As filed on May 12, 1998
File No. 70-9007
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT
NO. 2
TO THE
FORM U-1 APPLICATION/DECLARATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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New Century Energies, Inc.
Public Service Company of Colorado
Cheyenne Light, Fuel and Power Company
New Century Services, Inc.
WestGas InterState Inc.
NC Enterprises, Inc.
New Century International, Inc.
and its subsidiary companies
e prime, inc. and its subsidiary companies
PS Colorado Credit Corporation
Natural Fuels Corporation
Fuel Resources Development Co., a dissolved corporation
PSR Investments, Inc.
Green & Clear Lakes Company
1480 Welton, Inc.
1225 Seventeenth Street
Denver, Colorado 80202-5534
Southwestern Public Service Company
Tyler at Sixth
Amarillo, Texas 79101
Quixx Corporation and its subsidiary companies
Amarillo National's Plaza/Two
500 South Tyler, Suite 1100
Lobby Box 254
Amarillo, Texas 79101-2442
Utility Engineering Corporation and its subsidiary companies
Utility Engineering Plaza
5601 I-40 West
Amarillo, Texas 79106-4605
(Names of companies filing this statement
and addresses of principal executive offices)
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New Century Energies, Inc.
(Name of top registered holding company parent)
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Teresa S. Madden
Controller and Secretary
1225 Seventeenth Street
Denver, Colorado 80202-5534
(Name and address of agent for service)
The Commission is requested to send copies of all notices, orders and
communications in connection with this Application/Declaration to:
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William M. Dudley, Esq. William T. Baker, Jr., Esq.
New Century Services, Inc. Reid & Priest
1225 Seventeenth Street 40 West 57th Street
Denver, Colorado 80202-5534 New York, New York 10019-4097
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New Century Energies, Inc. ("NCE") hereby amends Post-Effective
Amendment No. 1 to its Application/Declaration on Form U-1, docketed in
File No. 70-9007, as previously amended, as follows:
1. By amending Item 1 (Description of the Proposed Transaction) by
replacing Paragraph C with the following so as to add footnote 2 discussing the
use of proceeds:
C. Since the filing of the Form U-1 and the Commission's issuance of the
Order, NCE has updated its projections of its future financing needs
during the Authorization Period. See Financial Exhibits 2.5 and 2.6
(Confidential Treatment Requested). NCE accordingly now amends its Form
U-1 to request authorization to increase the three authorization limits
set out above to the following: $745 million for common stock issuances by
NCE (exclusive of common stock issued for benefit plans and dividend
reinvestment plans)2/ (see Item 1.E.1.a); $200 million for short-term debt
issuances and sales with the retention of the $125 million increase in the
event that PSCCC becomes a direct subsidiary of NCE (see Item 1.E.1.b);
and $100 million for non-exempt guarantees and credit support arrangements
among the subsidiaries of NCE (see Item 1.E.4.b). In this Post-Effective
Amendment No. 1, NCE also wishes to amend its Form U-1 to clarify that NCE
and its subsidiaries may use the proceeds from the various financings
authorized in the Order (as proposed to be modified herein) to invest in
"energy-related companies" within the meaning of Rule 58, subject to the
limitations of Rule 58(a)(1).
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2/ In File No. 70-9193, NCE has requested that the Commission authorize
Public Service Company of Colorado ("PSCo") to sell its interest in New
Century International, Inc. ("NCI") to NC Enterprises, Inc. ("NC
Enterprises") in exchange for a note issued by NC Enterprises. Such
sale will be at NCI's book value approximately $289.8 million as of
December 31, 1997. The note will have a twenty-year maturity, although
it may be prepaid with no prepayment penalty.
As indicated in NCE's Application/Declaration in File No. 70-9193, NC
Enterprises plans to prepay the note through a capital contribution to
be made by NCE upon the anticipated sale of common stock in 1998 and
1999. NCE expects that upon the sale of common stock for which
authorization is requested herein, it will to make the contemplated
capital contribution to NC Enterprises to enable NC Enterprises to
prepay the note to PSCo. As further indicated in NCE's
Application/Declaration in File No. 70-9007, in the event that this
plan to have NC Enterprises prepay the note changes, NCE commits to
file a post-effective amendment in File No. 70-9193 to inform the
Commission of its new payment plan.
1
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2. By replacing the fourth paragraph of Item 1, Paragraph D, with the
following so as to correct the Rule 53(a)(1) ratio specified therein and to
cross-reference File No. 70-9193:
Rule 53(a) requires that the aggregate investment in EWGs and FUCOs
not exceed 50% of the system's consolidated retained earnings. NCE's
present investments in EWGs and FUCOs, pro forma to include the investment
in Yorkshire Electricity Group plc and Independent Power Corporation plc
("IPC"), equals 50.9% of NCE's consolidated retained earnings at December
31, 1997. So long as NCE's aggregate investment in EWGs and FUCOs exceeds
the above Rule 53 50% limitation, NCE will not make any additional
investments in EWGs or FUCOs from the proceeds of securities (including
any guarantees) issued by NCE, as authorized hereby, except as may be
contemplated in the Form U-1 Application/Declaration in File No. 70-9193,
or as may be otherwise authorized by the Commission.
3. By amending Item 6.A. (Exhibits) by submitting Exhibit G-6 (Financial
Calculations (previously submitted with Confidential Treatment
Requested)) to correct Exhibit G-5.
4. By submitting herewith Exhibit F-2 (Opinion of counsel).
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, as amended, the undersigned companies have duly caused this Post-Effective
Amendment No. 2 filed herein to be signed on their behalf by the undersigned
thereunto duly authorized.
NEW CENTURY ENERGIES, INC.
By: /s/ Richard C. Kelly
Name: Richard C. Kelly
Title: Executive Vice President and
Chief Financial Officer
Date: May 12, 1998
2
Exhibit F-2
LeBOEUF, LAMB, GREENE & MacRAE, L.L.P.
125 West 55th Street
New York, New York 10019
May 8, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: New Century Energies, Inc.
SEC File Number 70-9007
Ladies and Gentlemen:
We have acted as counsel for New Century Energies, Inc., a
Delaware corporation ("NCE"), in connection with Post- Effective Amendment No.
1, its Form U-1 Application/Declaration (File No. 70-9007), as amended (the
"Declaration") under the Public Utility Holding Company Act of 1935, as amended
(the "Act"), filed jointly by NCE and its subsidiary companies including its
three operating utility subsidiaries--Public Service Company of Colorado
("PSCo"), Southwestern Public Service Company ("SPS") and Cheyenne Light, Fuel &
Power Company ("Cheyenne" and together with PSCo and SPS, the "Utility
Subsidiaries")--and each of its direct and indirect non-utility subsidiary
companies (the "Non-Utility Subsidiaries" and together with the Utility
Subsidiaries, the "Subsidiaries") with the Securities and Exchange Commission
(the "SEC") with respect to the proposed transactions described therein (the
"Proposed Transactions"). The authorization requested in the Declaration relates
to an increase in the authorization limits for the (i) issuance of common stock
and short term debt by NCE; (ii) intrasystem financing among NCE and its
Subsidiaries, including the issuance of intrasystem guarantees and other credit
support arrangements, and (iii) financing of investments in exempt
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Securities and Exchange Commission
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wholesale generators, and foreign utility companies.
In connection with this opinion, we have examined originals
or copies,certified or otherwise identified to our satisfaction, of such records
of NCE and its Subsidiaries and such other documents, certificates and corporate
or other records as we have deemed necessary or appropriate as a basis for the
opinions set forth herein. In our examination, we have assumed the genuineness
of all signatures, the legal capacity of all persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
documents submitted to us as copies and the authenticity of the originals of
such latter documents.
The opinions expressed below with respect of the Proposed
Transactions are subject to the following additional assumptions and conditions:
(a) The Proposed Transactions shall have been duly authorized
and approved, to the extent required by the applicable governing corporate
documents and applicable state laws, by the Board of Directors of NCE or of the
appropriate Subsidiary, as the case may be.
(b) Any regulatory approvals required with respect to the
Proposed Transactions shall have been obtained and remain in full force and
effect.
(c) The Commission shall have duly entered an appropriate
order or orders with respect to the Proposed Transactions as described in the
Declaration granting and permitting the Declaration to become effective under
the Act and the rules and regulations thereunder, and the Proposed Transactions
shall have been consummated in accordance with the Declaration.
(d) Registration statements with respect to the shares of NCE
common stock to be issued in connection with the Proposed Transactions shall
have become effective pursuant to the Securities Act of 1933, as amended; no
stop order shall have been entered with respect thereon; and the issuance of
shares of NCE common stock in connection with the Proposed Transactions shall
have been consummated in compliance with the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
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Securities and Exchange Commission
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(e) The parties shall have obtained all consents, waivers and
releases, if any, required for the Proposed Transactions under all applicable
governing corporate documents, contracts, agreements, debt instruments,
indentures, franchises, licenses and permits.
(f) No act or event other than as described herein shall have
occurred subsequent to the date hereof which would change the opinions expressed
above.
(g) The consummation of the Proposed Transactions shall be
conducted with our involvement and all legal matters incident thereto shall be
satisfactory to us, including the receipt in satisfactory form of opinions of
other counsel, qualified to practice in jurisdictions pertaining to such
transactions in which we are not admitted to practice, as we may deem
appropriate.
Based on the foregoing, and relying on the opinion of Frank P.
Prager, Esq., Associate General Counsel of NCE as to the matters referenced in
paragraph 2 below, and subject to the assumptions and conditions set forth
therein, we are of the opinion that, in the event the Proposed Transactions are
consummated in accordance with the Declaration:
1. All state laws applicable to the Proposed Transactions will
have been complied with; however, we express no opinion as to the need
to comply with state blue sky laws;
2. NCE and each of the Subsidiaries are validly existing as
corporations under the laws of their respective states of
incorporation;
3. The equity securities to be issued by NCE in the Proposed
Transactions will be validly issued, fully paid and nonassessable, and
the holders thereof will be entitled to the rights and privileges
appertaining thereto set forth in the applicable certificates of
incorporation and related
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Securities and Exchange Commission
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documents which define such rights and privileges;
4. The various debt instruments and guarantees to be issued by
NCE and certain of the Subsidiaries as part of the Proposed
Transactions indicated above will be valid and binding obligations of
NCE and such Subsidiaries in accordance with the terms of such
instruments and guarantees, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar
laws from time to time in effect affecting the enforceability of
creditors' rights generally and to general principles of equity
(including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing) regardless of whether
considered in a proceeding in equity or at law; and
5. The consummation of the Proposed Transactions will not
violate the legal rights of the holders of any securities issued by NCE,
the Subsidiaries or any associate company thereof.
We hereby consent to the use of this opinion in connection
with the Declaration.
Very truly yours,
s/LeBoeuf, Lamb, Greene & MacRae, L.L.P.
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