File No. 70-8755
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM U-1
APPLICATION-DECLARATION
WITH RESPECT TO THE FORMATION OF A
JOINT VENTURE ENERGY CONSERVATION SERVICES COMPANY
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 ("ACT")
EASTERN UTILITIES ASSOCIATES ("EUA")
P.O. Box 2333, Boston, Massachusetts 02107
EUA COGENEX CORPORATION ("COGENEX")
P.O. Box 2333, BOSTON, MASSACHUSETTS 02107
(Name of companies filing this statement
and address of principal executive office)
EASTERN UTILITIES ASSOCIATES
(Name of top registered holding company parent of applicant or 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
75 State Street
Boston, MA 02109
The Applicants' application-declaration on Form U-1 dated December 8,
1995 is hereby amended as set forth below.
1. Item 2 is hereby amended and restated in its entirety as set forth below:
Item 2. Fees, Commissions and Expenses.
The estimated fees, commissions and expenses to be paid or incurred
directly or indirectly in connection with the proposed transactions are
estimated as follows:
Legal Fees $10,000
Miscellaneous $ 2,000
TOTAL $12,000
2. Item 6 is hereby amended and restated in its entirety, as follows:
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS (* filed herewith)
(**confidential treatment requested)
(a) Exhibits.
*Exhibit A-1 Form of Certificate of Formation of
[WESTAR/COGENEX] L.L.C.
**Exhibit B-1 Letter Agreement between EUA Cogenex Corporation
and Westar Business Services dated November 15,
1995 (previously filed)
**Exhibit B-2 Form of Limited Liability Company Operating
Agreement
*Exhibit F-1 Opinion of McDermott, Will & Emery
Exhibit H Proposed Form of Notice (previously filed)
(b) Financial Statements.
** b-1 Preliminary Financial Forecast (1996-2000)
SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the undersigned companies have duly caused this statement to be signed
on their behalf by the undersigned thereunto duly authorized.
EASTERN UTILITIES ASSOCIATES
By: /s/ Clifford J. Hebert, Jr.
Clifford J. Hebert, Jr.
Treasurer
EUA COGENEX CORPORATION
By: /s/ Clifford J. Hebert, Jr.
Clifford J. Hebert, Jr.
Treasurer
Dated: February 5, 1996
Exhibit A-1
FORM OF
CERTIFICATE OF FORMATION OF
LIMITED LIABILITY COMPANY OF
[WESTAR/COGENEX], L.L.C.
The undersigned, Aaron Muirhead, desiring to form a limited
liability company (the "Company") under the Limited Liability
Company Act of the State of Delaware (Delaware Code, 6 Sections 18-101
et seq.) (the "Act"), certifies as follows:
Article One
The name of the Company formed hereby is [Westar/Cogenex],
L.L.C.
Article Two
The address of the registered office of the Company in the
State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801. The registered agent for service of process on
the Company is c/o The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
Article Three
The latest date on which the Company is to dissolve is
February ___, 2046.
Article Four
The purpose of the Company is the marketing, development and
implementation of energy conservation services.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as an instrument under seal as of this ____ day of
February, 1996.
______________________________
Aaron Muirhead
(Authorized Person)
EXHIBIT B-2, FORM OF LIMITED LIABILITY COMPANY OPERATING AGREEMENT
FILED WITH CONFIDENTIAL TREATMENT REQUESTED
Exhibit F-1
February 5, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Re:File No. 70-8755: Eastern Utilities
Associates and EUA Cogenex Corporation --
Formation of a Joint Venture Energy
Conservation Services Company
Ladies and Gentlemen:
As counsel for Eastern Utilities Associates ("EUA") and EUA
Cogenex Corporation ("Cogenex"), we are furnishing this opinion
letter to be used in connection with that certain application-
declaration on Form U-1 dated December 8, 1995, as amended by
Amendment No. 1 dated February 5, 1996, filed jointly by EUA and
Cogenex with the Securities and Exchange Commission (the
"Commission") under the Public Utility Holding Company Act of
1935, File No. 70-8755 (the "Application-Declaration"), with
respect to the formation of a joint venture energy conservation
services limited liability company (the "Proposed Transactions"),
as more fully described in the Application-Declaration.
It is our opinion, subject to the additional assumptions,
exceptions and qualifications hereinafter stated, that in the
event the Proposed Transactions are consummated in accordance
with the terms and conditions of the Application-Declaration:
(a) all State laws applicable to the Proposed Transactions
will have been complied with by EUA and Cogenex;
(b) EUA is a validly organized and duly existing voluntary
association under the laws of The Commonwealth of Massachusetts;
(c) Cogenex is a validly organized and duly existing
corporation under the laws of The Commonwealth of Massachusetts;
(c) The consummation of the Proposed Transactions will not
violate the legal rights of the holders of any of the securities
of EUA, Cogenex or any of EUA Energy Investment Corporation ("EUA
Energy"), OSP Finance Company ("OSP"), Eastern Edison Company
("Eastern"), Montaup Electric Company ("Montaup"), EUA Service
Corporation ("Service"), Blackstone Valley Electric Company
("Blackstone"), Newport Electric Corporation ("Newport"), EUA
Ocean State Corporation ("Ocean State"), EUA Cogenex-Canada Inc.
("Cogenex-Canada"), EUA TransCapacity, Inc. ("TransCapacity"),
Northeast Energy Management, Inc. ("NEM"), EUA Citizens
Conservation Services, Inc. ("CCS"), EUA Highland Corporation
("Highland"), and EUA BIOTEN, Inc. ("BIOTEN"), associate
companies of Cogenex, or Ocean State Power ("OSP I") and Ocean
State Power II ("OSP II"), Rhode Island general partnerships.
In addition to being subject to the consummation of the
Proposed Transactions in accordance with the provisions of the
Application-Declaration, the opinions expressed in this letter
are also subject to the following additional assumptions,
exceptions and qualifications:
(1) compliance with such order or orders as the Commission
may issue from time to time upon the Application-Declaration;
(2) the accuracy of information furnished to us as to the
outstanding securities of EUA, Cogenex, EUA Energy, OSP, Eastern,
Montaup, Service, Blackstone, Newport, Ocean State, Cogenex-
Canada, TransCapacity, NEM, CCS, Highland, BIOTEN, OSP I and OSP
II;
(3) that all requirements of applicable state securities or
"blue sky" laws will have been complied with;
(4) 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
(6) 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).
The opinions expressed in this letter relate 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 letter in connection
with the Application-Declaration filed with the Commission.
Very truly yours,
/s/ McDermott, Will & Emery
McDERMOTT, WILL & EMERY
EXHIBIT b-1, PRELIMINARY FINANCIAL FORECAST (1996-2000)
FILED WITH CONFIDENTIAL TREATMENT REQUESTED
