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As filed with the Securities and Exchange Commission on
February 8, 2001
File No. 70-9633
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 6 TO
APPLICATION-DECLARATION
ON FORM U-1
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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UNITIL CORPORATION
CONCORD ELECTRIC COMPANY
EXETER & HAMPTON ELECTRIC COMPANY
FITCHBURG GAS AND ELECTRIC LIGHT COMPANY
UNITIL POWER CORP.
UNITIL REALTY CORP.
UNITL RESOURCES INC.
UNITIL SERVICE CORP.
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name of companies filing this statement and
address of principal executive offices)
UNITIL CORPORATION
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name of top registered holding company parent)
Mark H. Collin
Treasurer
UNITIL CORPORATION
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name and address of agent for service)
The Commission is requested to mail copies of
all orders, notices and communications to:
Joanne C. Rutkowski LeBoeuf,
Lamb, Greene & MacRae, L.L.P.
1875 Connecticut Ave., N.W.
Washington, DC 20009
This post-effective amendment amends and restates Post-Effective Amendments
No. 4 and 5 to File No. 70-9633.
Unitil Corporation, a New Hampshire corporation ("Unitil") and a registered
holding company under the Public Utility Holding Company Act of 1935, as amended
(the "Act"), and its wholly owned subsidiary companies, Concord Electric Company
("Concord"), Exeter & Hampton Electric Company ("Exeter"), Fitchburg Gas and
Electric Light Company ("Fitchburg"), Unitil Power Corp. ("Unitil Power"),
Unitil Realty Corp. ("Unitil Realty"), Unitil Resources, Inc. ("Unitil
Resources") and Unitil Service Corp. ("Unitil Service" and, together with
Concord, Exeter, Fitchburg, Unitil Power, Unitil Realty and Unitil Resources,
the "Subsidiaries" or "Money Pool Participants") hereby request increases in
certain authorized borrowing amounts.1 As explained more fully below, Applicants
require relief on an expedited basis and so ask the Commission to issue an order
granting the requested authority no later than January 31, 2001.
On June 9, 2000, Unitil and the Subsidiaries, received authority under
Sections 6(b), 7, 9(a), 10 and 12(b) of the Act and the Rules 43, 45 and 52
thereunder with respect to (i) short- term borrowing by Unitil, (ii) short-term
borrowings by Fitchburg and (iii) the continued use of the system money pool
("Money Pool") by Unitil and the Money Pool Participants, pursuant to the Cash
Pooling and Loan Agreement (the "Pooling Agreement") among Unitil and the Money
Pool Participants dated as of February 1, 1985, as amended, Holding Co. Act
Release No. 27182 (the "Order"). On December 15, 2000, in response to a
post-effective amendment, the Commission authorized Unitil to increase its short
term borrowing to $35 million. Holding Co. Act Release No. 27307 (Dec. 15, 2000)
("Post-Effective Amendment No. 3").
The Applicants hereby file this post effective amendment ("Amendment") to
their application-declaration on Form U-1 relating to the above-referenced
transactions (the "Original Application-Declaration") under the Act in order to
increase certain authorized borrowing amounts authorized in the Order.
ITEM 1. DESCRIPTION OF PROPOSED TRANSACTIONS
The Applicants hereby submit this Amendment for authorization and approval
under Sections 6(a), 7, 9(a), 10 and 12(b) of the Act and the Rules 43, 45 and
52 thereunder to increase Unitil's authorized short-term borrowing to $45
million from $35 million and Fitchburg's authorized short-term borrowing to $30
million from $20 million. The prices that Unitil's subsidiaries, Unitil Power
and Fitchburg, pay for wholesale electric and natural gas energy commodities has
become unpredictably volatile and has sharply risen putting a heavy strain on
Unitil's working capital and significantly increased its short-term borrowing
requirements. Despite the recent granting of rate relief from the state
regulatory authorities, rising wholesale energy commodity costs are expected to
continue at this time to outstrip the effect of such relief reflecting the
inherent lag in the regulatory cost recovery process. The Applicant's
subsidiaries are absorbing an increasing portion of these costs by deferring
such energy costs for recovery in a
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1 For purposes of this Application-Declaration, Unitil and the Subsidiaries
are collectively referred to as the "Applicants".
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later period. Despite recent authorized increases in the borrowing authority
granted to Unitil and Fitchburg by this Commission and the above-mentioned rate
relief, the Applicants are currently experiencing an acute need to borrow
additional funds to principally satisfy the cost of their wholesale energy
obligations. Applicants expect that this is a temporary phenomenon, but
nevertheless one which requires additional borrowing authority to enable
Applicants to pay for wholesale natural gas and electricity purchases.
Accordingly, Applicants ask the Commission to Expeditiously approve this
Amendment.
Unitil's Board of Directors authorized this short-term borrowing limit of
$45 million on January 16, 2001, and Fitchburg's Board of Directors authorized
the new limit of $30 million on the same date. See Exhibits B-2 and B-3.
Any borrowings undertaken pursuant to this authorization will remain
subject to the parameters set forth in the Order, as supplemented, except for
the new aggregate limits of $45 million for Unitil and $30 million for
Fitchburg. While some of these parameters are discussed or repeated in this
Amendment, the decision not to repeat or describe a specific aspect of the Order
or Original Application-Declaration does not affect its continuing validity.
After the Commission authorized the borrowing authority requested in
Amendment No. 3, Unitil began to utilize this new authority and had incurred
approximately $33 million in short term debt as of December 31, 2000.
As discussed in the Original Application-Declaration, Unitil requests
authority to secure both formal and informal credit lines with a number of
lending institutions. Formal credit lines under the proposed facilities may be
subject to compensating balances and/or fee requirements. Compensating balance
requirements will not exceed 5% of the committed credit line amount, and fees
will not exceed 50 basis points times the total line of credit per annum. Unitil
may change its credit line arrangements and obtain additional formal or informal
credit lines over time.
Applicants anticipates that most of Fitchburg's borrowings will be made
through the Money Pool. However, the Fitchburg board resolutions do not prohibit
Fitchburg from short- term borrowing outside of the Pooling Agreement.
Accordingly, Fitchburg seeks Commission authorization for short-term borrowings
up to $30 million through the Money Pool and through direct borrowings from
commercial banks on terms similar to those on which Unitil borrows.
The proposed transactions are not subject to Rules 53 and 54 under the Act.
Neither Unitil nor any Subsidiary thereof presently has, or as a consequence of
the proposed transactions will have, an interest in any exempt wholesale
generator ("EWG") or foreign utility company ("FUCO"), as those terms are
defined in Sections 32 and 33 of the Act, respectively. None of the proceeds
from the proposed transactions will be used to acquire any securities of, or any
interest in, an EWG or FUCO. Moreover, neither Unitil nor any of the
Subsidiaries is, or as a consequence of the proposed transactions will become, a
party to, and such entities do not and will not have any rights under, a
service, sales or construction contract with any affiliated EWGs or FUCOs except
in accordance with the rules and regulations promulgated by the Commission with
respect thereto. Consequently, all applicable requirements of Rule 53(a)-(c)
under the Act are satisfied as required by Rule 54 under the Act.
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ITEM 2. FEES, COMMISSIONS AND EXPENSES
The fees, commissions and expenses of the Applicants expected to be paid or
incurred, directly or indirectly, in connection with the transactions described
above are estimated as follows:
Legal fees ...................................... $5,000
Miscellaneous ...................................... $3,000
Total ...................................... $8,000
ITEM 3. APPLICABLE STATUTORY PROVISIONS
Sections 6(a), 7, 9(a), 10 and 12(b) of the Act, and Rules 43, 45 and 52
thereunder, are directly applicable to this Application-Declaration as follows:
(1) External Borrowings by Unitil and Fitchburg (Sections 6 and 7).
Sections 6 and 7 apply to Unitil and Fitchburg's request to incur
short-term debt.
(2) Regulation of the Money Pool (Sections 6, 7, 9, 10 and 12(b) and Rules
43, 45 and 52).
Sections 6, 7, 9, and 10 and Rule 52 govern operation of Unitil's Money
Pool. Section 12(b) and Rules 43 and 45 also apply to transactions among
registered holding companies, their subsidiaries and companies in the same
holding company system and prohibit the transactions contemplated by the
Money Pool without prior Commission authorization.
As previously described in Pre-Effective Amendment No. 2 to Form U-1 in
File 70-9633, filed with the Commission on May 23, 2000, the Unitil Money Pool
may function under Rule 52 without commission approval. Concord, Exeter and
Unitil Power have received orders from the New Hampshire Public Utility
Commission authorizing their participation in the Money Pool. See Exhibits D-1
and D-2. Likewise, Fitchburg may participate pursuant to order of the
Massachusetts Department of Telecommunications and Energy. See Exhibit D-3.
Unitil Realty, Unitil Resources and Unitil Services are non-utility subsidiaries
of Unitil whose short-term borrowings will be used solely for the purpose of
financing their respective businesses at interest rates and with maturity dates
that would parallel such lender's effective short-term cost of capital on any
given date. Accordingly, such transactions are exempt from the prior approval
requirements of Section 6 of the Act under Rule 52(b). Unitil may participate in
the Money Pool pursuant to Rule 52(d).
ITEM 4. REGULATORY APPROVALS
The New Hampshire Public Utilities Commission has authority over the
participation of Unitil, Concord, Exeter and Unitil Power in the Money Pool, and
has issued an orders approving participation. See Exhibits D-1 and D-2. The
Massachusetts Department of Telecommunications
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and Energy has authority over Fitchburg's participation in the Money Pool, and
has issued an order approving participation. See Exhibit D-3.
ITEM 5. PROCEDURE
It is requested that the Commission issue and publish no later than January
12, 2001 such notice specifying January 27, 2001 as the date by which comments
may be entered and the date on which an order granting and permitting the
Application-Declaration to become effective may be entered by the Commission and
that the Commission enter not later than January 31, 2001, an appropriate order
granting and permitting this Application-Declaration to become effective.
The Applicants respectfully request that appropriate and timely action be
taken by the Commission in this matter. No recommended decision by a hearing
officer or other responsible officer of the Commission is necessary or required
in this matter. The Division of Investment Management of the Commission may
assist in the preparation of the Commission's decision in this matter. There
should be no thirty-day waiting period between the issuance and effective date
of any order issued by the Commission in this matter, and it is respectfully
requested that any such order be made effective immediately upon the entry
thereof.
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
a) Exhibits
Exhibit No. Description of Exhibit
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B-1 Cash Pooling and Loan Agreement, as amended (previously
filed with Post-Effective Amendment No. 1).
B-2 Resolutions of Fitchburg Board of Directors authorizing
short-term borrowing limit of $30 million.
B-3 Resolutions of Unitil Board of Directors authorizing
short-term borrowing limit of $45 million.
D-1 New Hampshire Public Utilities Commission Order No.
18,416 (Filed on Form SE and previously filed with
Pre-Effective Amendment No. 2 to Form U-1, File 70-
9633).
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D-2 New Hampshire Public Utilities Commission Order No.
17,373 (Filed on Form SE and previously filed with
Pre-Effective Amendment No. 2 to Form U-1, File 70-
9633).
D-3 Massachusetts Department of Telecommunications and
Energy (formerly the Massachusetts Public Utilities
Commission) Order No. MDPU 89-66 (Filed on Form SE and
previously filed with Pre-Effective Amendment No. 2 to
Form U-1, File 70- 9633).
F-1 Opinion of Counsel.
F-2 "Past Tense" Opinion of Counsel (to be filed by
amendment).
H-1 Proposed Form of Notice (previously filed).
b) Financial Statements
No. Description of Financial Statement
--- ----------------------------------
FS-1 Actual and Pro Forma Balance Sheet and Statement of
Earnings for the period ending September 30, 2000 for:
(a) Fitchburg;
(b) Unitil Corporation and Subsidiary Companies; and
(c) Unitil Company only (previously filed).
FS-2 Unitil Corporation and Subsidiary Companies
Consolidated Actual Balance Sheets and Statement of
Earnings, September 30, 2000 (filed with the Commission
with Unitil's 10-Q for the period ended September 30,
2000 and incorporated by reference herein).
ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS
None of the matters that are the subject of this Application-Declaration
involve a "major federal action" nor do they "significantly affect the quality
of the human environment" as those terms are used in Section 102(2)(C) of the
National Environmental Policy Act. None of the proposed transactions that are
the subject of this Application-Declaration will result in changes in
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the operation of the Applicants that will have an impact on the environment. The
Applicants are not aware of any federal agency which has prepared or is
preparing an environmental impact statement with respect to the transactions
proposed herein.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the Applicants have duly caused this Application-Declaration to be signed
on their behalf by the undersigned thereunto duly authorized.
Dated: February 8, 2001
UNITIL CORPORATION
By: /s/ Mark H. Collin
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Name: Mark H. Collin
Title: Treasurer
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EXHIBIT B-1
Unitil Corporation
CERTIFICATE
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On motion duly made and seconded, the following vote was unanimously
adopted:
VOTED: That, effective January 16, 2001, and until further action by
Directors in this respect, the total amount of short-term unsecured
obligations of this Company issued and outstanding at any one time
shall not exceed the sum of Forty-five Million Dollars ($45,000,000);
and that the Chairman, President, and Vice President and Treasurer or
any Assistant Treasurer of this Company be and they are, and each of
them singly is, hereby authorized to borrow funds upon short-term
unsecured obligations of this Company not exceeding in the aggregate
the amount above set forth, bearing interest at such rates and
maturing at such time as may to them seem wise, such short-term
unsecured obligations to be signed on behalf of this Company by the
Treasurer or any Assistant Treasurer and countersigned by the
Chairman, President, any Vice President, or any two Directors.
I, Mark H. Collin, hereby certify that I am Secretary of Unitil
Corporation; that the foregoing is a true copy from the records of votes
unanimously adopted at a meeting of the Directors of said Company duly called
and held January 16, 2001, at which meeting a quorum was present and acting
throughout; and that the said votes have not since been altered, amended or
rescinded.
WITNESS my hand and the corporate seal of Unitil Corporation this 16th day
of January, 2001.
[SEAL]
/s/ Mark H. Collin
Secretary
EXHIBIT B-2
Fitchburg Gas and Electric Light Company
CERTIFICATE
------------------------------------
On motion duly made and seconded, the following vote was unanimously
adopted:
VOTED: That, effective January 16, 2001, the total amount of short-term
unsecured obligations of the Company issued and outstanding at any one
time shall not exceed the sum of Thirty Million Dollars ($30,000,000);
and that the Treasurer or any Assistant Treasurer of this Company be
authorized in the name and on behalf of this Company to borrow funds
upon short-term unsecured obligations of this Company consisting of
promissory notes and/or through short-term borrowings provided under
the Unitil Cash Pooling and Loan Agreement, not exceeding in the
aggregate Thirty Million Dollars ($30,000,000), bearing interest at
such rates and maturing at such times as may to them seem wise; and
any short-term unsecured obligations shall be signed on behalf of the
Company by the Treasurer or any Assistant Treasurer and countersigned
by the President, any Vice President or any two Directors.
I, Sandra L. Whitney, hereby certify that I am Clerk of Fitchburg Gas and
Electric Light Company; that the foregoing is a true copy from the records of
votes unanimously adopted at a meeting of the Directors of said Company duly
called and held January 16, 2001, at which meeting a quorum was present and
acting throughout; and that the said votes have not since been altered, amended
or rescinded.
WITNESS my hand and the corporate seal of Fitchburg Gas and Electric Light
Company this 16th day of January, 2001.
[SEAL]
/s/ Sandra L. Whitney
Clerk
Exhibit F-1
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
A Limited Partnership Including Professional Corporations
260 Franklin Street
Boston, MA 02110-3713
February 7, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Sir or Madam:
This opinion is furnished to the Securities and Exchange Commission (the
"Commission") in connection with Post-Effective Amendment No. 5 to an
application-declaration on Form U-1 (File 70-9633) ("Post-Effective Amendment
No. 5") of Unitil Corporation (the "Company"), a New Hampshire corporation, and
a registered public utility holding company under the Public Utility Holding
Company Act of 1935, and its subsidiaries, Concord Electric Company, Exeter &
Hampton Electric Company, Unitil Power Corp., Unitil Realty Corp., Unitil
Resources, Inc. and Unitil Service Corp., each of which is a New Hampshire
corporation, and its subsidiary Fitchburg Gas and Electric Light Company
("Fitchburg"), a Massachusetts corporation (collectively, the Company and its
subsidiaries are referred to as the "Applicants"). The Commission has issued two
earlier orders related to previous application-declarations filed under File No.
70-9633. See Holding Co. Act Release Nos. 27182 (June 9, 2000) and 27307 (Dec.
15, 2000).
In Post-Effective Amendment No. 5, the Applicants request authorization to
raise the Company's permitted level of short-term borrowing from $35 million to
$45 million and Fitchburg's permitted level of short term borrowing from $20
million to $30 million.
We have examined originals of Post-Effective Amendment No. 5 and originals,
or copies certified to our satisfaction, of such corporate records of the
Applicants, certificates of public officials, certificates of officers and
representatives of the Applicants and other documents as we have deemed it
necessary to require as a basis for the opinions hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity to the original
documents of all documents submitted to us as copies. As to any facts material
to our opinion, we have, when relevant facts were not independently established,
relied upon the aforesaid agreements, instruments, certificates and documents.
In addition, we have examined such questions of law, as we considered necessary
or appropriate for the purpose of rendering this opinion. Based on the
foregoing, and subject to the final paragraph hereof, we are of the opinion
that:
(1) All state laws applicable to the transactions described in
Post-Effective Amendment No. 5 will have been complied with.
(2) The Company and Fitchburg are validly organized and duly existing
under the laws of the State of New Hampshire and Commonwealth of
Massachusetts respectively.
(3) The notes to be issued to banks by the Company and Fitchburg in
accordance with Post-Effective Amendment No. 5 are valid and binding
obligations enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and to general principles of equity, regardless of whether
such principles are considered at a proceeding at law or in equity,
and further subject to the qualification that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(4) The consummation of the transactions proposed in Post-Effective
Amendment No. 5 will not violate the legal rights of the holders of
any securities issued by the Company or Fitchburg.
The opinions expressed above in respect of the approval of the transactions
described in Post-Effective Amendment No. 5 are subject to the following
assumptions or conditions:
a. The Commission shall have duly entered an appropriate order or
orders granting and permitting Post-Effective Amendment No. 5 to
become effective with respect to the short-term borrowings described
therein.
b. No act or event other than as described herein shall have occurred
subsequent to the date hereof, which would change the opinions
expressed above.
We hereby consent to the use of this opinion as an exhibit to
Post-Effective Amendment No. 5.
We are not, in this opinion, opining on laws other than the laws of the
State of New Hampshire, Commonwealth of Massachusetts and the federal laws of
the United States.
Very truly yours,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.