SECURITIES AND EXCHANGE COMMISSION
(Release No. 35-27769; 70-10122)
FirstEnergy Corp., et al.
Supplemental Clarifying Order
November 25, 2003
FirstEnergy Corp. ("FirstEnergy"), a registered holding company, its utility subsidiaries: Ohio Edison Company, American Transmission Systems, Incorporated, The Cleveland Electric Illuminating Company, The Toledo Edison Company, Pennsylvania Power Company, Northeast Ohio Natural Gas Corp., Jersey Central Power & Light Company, Pennsylvania Electric Company, Metropolitan Edison Company, York Haven Power Company, and Waverly Electric Power & Light Company, and their respective subsidiaries; and FirstEnergy's nonutility subsidiaries: FE Acquisition Corp., FirstEnergy Properties, Inc., FirstEnergy Facilities Services Group, LLC, FE Holdings, LLC, FELHC, Inc., FirstEnergy Securities Transfer Company, FirstEnergy Nuclear Operating Company, FirstEnergy Solutions Corp., FirstEnergy Generation Corp., FirstEnergy Ventures Corp., MARBEL Energy Corporation, Centerior Indemnity Trust, Centerior Service Company, FirstEnergy Service Company, GPU Capital, Inc., GPU Electric, Inc., GPU Diversified Holdings, LLC, GPU EnerTech Holdings, Inc., GPU Power, Inc., GPU Advanced Resources, Inc., GPU Telcom Services, Inc., GPU Nuclear, Inc., and MYR Group, Inc., and their respective subsidiaries; all based in Akron, Ohio; (collectively, "Applicants"), have filed with the Securities and Exchange Commission ("Commission") a post-effective amendment to an application-declaration ("Application"), under sections 6(a), 7, 9(a), 10, 12(b), (c), and 13(b) of the Public Utility Holding Company Act of 1935, as amended ("Act") and rules 42, 43, 45, 46, 53, 54, 87, and 90-92 under the Act. The Commission issued a notice of the Application on June 2, 2003 (Holding Co. Act Release No. 27683).
By order dated June 30, 2003 (Holding Co. Act Release No. 27694) ("Financing Order"), the Commission, among other things, authorized Applicants to engage in various financing transactions, credit support arrangements, and other related proposals, commencing on June 30, 2003, and ending December 31, 2005. Specifically, the Commission authorized FirstEnergy to provide FirstEnergy Guarantees1 with respect to the obligations of its Subsidiaries as may be appropriate or necessary to enable the Subsidiaries to carry on in the ordinary course of their respective businesses, including guarantees of non-affiliated third-party obligations in the ordinary course of FirstEnergy's business, in an aggregate amount that together with Nonutility Subsidiary Guarantees, shall not exceed $4.0 billion outstanding at any one time, including obligations exempt under rule 45 and guarantees and other forms of credit support provided FirstEnergy or any Nonutility Subsidiary that are outstanding on the effective date of the Financing Order.
FirstEnergy requests that the Commission clarify the language in the reservations paragraph of the Financing Order which reads in pertinent part:
IT IS FURTHER ORDERED that jurisdiction is reserved, pending completion of the record over . . . (4) the issuance by FirstEnergy of guarantees on behalf of its Subsidiaries for the benefit of non-affiliated third parties . . . .
Applicants in the current post-effective amendment request that the above language be amended such that it reads in pertinent part:
IT IS FURTHER ORDERED that jurisdiction is reserved, pending completion of the record over . . . (4) the issuance by FirstEnergy of guarantees of non-affiliated third party obligations in the ordinary course of FirstEnergy's business . . . .
This supplemental order thus amends the Financing Order by substituting the requested guarantee reservation of jurisdiction language proposed in this post-effective amendment for the guarantee reservation of jurisdiction language currently in the Financing Order. The entire amended reservation of jurisdiction section of the Financing Order is restated below.
IT IS ORDERED, under the applicable provisions of the Act and rules under the
Act, that the Application, as amended, be granted and permitted to become effective immediately, subject to the terms and conditions prescribed in rule 24 under the Act.
IT IS FURTHER ORDERED that jurisdiction is reserved, pending completion of the record, over: (1) the issuance of securities in those circumstances where FirstEnergy or a Utility Subsidiary does not comply with the 30% common equity criteria; (2) securities issued in reliance upon the authorization granted by the Commission pursuant to this Application where one or more of the Investment Grade Ratings Criteria are not met; (3) the entering into Hedge Instruments and Anticipatory Hedges by FirstEnergy which do not qualify for hedge accounting treatment by the FASB; (4) the issuance by FirstEnergy of guarantees of non-affiliated third party obligations in the ordinary course of FirstEnergy's business; (5) the ability of FirstEnergy to make Other Investments in EWGs and FUCOs in an amount over $1.5 billion; (6) the ability of Energy Related Companies to engage in energy marketing outside of the United States, Canada and Mexico; and (7) the ability of Energy Related Companies to engage in the sale of infrastructure services anywhere outside the United States.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Margaret H. McFarland
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