File No. 70-8461
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 12
(Post-Effective No. 9)
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:
"Mississippi 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, Mississippi
Power Capital Trust I and Mississippi Power Capital Trust II (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 January 24, 1997. Each Trust's business is
defined in a separate trust agreement, each such trust agreement executed by
Mississippi, as Depositor, and the Delaware Trustee (the "Trustee") thereunder
and filed as Exhibits A-1 and A-2 hereto. It is proposed that each trust
agreement will be amended and restated in its entirety, substantially in the
forms of Exhibits A-3 and A-4 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
Mississippi 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 Preferred Securities issued by the Trusts
hereunder will not exceed $55,000,000. 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 Mississippi, to
Mississippi. 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 Mississippi's payment to such Trust for its Trust
Common Securities, will be loaned to Mississippi, such loan to be evidenced by a
related series of Mississippi'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 Mississippi 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 Mississippi on such
Junior Subordinated Notes, the payment entitlement of Mississippi 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 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, Mississippi 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 Mississippi, Mississippi 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. Mississippi 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.
Mississippi will guarantee (the "Guarantee") the following
payments with respect to 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 part, at the option of Mississippi 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, Mississippi shall
have the option to redeem the Junior Subordinated Notes (and thus cause the
redemption of the Trust Securities). Mississippi 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 Mississippi 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 Mississippi, such loan to be evidenced by the
respective Junior Subordinated Notes and ultimately will be used by Mississippi
in connection with its ongoing construction program, to pay scheduled maturities
and/or refundings of its securities, to repay short-term indebtedness to the
extent outstanding and for other general corporate purposes. None of such
proceeds will be used by Mississippi 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 Mississippi 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 Mississippi in
connection herewith are as follows:
Each
Initial Additional
Issuance Issuance
Filing fees - Securities and Exchange Commission.. 16,667 --
Fees and Expenses of Trustees..................... 17,000 17,000
Listing on New York Stock Exchange................ 30,900 --
Printing charges.................................. 40,000 10,000
Rating Agency Fees................................ 36,600 20,500
Services of Southern Company Services, Inc........ 40,000 10,000
Fees and Expenses of counsel...................... 65,000 35,000
Blue sky fees and expenses........................ 3,500 3,500
Fees of accountants, Arthur Andersen LLP.......... 35,000 25,000
Miscellaneous..................................... 10,333 9,000
---------- ---------
Total............................... $295,000 $130,000
======== ========
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), except for clause (1). Currently, Southern's
"aggregate investment," as defined in Rule 53(a)(1), in EWGs and FUCOs is
approximately $2.3 billion, or about 63% of Southern's "consolidated retained
earnings," also as defined in Rule 53(a)(1), for the four quarters ended
September 30, 1996 ($3,601 million). With respect to Rule 53(a)(1), however, the
Commission has determined that Southern's financing of investments in EWGs and
FUCOs in an amount greater than the amount that would otherwise be allowed by
Rule 53(a)(1) would not have either of the adverse effects set forth in Rule
53(c). See The Southern Company, Holding Company Act Release Nos. 26501 and
26646, dated April 1, 1996 and January 15, 1997, respectively.
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.
Further, none of the circumstances described in Rule 53(b) has occurred.
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 filing (viz. approval for certain financing
transactions by Mississippi) 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 Mississippi Power Capital Trust I.
(Designated in Form S-3 File Nos. 333-20469, 333-20469-01 and
333-20469-02, as Exhibit 4.4-A.)
A-2 - Trust Agreement of Mississippi Power Capital Trust II.
(Designated in Form S-3 File Nos. 333-20469, 333-20469-01 and
333-20469-02, as Exhibit 4.4-B.)
A-3 - Forms of Amended and Restated Trust Agreements for Mississippi
Power Capital Trust I. (Designated in Form S-3 File Nos.
333-20469, 333-20469-01 and 333-20469-02, as Exhibits 4.5-A and
4.5-C.)
A-4 - Forms of Amended and Restated Trust Agreements for Mississippi
Power Capital Trust II. (Designated in Form S-3 File Nos.
333-20469, 333-20469-01 and 333-20469-02, as Exhibits 4.5-B and
4.5-D.)
B-1 - Form of Subordinated Note Indenture between Mississippi Power
Company and The Chase Manhattan Bank, as Trustee. (Designated in
Form S-3 File Nos. 333-20469, 333-20469-01 and 333-20469-02, as
Exhibit 4.1.)
B-2 - Forms of Supplemental Indenture to Subordinated Note Indenture
between Mississippi Power Company and The Chase Manhattan Bank,
as Trustee. (Designated in Form S-3 File Nos. 333-20469,
333-20469-01 and 333-20469-02, as Exhibit 4.2-A and 4.2-B.)
B-3 - Forms of Guarantee with respect to Preferred Securities of
Mississippi Power Capital Trust I and Mississippi Power Capital
Trust II. (Designated in Form S-3 File Nos. 333-20469,
333-20469-01 and 333-20469-02, as Exhibits 4.8-A, 4.8-B, 4.8-C
and 4.8-D.)
C-1 - Registration Statement under the Securities Act of 1933. (Filed
electronically January 27, 1997, File Nos. 333-20469,
333-20469-01 and 333-20469-02.)
B. Financial Statements.
Balance sheet of Mississippi at September 30, 1996. (Designated
in Mississippi's Form 10-Q for the quarter ended September 30,
1996, File No. 0-6849.)
Statements of Income of Mississippi for the periods ended
September 30, 1996. (Designated in Mississippi's Form 10-Q for
the quarter ended September 30, 1996, File No. 0-6849.)
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: January 31, 1997 ALABAMA POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
GEORGIA POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
[Signatures continued on next page]
<PAGE>
GULF POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
MISSISSIPPI POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
SAVANNAH ELECTRIC AND POWER COMPANY
By: /s/Wayne Boston
Wayne Boston, Assistant Secretary
