File No. 70-8663
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM U-1
APPLICATION-DECLARATION WITH RESPECT TO
THE FORMATION OF A JOINT VENTURE
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
EUA COGENEX CORPORATION
P.O. Box 2333, BOSTON, MASSACHUSETTS 02107
AYP CAPITAL, INC.
TOWER FORTY-NINE, 12 EAST 49TH STREET, NEW YORK, NEW YORK 10017
(Name of companies filing this statement
and address of principal executive offices)
EASTERN UTILITIES ASSOCIATES
ALLEGHENY POWER SYSTEM, INC.
(Name of top registered holding company parents of
applicants or declarants)
CLIFFORD J. HEBERT, JR., TREASURER
EASTERN UTILITIES ASSOCIATES
P.O. Box 2333, BOSTON, MASSACHUSETTS 02107
NANCY H. GORMLEY, ESQ., VICE PRESIDENT
ALLEGHENY POWER SYSTEM, INC.
TOWER FORTY-NINE, 12 EAST 49TH STREET, NEW YORK, NEW YORK 10017
(Name and address of agents 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
75 State Street
Boston, MA 02109
ITEM 2. FEES, COMMISSIONS, AND EXPENSES.
Item 2 is hereby amended and restated in its entirety as follows:
The estimated fees, commissions and expenses to be paid or incurred
directly or indirectly in connection with the proposed transaction are as
follows:
Securities and Exchange Commission Fee $ 2,000*
EUA Service Corporation Expenses 500
Allegheny Power Service Corporation Expenses 800
Fees and Expenses of Cogenex Counsel 25,000
TOTAL $ 28,300
(*actual)
ITEM 5. PROCEDURE.
Item 5 is hereby amended by adding the following:
(c) Cogenex and AYP propose that the JV ESCO file reports with the
Commission pursuant to Rule 24 on a quarterly basis, beginning the first
calendar quarter after this application-declaration is granted and
permitted to become effective, on the following schedule: The quarterly
report for the first calendar quarter of each year will be filed on or
before August 15 of such year; the quarterly report for the second calendar
quarter of each year will be filed on or before November 15 of such year;
the quarterly report for the third calendar quarter of each year will be
filed on or before February 15 of the immediately succeeding calendar year;
and the quarterly report for the final calendar quarter of each year will
be filed on or before May 1 of the immediately succeeding calendar year.
Each such quarterly report will include the JV ESCO's consolidated balance
sheets, statements of income and statements of cash flows. In addition,
the JV ESCO shall file annual reports with the Commission along with the
final quarter report. Such report will be filed on the modified form U-13-
60 and shall include:
(1) A statement of estimated kilowatts saved during the past year and
cumulatively through demand-side management projects and according to the
utility sponsor (utilities which sponsor programs on behalf of their
customers).
(2) A list of new generation facilities acquired, if any, and the
applicable Federal Energy Regulatory Commission certification date and
number.
(3) A schedule of terminated and/or cancelled contracts, their value,
the amount of loss to the JV ESCO, and the reasons for the termination.
(4) A schedule of actual accounts receivable written off the books of
the JV ESCO (i.e., bad debt expense).
(5) An aging of accounts receivable for account 143 - Accounts
Receivable and account 146 - Accounts Receivable from Associate Companies.
(6) A schedule of any projects over $100,000 broken down by demand-
side management, energy management services and cogeneration, including the
investment and, based on the contract, the estimated future total project
value (net realizable value).
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS (* filed herewith)
(**confidential treatment requested)
Item 6 is hereby amended and restated in its entirety as follows:
(a) Exhibits.
**Exhibit A-1 Form of Certificate of Formation of JV ESCO.
Exhibit B-1 Letter Agreement between EUA Cogenex
Corporation and AYP Capital, Inc. dated May
31, 1995.
**Exhibit B-2 Form of limited liability company operating
agreement.
*Exhibit F-1 Opinion of McDermott, Will & Emery.
*Exhibit F-2 Opinion of AYP Counsel.
Exhibit H Proposed Form of Notice.
(b) Financial Statements.
** Exhibit b-1 JV ESCO Preliminary Financial Forecast.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned Applicants have duly caused this statement to be
signed on their behalf by the undersigned duly authorized individuals.
EUA COGENEX CORPORATION
By: /s/ Edward T. Liston
Edward T. Liston
President
AYP CAPITAL, INC.
By: /s/ Stanley I. Garnett, II
Stanley I. Garnett, II
Vice President
Dated September 8, 1995
EXHIBIT A-1 FORM OF CERTIFICATE OF FORMATION OF JV ESCO
** CONFIDENTIAL TREATMENT REQUESTED **
EXHIBIT B-2 FORM OF LIMITED LIABILITY COMPANY OPERATING AGREEMENT
** CONFIDENTIAL TREATMENT REQUESTED **
EXHIBIT F-1
September 8, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington D.C. 20549
Re: File No. 70-8663
EUA Cogenex Corporation and AYP Capital, Inc.
Application-Declaration with Respect to the Formation
of a Joint Venture
Ladies and Gentlemen:
As counsel for EUA Cogenex Corporation ("Cogenex"), we are
furnishing this opinion to be used in connection with the
application-declaration on Form U-1 under the Public Utility
Holding Company Act of 1935 (the "Act") filed by Cogenex and AYP
Capital, Inc. ("AYP") with the Securities and Exchange Commission
(the "Commission") on July 26, 1995, as amended, File No. 70-
8663, (the "Application-Declaration"). In the Application-
Declaration, Cogenex requests Commission authorization to form
with AYP a Delaware limited liability company (the "JV ESCO") for
the purpose of providing energy conservation services and to
guarantee third party loans of the JV ESCO for up to an aggregate
amount of $15,000,000 within five years of the formation of the
JV ESCO, all as more fully described in the Application-
Declaration.
It is our opinion, subject to the assumptions hereinafter
stated, that in the event the transactions for which Cogenex has
requested authorization as described above (the "Proposed
Transactions") are consummated in accordance with the
Application-Declaration:
All state laws applicable to the Proposed Transactions
will have been complied with by Cogenex and the JV ESCO.
The JV ESCO will be a validly organized and duly
existing limited liability company under the laws of the State of
Delaware.
(c) Upon due execution and delivery of the operating
agreement of the JV ESCO, Cogenex as a member of the limited
liability company will be entitled to the rights and privileges
appertaining to such members as are set forth in such operating
agreement and Cogenex will have legally acquired its interest in
the JV ESCO.
(d) The consummation of the Proposed Transactions will not
violate the legal rights of the holders of any of the securities
issued by Cogenex, or any of its associate companies, Eastern
Utilities Associates ("EUA"), Eastern Edison Company ("Eastern
Edison"), Blackstone Valley Electric Company ("Blackstone"), EUA
Energy Investment Corporation ("EEIC"), EUA Cogenex-Canada Inc.
("Cogenex-Canada"), EUA Service Corporation ("EUA Service"),
Montaup Electric Company ("Montaup"), Newport Electric
Corporation ("Newport"), Eastern Unicord Corporation ("Unicord"),
EUA Ocean State Corporation ("EUA Ocean State"), Ocean State
Power ("OSP I"), Ocean State Power II ("OSP II"), OSP Finance
Company ("OSP Finance"), EUA TransCapacity, Inc.
("TransCapacity"), Northeast Energy Management, Inc. ("NEM"), EUA
Citizens Conservation Services, Inc. ("CCS"), EUA Highland
Corporation ("Highland") and EUA BIOTEN, Inc. ("EUA BIOTEN").
This opinion, in addition to being subject to the
consummation of the Proposed Transactions in accordance with the
Application-Declaration, is also subject to the following
additional assumptions:
compliance with such orders as the Commission may issue
from time to time upon the Application-Declaration;
the accuracy of information furnished to us as to
the outstanding securities of Cogenex or its associate companies,
EUA, Eastern Edison, Blackstone, EEIC, Cogenex-Canada, EUA
Service, Montaup, Newport, Unicord, EUA Ocean State, OSP I, OSP
II, OSP Finance, TransCapacity, NEM, CCS, Highland and EUA
BIOTEN, and that there is no provision or condition in any
note or other document in connection with outstanding short-term
notes of any of Cogenex or its aforementioned associate companies
limiting the Proposed Transactions;
that requirements of applicable state securities or
"blue sky" laws will have been complied with;
that the enforceability of the Proposed Transactions
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
that the enforceability of the Proposed Transactions
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
Application-Declaration filed with the Commission.
Very truly yours,
McDermott, Will & Emery
Exhibit F-2
September 8, 1995
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Re: File No. 70-8663
EUA Cogenex Corporation and AYP Capital, Inc.
Application-Declaration with Respect to the Formation
of a Joint Venture
Ladies and Gentlemen:
As counsel for AYP Capital, Inc. ("AYP Capital"), I am furnishing
this opinion to be used in connection with the application-declaration on Form
U-1 under the Public Utility Holding Company Act of 1935 (the "Act") filed by
AYP Capital and EUA Cogenex Corporation ("Cogenex") with the Securities and
Exchange Commission (the "Commission") on July 26, 1995, as amended, File No.
70-8663, (the "Application-Declaration"). In the Application-Declaration, AYP
Capital requests Commission authorization to form with Cogenex a Delaware
limited liability company (the "JV ESCO") for the purpose of providing energy
conservation services and to guarantee third party loans of the JV ESCO for up
to an aggregate amount of $15,000,000 within five years of the formation of
the JV ESCO, all as more fully described in the Application-Declaration.
It is my opinion, subject to the assumptions hereinafter stated,
that in the event the transactions for which AYP Capital has requested
authorization as described above (the "Proposed Transactions") are consummated
in accordance with the Application-Declaration:
(a) All state laws applicable to the Proposed Transactions will
have been complied with by AYP Capital.
(b) Upon due execution and delivery of the operating agreement
of the JV ESCO, AYP Capital as a member of the limited liability company will
be entitled to the rights and privileges appertaining to such members as are
set forth in such operating agreement and AYP Capital will have legally
acquired its interest in the JV ESCO.
(c) The consummation of the Proposed Transactions will not
violate the legal rights of the holders of any of the securities issued by AYP
Capital, or any of its associate companies.
This opinion, in addition to being subject to the consummation of
the Proposed Transactions in accordance with the Application-Declaration, is
also subject to the following additional assumptions:
(1) compliance with such orders as the Commission may issue from
time to time upon the Application-Declaration;
(2) that requirements of applicable state securities or "blue
sky" laws will have been complied with;
(3) that the enforceability of the Proposed Transactions 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
(4) that the enforceability of the Proposed Transactions 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 Pennsylvania and I express no opinion with respect to any
other jurisdiction. To the extent that certain matters addressed may involve
the laws of other states, I have assumed that such laws are not materially
different from the laws of The Commonwealth of Pennsylvania.
I consent to the use of this opinion in connection with the
Application-Declaration filed with the Commission.
Very truly yours,
NANCY H. GORMLEY
Nancy H. Gormley
Counsel
U:\DUMP\AYP\EUAU-1.EXF
EXHIBIT b-1, JV ESCO PRELIMINARY FINANCIAL FORECAST
** CONFIDENTIAL TREATMENT REQUESTED **
