[Federal Register Volume 62, Number 35 (Friday, February 21, 1997)]
[Notices]
[Pages 8059-8063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4243]


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SECURITIES AND EXCHANGE COMMISSION
[Release No. 35-26668]


Filings Under the Public Utility Holding Company Act of 1935, as 
Amended (``Act'')

February 14, 1997.
    Notice is hereby given that the following filing(s) has/have been 
made with the Commission pursuant to provisions of the Act and rules 
promulgated thereunder. All interested persons are referred to the 
application(s) and/or declaration(s) for complete statements of the 
proposed transaction(s) summarized below. The application(s) and/or 
declaration(s) and any amendments thereto is/are available for public 
inspection through the Commission's Office of Public Reference.
    Interested persons wishing to comment or request a hearing on the 
application(s) and/or declaration(s) should submit their views in 
writing by March 10, 1997, to the Secretary, Securities and Exchange 
Commission, Washington, D.C. 20549, and serve a copy on the relevant 
applicant(s) and/or declarant(s) at the address(es) specified below. 
Proof of service (by affidavit or, in case of an attorney at law, by 
certificate) should be filed with the request. Any request for hearing 
shall identify specifically the issues of fact or law that are 
disputed. A person who so requests will be notified of any hearing, if 
ordered, and will receive a copy of any notice or order issued in the 
matter. After said date, the application(s) and/or declaration(s), as 
filed or as amended, may be granted and/or permitted to become 
effective.

Northeast Utilities, et a1. (70-8507)

    Northeast Utilities (``NU''), 174 Brush Hill Avenue, West 
Springfield, Massachusetts 01089, a registered holding company, and its 
wholly owned subsidiaries, Charter Oak Energy, Inc.

[[Page 8060]]

(``Charter Oak'') and COE Development Corporation (``COE 
Development''), both located at 107 Seldon Street, Berlin, Connecticut 
06037, (collectively, the ``Applicants'') have filed a post-effective 
amendment to their application-declaration under section 12(c) of the 
Act and rule 46 thereunder, regarding the payment to dividends out of 
capital or unearned surplus.
    By order dated December 12, 1996 (HCAR No. 2613) (``Order''), the 
Commission authorized the Applicants to engage in certain power 
development activities. Specifically, the Order authorized Charter Oak 
and COE Development to, among other things, invest in, and finance the 
acquisition of, exempt wholesale generators within the meaning of 
section 32 of the Act (``EWGs'') and foreign utility companies within 
the meaning of section 33 of the Act (``FUCOs,'' and together with 
EWGs, ``Exempt Projects''), subject to certain limitations. In 
addition, the Applicants may acquire interests in, finance the 
acquisition, and hold the securities, of one or more companies 
(``Intermediate Companies'') engaged directly or indirectly and 
exclusively in the business of holding the securities of one or more 
Exempt Projects and in project development activities relating to the 
acquisition of such interests and securities in the underlying 
projects, without filing specific project applications with the 
Commission, and to issue guarantees and assume liabilities subsequent 
to operation with regard to those projects.
    Nu's authorized investment in Charter Oak, Charter Oak's authorized 
investment in COE Development and Charter Oak's and COE Development's 
authorized expenditures are $200 million for the period from January 1, 
1997 to December 31, 1997.
    The Applicants now propose to expand their authorization to allow 
Intermediate Companies and/or Exempt Projects to pay dividends to their 
parent companies, from time to time out of capital or unearned surplus, 
and for Charter Oak to use such funds to pay dividends to NU, to the 
extent permitted by applicable corporate law and to be accounted for in 
a manner consistent with rule 46 promulgated under the Act.

Central and South West Corporation et al. (70-8979)

    Central and South West Corporation (``CSW''), 1616 Woodall Rodgers 
Freeway, Dallas, Texas 75202, a registered holding company, and its 
wholly-owned public utility subsidiaries, Central Power and Light 
Company (``CP&L''), 539 North Carancahua Street, Corpus Christi, Texas 
78401-2802, Public Service Company of Oklahoma (``PSO''), 212 East 
Sixth Street, Tulsa, Oklahoma 74119-1212, Southwestern Electric Power 
Company, 428 Travis Street, Shreveport, Louisiana 71156-0001 
(``SWEPCO'') and West Texas Utilities Company (``WTU''), 301 Cypress 
Street, Abilene, Texas 79601-5820, have filed an application-
declaration under sections 6(a), 7, 9(a), 10 and 12(a)--(e) of the Act 
and rules 43, 44, 51, 54, 62 and 65 thereunder.\1\
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    \1\ CP&L, PSO, SWEPCO & WTU are sometimes referred to herein 
individually as a ``Subsidiary'' or collectively as 
``Subsidiaries.''
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Proxy Solicitation

    All of the outstanding common stock of the Subsidiaries is held by 
CSW (individually and collectively, ``Common Stock''). As of September 
30, 1996, CP&L, PSO, SWEPCO and WTU had issued seven,\2\ two,\3\ four 
\4\ and one \5\ series, respectively, of preferred stock, $100 par 
value per share (individually and collectively, ``Preferred Stock''), 
none of which are listed on a securities exchange. The Common Stock and 
Preferred Stock of each series are each entitled to one vote per share. 
None of the Subsidiaries has any other authorized class of equity 
securities.
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    \2\ The seven series of CP&L Preferred Stock consist of a Money 
Market Preferred series, of which 750,000 shares are outstanding 
(``MMP Series''); an Auction Rate Preferred Series A series, of 
which 425,000 shares are outstanding (``ARP Series A''), an Auction 
Rate Preferred Series B series, of which 425,000 shares are 
outstanding (``ARP Series B''); a 8.72% series, of which 500,000 
shares are outstanding; a 7.12% series, of which 260,000 shares are 
outstanding; a 4.20% series, of which 75,000 shares are outstanding; 
and a 4.00% series, of which 100,000 shares are outstanding.
    \3\ The two series of PSO Preferred Stock consist of a 4.24% 
series, of which 100,000 shares are outstanding; and a 4.00% series, 
of which 97,900 shares are outstanding.
    \4\ The four series of SWEPCO Preferred Stock consist of a 6.95% 
series, of which 340,000 shares are outstanding; a 5.00% series, of 
which 75,000 shares are outstanding; a 4.65% series, of which 25,000 
shares are outstanding; and a 4.28% series, of which 60,000 shares 
are outstanding.
    \5\ The series of WTU Preferred Stock is a 4.40% series, of 
which 60,000 shares are outstanding.
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    CP&L's and WTU's respective Restated Articles of Incorporation and 
PSO's and SWEPCO's respective Restated Certificates of Incorporation 
(collectively, ``Articles'') currently provide that, without the 
consent of the holders of at least a majority of the total number of 
such Subsidiary's shares of Preferred Stock of all series voting as one 
class, it may not issue or assume any unsecured notes, debentures or 
other securities representing unsecured indebtedness (``Unsecured 
Obligations''), for any purpose other than (a) refunding or renewing 
outstanding Unsecured Obligations resulting in later maturities, or (b) 
funding existing unsecured indebtedness (not represented by Unsecured 
Obligations), if immediately after such issue or assumption (1) the 
principal amount of all Unsecured Obligations issued or assumed by the 
Subsidiary and then outstanding would exceed 20% of the aggregate of 
(i) the principal amount of all bonds or other securities representing 
secured indebtedness issued or assumed by the Subsidiary and then 
outstanding and (ii) the total capital stock and surplus of the 
Subsidiary as then recorded on its books (the ``20% Provision''), or 
(2) the principal amount of all Unsecured Obligations maturing in less 
than ten years,\6\ issued or assumed by the Subsidiary and then 
outstanding would exceed 10% of such aggregate amount (the ``10% 
Provision'').
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    \6\ The principal amount of any Unsecured Obligations which had 
an original single maturity of more than ten years from the date 
thereof, and the principal amount of the final maturity of any 
serially-maturing Unsecured Obligations which had one or more 
original maturities of more than ten years from the date thereof, 
may not be regarded as Unsecured Obligations maturing in less than 
ten years until such principal amount is due or required to be paid 
within three years.
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    The Subsidiaries propose to solicit proxies or consents from the 
holders of their outstanding shares of Common Stock and Preferred Stock 
(``Proxy Solicitation'') \7\ to approve a proposed amendment to each 
Subsidiary's Articles that would eliminate in their entirety the 10% 
Provision and 20% Provision (individually, ``Proposed Amendment'' and 
collectively, ``Proposed Amendments'') from each of their Articles. 
Approval and adoption of the applicable Proposed Amendment by each 
Subsidiary's shareholders requires the affirmative vote of the holders 
of not less than two-thirds of the outstanding shares of the 
Subsidiary's (1) Preferred Stock of all series, voting together as one 
class, and (2) Common Stock. CSW has advised the Subsidiaries that it 
will vote its shares of Common Stock of each Subsidiary in favor of the 
Proposed Amendments. If proxies are solicited, they would be voted at 
special meetings of the Subsidiaries' respective stockholders to be 
held as soon as possible (``Special Meetings'') for the purpose of 
voting on the Proposed Amendments. Each Subsidiary may elect to make a 
special cash payment out of its general funds (each, a ``Cash 
Payment'') to each holder of its Preferred Stock who voted in favor of

[[Page 8061]]

the applicable Proposed Amendment (except that no Cash Payment will be 
made with respect to any share of Preferred Stock validly tendered 
pursuant to the concurrent tender offer described below). The Cash 
Payment also may be conditioned on approval and adoption of the 
Proposed Amendments.
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    \7\ In connection with the Proxy Solicitation, the Subsidiaries 
will engage an information agent and will pay such information agent 
a fee and reimburse reasonable out-of-pocket expenses in an amount 
expected not to exceed approximately $75,000.
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Tender Offer

    Concurrently with or shortly before the commencement of the Proxy 
Solicitation, and subject to the terms and conditions to be stated in 
an Offer to Purchase and Proxy Statement and accompanying Letter of 
Transmittal and Proxy (together, ``Offer Documents''), CSW may make a 
cash tender offer (``Tender Offer'') to acquire from the holders of the 
preferred stock of one or more series (each a ``Series'') any and all 
shares (``Shares'') of such Series at cash purchase prices (which CSW 
anticipates will reflect a premium over the current market price at the 
commencement of the Tender Offer) to be determined based on market 
conditions (each a ``Purchase Price'').\8\ Additionally, the 
Subsidiaries may call shares of any or all series of outstanding 
Preferred Stock at the applicable call price. The Tender Offer consists 
of separate offers by CSW to acquire some or all Series of preferred 
stock of each Subsidiary, except for CP&L's MMP Series, ARP Series A 
and ARP Series B, for which no Tender Offer will be made, with the 
Tender Offer for any one Series being independent of the Tender Offer 
for any other Series. The applicable Purchase Price and the other terms 
and conditions of the Tender Offer apply equally to all preferred 
stockholders of a respective Series.
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    \8\ The Purchase Price would be based on a number of factors, 
including the dividend payable on the preferred stock, the 
redemption price on the date of acquisition and the then current 
market rates for similar securities.
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    CSW anticipates that the Tender Offer for each Series of preferred 
stock will expire on the date of the applicable Special Meeting or 
expiration of the consent solicitation (``Expiration Date'') but the 
Expiration Date may be extended or the Tender Offer terminated early 
under certain circumstances. The Tender Offer would not be conditioned 
upon any minimum number of Shares of the applicable Series being 
tendered, but may be conditioned, among other things, on the Proposed 
Amendments being adopted and/or all tendering preferred stockholders 
voting in favor of the applicable Proposed Amendment.
    Tenders of Shares made pursuant to the Tender Offer may be 
withdrawn at any time prior to the Expiration Date. Thereafter, such 
tenders will be irrevocable, subject to certain conditions identified 
in the Offer Documents. CSW states that its obligation to proceed with 
the Tender Offer and to accept for payment and to pay for any Shares 
tendered is subject to various conditions that will be enumerated in 
the Offer Documents, which include the Commission issuing an order 
under the Act authorizing the proposed transactions, and which may 
include, among other conditions, that the Proposed Amendments be 
adopted and/or that all tendering preferred stockholders vote in favor 
of the applicable Proposed Amendment.
    Shares validly tendered to the depositary for the Tender Offer 
(``Depositary'') pursuant to the Tender Offer and not withdrawn in 
accordance with procedures in the Offer Documents will be held by CSW 
until the Expiration Date (or returned in the event the Tender Offer is 
terminated). Subject to the terms and conditions of the Tender Offer, 
as promptly as practicable after the Expiration Date, CSW will accept 
for payment and pay for any and all Shares validly tendered and not 
withdrawn. CSW plans to use its general funds and/or funds borrowed 
through its commercial paper program \9\ on an interim basis to pay the 
Purchase Price for all tendered Shares. CSW expects to select one or 
more dealer managers in connection with the Tender Offer.\10\ In 
addition, CSW will pay soliciting brokers and dealers a separate fee 
for Shares tendered that are accepted and paid for pursuant to the 
Tender Offer.\11\
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    \9\ See Holding Co. Act Release No. 26254 (March 21, 1995) 
(authorizing CSW to issue and sell commercial paper and notes to 
banks up to $1.2 billion to finance the capital expenditures of the 
Subsidiaries through March 31, 1997).
    \10\ The applicants state that dealer manager fees will be 
determined following negotiation and investigation of fees in 
similar transactions and will include reasonable out-of-pocket 
expenses, including attorneys' fees.
    \11\ The applicants state that fees to soliciting brokers and 
dealers will be determined following negotiation and investigation 
of fees in similar transactions. In addition, CSW proposes to pay 
the Depositary a fee estimated at approximately $30,000.
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    If the Proposed Amendments are adopted, promptly after consummation 
of the Tender Offer the Subsidiaries propose to purchase the Shares 
sold to CSW pursuant to the Tender Offer at the relevant Purchase 
Price, and the Subsidiaries will retire and cancel such Shares.
    If the Tender Offer is conditioned upon the Proposed Amendments 
being adopted at the Special Meetings and the Proposed Amendments are 
not adopted, CSW may elect to waive such condition. In that case or if 
the Tender Offer is not conditioned upon the Proposed Amendments being 
adopted, as promptly as practicable after CSW's purchase of any Shares 
validly tendered pursuant to the Tender Offer, each Subsidiary may call 
another special meeting or commence another consent solicitation of its 
common and preferred stockholders and solicit proxies or consents (to 
secure the requisite two-thirds affirmative vote of stockholders to 
amend the Articles) to eliminate the 10% Provision and the 20% 
Provision. At each such meeting, CSW would vote any Shares acquired by 
it pursuant to the Tender Offer or otherwise (as well as all of its 
shares of Common Stock of the Subsidiaries) in favor of the Proposed 
Amendments. if the Proposed Amendments are adopted at that meeting and 
in any event within one year from the Expiration Date (including any 
potential extension thereto pursuant to the Tender Offer), the 
Subsidiaries will acquire all shares from CSW at the Purchase Price 
after such meetings or at the expiration of such one-year period, as 
applicable, and the Subsidiaries will retire and cancel such Shares.

Proposed Financing

    CSW and/or the Subsidiaries propose to issue junior subordinated 
debentures (``Debentures'') and tax deductible preferred securities 
(``Preferred Securities'') indirectly through a special purpose 
financing subsidiary to the public from time to time in one or more 
series, through December 31, 2001, not to exceed the following 
aggregate principal amounts (each, an ``Offering Limit''): CSW-$500 
million, CP&L-$350 million, PSO-$100 million, SWEPCO-$150 million and 
WTU-$80 million. Each series of Debentures and Preferred Securities 
will mature in not more than 49 years.
    Debentures issued and sold to the public are expected to be sold 
through negotiation with underwriters, agents or other entities, at an 
initial public offering price resulting in a yield to maturity that is 
not expected to exceed by more than 3% the yield to maturity on United 
States Treasury bonds of similar maturity. The commission payable to 
agents or underwriters would not exceed 3.5% of the principal amount of 
the Debentures sold.
    CSW and the Subsidiaries may have the right to defer payment of 
interest on the Debentures for up to five years. In the event interest 
payments are so deferred on the Debentures, CSW and the Subsidiaries 
may not declare and pay dividends (except in common stock) on 
outstanding stock. The payment of principal, premium and interest on 
the Debentures would be subordinated in right of payment to the prior 
payment in

[[Page 8062]]

full of senior indebtedness. The Debentures may be subject to 
redemption and, in addition, their maturities may be extended up to 49 
years if the original maturity is less than 49 years, provided other 
conditions are met. The Debentures will be issued under indentures 
between the issuing applicant and a trustee.
    CSW and the Subsidiaries anticipate that the issuance and sale of 
Preferred Securities would occur through a special purpose entity 
(``SPE''), organized as a limited liability company (``LLC''), a 
limited partnership (``LP'') or a statutory business trust 
(``Trust'').\12\ Depending on the form of the SPE, the Preferred 
Securities would constitute preferred membership interests in an LLC, 
limited partnership interests in an LP or preferred interests (or 
senior trust certificates) in a Trust. With respect to a SPE that is a 
LLC, CSW or the respective Subsidiary may also form a wholly-owned 
subsidiary (``Investment Sub'') to acquire and hold an interest in the 
SPE so that any applicable two-member LLC requirement would be 
satisfied. Similarly, with respect to a SPE that is a LP, CSW or the 
respective Subsidiary may form an Investment Sub to act, or may itself 
act, as the general partner of such SPE and may acquire, either 
directly or indirectly through such Investment Sub a limited 
partnership interest in such SPE so that any applicable two-partner LP 
requirement would be satisfied. The Preferred Securities will have 
aggregate par or stated value or liquidation preference of up to $1,000 
per security.
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    \12\ The applicants state that a LLC, LP or Trust would be 
organized under the Delaware Limited Liability Company Act, Delaware 
Revised Uniform Limited Partnership Act or Delaware Business Trust 
Act, respectively, or other similar statutes.
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    CSW and the Subsidiaries and/or their respective Investment Subs 
will acquire an aggregate ownership interest, including general 
partnership interests or common membership interests, as the case may 
be, or will become the grantors and holders of the junior trust 
certificates, of their respective SPE in an amount not to exceed 10% of 
the total equity capitalization or deposits from time to time of such 
SPE (``Equity Contribution''). At any time or from time to time in one 
or more series, CSW and the Subsidiaries may issue and sell Debentures 
to their respective SPE and the SPE would purchase such Debentures, 
applying both the Equity Contribution made to it and the proceeds from 
the sale of Preferred Securities. CSW and each Subsidiary may sell 
Debentures and utilize their respective SPE to issue Preferred 
Securities. The payment rate, terms, redemption and other provisions of 
the Preferred Securities would correspond to those of the Debentures 
purchased from CSW or the Subsidiaries, as the case may be.
    In order for the SPE to sell Preferred Securities up to the maximum 
Offering Limit, CSW or the Subsidiaries would be required to issue 
Debentures to such SPE in an amount equal to the maximum Offering Limit 
plus the total Equity Contribution. CSW or the Subsidiaries selling 
such Debentures to an SPE may or may not be the owner of the general 
partnership interests, common member interests or the grantor or holder 
of the junior trust certificates of such SPE, as the case may be.
    CSW or the Subsidiaries may redeem the Debentures held by an SPE 
which is required to redeem the related series of Preferred Securities 
at a price equal to their par or stated value or liquidation 
preference, as the case may be, plus any accrued and unpaid dividends 
or distributions, under certain circumstances, including if an SPE may 
become subject to federal income tax on the interest it received on 
Debentures issued to the SPE, a determination that the interest payment 
by CSW or a Subsidiary on its Debentures are not deductible for income 
tax purposes, or the SPE becomes subject to regulation as an 
``investment company'' under the Investment Company Act of 1940, as 
amended. The Preferred Securities also may be subject to mandatory 
redemption under certain circumstances. In certain instances, CSW and 
the Subsidiaries also may have the right to exchange the Preferred 
Securities of their respective SPE for the related Debentures.
    In connection with the Preferred Securities, CSW and the 
Subsidiaries request authorization to guarantee the payment of 
dividends or distributions on the Preferred Securities of their 
respective SPE, payments to the holder of Preferred Securities of 
amounts due upon liquidation of such SPE or redemption of the Preferred 
Securities, payments of certain additional amounts that may be payable 
in respect of such Preferred Securities and/or certain other matters.
    It is expected that each applicant's interest payments on the 
Debentures it issues will be deductible for federal income tax purposes 
and that any respective SPE will be treated as a grantor trust if 
organized as a Trust or a partnership if organized as a LP or LLC, as 
the case may be, for federal income tax purposes. Consequently, holders 
of the Preferred Securities, the applicants and any respective 
Investment Sub, will be deemed to have received either payments in 
respect of the Debentures or partnership distributions from their 
respective SPE and will not be entitled to any ``dividends received 
deduction'' under the Internal Revenue Code.
    In the event that any SPE is required to withhold or deduct certain 
amounts in connection with dividends, distributions or other payments, 
the SPE may have the obligation to ``gross up'' such payments so that 
the holders or the Preferred Securities issued by such SPE will receive 
the same payment after withholding or deduction as they would have 
received if no withholding or deduction were required. CSW or the 
related Subsidiary would be required to make corresponding payments 
under the Debentures that would provide the SPE with sufficient funds 
to make the additional payment.
    If any SPE is required to pay taxes with respect to income derived 
from interest payments on the Debentures issued to it, CSW or the 
related Subsidiary may be required to pay such additional interest on 
the Debentures as shall be necessary in order that net amounts received 
and retained by such SPE after the payment of such taxes, shall result 
in the SPE having such funds as it would have had in the absence of 
such payment of taxes.
    In the event of any liquidation, dissolution or winding up of any 
SPE, the holders of the Preferred Securities of such SPE will be 
entitled to receive before any distribution of assets to the common 
membership interest holders, general partner, grantor or junior trust 
certificate holder of such SPE, an amount equal to the par or stated 
value or liquidation preference of such Preferred Securities plus any 
accrued and unpaid dividends or distributions.
    The applicants represent that the constituent documents governing 
each SPE will contain provisions, among others, limiting the SPE's 
activities to (i) the issuance and sale of Preferred Securities and 
(ii) the loan of proceeds from the sale of Preferred Securities and the 
Equity Contribution by the SPE to CSW, Subsidiaries and Investment 
Subs. The applicants propose that the constituent documents of any SPE 
contain no interest or dividend coverage or capitalization ratio 
restrictions in respect of issuance and sale of Preferred Securities. 
Moreover, the applicants state that CSW and the Subsidiaries' ownership 
interests in any SPE will be subject to transfer restrictions, the 
business of the SPE will be managed and controlled by CSW, the 
respective Subsidiary and/or their respective Investment Sub, and CSW 
and each

[[Page 8063]]

Subsidiary will pay all expenses of its SPE.
    CSW and Subsidiaries request authorization to enter into 
negotiations with underwriters to establish the interest rate, right of 
redemption and other terms and conditions applicable to the Debentures 
and Preferred Securities, subject to the receipt, or terms of an order 
under the Act.
    CSW and the Subsidiaries intend to use the net proceeds of the 
Debentures to retire or replace, through redemption, repurchase or 
otherwise, outstanding first mortgage bonds or preferred stock (or any 
combination thereof), to pay outstanding short-term borrowings and for 
other general corporate purposes. CSW intends to use the net proceeds 
of the Debentures to loan or make equity contributions to the 
Subsidiaries to be evidenced by a Subsidiary's issuance of notes, 
preferred securities and/or common stock to CSW. Such notes and 
preferred securities would have substantially the same terms as the 
Debentures issued by CSW.
    In connection with the issuance of Debentures and Preferred 
Securities, the applicants seek authorization to manage interest rate 
risk, through the use of interest rate management instruments, 
including interest rate swaps, caps, floors, collars and other similar 
instruments. The applicants represent that in no event would the 
aggregate notional amount of the interest rate swaps, at any one time, 
exceed the respective Offering Limit for CSW and the Subsidiaries, and 
that none of the interest rate swaps would be ``leveraged''.
    The applicants also request authorization to deviate from the 
preferred stock provisions of the Statement of Policy Regarding 
Preferred Stock Subject to the Public Utility Holding Company Act of 
1935, HCAR No. 13106 (Feb. 16, 1956), as amended in HCAR No. 16758 
(June 22, 1970) to the extent applicable with respect to the Proposed 
Amendments.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 97-4243 Filed 2-20-97; 8:45 am]
BILLING CODE 8010-10-M