File No. 70-9453
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1
to
FORM U-1
DECLARATION WITH RESPECT TO A GUARANTY BY
EASTERN EDISON COMPANY OF THE OBLIGATIONS OF
MONTAUP ELECTRIC COMPANY UNDER A
POWER PURCHASE AND SALE AGREEMENT
UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
EASTERN EDISON COMPANY
110 Mulberry Street, Brockton, Massachusetts 02403
(Name of company filing this statement and address of its principal executive
office)
EASTERN UTILITIES ASSOCIATES
(Name of top registered holding company parent of the declarant)
CLIFFORD J. HEBERT, JR., TREASURER
EASTERN UTILITIES ASSOCIATES
P.O. Box 2333, Boston, Massachusetts 02107
(Name and address of agent for service)
The Commission is requested to mail signed copies of
all orders, notices and communications to:
ARTHUR I. ANDERSON, P.C.
McDermott, Will & Emery
28 State Street
Boston, MA 02109
This Post-Effective Amendment No. 1 (the "Amendment") amends the Declaration on
Form U-1, File No. 70-9453, filed with the Commission on February 16, 1999, as
follows:
1. Part III of Item 1 (Request for Authorization to Enter into and
Reinstate the Guaranty) is hereby amended to request an extension of
the authorization to enter into the Guaranty through October 1, 1999.
2. Part V of Item 1 is hereby amended and restated to read as follows:
V. EWGs and FUCOs
Neither Eastern Utilities Associates nor any of its
subsidiaries or associates has acquired an ownership interest in any EWG or
FUCO, or now is or as a consequence of the transactions proposed herein will
become a party to or has or will as a consequence of the transactions proposed
herein have any right under any service, sales or construction contract with an
EWG or FUCO, except in accordance with the provisions of the Act. Neither
Eastern Utilities Associates nor any of its subsidiaries or associates will
acquire any such interest or right without first obtaining any necessary
Commission authorization. All applicable conditions contained in Rule 53(a)
are, and assuming the consummation of the proposed transactions will be,
satisfied, and none of the conditions contained in Rule 53(b) exist or will
exist as a result of the proposed transactions making Rule 53(c) inapplicable.
3. The following sentence is hereby added to the end of Item 4:
After a public hearing and evidentiary hearing conducted by the
Massachusetts Department of Telecommunications and Energy ("DTE") on March 22,
1999 pursuant to notice duly issued, Eastern's proposal to issue the Guaranty
was approved by DTE Order 99-21 dated July 28, 1999.
4. Item 6 is hereby amended by the filing of the below-described Exhibit
F.
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
Exhibit F Opinion of Counsel (filed herewith)
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned Declarant has duly caused this Amendment to be signed
on its behalf by the undersigned duly authorized individual.
EASTERN EDISON COMPANY
By: /s/ Clifford J. Hebert, Jr.
Clifford J. Hebert, Jr.
Treasurer
Date: August 16, 1999
August 16, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: File No. 70-9453
Eastern Utilities Associates et al. / Declaration with Respect
to a Guaranty by Eastern Edison Company of the Obligations of
Montaup Electric Company Under a Power Purchase and Sale
Agreement
Ladies and Gentlemen:
As counsel for Eastern Utilities Associates ("EUA"), Eastern Edison
Company, ("Eastern"), and Montaup Electric Company ("Montaup"), we are
furnishing this opinion to be used in connection with the filing by Eastern, on
February 16, 1999, with the U.S. Securities and Exchange Commission (the
"Commission"), of a Declaration on Form U-1, as amended (File No. 70-9453;
hereinafter, the "Declaration"), under the Public Utility Holding Company Act
of 1935, as amended. In conjunction with Montaup's divestiture of its
generating assets and existing power purchase agreements ("Existing Power
Contracts") pursuant to approved settlement agreements with its state
regulators in Massachusetts and Rhode Island, Montaup has agreed to sell to
Constellation Power Source, Inc. ("CPS"), a nonassociate company, under a Power
Purchase and Sale Agreement (the "Sale Agreement"), the economic benefits and
performance obligations associated with certain Existing Power Contracts,
subject to Montaup's continuing obligations to make certain payments under
those Existing Power Contracts. In the Declaration, EEC requests authorization
to guaranty Montaup's performance, and to pay CPS's expenses for enforcing its
rights, under the Sale Agreement (the " Guaranty"), all upon the terms and
conditions described in the Declaration. The issuance of the Guaranty upon the
terms and conditions set forth in the Declaration is hereinafter referred to as
the "Proposed Transaction."
It is our opinion, subject to the additional assumptions, exceptions
and qualifications hereinafter stated, that in the event the Proposed
Transaction is consummated in accordance with the Declaration:
(a) All Massachusetts state laws applicable to the Proposed
Transactions will have been complied with by EUA, Eastern, and
Montaup.
(b) Eastern, being the potential issuer of the Guaranty, is a
validly organized and duly existing corporation organized under the laws of the
Commonwealth of Massachusetts and the Guaranty issued by Eastern will be the
valid and binding obligation of Eastern, enforceable in accordance with its
terms.
(c) The consummation of the Proposed Transaction will not violate
the legal rights of the holders of any of the securities issued by EUA,
Eastern, Montaup or any of their associate companies, Blackstone Valley
Electric Company ("Blackstone"), Newport Electric Corporation ("Newport"), EUA
Cogenex Corporation ("Cogenex"), EUA Ocean State Corporation ("Ocean State"),
EUA Service Corporation ("ESC"), EUA Telecommunications Corporation ("EUA
Telecommunications"), Northeast Energy Management, Inc. ("NEM"), EUA Citizens
Conservation Services, Inc. ("CCS"), EUA Cogenex-West Corporation ("Cogenex-
West"), EUA Cogenex-Canada Inc. ("Cogenex-Canada"), EUA Cogenex-Canada Energy
Services, Inc. ("Cogenex-Canada Energy Services") (each of NEM, CCS, Cogenex-
West, Cogenex-Canada and Cogenex-Canada Energy Services being an associate or
subsidiary company of Cogenex), EUA Energy Services, Inc. ("Energy Services"),
Duke/Louis Dreyfus Energy Services (New England) L.L.C. ("D/LDNE") (D/LDNE
being an associate company of Energy Services), EUA Energy Investment
Corporation ("EEIC"), EUA TransCapacity, Inc. ("TransCapacity"), EUA BIOTEN,
Inc. ("EUA BIOTEN"), BIOTEN Operations, Inc. ("BIOTEN Operations"), EUA
Compression Services, Inc. ("EUACS") (TransCapacity, EUA BIOTEN, BIOTEN
Operations and EUACS being associate companies of EEIC), Ocean State Power I
("OSP I"), Ocean State Power II ("OSP II") (OSP I and OSP II being Rhode Island
general partnerships), Eastern Edison Electric Company (" Eastern Electric"),
APS Cogenex L.L.C. ("APS"), EUA WestCoast L.P. ("EUA WestCoast"),
TransCapacity, L.P., BIOTEN GPM ("GPM"), Eastern Unicord Corporation ("Eastern
Unicord"), EUA Energy Capital and Services I ("EUA Capital I"), EUA Energy
Capital an d Services II ("EUA Capital II"), EUA FRC II Energy Associates ("EUA
FRC"), Micro Utility Partners of America ("Micro"), and Renova, L.L.C.
("Renova").
This opinion, in addition to being subject to the consummation of the
Proposed Transaction in accordance with the Declaration, is also subject to the
following additional assumptions, exceptions and qualifications:
(1) compliance with such order or orders as the SEC may issue from
time to time upon the Declaration;
(2) the accuracy of information furnished to us (a) as to the
outstanding securities of EUA, Eastern, Montaup and their associate companies,
Blackstone, Newport, Cogenex, Ocean State, ESC, EUA Telecommunications, NEM,
CCS, Cogenex-West, Cogenex-Canada, Cogenex-Canada Energy Services, Energy
Services, D/LDNE, EEIC, TransCapacity, EUA BIOTEN, BIOTEN Operations, EUACS,
OSP I, OSP II, Eastern Electric, APS, EUA WestCoast, TransCapacity, L.P., GPM,
Eastern Unicord, EUA Capital I, EUA Capital II, EUA FRC, Micro and Renova, and
(b) that there is no provision or condition in the Guaranty or in any document
in connection with the Guaranty or any of the above listed corporations
limiting the Proposed Transaction;
(3) that all requirements of applicable state securities or "blue
sky" laws will have been complied with;
(4) that the enforceability of the Proposed Transaction may be
subject to and affected by applicable bankruptcy, receivership, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting the
enforcement of the rights and remedies of creditors generally (including,
without limitation, such as may deny giving effect to waivers of rights to
debtors or guarantors); and such duties and standards as are or may be imposed
on creditors, including, without limitation , good faith, reasonableness and
fair dealing under any applicable statute, rule, regulation or judicial
decision; and
(5) that the enforceability of the Proposed Transaction may be
subject to and affected by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law) and the
exercise of equitable powers by a court of competent jurisdiction (and no
opinion is given herein as to specific performance or as to the availability of
other equitable remedies or equitable relief of any kind).
This opinion relates only to federal law and the laws of the
Commonwealth of Massachusetts, and we express no opinion with respect to any
other jurisdiction. To the extent that certain matters addressed may involve
the laws of other states, we have assumed that such laws are not materially
different from the laws of the Commonwealth of Massachusetts.
We consent to the use of this opinion in connection with the
Declaration.
Very truly yours,
McDermott, Will & Emery
