation, the Chief Executive Officer and Chief Financial Officer have
each concluded that these disclosure controls and procedures are effective in
timely alerting them to material information relating to the Company (including
its consolidated subsidiaries) that is required to be included in MSW Energy
Holdings' periodic SEC filings.
There were no significant changes in internal controls or in other factors
that could significantly affect these controls for the quarter ended September
30, 2004.
MSW Energy Finance
As of September 30, 2004, the Chief Executive Officer and Chief Financial
Officer of MSW Energy Finance evaluated the effectiveness of its disclosure
controls and procedures pursuant to applicable Exchange Act Rules. Based upon
that evaluation, the Chief Executive Officer and Chief Financial Officer have
each concluded that these disclosure controls and procedures are effective in
timely alerting them to material information relating to the Company (including
its consolidated subsidiaries) that is required to be included in MSW Energy
Finance's periodic SEC filings.
There were no significant changes in internal controls or in other factors
that could significantly affect these controls for the quarter ended September
30, 2004.
PART II OTHER INFORMATION
Item 1. Legal Proceedings
Neither MSW Energy Holdings nor MSW Energy Finance is currently involved in
any litigation. The Company is not involved in any legal proceedings other than
ordinary routine litigation incidental to the business, the outcome of which, if
determined against the Company, would not have a material adverse effect on the
financial condition or results of operations of the Company.
Item 2. Unregistered Sale of Equity Securities and Use of Proceeds.
None.
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Submission of Matters to a Vote of Security Holders.
Not applicable.
38
Item 5. Other Information.
None.
39
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3.1 Certificate of Formation of MSW Energy Holdings LLC.*
3.2 Second Amended and Restated Limited Liability Company Agreement
of MSW Energy Holdings LLC, dated as of April 30, 2004, by and
among Highstar Renewable Fuels LLC, MSW Acquisition LLC and
United American Energy Holdings Corp.
3.3 Amended and Restated Certificate of Incorporation of MSW Energy
Finance Co., Inc.*
3.4 Bylaws of MSW Energy Finance Co., Inc.*
3.5 Certificate of Amendment to the Certificate of Formation of MSW
Energy Hudson LLC.*
3.6 Second Amended and Restated Limited Liability Company Agreement
of MSW Energy Hudson LLC, dated as of June 30, 2003, by MSW
Energy Holdings LLC.
4.1 Indenture dated June 25, 2003, by and among MSW Energy Holdings
LLC, MSW Energy Finance Co., Inc. and Wells Fargo Bank Minnesota,
National Association as Trustee.*
4.2 Supplemental Indenture dated July 11, 2003, by and among MSW
Energy Holdings LLC, MSW Energy Finance Co., Inc., MSW Energy
Hudson LLC and Wells Fargo Bank Minnesota, National Association
as Trustee.*
4.3 Form of 81/2% Senior Secured Note Due 2010 (included in Exhibit
4.1).*
4.4 Registration Rights Agreement dated as of June 25, 2003, by and
among MSW Energy Holdings LLC, MSW Energy Finance Co. Inc., MSW
Energy Hudson LLC and Credit Suisse First Boston LLC.*
4.5 Pledge and Security Agreement dated as of June 25, 2003, by and
among MSW Energy Holdings LLC, MSW Energy Finance Co., Inc. and
Wells Fargo Bank Minnesota, National Association as Collateral
Agent.*
4.6 Pledge Supplement dated as of June 30, 2003 by MSW Energy Hudson
LLC.*
4.7 Deposit Agreement, dated as of June 25, 2003, by and among MSW
Energy Holdings LLC, MSW Energy Finance Co., Inc. and Wells Fargo
Bank Minnesota, National Association as Collateral Agent and
Depositary Agent, as amended.*
4.8 Purchase Agreement, dated as of June 11, 2003, by and among MSW
Energy Holdings LLC, MSW Energy Finance Co., Inc., MSW Energy
Hudson LLC and Credit Suisse First Boston LLC.*
10.1 Amended and Restated Capital Contribution Agreement, dated as of
June 24, 2003, by and between Highstar Renewable Fuels LLC and
MSW Acquisition LLC.*
40
10.2 Agreement, dated as of June 30, 2003, by and between MSW Energy
Holdings LLC and Duke Capital Corporation.*
10.3 Escrow Agreement, dated as of June 30, 2003, by and among MSW
Energy Holdings LLC, Duke Capital Corporation and Wachovia Bank,
National Association.*
10.4 Amended and Restated Limited Liability Company Agreement of
Ref-Fuel Holdings LLC, dated as of April 30, 2001, by and between
Duke Energy Global Asset Development, Inc. and UAE Ref-Fuel LLC,
as amended.*
10.5 Equity Contribution Agreement, dated as of April 30, 2001, by and
among Duke Capital Corporation, United American Energy Corp.,
Ref-Fuel Holdings LLC (formerly known as Duke/UAE Ref-Fuel LLC)
and American Ref-Fuel Company LLC.*
10.6 Substitution, Assumption, Amendment and Release Agreement, dated
as of June 30, 2003, by and among Duke Capital Corporation,
United American Energy Corp., Ref-Fuel Holdings LLC (formerly
known as Duke/UAE Ref-Fuel LLC), American Ref-Fuel Company LLC,
and MSW Energy Holdings LLC.*
10.7 Equity Purchase Agreement, dated as of March 19, 2003, by and
between MSW Energy Holdings LLC and Duke Energy Global Markets,
Inc.*
12 Statement re Computation of Ratio of Earnings to Fixed Charges
31(a) 15d-14(a) Certification of John T. Miller for MSW Energy
Holdings LLC.
31(b) 15d-14(a) Certification of Michael J. Gruppuso for MSW Energy
Holdings LLC.
31(c) 15d-14(a) Certification of John T. Miller for MSW Energy Finance
Co., Inc.
31(d) 15d-14(a) Certification of Michael J. Gruppuso for MSW Energy
Finance Co., Inc.
32(a) Section 1350 Certification of John T. Miller and Michael J.
Gruppuso for MSW Energy Holdings LLC.
32(b) Section 1350 Certification of John T. Miller and Michael J.
Gruppuso for MSW Energy Finance Co., Inc.
* Incorporated by Reference to Registration Statement No. 333-109049.
(b) Reports on Form 8-K
Current Reports on Form 8-K dated August 12, 19 and 31, 2004.
41
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, MSW Energy Holdings LLC has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized.
MSW ENERGY HOLDINGS LLC
By: /s/ John T. Miller
---------------------------
John T. Miller
Chief Executive Officer
Date: November 12, 2004
------------------------
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons in the capacities and on
the dates indicated:
Signature Title Date
--------- ----- ----
/s/ John T. Miller Chief Executive Officer (Principal November 12, 2004
- ------------------------------ Executive Officer)
John T. Miller
/s/ Michael J. Gruppuso Chief Financial Officer (Principal November 12, 2004
- ------------------------------ Financial and Accounting Officer)
Michael J. Gruppuso
42
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, MSW Energy Finance Co., Inc. has duly caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
MSW ENERGY FINANCE CO., INC.
By: /s/ John T. Miller
---------------------------------------
John T. Miller
President and Chief Executive Officer
Date: November 12, 2004
------------------------------------
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons in the capacities and on
the dates indicated:
Signature Title Date
--------- ----- ----
/s/ John T. Miller Chief Executive Officer (Principal November 12, 2004
- ------------------------------ Executive Officer)
John T. Miller
/s/ Michael J. Gruppuso Chief Financial Officer (Principal November 12, 2004
- ------------------------------ Financial and Accounting Officer)
Michael J. Gruppuso
43
EXHIBIT INDEX
3.1 Certificate of Formation of MSW Energy Holdings LLC.*
3.2 Second Amended and Restated Limited Liability Company Agreement
of MSW Energy Holdings LLC, dated as of April 30, 2004, by and
among Highstar Renewable Fuels LLC, MSW Acquisition LLC and
United American Energy Holdings Corp.
3.3 Amended and Restated Certificate of Incorporation of MSW Energy
Finance Co., Inc.*
3.4 Bylaws of MSW Energy Finance Co., Inc.*
3.5 Certificate of Amendment to the Certificate of Formation of MSW
Energy Hudson LLC.*
3.6 Second Amended and Restated Limited Liability Company Agreement
of MSW Energy Hudson LLC, dated as of June 30, 2003, by MSW
Energy Holdings LLC.*
4.1 Indenture dated June 25, 2003, by and among MSW Energy Holdings
LLC, MSW Energy Finance Co., Inc. and Wells Fargo Bank Minnesota,
National Association as Trustee.*
4.2 Supplemental Indenture dated July 11, 2003, by and among MSW
Energy Holdings LLC, MSW Energy Finance Co., Inc., MSW Energy
Hudson LLC and Wells Fargo Bank Minnesota, National Association
as Trustee.*
4.3 Form of 81/2% Senior Secured Note Due 2010 (included in Exhibit
4.1).*
4.4 Registration Rights Agreement dated as of June 25, 2003, by and
among MSW Energy Holdings LLC, MSW Energy Finance Co. Inc., MSW
Energy Hudson LLC and Credit Suisse First Boston LLC.*
4.5 Pledge and Security Agreement dated as of June 25, 2003, by and
among MSW Energy Holdings LLC, MSW Energy Finance Co., Inc. and
Wells Fargo Bank Minnesota, National Association as Collateral
Agent.*
4.6 Pledge Supplement dated as of June 30, 2003 by MSW Energy Hudson
LLC.*
4.7 Deposit Agreement, dated as of June 25, 2003, by and among MSW
Energy Holdings LLC, MSW Energy Finance Co., Inc. and Wells Fargo
Bank Minnesota, National Association as Collateral Agent and
Depositary Agent, as amended.*
4.8 Purchase Agreement, dated as of June 11, 2003, by and among MSW
Energy Holdings LLC, MSW Energy Finance Co., Inc., MSW Energy
Hudson LLC and Credit Suisse First Boston LLC.*
10.1 Amended and Restated Capital Contribution Agreement, dated as of
June 24, 2003, by and between Highstar Renewable Fuels LLC and
MSW Acquisition LLC.*
10.2 Agreement, dated as of June 30, 2003, by and between MSW Energy
Holdings LLC and Duke Capital Corporation.*
44
10.3 Escrow Agreement, dated as of June 30, 2003, by and among MSW
Energy Holdings LLC, Duke Capital Corporation and Wachovia Bank,
National Association.*
10.4 Amended and Restated Limited Liability Company Agreement of
Ref-Fuel Holdings LLC, dated as of April 30, 2001, by and between
Duke Energy Global Asset Development, Inc. and UAE Ref-Fuel LLC,
as amended.*
10.5 Equity Contribution Agreement, dated as of April 30, 2001, by and
among Duke Capital Corporation, United American Energy Corp.,
Ref-Fuel Holdings LLC (formerly known as Duke/UAE Ref-Fuel LLC)
and American Ref-Fuel Company LLC.*
10.6 Substitution, Assumption, Amendment and Release Agreement, dated
as of June 30, 2003, by and among Duke Capital Corporation,
United American Energy Corp., Ref-Fuel Holdings LLC (formerly
known as Duke/UAE Ref-Fuel LLC), American Ref-Fuel Company LLC,
and MSW Energy Holdings LLC.*
10.7 Equity Purchase Agreement, dated as of March 19, 2003, by and
between MSW Energy Holdings LLC and Duke Energy Global Markets,
Inc.*
12 Statement re Computation of Ratio of Earnings to Fixed Charges
31(a) 15d-14(a) Certification of John T. Miller for MSW Energy
Holdings LLC.
31(b) 15d-14(a) Certification of Michael J. Gruppuso for MSW Energy
Holdings LLC.
31(c) 15d-14(a) Certification of John T. Miller for MSW Energy Finance
Co., Inc.
31(d) 15d-14(a) Certification of Michael J. Gruppuso for MSW Energy
Finance Co., Inc.
32(a) Section 1350 Certification of John T. Miller and Michael J.
Gruppuso for MSW Energy Holdings LLC. 32(b) Section 1350
Certification of John T. Miller and Michael J. Gruppuso for MSW
Energy Finance Co., Inc.
* Incorporated by Reference to Registration Statement No. 333-109049.
45