SECURITIES AND EXCHANGE COMMISSION
(Release No. 35-27797; 70-10100)
Allegheny Energy, Inc., et al.
Supplemental Order Releasing Jurisdiction Over Issuance of Guarantees and Granting Authority for Dividend Payments Out of Paid-in Capital
February 3, 2004
Allegheny Energy, Inc. ("Allegheny"), a registered holding company under the Public Utility Holding Company Act of 1935, as amended ("Act"), and Allegheny Energy Supply Company LLC ("AE Supply"), a registered holding company and a public-utility company subsidiary of Allegheny (together, "Applicants"), Hagerstown, Maryland, have filed with the Securities and Exchange Commission ("Commission") a post-effective amendment ("Post-Effective Amendment") to a previous application-declaration under sections 6(a), 7, and 12(c) of the Act and rules 45, 46, and 54 under the Act. The Commission issued a notice of the Post-Effective Amendment on September 23, 2003 (Holding Co. Act Release No. 27723).
Allegheny and AE Supply (collectively, "Applicants") request that the Commission release jurisdiction it reserved in a previous order dated February 21, 2003 (Holding Co. Act Release No. 27652) ("Capitalization Order") over the issuance of guarantees by AE Supply at a time when Allegheny nor AE Supply meet the capitalization requirements of their current financing order. In addition, Applicants request authority for AE Supply's subsidiaries, Allegheny Trading Finance Company ("ATF") and Allegheny Energy Supply Development Services LLC ("AESDS"), to dividend to AE Supply out of capital up to the full amount of the proceeds of certain asset sales. Applicants state that all of the authority requested in this Post-Effective Amendment is necessary to implement elements of Applicants' plan to return to financial health and to comply with Commission standards for registered holding company capital structures.
The Capitalization Order granted for a period through December 31, 2003, modifications to certain authorizations the Commission granted to the Applicants by order dated December 31, 2001 (Holding Co. Act Release No. 27486 ("Original Financing Order"), as supplemented by orders dated April 17, 2002 (Holding Co. Act Release No. 27521) ("April Order") and October 17, 2002 (Holding Co. Act Release No. 27579) ("Supplemental Order" and together with the Original Financing Order and the April Order, "Financing Order"). By order dated December 22, 2003 (Holding Co. Act Release No. 27780) ("December Order") (and with the Financing Order and an order dated July 23, 2003 (Holding Co. Act Release No. 27701)("July 23 Order"), collectively, "Prior Orders"), the Commission extended the Modified Authorization Period until April 30, 2004.
In the Original Financing Order, the Commission authorized, among other things:
In the Capitalization Order, the Commission modified the financing parameters that are conditions to the financing transactions authorized in the Financing Order, as follows ("Revised Financing Conditions"):
In addition, the Capitalization Order reserved jurisdiction over (a) the financing authorizations at a time that the common equity ratio levels of Allegheny and AE Supply were below 28 percent and 20 percent, respectively, and (b) the issuance of debt securities at an interest rate in excess of the modified interest rates.
As of September 30, 2003, Allegheny's common equity on a consolidated basis was below the 28 percent common equity ratio required by the Capitalization Order. In addition, AE Supply's common equity ratio was below 20 percent.3 Applicants, therefore, seek in this Post-Effective Amendment a release of jurisdiction over up to $328 million of guarantee authority. AE Supply states that it requires this authority in order to complete specific transactions described below. Completion of these transactions constitutes a part of the plan developed by the Applicants to resolve their financial difficulties. Applicants state that the dividend authority for ATF and AESDS requested in this Post-Effective Amendment also is necessary to implement this plan fully.
I. Background Information
The Applicants state that they continue to make significant progress toward the resolution of their financial difficulties. On July 25, 2003, Allegheny completed its private placement of $300 million of convertible trust preferred securities, as authorized by the July 23 Order. On September 15, 2003, AE Supply and ATF announced that they had completed the sale of their energy supply contract with the California Department of Water Resources ("CDWR Contract") and associated hedge transactions (collectively, "West Book") to J. Aron & Company, a division of The Goldman Sachs Group, for $354.2 million. The proceeds from the sale will be applied, in large part, to finance the termination of tolling agreements with Williams Companies, Inc., and Las Vegas Cogeneration II and certain related hedging arrangements. In addition, Allegheny will deposit, after certain escrow funds are released and under authorization by certain of its creditors, the remainder of the proceeds (estimated to be approximately $71 million) in a cash collateral account for the benefit of certain of its lenders.4 Once available, these funds will be used to reduce the amount of AE Supply's debt that must be refinanced.
Applicants state that the sale of the West Book and the sale of the securities authorized by the July 23 Order are major components of Allegheny's plan to return to financial health. In addition, AE Supply and its subsidiaries -- Allegheny Energy Supply Conemaugh LLC, Allegheny Energy Supply Hunlock Creek LLC, Allegheny Trading Finance Company, and Allegheny Energy Supply Development Services LLC -- have entered into asset sales agreements described below, which also are an important part of this plan. Applicants state that the authority they seek in this Post-Effective Amendment is important to obtaining full value from these transactions. The resulting proceeds will make available significant additional cash, which can be used to reduce debt and improve the common equity of the Applicants.
II. Summary of Request
Applicants are seeking a release of jurisdiction by the Commission over authority of AE Supply to engage in certain guarantee and other transactions. In the Capitalization Order, the Commission reserved jurisdiction over the financing authorizations granted in the Financing Order if the Applicants' capitalization did not meet the Common Equity Conditions. Applicants request that the Commission release jurisdiction over $328 million of the Aggregate Guarantee Limitation, which AE Supply will utilize to undertake the guarantee obligations summarized below. To date, Allegheny and its subsidiaries have used $42.6 million of the $3 billion Aggregate Guarantee Limitation.
A. Hunlock Guarantees
By agreement, AE Supply agreed to seek authority from the Commission to guarantee certain obligations of Allegheny Energy Supply Hunlock Creek, LLC ("Hunlock"), an exempt wholesale generator (" EWG") and wholly-owned subsidiary of Allegheny. Hunlock owns a 50 percent general partner interest in Hunlock Creek Energy Ventures (the "Hunlock Partnership"), which also is an EWG. UGI Hunlock Development Company ("UGI Hunlock") owns the remaining partnership interests in the Hunlock Partnership. The Hunlock Partnership owns a 44-megawatt combustion turbine generator and a 48-megawatt coal-fired generation facility known as the Hunlock Creek Electric Generating Station located in Hunlock Creek, Pennsylvania ("Hunlock Power Station").
In the Hunlock partnership agreement ("Hunlock Partnership Agreement"), Hunlock and UGI Hunlock granted to each other certain put and call options, which, among other things, gave UGI Hunlock the right, for five years from the date of the agreement (December 8, 2000) to cause AE Supply to purchase the combustion turbine and/or the Hunlock Power Station from the Hunlock Partnership for a purchase price of $15 million plus the value of all the Hunlock Power Station's inventory, and a price for the combustion turbine equal to its then current book value. The current combined price for the combustion turbine and the Hunlock Power Station is estimated at approximately $41 million, which exceeds the current estimate of the fair market value of this property. This price will change over time as a result of depreciation and changes in inventory levels. The Hunlock Partnership Agreement also gave Hunlock the right to require the Hunlock Partnership to sell the Hunlock Power Station (but not the combustion turbine) to AE Supply at any time following the failure of UGI Hunlock to participate in certain expansion projects. Because Hunlock, not AE Supply, was the signatory to the Hunlock Partnership Agreement, a bona fide dispute arose concerning which company - Hunlock or AE Supply - had the rights and obligations under the Hunlock Partnership Agreement.
AE Supply and Hunlock sought to extend the terms of the put and call options under the Hunlock Partnership Agreement, which currently are exercisable, and to clarify that Hunlock, not AE Supply, would be the obligor on the put option ("Hunlock Obligation"). They also agreed that AE Supply would guarantee the Hunlock Obligation upon receipt from the Commission of authority under the Act to do so. The put and call options were, therefore, amended to provide that they could be exercised only for ninety days following January 1, 2006, with Hunlock confirmed to be the obligor under the put option. AE Supply paid $3 million to UGI Development (UGI Hunlock's parent) in exchange for UGI Development and UGI Hunlock releasing AE Supply from any current obligation it had under the put option of the Hunlock Partnership Agreement. In addition, UGI Hunlock and Hunlock agreed to extend the terms of the put and call options under the Hunlock Partnership Agreement and to clarify that Hunlock would be the obligor under the Hunlock Partnership Agreement.
Applicants therefore request authority for AE Supply to guarantee Hunlock's obligations under the Hunlock Obligation. While the Hunlock Obligation to be guaranteed by AE Supply is not capped as to amount, it is limited by the terms of the put option and the value of the underlying assets, as described above, and it is unlikely to exceed $45 million, according to the Applicants. Entering into this guarantee will allow AE Supply to maximize the proceeds from the sale, which is described below at II.B., of interests in the Conemaugh Generating Station near Johnstown, Pennsylvania ("Conemaugh Interest").5 Depending upon market prices for generating plants in 2006, AE Supply could be called upon to perform Hunlock's obligations to purchase the combustion turbine and the Hunlock Power Station at a price that would be greater than their then current market value.
B. Conemaugh Guarantees
On February 25, 2003, AE Supply and its wholly-owned subsidiary, Allegheny Energy Supply Conemaugh, LLC ("Conemaugh"), an EWG under the Act, entered into an agreement ("Conemaugh Agreement") to sell the Conemaugh Interest, which is an 83-megawatt share of the 1,711-megawatt coal-fired Conemaugh Generating Station, to UGI Development Company ("UGI Development"), an indirect, wholly owned subsidiary of UGI Corp. ("UGI"). The agreed upon sale price was approximately $51.25 million, subject to a $3 million credit in favor of UGI Development. That sale supplied, and the return on the aggregate $6 million placed into two escrows will supply, cash needed to reduce debt.
Under the Conemaugh Agreement, AE Supply and Conemaugh agreed, jointly and severally, to indemnify UGI Development, its affiliates, and their respective directors, officers, employees, agents and representatives (collectively, "UGI Parties") against certain losses arising in the event of a breach of the Conemaugh Agreement. Any requirement that AE Supply in fact indemnify a UGI Party under its joint and several obligations for a breach by Conemaugh would represent a guarantee of the obligations of its subsidiary, which would be contrary to the Capitalization Order as long as the capitalization standards set forth in that order are not met. In addition, although the sale of the Conemaugh Interest resulted in Conemaugh exiting the generation business, to the extent it retains EWG status, indemnification of its obligations by AE Supply also could have been viewed as an additional investment in an EWG. The additional investments would be contrary to the Capitalization Order as long as the Common Equity Conditions are not met.
For these reasons, the parties amended the Conemaugh Agreement to delete all obligations of AE Supply to indemnify the UGI Parties for losses arising out of breaches of the Conemaugh Agreement by Conemaugh. The sale price for the amended transaction was $51.25 million, without a $3-million credit for UGI Development. The parties agreed that $5 million of the sale price for the Conemaugh Interest would be placed into escrow until the earlier of (i) the time when AE Supply entered into an agreement to guarantee Conemaugh's indemnification obligations ("Conemaugh Obligations") and an agreement to guarantee the Hunlock Obligation or (ii) April 15, 2006 ("Escrow Termination Date"). Prior to the Escrow Termination Date, UGI will be entitled to distributions in accordance with the Conemaugh Obligations or the Hunlock Obligation. Furthermore, the parties entered into an agreement ("Filing Agreement") to require AE Supply to file with the Commission for authority to guarantee the Conemaugh Obligations and the Hunlock Obligation within 60 days of the closing (June 26, 2003) of the sale of the Conemaugh Interest. AE Supply deposited $1 million into escrow to guarantee its obligation to file with the Commission as set forth in the Filing Agreement. The parties also agreed that AE Supply would enter into an agreement to guarantee the Conemaugh Obligations and the Hunlock Obligation upon receipt from the Commission of authority under the Act to do so.
Applicants, therefore, are requesting that the Commission authorize AE Supply to guarantee those obligations. Applicants state that this authority is appropriate because the burden of undertaking this guarantee obligation easily is offset by the benefits the Allegheny system currently derives through the sale of the Conemaugh Interest and will derive from the receipt of the portion of the sale price currently held in escrow.
Applicants state that the indemnification obligations that AE Supply would guarantee are customary obligations of sellers of assets of this type. They fall into four broad classes, viz., obligations to indemnify for losses arising out of: (i) breaches by Conemaugh of its obligations under any of its covenants or agreements contained in the Conemaugh Agreement or the agreement relating to the Hunlock facility; (ii) breaches by Conemaugh of its representations and warranties made in the Conemaugh Agreement, (iii) certain liabilities or obligations of Conemaugh or associated with its ownership of the Conemaugh Interest, and (iv) the failure of Conemaugh to comply with the provisions of any applicable bulk sales or transfer laws. This list of obligations and liabilities that AE Supply would guarantee is typical of the guarantee or indemnification obligations that parent companies normally provide in a commercial context, according to the Applicants.
In addition, Conemaugh only has an obligation to indemnify UGI Parties to the extent the UGI Parties' losses subject to indemnification exceed $500,000; however, this limitation on indemnification does not apply to losses related to breaches of Conemaugh's representations and warranties regarding title to the Conemaugh Interest or to breaches of its covenants or greements. The Conemaugh Obligation to be guaranteed by AE Supply is not subject to a cap. The nature of the obligations and liabilities that AE Supply proposes to guarantee, although not subject to exact quantification, should not exceed $10 million. Applicants submit that the undertaking by AE Supply of the proposed guarantee obligations is partially mitigated and that the remaining risk is outweighed by the benefits that will accrue to the Allegheny system through the return of the escrowed funds and the use of the escrowed funds to reduce debt.
C. West Book Guarantees and Dividend Authority
As noted above, AE Supply and its subsidiary ATF completed the sale of the West Book to Aron.
i. Guarantee Authority
AE Supply has agreed as part of the West Book sale to seek authority from the Commission to guarantee ATF's payment obligations under the sales agreement. ATF was established for the sole purpose of owning the CDWR Contract and performing obligations under that contract. Accordingly, upon the distribution of the proceeds of the sale of the contract from ATF to AE Supply, ATF would be left without resources to meet indemnification obligations, if any arise. ATF's potential payment obligations under the sales agreement consist of indemnification paid to Aron and its affiliates for losses they incur arising out of breaches of representations, warranties, covenants, agreements and other obligations contained in or connected with the sales agreement.
Other obligations of ATF that AE Supply would guarantee include a duty to operate its business prior to closing in accordance with past practice; to provide Aron with access to books and records relating to the contracts and to cooperate in the exchange of information, to use its best efforts to obtain necessary regulatory approvals, to notify Aron of significant changes in facts and circumstances, to pay all taxes attributable to the transfer of the contracts, and to file tax returns relating to the contracts for all periods prior to the closing date. ATF also has agreed to indemnify Aron against losses incurred as a result of certain specified pending class-action litigations relating to wholesale sales of electricity in California, which would be guaranteed by AE Supply under the authority sought. ATF's indemnification obligations are subject to a $2 million deductible. The maximum liability to AE Supply under the guarantee would be an amount equal to the percentage of the total purchase price allocated to the CDWR Contract. The allocated purchase price will not exceed $273 million.6 Applicants do not believe any indemnification obligation is likely to arise. Under the sales agreement, until AE Supply receives authority to guarantee ATF's obligations, 20 percent of the proceeds of the West Book sale (approximately $71 million) will be held in escrow to support ATF's indemnity obligation and will be unavailable to reduce debt at AE Supply.
ii. Dividend Authority
Finally, Applicants seek authority for ATF to dividend out of capital to AE Supply up to the full amount of the cash proceeds of the sale of the CDWR Contract and amounts subsequently received by ATF in connection with certain power sales. The dividend amount will be approximately $150 million. The CDWR Contract is ATF's only significant asset; and following completion of its sale, ATF will not engage in other business activities. The dividends themselves are necessary to allow AE Supply to reduce debt and fully implement its plans for returning to financial health and compliance with the Commission's capitalization requirements.
In addition, AESDS, which engages in generation facility development, has entered into an agreement to sell a combustion turbine currently held in inventory for a purchase price of $8 million, subject to certain adjustments. Applicants request authority for AESDS to dividend up to the full amount of the proceeds of this sale to AE Supply, which will use these proceeds for general corporate purposes and to enhance its liquidity. Applicants expect that AESDS will conduct no further business following completion of the sale and the dividending of the proceeds of the asset sale to AE Supply.
III. Rule 54 Analysis
Rule 54 under the Act states that in determining whether to approve the issue or sale of a security by a registered holding company for purposes other than the acquisition of an EWG or a FUCO or other transactions by a registered holding company or its subsidiaries other than with respect to EWGs or FUCOs, the Commission shall not consider the effect of the capitalization or earnings of any subsidiary which is an EWG or a FUCO upon the registered holding company system if rule 53(a), (b) and (c) are satisfied.
Allegheny does not satisfy the requirements of rule 53(a)(1). In the Original Financing Order, the Commission authorized Allegheny to invest up to $2 billion in EWGs and FUCOs and found that this investment would not have either of the adverse effects set forth in rule 53(c). As of September 30, 2003, Allegheny's "aggregate investment," as defined in rule 53(a)(l), was approximately $185 million. These investments by Allegheny were made in compliance with the Original Financing Order.
As discussed above, Allegheny is no longer in compliance with the Financing Conditions set forth in the Original Financing Order. In the Capitalization Order, Allegheny was authorized to make additional investments in EWGs to the extent necessary to complete any project or desirable to preserve or enhance the value of Allegheny's investment in them or in connection with the qualification of an existing project as an EWG, as long as the Revised Financing Conditions were met. However, as reflected in Allegheny's financial statements, as of September 30, 2003, Allegheny's common equity ratio was below 28 percent.7 As a result, Allegheny is no longer able to make any investments in EWGs and FUCOs, without further authorization from the Commission.
Allegheny currently complies with, and will comply with, the record keeping requirements of rule 53(a)(2), the limitation under rule 53(a)(3) on the use of the Allegheny system's domestic public utility company personnel to render services to EWGs and FUCOs, and the requirements of rule 53(a)(4) concerning the submission of copies of certain filings under the Act to retail regulatory commissions. None of the circumstances described in 53(b)(1) have occurred. The circumstances described in rule 53(b)(2) and rule 53(b)(3) have occurred.
Allegheny submits that the requirements of rule 53(c) are met. Through this Post-Effective Amendment, Allegheny requests Commission approval of certain financing transactions. Allegheny believes that the requested authorization will not have a substantial adverse impact upon the financial integrity of Allegheny and the Operating Companies. Applicants state that the proposed transactions will provide the Allegheny system, including AE Supply, with sufficient liquidity to meet immediate financial needs, including required debt amortization. Applicants believe the Operating Companies and their customers will not be adversely impacted by the requested relief. The ratio of common equity to total capitalization of each of the Operating Companies will continue to be maintained at not less than 30 percent8 and these ratios will not be effected by the proposed transactions, according to the Applicants.
Fees, commissions and expenses incurred in connection with this Post-Effective Amendment are expected to be approximately $25,000.
The record states that no state or federal agency, other than the Commission, has jurisdiction over any of the proposed transactions.
The requirement to file notifications under rule 24 and otherwise as set forth in Prior Orders remains in effect.
Due notice of the filing of this Post-Effective Amendment has been given in the manner prescribed in rule 23 under the Act, and no hearing has been requested of or ordered by the Commission. Based on the facts in the record, the Commission finds that the applicable standards of the Act and rules are satisfied and that no adverse findings are necessary.
IT IS ORDERED, under the applicable provisions of the Act and the rules under the Act, that as to the issuance of up to $328 million in guarantees by AE Supply and the payment of dividends by ATF and AESDS to AE Supply the Post-Effective Amendment, 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 previously reserved over the issuance of up to $328 million of guarantees by Allegheny is released.
IT IS FURTHER ORDERED that all other jurisdiction previously reserved in the Prior Orders continues to be reserved.
By the Commission.
Margaret H. McFarland
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