File No. 70-8461
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 9
(Post-Effective No. 6)
TO
FORM U-1
APPLICATION OR DECLARATION
under
The Public Utility Holding Company Act of 1935
ALABAMA POWER COMPANY GULF POWER COMPANY
600 North 18th Street 500 Bayfront Parkway
Birmingham, Alabama 35291 Pensacola, Florida 32501
GEORGIA POWER COMPANY MISSISSIPPI POWER COMPANY
333 Piedmont Avenue, N.E. 2992 West Beach
Atlanta, Georgia 30308 Gulfport, Mississippi 39501
SAVANNAH ELECTRIC AND POWER COMPANY
600 East Bay Street
Savannah, Georgia 31401
(Name of company or companies filing this statement
and addresses of principal executive offices)
THE SOUTHERN COMPANY
(Name of top registered holding company parent of each
applicant or declarant)
Art P. Beattie, Vice President, Warren E. Tate, Secretary
Secretary and Treasurer and Treasurer
Alabama Power Company Gulf Power Company
600 North 18th Street 500 Bayfront Parkway
Birmingham, Alabama 35291 Pensacola, Florida 32501
Judy M. Anderson, Vice President Michael W. Southern, Vice
and Corporate Secretary President, Secretary and Treasurer
Georgia Power Company Mississippi Power Company
333 Piedmont Avenue, N.E. 2992 West Beach
Atlanta, Georgia 30308 Gulfport, Mississippi 39501
Kirby R. Willis, Vice President, Treasurer
and Chief Financial Officer
Savannah Electric and Power Company
600 East Bay Street
Savannah, Georgia 31401
(Names and addresses of agents for service)
The Commission is requested to mail signed
copies of all orders, notices and
communications to:
W. L. Westbrook John D. McLanahan, Esq.
Financial Vice President Troutman Sanders LLP
The Southern Company 600 Peachtree Street, N.E.
270 Peachtree Street, NW Suite 5200
Atlanta, Georgia 30303 Atlanta, Georgia 30308-2216
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ITEM 1. DESCRIPTION OF PROPOSED TRANSACTIONS.
Item 1 is hereby amended by adding thereto the following:
"Georgia proposes, in addition to a Special Purpose Subsidiary
organized as either a limited liability company or a limited partnership, to
organize its Special Purpose Subsidiaries as trusts, Georgia Power Capital
Trust I, Georgia Power Capital Trust II and Georgia Power Capital Trust III
(individually, a "Trust" and collectively, the "Trusts").
Each of the Trusts is a statutory business trust formed under
Delaware law pursuant to the filing of its respective certificate of trust with
the Delaware Secretary of State on June 14, 1996, each as amended by a
certificate of amendment to its certificate of trust on July 23, 1996. Each
Trust's business is defined in a separate trust agreement, each such trust
agreement executed by Georgia, as Depositor, and the Delaware Trustee (the
"Trustee") thereunder and filed as Exhibits A-1, A-2 and A-3 hereto. It is
proposed that each trust agreement will be amended and restated in its entirety,
substantially in the forms of Exhibits A-4, A-5 and A-6 hereto, on the date of
the offering by such Trust (the "Trust Agreement"). Each of the Trusts exists
for the exclusive purposes of (i) issuing its Trust Preferred Securities (as
defined below) and its Trust Common Securities (as defined below)(the Trust
Preferred Securities and the Trust Common Securities of each Trust being herein
referred to as the "Trust Securities" of such Trust) which represent the
undivided beneficial interests in the assets of such Trust, (ii) investing the
gross proceeds of its Trust Securities in a series of Junior Subordinated Notes
(as defined below) of Georgia and (iii) engaging in only those other activities
necessary, appropriate, convenient or incidental thereto. The term of each of
the Trusts will be set forth in the related Trust Agreement.
It is proposed that each of the Trusts will issue only one series
of Trust Preferred Securities (the "Trust Preferred Securities"). The aggregate
liquidation amount of the Trust
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Preferred Securities issued by the Trusts hereunder will not exceed
$400,000,000. The distribution rate to be borne by the Trust Preferred
Securities of each of the Trusts will not exceed 12.5% per annum (expressed as a
percentage of liquidation amount) and shall also be the distribution rate for
the respective Trust Common Securities and the interest rate for the related
Junior Subordinated Notes (the "Securities Rate"). It is proposed that each of
the Trusts will issue its Trust Common Securities (the "Trust Common
Securities"), registered in the name of Georgia, to Georgia. The Trust Common
Securities of each Trust will represent approximately 3% undivided beneficial
interests in the assets of the Trust. The proceeds realized by each of the
Trusts from the sale of its Trust Preferred Securities, together with Georgia's
payment to such Trust for its Trust Common Securities, will be loaned to
Georgia, such loan to be evidenced by a related series of Georgia's Junior
Subordinated Notes (the "Junior Subordinated Notes") equal in aggregate
principal amount to the aggregate liquidation amount of such Trust's Trust
Securities. It is proposed that the Junior Subordinated Notes will have
maturities of up to 50 years and will not be convertible into any other
securities or assets of Georgia or of any of the Trusts.
The holders of Trust Preferred Securities and Trust Common
Securities of each of the Trusts will receive as distributions on payment dates
their pro rata shares of payments received by such Trust on its Junior
Subordinated Notes, except that, in the event of default by Georgia on such
Junior Subordinated Notes, the payment entitlement of Georgia as holder of the
Trust Common Securities of such Trust will be subordinated to the payment
entitlement of the investors as holders of such Trust Preferred Securities. Each
respective Trust Agreement will provide that holders of Trust Preferred
Securities will have only the rights expressly granted to them by such Trust
Agreement, including the right to receive
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distributions and certain consensual rights expressly provided.
It is proposed that each of the Trusts will issue and sell its
Trust Preferred Securities pursuant to a separate underwriting agreement among
such Trust, Georgia and the underwriters thereunder. Pursuant to such
underwriting agreement, the underwriters will purchase the Trust Preferred
Securities from such Trust at an aggregate purchase price equal to the aggregate
liquidation amount of such Trust Preferred Securities. In addition, in view of
the fact that the proceeds of the sale of the Trust Preferred Securities will be
loaned to Georgia, Georgia will agree to pay the underwriters' compensation for
their services in an amount not exceeding 4% of the aggregate liquidation amount
of such Trust Preferred Securities.
Cash distributions on the respective Trust Securities will be
cumulative from the date of original issuance of such Trust Securities at the
applicable Securities Rate and will be payable periodically in arrears as
described in the related Trust Agreement. Such distributions in arrears for more
than one such period will bear interest thereon at the Securities Rate. Each
related series of Junior Subordinated Notes will similarly bear interest at the
Securities Rate. Georgia will have the right from time to time to defer the
payment of interest on such Junior Subordinated Notes for a period specified in
the related Supplemental Indenture, at the end of each of which extension
periods all accrued and unpaid interest (together with interest thereon at the
Securities Rate) will be due and payable. As a consequence of any such extension
of the interest payment period on the Junior Subordinated Notes, periodic
distributions on the Trust Preferred Securities would be correspondingly
deferred.
Georgia will guarantee (the "Guarantee") the following payments
with respect to
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the Trust Preferred Securities of each Trust to the extent not paid
by the respective Trust: (i) any accrued and unpaid distributions
that are required to be paid on the Trust Preferred Securities
but if and only if and to the extent such Trust shall have funds
legally and immediately available therefor, (ii) the redemption
price, including all accrued and unpaid distributions to the date
of redemption, with respect to any Trust Preferred Securities
called for redemption by such Trust but if and only to the extent
that such Trust has funds legally and immediately available
therefor, and (iii) upon a dissolution, winding-up or termination
of such Trust (other than in connection with the distribution of
Junior Subordinated Notes to the holders of its Trust Preferred
Securities (as described below) or the redemption of all of the
Trust Preferred Securities of such Trust), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid
distributions on its Trust Preferred Securities to the date of
payment, to the extent such Trust has funds legally and
immediately available therefor, and (b) the amount of assets of
such Trust remaining available for distribution to holders of its
Trust Preferred Securities in liquidation of such Trust. Each
issue of the Trust Securities is subject to mandatory redemption
upon repayment of the related Junior Subordinated Notes at maturity or
upon their earlier redemption. Each series of the Junior Subordinated
Notes may be redeemed, in whole or in
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part, at the option of Georgia at any time on or after the date set forth in the
related Supplemental Indenture. In addition, upon the occurrence of certain
special events arising from a change in law or a change in legal interpretation
or other specified circumstances relating to tax matters and the Investment
Company Act of 1940, as amended, Georgia shall have the option to redeem the
Junior Subordinated Notes (and thus cause the redemption of the Trust
Securities). Georgia will also have the right at any time to terminate a Trust
and cause the related Junior Subordinated Notes to be distributed to the holders
of the Trust Preferred Securities of such Trust in liquidation thereof.
It is contemplated that, for Federal income tax purposes, each of
the Trusts will be treated as a passive grantor trust and not as a partnership.
Accordingly, as in the case of a limited liability company or limited
partnership Special Purpose Subsidiary, none of the Trusts will be subject to
tax and Georgia and investors holding Trust Preferred Securities will be treated
as the owners of the respective Trust and will be required to include in income
their proportionate shares of the income of such Trust. However, the information
reporting procedure for the Trusts would differ from the procedures used when
the Special Purpose Subsidiary is a limited liability company or a limited
partnership. Investors would receive tax reporting information from their
brokers on an IRS Form 1099, rather than the Schedule K-1.
It is anticipated that each of the Trusts will be exempt from
status as an "investment company" under the Investment Company Act of 1940, as
amended, in reliance on the finance subsidiary rule (Rule 3a-5).
The proceeds from the sale of its Trust Preferred Securities will
be loaned by each of the Trusts to Georgia, such loan to be evidenced by the
respective Junior
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Subordinated Notes and ultimately will be used by Georgia for general corporate
purposes, including repayment of outstanding short-term debt. None of such
proceeds will be used by Georgia or any associate company thereof for the
acquisition of an interest in an "exempt wholesale generator" or a "foreign
utility company" as defined in Sections 32 and 33, respectively, of the Act.
It is considered that the record is now complete with respect to
the issuance by each of the Trusts of its Trust Preferred Securities and the
related issuance by Georgia of the related series of Junior Subordinated Notes
and the Guarantees as described herein. Accordingly, an order with respect to
such transactions is hereby requested. It is hereby requested that jurisdiction
be reserved with respect to the other transactions proposed in these
proceedings."
ITEM 2. FEES, COMMISSIONS AND EXPENSES.
The estimated fees and expenses to be incurred by Georgia in
connection herewith are as follows:
Each
Initial Additional
Issuance Issuance
Filing fees - Securities and Exchange Commission.. $ 137,932 --
Fees and Expenses of Trustees..................... 9,500 9,500
Listing on New York Stock Exchange................ 86,300 --
Printing charges ....................... 30,000 10,000
Rating Agency Fees................................ 107,000 65,000
Services of Southern Company Services, Inc........ 30,000 15,000
Fees and Expenses of counsel...................... 40,000 25,000
Blue sky fees and expenses........................ 3,500 3,500
Fees of accountants, Arthur Andersen LLP.......... 42,000 24,000
Miscellaneous..................................... 14,000 8,000
-------- --------
TOTAL.............................. $ 500,232 $ 160,000
======== ========
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ITEM 3. APPLICABLE STATUTORY PROVISIONS.
Item 3 is hereby amended by adding thereto the following:
"Rule 54 Analysis: The proposed transaction is also subject to
Rule 54, which provides that, in determining whether to approve an application
which does not relate to any "exempt wholesale generator" ("EWG") or "foreign
utility company" ("FUCO"), the Commission shall not consider the effect of the
capitalization or earnings of any such EWG or FUCO which is a subsidiary of a
registered holding company if the requirements of Rule 53(a), (b) and (c) are
satisfied.
The Southern Company ("Southern") currently meets all of the
conditions of Rule 53(a). At July 31, 1996, Southern's "aggregate investment,"
as defined in Rule 53(a)(1), in EWGs and FUCOs was approximately $864,800,000,
or about 24.6% of Southern's "consolidated retained earnings," also as defined
in Rule 53(a)(1), for the four quarters ended June 30, 1996 ($3,523.2 million).
In addition, Southern has complied and will continue to comply with the
record-keeping requirements of Rule 53(a)(2), the limitation under Rule 53(a)(3)
on the use of Operating 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 rate regulatory commissions.
Accordingly, since the requirements of Rule 53(a) are currently met and none of
the circumstances described in Rule 53(b) has occurred, the provisions of Rule
53(c) are currently inapplicable.
Moreover, even if the effect of the capitalization and earnings
of EWGs and FUCOs in which Southern has an ownership interest upon the Southern
holding company system were considered, there is no basis for the Commission to
withhold or deny approval for the proposal made in this Application-Declaration.
The action requested in the instant
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filing (viz. approval for certain financing transactions by Georgia) would not,
by itself, or even considered in conjunction with the effect of the
capitalization and earnings of Southern's EWGs and FUCOs, have a material
adverse effect on the financial integrity of the Southern system, or an adverse
impact on Southern's public-utility subsidiaries, their customers, or the
ability of State commissions to protect such public-utility customers."
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS.
A. Exhibits:
A-1 - Trust Agreement of Georgia Power Capital Trust I. (Designated in
Form S-3 File Nos. 333-06037, 333-06037-01, 333-06037-02, and
333-06037-03, as Exhibit 4.4-A.)
A-2 - Trust Agreement of Georgia Power Capital Trust II. (Designated in
Form S-3 File Nos. 333-06037, 333-06037-01, 333-06037-02, and
333-06037-03, as Exhibit 4.4-B.)
A-3 - Trust Agreement of Georgia Power Capital Trust III. (Designated in
Form S-3 File Nos. 333-06037, 333-06037-01, 333-06037-02, and
333-06037-03, as Exhibit 4.4-C.)
A-4 - Form of Amended and Restated Trust Agreement for Georgia Power
Capital Trust I. (Designated in Form S-3 File Nos. 333-06037, 333-
06037-01, 333-06037-02, and 333-06037-03, as Exhibit 4.5-A.)
A-5 - Form of Amended and Restated Trust Agreement for Georgia Power
Capital Trust II. (Designated in Form S-3 File Nos. 333-06037, 333-
06037-01, 333-06037-02, and 333-06037-03, as Exhibit 4.5-B.)
A-6 - Form of Amended and Restated Trust Agreement for Georgia Power
Capital Trust III. (Designated in Form S-3 File Nos. 333-06037,
333-06037-01, 333-06037-02, and 333-06037-03, as Exhibit 4.5-C.)
B-1 - Form of Subordinated Note Indenture between Georgia Power
Company and The Chase Manhattan Bank, as Trustee. (Designated in
Form S-3 File Nos. 333-06037, 333-06037-01, 333-06037-02, and
333-06037-03, as Exhibit 4.1.)
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B-2 - Form of Supplemental Indenture to Subordinated Note Indenture
between Georgia Power Company and The Chase Manhattan Bank, as
Trustee. (Designated in Form S-3 File Nos. 333-06037, 333-06037-
01, 333-06037-02, and 333-06037-03, as Exhibit 4.2.)
B-3 - Forms of Guarantee with respect to Preferred
Securities of Georgia Power Capital Trust I,
Georgia Power Capital Trust II and Georgia Power
Capital Trust III. (Designated in Form S-3 File
Nos. 333- 06037, 333-06037-01, 333-06037-02, and
333-06037-03, as Exhibits 4.8-A, 4.8-B and 4.8-C.)
C-1 - Registration Statement under the Securities Act of 1933. (Filed
electronically June 14, 1996, File Nos. 333-06037, 333-06037-01,
333-06037-02, and 333-06037-03.)
C-2 - Amendment No. 1 to Registration Statement under the Securities Act
of 1933. (Filed electronically August 16, 1996, File Nos. 333-06037,
333-06037-01, 333-06037-02, and 333-06037-03.)
B. Financial Statements.
Balance sheet of Georgia at June 30, 1996. (Designated in
Georgia's Form 10-Q for the quarter ended June 30, 1996, File No.
1-6468.)
Statements of Income of Georgia for the periods ended June 30,
1996. (Designated in Georgia's Form 10-Q for the quarter ended
June 30, 1996, File No. 1-6468.)
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SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned companies have duly caused this amendment to be signed
on their behalf by the undersigned thereunto duly authorized.
Date: August 23, 1996 ALABAMA POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
GEORGIA POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
GULF POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
MISSISSIPPI POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
[Signatures continued on next page]
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SAVANNAH ELECTRIC AND POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
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