As filed on April 13, 1998
File No. 70-9193
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
AMENDMENT NO. 1
TO THE
FORM U-1 APPLICATION/DECLARATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
___________________________________
New Century Energies, Inc.
Public Service Company of Colorado
NC Enterprises, Inc.
1225 Seventeenth Street
Denver, Colorado 80202-5534
(Names of companies filing this statement
and address of principal executive offices)
____________________________________
New Century Energies, Inc.
(Name of top registered holding company parent)
____________________________________
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:
- --------------------------------------------------------------------------------
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
<PAGE>
New Century Energies, Inc. ("NCE"), Public Service Company of Colorado
("PSCo"), and NC Enterprises, Inc. ("NC Enterprises") hereby amend their Form
U-1 Application/Declaration, docketed in File No. 70-9193, as follows:
1. By amending Item No. 1 (Description of the Proposed Transaction)
by replacing the sixth paragraph with the following so as to provide more
information regarding the terms of the note to be issued by NC Enterprises to
PSCo:
The note issued by NC Enterprises in connection with its
acquisition of NCI will have a twenty-year maturity and bear interest
at a fixed annual rate equivalent to the annual rate of interest as of
the date of execution of the note on a Treasury bond with a twenty-year
maturity plus 100 basis points. The form of note to be used to
evidence the debt of NC Enterprises to PSCo is attached as Exhibit
B-2. Interest only will be paid under the note for the first three
years, and thereafter interest and principal will be paid annually with
principal amortized over the remaining years of the note (seventeen
years) payable in equal annual installments. NC Enterprises will have
the option to prepay the entire obligation, including accrued and
unpaid interest, at any time, without any prepayment premium. Interest
payments shall be made on the annual anniversary date of the note each
year during which the note is outstanding, commencing on the first
anniversary date.
2. By amending Item 3 (Applicable Statutory Provisions) as follows:
A. By replacing the second paragraph with the following so as to add
footnote 1:
Sections 9(a)(1) and 10,1/ of the Act may be applicable to NC
Enterprises' acquisition of stock of NCI.
__________________________
1/ As noted above, the Commission in the Merger Order has authorized
NCE to own NCI directly, or indirectly through NC Enterprises or e
prime, and for PSCo to transfer NCI. This Application/Declaration
only addresses the method of transfer of NCI, and clarifies that NC
Enterprises is to be the holding entity.
B. By replacing the fifth paragraph with the following so as to
correct the Rule 53(a)(1) ratio specified therein:
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
investments in Yorkshire Electricity Group plc and IPC, equals 50.9% of
NCE's consolidated retained earnings at
1
<PAGE>
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, except as
contemplated or authorized herein or in File No. 70-9007, or as may be
otherwise authorized by the Commission.
3. By replacing Item 6.A. (Exhibits) with the following to reflect
the submission of revised exhibits (Exhibits B-2 and I-2) and the opinion of
counsel:
A. Exhibits
Exhibit B-1.a Form of NC Enterprises note (previously
submitted)
Exhibit B-1.b Revised form of NC Enterprises note
Exhibit F-1 Opinion of counsel
Exhibit I-1.a Form of notice (previously submitted)
Exhibit I-1.b Revised form of notice
Exhibit 27 Financial Data Schedule Per-Book NCE
(previously submitted)
Exhibit 27 Financial Data Schedule Pro-Forma NCE
(Confidential Treatment Requested)
(previously submitted)
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, as amended, the undersigned companies have duly caused this
Amendment No. 1 to be signed on their behalf by the undersigned thereunto
duly authorized.
NEW CENTURY ENERGIES, INC.
PUBLIC SERVICE COMPANY OF COLORADO
NC ENTERPRISES, INC.
By: /s/ Richard C. Kelly
Name: Richard C. Kelly
Title: Executive Vice President and
Chief Financial Officer of
New Century Energies, Inc.;
Executive Vice President of
Public Service Company of
Colorado;
Executive Vice President of
NC Enterprises
Date: April 13, 1998
2
<PAGE>
Exhibit B-1.b
FORM OF PROMISSORY NOTE
FOR VALUE RECEIVED, NC ENTERPRISES, INC., a Delaware corporation ("NC
Enterprises"), hereby promises to pay to the order of PUBLIC SERVICE COMPANY
OF COLORADO, a Colorado corporation ("PSCo"), in lawful money of the United
States of America in immediately available funds, the principal amount of
[book value - approximately $289.8 million as of December 31, 1997] U.S.
Dollars ($___________________) as set forth below.
The term of this Note shall be twenty years from execution of this Note.
NC Enterprises also promises to pay interest in like money on the
unpaid principal amount hereof from the date hereof until paid at a rate to
be established at the time of execution, which will be equivalent to the
annual rate of interest as of the date of execution of the note on a Treasury
bond with a twenty-year maturity plus 100 basis points. Such rate is
__________.
Interest payments shall be made on the annual anniversary date of this
Note of each year during which this Note is outstanding, commencing on the
first anniversary date.
Principal payments shall be made on the annual anniversary date of this
Note of each year during which this Note is outstanding commencing on the
fourth anniversary date. Principal payments will be in the amount that
ratably amortizes the principal over seventeen years.
NC Enterprises may prepay all or any part of the principal amount of
this Note (together with interest accrued through the date of such payment on
the principal amount prepaid) from time to time and at any time without
penalty or premium.
PSCo may, at its option, declare the unpaid balance of this Note,
together with interest accrued thereon, to be immediately due and payable,
whereupon this Note shall become immediately due and payable, upon the
failure of NC Enterprises to make any payments hereunder when due.
NC Enterprises hereby waives presentment, protest or notice of any kind
in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF COLORADO.
NC ENTERPRISES, INC.
By:_______________________________________
<PAGE>
EXHIBIT F-1
New Century Energies, Inc.
1225 Seventeenth Street
Denver, Colorado 80202
April 13, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: New Century Energies, Inc.
Form U-1 Application/Declaration
(File No. 70-9193)
Dear Sirs:
I refer to the Form U-1 Application/Declaration, as amended (the
"Application"), under the Public Utility Holding Company Act of 1935, as
amended (the "Act"), filed with the Securities and Exchange Commission (the
"Commission") by New Century Energies, Inc. ("NCE"), a Delaware corporation,
Public Service Company of Colorado ("PSCo"), a Colorado corporation, and NC
Enterprises, Inc. ("NC Enterprises"), a Delaware corporation. Capitalized
terms used in this letter without definition have the meanings ascribed to
such terms in the Application.
The Application seeks authorization and approval, in connection with
the transfer by PSCo of its wholly-owned subsidiary New Century
International, Inc. ("NCI") to NC Enterprises, for the issuance by NC
Enterprises of debt (specifically a promissory note (the "Note")) to PSCo in
exchange for the securities of NCI (the "Transaction").
I have acted as counsel for NC Enterprises and PSCo in connection with
the Application and, as such counsel, I am familiar with the corporate
proceedings taken by PSCo and NC Enterprises in connection with the
Transaction.
I am familiar with or have reviewed those corporate records of PSCo and
NC Enterprises, and such other documents as I have deemed necessary to review
as a basis for the opinions
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Securities and Exchange Commission
April 13, 1998
Page 2
hereinafter expressed. In such review, I have assumed the genuineness of all
signatures and the authenticity of all documents submitted to me as originals
and the conformity with the originals of all documents submitted to me as
copies.
The opinions expressed below with respect to the Transaction described
in the Application are subject to the following further assumptions and
conditions:
a. The Transaction shall have been duly authorized and approved, to
the extent required by the governing corporate documents and
applicable state laws, by the Boards of Directors of PSCo and NC
Enterprises.
b. The Commission shall have duly entered an appropriate order or
orders with respect to the Transaction as described in the
Application granting and permitting the Application to become
effective under the Act and the rules and regulations thereunder.
c. The parties shall have obtained all consents, waivers and
releases, if any, required for the Transaction under all
applicable governing corporate documents, contracts, agreements,
debt instruments, indentures, franchises, licenses and permits.
d. No act or event other than as described herein shall have
occurred subsequent to the date hereof which would change the
opinions expressed above.
e. The consummation of the Transaction shall be conducted under my
supervision and all legal matters incident thereto shall be
satisfactory to me, including the receipt in satisfactory form of
such opinions of other counsel qualified to practice in
jurisdictions pertaining to the Transaction in which I am not
admitted to practice, as I may deem appropriate.
Based upon the foregoing, and subject to the assumptions and conditions
set forth herein, and having regard to legal considerations which I deem
relevant, I am of the opinion that, in the event that the proposed
Transaction is consummated in accordance with the Application:
1. The laws of the states of Colorado and Delaware applicable to the
proposed Transaction will have been complied with.
2. NC Enterprises is validly organized and duly existing under the
laws of the State of Delaware, and PSCo is validly organized and
duly existing under the laws of the State of Colorado.
3. The Note will be a valid and binding obligation of NC Enterprises
in accordance with its terms.
4. PSCo will have legally acquired the Note.
5. NC Enterprises will have legally acquired the outstanding common
stock of NCI.
<PAGE>
Securities and Exchange Commission
April 13, 1998
Page 3
6. The consummation of the proposed Transaction will not violate the
legal rights of the holders of any securities issued by NC
Enterprises or PSCo.
I have acted as counsel for NC Enterprises and PSCo in connection with
the Application and, accordingly, this opinion is limited to actions taken by
NC Enterprises and PSCo in connection with the Transaction.
I hereby consent to the use of this opinion as an exhibit to the
Application.
Sincerely,
/s/
William M. Dudley
<PAGE>
Exhibit I-1.b
Proposed Form of Federal Register Notice
New Century Energies, Inc., et al. (70-9193)
New Century Energies, Inc. ("NCE"), 1225 Seventeenth Street, Denver,
Colorado 80202-5534, a registered holding company, and Public Service Company
of Colorado ("PSCo") and NC Enterprises ("NC Enterprises"), both of which are
direct subsidiary companies of NCE, have filed an Application/Declaration on
Form U-1 pursuant to sections 6(a), 7, 9(a)(1) and 10 of the Act.
By order dated August 1, 1997 (HCAR No. 26748) (the "Merger Order"),
the Commission authorized various transactions necessary to effectuate the
combination of PSCo and Southwestern Public Service Company ("SPS"), each of
which is now a direct wholly-owned subsidiary of NCE. In the Merger Order,
the Commission also approved various transactions relating to the transfer of
certain non-utility subsidiaries of PSCo and SPS to NCE or NC Enterprises.
NC Enterprises is a wholly-owned non-utility subsidiary of NCE that was
formed to hold certain of NCE's non-utility subsidiaries. Among other
things, PSCo was authorized under the Merger Order to transfer all of the
common stock of its wholly-owned subsidiary, New Century International, Inc.
("NCI") to NCE, NC Enterprises, or another subsidiary of NCE by means of the
declaration of a dividend in kind of the stock of NCI to NCE, and, if NCE was
not to hold NCI directly, the subsequent contribution by NCE of such shares
to NC Enterprises or another subsidiary. NCI indirectly holds NCE's 50%
interest in Yorkshire Electricity Group plc, a regional electricity company
operating in England, and Independent Power Corporation plc, a British
company that is in the business of developing, owning, and operating foreign
generating plants. PSCo acquired its interest in both companies prior to the
effective date of the merger.
The applicants now seek to modify the Merger Order in order to restructure
the transfer of the stock of NCI to NC Enterprises as a sale. Specifically, PSCo
proposes to sell the stock of NCI to NC Enterprises in exchange for a promissory
note from NC Enterprises in an aggregate principal amount equal to the net book
value of NCI which, at December 31, 1997, was approximately $289.8 million. NC
Enterprises' note will have a maturity of twenty years, bear interest at a fixed
rate equivalent to the annual rate of interest as of the date of execution of
the note on a Treasury bond with a twenty-year maturity plus 100 basis points,
and be prepayable at any time without penalty or premium. Interest only will be
paid on the note during the first three years; thereafter, principal will be
paid in seventeen equal annual installments, together with interest on the
unpaid principal balance. Interest payments shall be made on the annual
anniversary date of the note of each year during which the note is outstanding,
commencing on the first anniversary date.
The applicants state that restructuring the transfer of NCI's stock to
NC Enterprises as a sale will help to preserve PSCo's capital structure and
therefore avoid the adverse impact on PSCo that would likely occur if, as
originally proposed, PSCo were to declare a dividend in kind of the shares of
NCI. It is noted that a similar intra-system debt-financed sale structure
was authorized by the Commission in the Merger Order in connection with NC
Enterprises' acquisition of two non-utility subsidiaries of SPS.
