<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 8, 1994.
SUBJECT TO AMENDMENT. REGISTRATION NOS. 33-56423
33-56423-01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
GEORGIA POWER COMPANY GEORGIA POWER CAPITAL, L.P.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS
CHARTER) CHARTER)
GEORGIA DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
58-0257110 58-2139437
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
333 PIEDMONT AVENUE, N.E. 333 PIEDMONT AVENUE, N.E.
ATLANTA, GEORGIA 30308 ATLANTA, GEORGIA 30308
404-526-6526 404-526-6526
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of registrant's principal including area code, of registrant's principal
executive offices) executive offices)
</TABLE>
JUDY M. ANDERSON, VICE PRESIDENT AND CORPORATE SECRETARY
GEORGIA POWER COMPANY
333 PIEDMONT AVENUE, N.E.
ATLANTA, GEORGIA 30308
404-526-6526
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each registrant)
---------------------
THE COMMISSION IS REQUESTED TO MAIL SIGNED COPIES OF ALL ORDERS, NOTICES AND
COMMUNICATIONS TO:
<TABLE>
<S> <C>
W. L. WESTBROOK JOHN D. MCLANAHAN, ESQ.
Executive Vice President TROUTMAN SANDERS
SOUTHERN COMPANY SERVICES, INC. 600 Peachtree Street, N.E.
64 Perimeter Center East Suite 5200
Atlanta, Georgia 30346 Atlanta, Georgia 30308-2216
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
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<PAGE> 2
EXPLANATORY NOTE
This Registration Statement contains two forms of Prospectus Supplement to
the Prospectus included herein: the first form is to be used in connection with
one or more offerings by Georgia Power Capital, L.P. of fixed rate Cumulative
Monthly Income Preferred Securities and the second form is to be used in
connection with one or more offerings by Georgia Power Capital, L.P. of
adjustable rate Cumulative Monthly Income Preferred Securities.
<PAGE> 3
***************************************************************************
* *
* Information contained herein is subject to completion or amendment. A *
* registration statement relating to these securities has been filed *
* with the Securities and Exchange Commission. These securities may not *
* be sold nor may offers to buy be accepted prior to the time the *
* registration statement becomes effective. This prospectus supplement *
* shall not constitute an offer to sell or the solicitation of an offer *
* to buy nor shall there be any sale of these securities in any State *
* in which such offer, solicitation or sale would be unlawful prior to *
* registration or qualification under the securities laws of any such *
* State. *
* *
***************************************************************************
SUBJECT TO COMPLETION, DATED DECEMBER 8, 1994
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1994
[ ] PREFERRED SECURITIES
GEORGIA POWER CAPITAL
% CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES ("MIPS"*), SERIES A
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT GEORGIA POWER CAPITAL HAS FUNDS AS SET FORTH HEREIN BY
GEORGIA POWER COMPANY
---------------------
The % Cumulative Monthly Income Preferred Securities, Series A (the
"Series A Preferred Securities"), representing the limited partner interests
offered hereby, are being issued by Georgia Power Capital, L.P., a limited
partnership formed under the laws of the State of Delaware ("Georgia Power
Capital"). Georgia Power Company, a Georgia corporation ("Georgia Power"), is
the sole general partner (the "General Partner") in Georgia Power Capital.
Georgia Power Capital exists for the sole purpose of issuing its partnership
interests and lending the proceeds thereof to Georgia Power. The limited partner
interests represented by the Series A Preferred Securities will have a
preference with respect to cash distributions and amounts payable on liquidation
over the General Partner's interest in Georgia Power Capital.
(Continued on next page)
---------------------
SEE "INVESTMENT CONSIDERATIONS" FOR CERTAIN INFORMATION RELEVANT TO AN
INVESTMENT IN THE SERIES A PREFERRED SECURITIES, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS ON THE SERIES A PREFERRED
SECURITIES AND SERIES A JUNIOR SUBORDINATED DEBENTURES MAY BE DEFERRED AND THE
RELATED FEDERAL INCOME TAX CONSEQUENCES.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
---------------------
<TABLE>
<CAPTION>
PROCEEDS TO
INITIAL PUBLIC UNDERWRITING GEORGIA POWER
OFFERING PRICE COMMISSION(1) CAPITAL(2)(3)
-------------- -------------- ---------------
<S> <C> <C> <C>
Per Series A Preferred Security...................... $ (2) $
Total................................................ $ (2) $
</TABLE>
- ---------------
<TABLE>
<S> <C>
(1) Georgia Power Capital and Georgia Power have agreed to indemnify the several Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933, as amended. See
"Underwriting".
(2) In view of the fact that the proceeds of the sale of the Series A Preferred Securities ultimately
will be loaned to Georgia Power, the Underwriting Agreement provides that Georgia Power will pay
to the Underwriters, as compensation ("Underwriters' Compensation") for their services, $ per
Series A Preferred Security; provided, that such compensation will be $ per Series A Preferred
Security sold to certain institutions. Accordingly, the maximum aggregate amount of Underwriters'
Compensation will be $ , but the actual amount of Underwriters' Compensation will be less
than such amount to the extent that Series A Preferred Securities are sold to such institutions.
See "Underwriting".
(3) Expenses of the offering, which are payable by Georgia Power, are estimated to be $ .
</TABLE>
---------------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of the Series A Preferred Securities will be made only in
book-entry form through the facilities of The Depository Trust Company on or
about , 1994.
- ---------------
* An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
---------------------
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES
INCORPORATED
SMITH BARNEY INC.
---------------------
The date of this Prospectus Supplement is , 1994.
<PAGE> 4
(Continued from front cover)
Cash distributions on the Series A Preferred Securities will be cumulative
from the date of original issuance at an annual rate of % of the liquidation
preference of $25 per Series A Preferred Security, and will be payable monthly
in arrears on the last day of each calendar month of each year, commencing
, 1994 ("dividends"). The payment of dividends, to the extent
Georgia Power Capital shall have sufficient cash on hand to permit such payment
and funds legally available therefor, and payments on liquidation of Georgia
Power Capital and the redemption of Series A Preferred Securities, as set forth
below, are guaranteed by Georgia Power to the extent described herein and in the
accompanying Prospectus (the "Guarantee"). See "Description of the Guarantee" in
the accompanying Prospectus. The proceeds of the offering of the Series A
Preferred Securities will be loaned by Georgia Power Capital to Georgia Power,
such loan to be evidenced by Georgia Power's % Junior Subordinated Deferrable
Interest Debentures, Series A, Due 2024 (the "Series A Junior Subordinated
Debentures"). Georgia Power has the right from time to time to defer the payment
of interest on the Series A Junior Subordinated Debentures for one or more
Extension Periods (as hereinafter defined) at the end of each of which all
accrued and unpaid interest is required to be paid in full. If Georgia Power
does not make interest payments on the Series A Junior Subordinated Debentures,
Georgia Power Capital will not have funds to pay dividends on the Series A
Preferred Securities. In such event, the remedy of a holder of Series A
Preferred Securities is to enforce the rights of Georgia Power Capital under the
Series A Junior Subordinated Debentures. See "Description of the Series A Junior
Subordinated Debentures" herein and "Description of the Junior Subordinated
Debentures" in the accompanying Prospectus. The Guarantee is a full and
unconditional guarantee from the time of issuance of the Series A Preferred
Securities, but does not apply to any payment of dividends except to the extent
Georgia Power Capital shall have sufficient cash on hand to permit such payment
and funds legally available therefor.
The Series A Preferred Securities are redeemable at the option of Georgia
Power Capital, in whole or in part, from time to time, on or after ,
1999, at $25 per Series A Preferred Security plus accrued and unpaid dividends
thereon to the date fixed for redemption, payable in cash (the "Redemption
Price"). See "Description of the Series A Preferred Securities -- Optional
Redemption". The Series A Preferred Securities have no maturity date, although
they are mandatorily redeemable upon the maturity or earlier redemption or
repurchase of the Series A Junior Subordinated Debentures. See "Description of
the Series A Preferred Securities -- Mandatory Redemption".
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, the Series A Preferred Securities are redeemable in whole at the
Redemption Price at the option of Georgia Power, in its capacity as the General
Partner, or the General Partner may dissolve Georgia Power Capital and cause to
be distributed to the holders of the Series A Preferred Securities, on a pro
rata basis, Series A Junior Subordinated Debentures in lieu of any cash
distribution. If the Series A Junior Subordinated Debentures are distributed to
the holders of the Series A Preferred Securities, Georgia Power will use its
best efforts to have the Series A Junior Subordinated Debentures listed on the
New York Stock Exchange or on such other exchange as the Series A Preferred
Securities are then listed. The obligations of Georgia Power under the Series A
Junior Subordinated Debentures are subordinate and junior in right of payment to
Senior Indebtedness (as defined in the accompanying Prospectus) of Georgia
Power. At September 30, 1994, Senior Indebtedness of Georgia Power aggregated
approximately $4.3 billion. See "Description of the Series A Preferred
Securities -- Special Event Redemption or Distribution" and "Description of the
Series A Junior Subordinated Debentures".
In the event of the dissolution of Georgia Power Capital, the holders of
the Series A Preferred Securities will be entitled to receive for each Series A
Preferred Security a liquidation preference of $25 plus accrued and unpaid
dividends thereon to the date of payment, subject to certain limitations,
unless, in connection with such dissolution, Series A Junior Subordinated
Debentures are distributed to the holders of the Series A Preferred Securities.
See "Description of the Series A Preferred Securities -- Liquidation
Distribution Upon Dissolution".
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange. See "Underwriting".
Prospective purchasers are urged to read the accompanying Prospectus for
certain additional material information regarding the Series A Preferred
Securities, the Series A Junior Subordinated Debentures and the Guarantee.
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
S-2
<PAGE> 5
GEORGIA POWER CAPITAL
Georgia Power Capital is a limited partnership that was formed under the
Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") on
November 10, 1994. The initial partners in Georgia Power Capital are Georgia
Power, as general partner, and Georgia Power LP Holdings Corp., a Georgia
corporation and a wholly-owned subsidiary of Georgia Power ("Georgia Power
Holdings"), as limited partner. Upon the issuance of the Series A Preferred
Securities, which securities represent limited partner interests in Georgia
Power Capital, Georgia Power Holdings will remain as a limited partner, but will
have no interest in the profits and dividends or in the assets of Georgia Power
Capital. The General Partner will agree to contribute capital to the extent
required to maintain its capital at an amount equal to at least 3% of the total
capital contributions to Georgia Power Capital. Georgia Power and Georgia Power
Holdings entered into an agreement of limited partnership dated as of November
9, 1994. Such agreement of limited partnership will be amended and restated in
its entirety (as so amended and restated, the "Limited Partnership Agreement"),
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus Supplement and the accompanying Prospectus form a part.
Georgia Power Capital is managed by the General Partner and exists for the
sole purpose of issuing its partnership interests and lending the proceeds
thereof to Georgia Power, such loans to be evidenced by junior subordinated
debentures of Georgia Power ("Junior Subordinated Debentures"). The rights of
the holders of the Series A Preferred Securities, including economic rights,
rights to information and voting rights, are set forth in the Limited
Partnership Agreement (including the action of the General Partner specifying
the terms of the Series A Preferred Securities (the "Action") taken in
accordance with the Limited Partnership Agreement) and the Partnership Act. See
"Description of the Series A Preferred Securities".
The business address of Georgia Power Capital is c/o Georgia Power Company,
333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, telephone: (404) 526-6526.
GEORGIA POWER COMPANY
Georgia Power is a wholly-owned subsidiary of The Southern Company, a
holding company registered under the Public Utility Holding Company Act of 1935,
as amended. Georgia Power was incorporated under the laws of the State of
Georgia on June 26, 1930. It is engaged in the generation and purchase of
electric energy and the transmission, distribution and sale of such energy
within the State of Georgia at retail in over 600 communities (including Athens,
Atlanta, Augusta, Columbus, Macon, Rome and Valdosta), as well as in rural
areas, and at wholesale currently to 39 electric cooperative associations
through Oglethorpe Power Corporation, a corporate cooperative of electric
membership corporations in Georgia, and to 50 municipalities, 47 of which are
served through the Municipal Electric Authority of Georgia, a public corporation
and an instrumentality of the State of Georgia. Georgia Power and one of its
affiliates, Alabama Power Company, each owns 50% of the common stock of Southern
Electric Generating Company ("SEGCO"). SEGCO owns electric generating units near
Wilsonville, Alabama. The principal executive offices of Georgia Power are
located at 333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, and the telephone
number is (404) 526-6526.
S-3
<PAGE> 6
INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities should review
carefully the information contained elsewhere in this Prospectus Supplement and
in the accompanying Prospectus and should consider particularly the following
matters:
SUBORDINATION OF GUARANTEE AND SERIES A JUNIOR SUBORDINATED DEBENTURES;
DEPENDENCE ON GEORGIA POWER
Georgia Power's obligations under the Guarantee are subordinate and junior
in right of payment to all other liabilities of Georgia Power except those made
pari passu (that is, equal in priority) by their terms. The obligations of
Georgia Power under the Series A Junior Subordinated Debentures described under
"Description of the Series A Junior Subordinated Debentures" are subordinate and
junior in right of payment to Senior Indebtedness of Georgia Power. At September
30, 1994, Senior Indebtedness of Georgia Power aggregated approximately $4.3
billion. There are no terms in the Series A Preferred Securities, the Series A
Junior Subordinated Debentures or the Guarantee that limit Georgia Power's
ability to incur additional indebtedness, including indebtedness that ranks
senior to the Series A Junior Subordinated Debentures and the Guarantee. See
"Description of the Guarantee -- Status of the Guarantee" and "Description of
the Junior Subordinated Debentures -- Subordination" in the accompanying
Prospectus.
Georgia Power Capital's ability to pay dividends on the Series A Preferred
Securities is solely dependent upon Georgia Power making interest payments on
the Series A Junior Subordinated Debentures as and when required. In the event
that Georgia Power were for any reason to be unable to make payments on the
Series A Junior Subordinated Debentures as and when required, there is a
substantial likelihood that Georgia Power, in its capacity as Guarantor, would
be unable to make payments on the Guarantee as and when required. Georgia
Power's obligations under the Guarantee are unsecured and, on a liquidation or
winding up of Georgia Power, its obligations under the Guarantee will rank
junior to all of its other liabilities except those made pari passu by their
terms.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; RESULTING DEFERRAL OF DIVIDENDS AND
TAX IMPACT THEREOF
Georgia Power has the right under the Indenture (as defined herein) to
extend the interest payment period from time to time on the Series A Junior
Subordinated Debentures to a period not exceeding 60 consecutive months (an
"Extension Period"), and, as a consequence, monthly dividends on the Series A
Preferred Securities would be deferred (but would continue to accrue with
interest thereon) by Georgia Power Capital during any such Extension Period in
the event that Georgia Power exercises this right. Georgia Power may not during
such Extension Period declare or pay dividends on, or purchase or acquire any of
its capital stock. Prior to the termination of any such Extension Period,
Georgia Power may further extend such Extension Period (with a corresponding
extension of dividend deferrals), provided that such Extension Period together
with all such previous and further extensions thereof may not exceed 60
consecutive months. Upon the termination of any Extension Period and the payment
of all amounts then due, Georgia Power may select a new Extension Period,
subject to the above requirements. Georgia Power and Georgia Power Capital
currently believe that the extension of an interest payment period is unlikely.
The entire principal amount of the Series A Junior Subordinated Debentures will
become due and payable, together with any accrued and unpaid interest thereon,
including Additional Interest (as hereinafter defined), if any, on ,
2024. See "Description of the Series A Preferred Securities -- Dividends" and
"Description of the Series A Junior Subordinated Debentures -- Option to Extend
Interest Payment Period".
Should an Extension Period (and the resulting deferral of dividends on the
Series A Preferred Securities) occur, Georgia Power Capital will continue to
accrue income for United States federal income tax purposes which will be
allocated, but not distributed by way of cash dividends, to holders of record of
Series A Preferred Securities. As a result, such a holder will include such
interest in such holder's gross
S-4
<PAGE> 7
income for United States federal income tax purposes in advance of the receipt
of cash, and will not receive the cash from Georgia Power Capital related to
such income if such a holder disposes of his or her Series A Preferred
Securities prior to the record date for payment of dividends. See "United States
Taxation -- Potential Extension of Interest Payment Period".
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence of a Special Event (as hereinafter defined), which may
occur at any time, the General Partner shall elect to either (i) cause Georgia
Power Capital to redeem the Series A Preferred Securities in whole or (ii)
dissolve Georgia Power Capital and cause the Series A Junior Subordinated
Debentures to be distributed to the holders of the Series A Preferred Securities
in connection with the liquidation of Georgia Power Capital. In the case of a
Special Event which is a Tax Event (as hereinafter defined), however, the
General Partner may, as an alternative to electing to redeem the Series A
Preferred Securities or dissolving Georgia Power Capital, elect to cause the
Series A Preferred Securities to remain outstanding. There can be no assurance
as to the market prices for the Series A Preferred Securities or the Series A
Junior Subordinated Debentures which may be distributed in exchange for Series A
Preferred Securities were a dissolution and liquidation of Georgia Power Capital
to occur. Accordingly, the Series A Preferred Securities which an investor may
purchase, or the Series A Junior Subordinated Debentures which the investor may
receive, may trade at a discount to the price which the investor paid to
purchase the Series A Preferred Securities offered hereby. See "Description of
the Series A Preferred Securities -- Special Event Redemption or Distribution"
and "Description of the Series A Junior Subordinated Debentures -- General".
Under current United States federal income tax law and interpretation, a
distribution of the Series A Junior Subordinated Debentures upon a Special Event
would not be a taxable event to holders of the Series A Preferred Securities.
Under a change in law, a change in legal interpretation or the other
circumstances giving rise to a Special Event, however, the dissolution could be
a taxable event to holders of the Series A Preferred Securities. See "United
States Taxation -- Receipt of Series A Junior Subordinated Debentures Upon
Liquidation of Georgia Power Capital".
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities will be
loaned by Georgia Power Capital to Georgia Power, such loan to be evidenced by
the Series A Junior Subordinated Debentures issued pursuant to the Indenture
described herein, and ultimately will be used by Georgia Power for general
corporate purposes, which may include the repayment or repurchase of its
securities.
DESCRIPTION OF THE SERIES A PREFERRED SECURITIES
GENERAL
All of the partnership interests in Georgia Power Capital, other than the
Series A Preferred Securities offered hereby, are owned directly or indirectly
by Georgia Power. The Limited Partnership Agreement (including the Action)
authorizes and creates the Series A Preferred Securities, which represent
limited partner interests in Georgia Power Capital ("Preferred Securities").
Other Preferred Securities may be issued from time to time in one or more series
as described in the accompanying Prospectus. The limited partner interests
represented by the Series A Preferred Securities will have a preference with
respect to dividends and amounts payable on redemption or liquidation over the
General Partner's interest in Georgia Power Capital. The Limited Partnership
Agreement does not permit the issuance of any Preferred Securities ranking, as
to participation in profits and dividends and in the assets of Georgia Power
Capital, senior or junior to the Series A Preferred Securities or the incurrence
of any indebtedness by Georgia Power Capital. The summary of certain material
terms and provisions of the Series A Preferred Securities set forth below does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the Limited Partnership Agreement (including the Action) which has
been filed as an exhibit to the Registration Statement of which this Prospectus
Supplement forms a part, and the Partnership Act.
S-5
<PAGE> 8
DIVIDENDS
The dividends payable on each Series A Preferred Security will be fixed at
a rate per annum of % of the stated liquidation preference of $25 per
Preferred Security. Dividends in arrears for more than one month will bear
interest thereon at the rate per annum of % thereof. The term "dividends" as
used herein includes any such interest payable unless otherwise stated. The
amount of dividends payable for any period will be computed for any full monthly
dividend period on the basis of a 360-day year of twelve 30-day months, and for
any period shorter than a full monthly dividend period for which dividends are
computed, dividends will be computed on the basis of the actual number of days
elapsed in such period.
Dividends on the Series A Preferred Securities will be cumulative, will
accrue from the date of initial issuance and will be payable monthly in arrears,
on the last day of each calendar month of each year, commencing ,
1994, when, as and if available and determined to be so payable by Georgia
Power, in its capacity as General Partner, except as otherwise described below.
Georgia Power has the right under the Indenture (as hereinafter defined) to
extend the interest payment period from time to time on the Series A Junior
Subordinated Debentures to a period not exceeding 60 consecutive months and, as
a consequence, monthly dividends on the Series A Preferred Securities would be
deferred (but would continue to accrue with interest thereon) by Georgia Power
Capital during any such Extension Period. In the event that Georgia Power
exercises this right, Georgia Power may not declare or pay dividends on, or
purchase or acquire, any of its capital stock during such Extension Period.
Prior to the termination of any such Extension Period, Georgia Power may further
extend such Extension Period, provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 60 consecutive
months. Upon the termination of any Extension Period and the payment of all
amounts then due Georgia Power may select a new Extension Period, subject to the
above requirements. Georgia Power and Georgia Power Capital currently believe
that the extension of an interest payment period is unlikely. See "Description
of the Series A Junior Subordinated Debentures -- Interest" and " -- Option to
Extend Interest Payment Period".
Dividends on the Series A Preferred Securities must be paid on the dates
payable to the extent that Georgia Power Capital has (i) funds legally available
for the payment of such dividends and (ii) cash on hand sufficient to permit
such payments. It is anticipated that Georgia Power Capital's earnings available
for distribution to the holders of the Series A Preferred Securities will be
limited to payments under the Series A Junior Subordinated Debentures evidencing
the loan by Georgia Power Capital of the proceeds from the issuance and sale of
the Series A Preferred Securities and the General Partnership Payment (as
hereinafter defined). See "Description of the Series A Junior Subordinated
Debentures". If Georgia Power does not make interest payments on the Series A
Junior Subordinated Debentures, Georgia Power Capital will not have funds to pay
dividends on the Series A Preferred Securities. The payment of dividends is
guaranteed by Georgia Power as and to the extent set forth under "Description of
the Guarantee" in the accompanying Prospectus. The Guarantee is a full and
unconditional guarantee from the time of issuance of the Series A Preferred
Securities, but does not apply to any payment of dividends except to the extent
Georgia Power Capital shall have sufficient cash on hand to permit such payment
and funds legally available therefor.
Dividends on the Series A Preferred Securities will be payable to the
holders thereof as they appear on the books and records of Georgia Power Capital
on the relevant record dates, which, as long as the Series A Preferred
Securities remain in book-entry-only form, will be one Business Day (as
hereinafter defined) prior to the relevant payment dates. Subject to any
applicable laws and regulations and the provisions of the Limited Partnership
Agreement, each such payment will be made as described under "Book-Entry-Only
Issuance -- The Depository Trust Company" below. In the event the Series A
Preferred Securities shall not continue to remain in book-entry-only form, the
General Partner shall have the right to select relevant record dates, which
shall be more than one Business Day prior to the relevant payment dates. In the
event that any date on which dividends are payable on the Series A Preferred
Securities is not a Business Day, then payment of the dividend payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if
S-6
<PAGE> 9
made on such date. A "Business Day" shall mean any day other than a day on which
banking institutions in The City of New York are authorized or required by law
to close.
CERTAIN RESTRICTIONS ON GEORGIA POWER CAPITAL
If dividends have not been paid in full on the Series A Preferred
Securities, Georgia Power Capital shall not:
(i) declare, pay, or set aside for payment, any dividends on any other
series of Preferred Securities, unless the amounts of any dividends
declared and paid on any other series of Preferred Securities and on the
Series A Preferred Securities are on a pro rata basis on the dates such
dividends are paid on such other series of Preferred Securities, so that
(x) the aggregate amount of dividends paid on the Series A
Preferred Securities bears to the aggregate amount of dividends paid on
such other series of Preferred Securities the same ratio as
(y) the aggregate of all accrued and unpaid dividends in respect of
the Series A Preferred Securities bears to the aggregate of all accrued
and unpaid dividends in respect of such other series of Preferred
Securities; or
(ii) redeem, purchase or otherwise acquire any other Preferred
Securities;
until, in each case, such time as all accrued and unpaid dividends on the Series
A Preferred Securities shall have been paid in full for all dividend periods
terminating on or prior to,in the case of clause (i), such payment and, in the
case of clause (ii), the date of such redemption, purchase or acquisition.
As of the date of this Prospectus Supplement, there are no series of
Preferred Securities outstanding.
OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable, at the option of Georgia
Power Capital, in whole or in part, from time to time, on or after
, 1999, upon not less than 30 nor more than 60 days' notice, at
the Redemption Price. If Georgia Power Capital redeems Series A Preferred
Securities in accordance with the terms thereof, the Series A Junior
Subordinated Debentures will become due and payable in a principal amount equal
to the aggregate stated liquidation preference of the Series A Preferred
Securities so redeemed together with any accrued and unpaid interest on such
principal amount of Series A Junior Subordinated Debentures. See "Description of
the Series A Junior Subordinated Debentures -- Mandatory Prepayment". In the
event that fewer than all the outstanding Series A Preferred Securities are to
be so redeemed, the Series A Preferred Securities to be redeemed will be
selected as described under "Book-Entry-Only Issuance -- The Depository Trust
Company" below. If a partial redemption would result in the delisting of the
Series A Preferred Securities, Georgia Power Capital may only redeem the Series
A Preferred Securities in whole.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
If a Tax Event or an Investment Company Event (each as hereinafter defined,
and each a "Special Event") shall occur and be continuing, the General Partner
shall elect to either (i) cause Georgia Power Capital to redeem the Series A
Preferred Securities in whole (and not in part), upon not less than 30 or more
than 60 days' notice at the Redemption Price, within 90 days following the
occurrence of such Special Event; provided that, if and as long as at the time
there is available to the General Partner the opportunity to eliminate, within
such 90-day period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar reasonable
such measure that has no adverse effect on Georgia Power Capital or Georgia
Power, the General Partner will pursue such measure in lieu of redemption, or
(ii) dissolve Georgia Power Capital and, after satisfaction of creditors as
required by the Partnership Act, cause Series A Junior Subordinated Debentures
to be distributed to
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the holders of the Series A Preferred Securities in liquidation of Georgia Power
Capital, within 90 days following the occurrence of such Special Event. In the
case of a Tax Event, the General Partner may, as an alternative to electing to
redeem the Series A Preferred Securities or dissolving Georgia Power Capital,
elect to cause the Series A Preferred Securities to remain outstanding.
"Tax Event" means that Georgia Power shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application of
any such laws or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
effective or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the date of this Prospectus
Supplement, there is more than an insubstantial risk that (i) Georgia Power
Capital is subject to federal income tax with respect to interest accrued or
received on the Series A Junior Subordinated Debentures, (ii) Georgia Power
Capital is subject to more than a de minimis amount of taxes, duties or other
governmental charges, or (iii) interest payable by Georgia Power to Georgia
Power Capital on the Series A Junior Subordinated Debentures will not be
deductible by Georgia Power for federal income tax purposes.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that Georgia Power Capital is or will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), which Change in
1940 Act Law becomes effective on or after the date of this Prospectus
Supplement; provided that no Investment Company Event shall be deemed to have
occurred if the General Partner obtains a written opinion of nationally
recognized independent counsel to Georgia Power Capital experienced in practice
under the 1940 Act to the effect that the General Partner has successfully
issued an additional or supplemental irrevocable and unconditional guarantee or
taken such other steps as may be necessary so that, in the opinion of such
counsel, notwithstanding such Change in 1940 Act Law, Georgia Power Capital is
not required to be registered as an "investment company" within the meaning of
the 1940 Act. In case of any uncertainty regarding an Investment Company Event,
the good faith determination of the General Partner (based on the advice of
counsel) shall be conclusive.
After the date fixed for any distribution of Series A Junior Subordinated
Debentures, upon dissolution of Georgia Power Capital, (i) the Series A
Preferred Securities will no longer be deemed to be outstanding, (ii) DTC or its
nominee, as the record holder of the Series A Preferred Securities, will receive
a registered global certificate or certificates representing the Series A Junior
Subordinated Debentures to be delivered upon such distribution and (iii) any
certificates representing Series A Preferred Securities not held by DTC or its
nominee will be deemed to represent Series A Junior Subordinated Debentures
having a principal amount equal to the stated liquidation preference of such
Series A Preferred Securities, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid dividends on such Series A Preferred
Securities, until such certificates are presented to Georgia Power or its agent
for transfer or reissuance.
There can be no assurance as to the market prices for the Series A
Preferred Securities or the Series A Junior Subordinated Debentures which may be
distributed in exchange for Series A Preferred Securities were a dissolution and
liquidation of Georgia Power Capital to occur. Accordingly, the Series A
Preferred Securities which an investor may purchase, or the Series A Junior
Subordinated Debentures which the investor may receive, may trade at a discount
to the price which the investor paid to purchase the Series A Preferred
Securities offered hereby.
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MANDATORY REDEMPTION
Upon the repayment of the Series A Junior Subordinated Debentures, whether
at maturity or upon redemption or otherwise, the proceeds from such repayment
will be applied to redeem the Series A Preferred Securities, in whole, upon not
less than 30 nor more than 60 days' notice, at the Redemption Price.
REDEMPTION PROCEDURES
Georgia Power Capital may not redeem fewer than all the outstanding Series
A Preferred Securities unless all accrued and unpaid dividends have been paid on
all Series A Preferred Securities for all monthly dividend periods terminating
on or prior to the date of redemption.
If Georgia Power Capital gives a notice of redemption in respect of Series
A Preferred Securities (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, Georgia Power Capital will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemption Price and
will give DTC irrevocable instructions and authority to pay the Redemption Price
to the holders of the Series A Preferred Securities. See "Book-Entry-Only
Issuance -- The Depository Trust Company". If notice of redemption shall have
been given and funds deposited as required, then upon the date of such deposit,
all rights of holders of such Series A Preferred Securities so called for
redemption will cease, except the right of the holders of such Series A
Preferred Securities to receive the Redemption Price, but without interest on
such Redemption Price. In the event that any date fixed for redemption of Series
A Preferred Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. In
the event that payment of the Redemption Price in respect of Series A Preferred
Securities is improperly withheld or refused and not paid either by Georgia
Power Capital or by Georgia Power pursuant to the Guarantee described under
"Description of the Guarantee" in the accompanying Prospectus, dividends on such
Series A Preferred Securities will continue to accrue at the then applicable
rate, from the original redemption date to the date of payment, in which case
the actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), Georgia Power or any of its
subsidiaries, including Georgia Power Capital, may at any time and from time to
time purchase outstanding Series A Preferred Securities by tender, in the open
market or by private agreement. If Georgia Power Capital purchases and cancels
any Series A Preferred Securities, the Series A Junior Subordinated Debentures
may be repaid in a principal amount equal to the aggregate stated liquidation
preference of the Series A Preferred Securities so purchased, together with any
accrued and unpaid interest on such principal amount of Series A Junior
Subordinated Debentures. See "Description of Series A Junior Subordinated
Debentures -- Optional Prepayment".
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary dissolution, winding up or
termination of Georgia Power Capital, the holders of the Series A Preferred
Securities at the time will be entitled to receive out of the assets of Georgia
Power Capital available for distribution to partners after satisfaction of
liabilities of creditors as required by the Partnership Act, before any
distribution of assets is made to the General Partner, but together with the
holders of every other series of Preferred Securities outstanding, an amount
equal to, in the case of holders of Series A Preferred Securities, the aggregate
of the stated liquidation preference of $25 per Series A Preferred Security plus
accrued and unpaid dividends thereon to the date of payment (such amount being
the "Liquidation Distribution"), unless, in connection with such dissolution,
winding up or termination, Series A Junior Subordinated Debentures in an
aggregate principal amount equal to the stated liquidation preference of such
Series A Preferred Securities, and bearing
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accrued and unpaid interest in an amount equal to the accrued and unpaid
dividends on such Series A Preferred Securities, shall be distributed on a pro
rata basis to the holders of the Series A Preferred Securities. Georgia Power,
as the General Partner, has agreed to pay the costs and expenses of Georgia
Power Capital.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because Georgia Power Capital has insufficient assets available to
pay in full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on any other series of Preferred Securities, then the
amounts payable directly by Georgia Power Capital on the Series A Preferred
Securities and on such other series of Preferred Securities shall be paid in
cash or in kind on a pro rata basis, so that
(x) the aggregate amount paid in respect of the Liquidation
Distribution bears to the aggregate amount paid as liquidation
distributions on the other series of Preferred Securities the same ratio as
(y) the aggregate Liquidation Distribution bears to the aggregate
maximum liquidation distributions on the other series of Preferred
Securities.
Pursuant to the Limited Partnership Agreement, Georgia Power Capital shall
be dissolved and its affairs shall be wound up upon the occurrence of any of the
following events: (i) on December 31, 2093, the expiration of the term of
Georgia Power Capital, (ii) upon the bankruptcy of the General Partner, (iii)
upon the assignment by the General Partner of its entire interest in Georgia
Power Capital when the assignee is not admitted to Georgia Power Capital as a
general partner of Georgia Power Capital in accordance with the Limited
Partnership Agreement, or the filing of a certificate of dissolution or its
equivalent with respect to the General Partner, or the revocation of the General
Partner's charter and the expiration of 90 days after the date of notice to the
General Partner of revocation without a reinstatement of its charter, or if any
other event occurs (other than the bankruptcy of the General Partner) that
causes the General Partner to cease to be a general partner of Georgia Power
Capital under the Partnership Act, unless the business of Georgia Power Capital
is continued in accordance with the Partnership Act, (iv) in accordance with the
provisions of the Series A Preferred Securities, (v) upon the entry of a decree
of judicial dissolution or (vi) upon the written consent of all partners of
Georgia Power Capital.
MERGER, CONSOLIDATION OR AMALGAMATION OF GEORGIA POWER CAPITAL
Georgia Power Capital may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any corporation or other body, except as
described below. Georgia Power Capital may, without the consent of the holders
of the Series A Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by a limited partnership, limited liability company or
trust organized as such under the laws of any state of the United States of
America provided that (i) such successor entity either (x) expressly assumes all
of the obligations of Georgia Power Capital under the Series A Preferred
Securities or (y) substitutes for the Series A Preferred Securities other
securities having substantially the same terms as the Series A Preferred
Securities (the "Successor Securities") so long as the Successor Securities
rank, with respect to participation in the profits and dividends, and in the
assets, of the successor entity, at least as high as the Series A Preferred
Securities rank with respect to participation in the profits and dividends, and
in the assets, of Georgia Power Capital, (ii) Georgia Power expressly
acknowledges such successor entity as the holder of the Series A Junior
Subordinated Debentures, (iii) the Series A Preferred Securities or any
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Series A Preferred Securities are then listed, (iv)
such merger, consolidation, amalgamation or replacement does not cause the
Series A Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the powers, preferences and other special rights of the holders of the
Series A Preferred Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the holders'
interest in the new entity), (vi) such successor entity has a purpose
substantially identical to that of Georgia Power Capital, (vii) prior to such
merger, consolidation,
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amalgamation or replacement, Georgia Power has received an opinion of nationally
recognized independent counsel to Georgia Power Capital experienced in such
matters to the effect that (x) such successor entity will be treated as a
partnership for federal income tax purposes, (y) following such merger,
consolidation, amalgamation or replacement, Georgia Power Capital and such
successor entity will be in compliance with the 1940 Act without registering
thereunder as an investment company and (z) such merger, consolidation,
amalgamation or replacement will not adversely affect the limited liability of
the holders of the Series A Preferred Securities and (viii) Georgia Power
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee.
VOTING RIGHTS
Except as provided below and under "Description of the
Guarantee -- Amendments and Assignment" in the accompanying Prospectus and as
otherwise required by law and the Limited Partnership Agreement, the holders of
the Series A Preferred Securities will have no voting rights.
If (i) arrearages on dividends on the Series A Preferred Securities shall
exist for 18 consecutive monthly dividend periods; (ii) an Event of Default (as
defined in the Indenture) occurs and is continuing on the Series A Junior
Subordinated Debentures; or (iii) Georgia Power is in default on any of its
payment obligations under the Guarantee (as described under "Description of the
Guarantee -- Certain Covenants of Georgia Power" in the accompanying
Prospectus), then the holders of the Series A Preferred Securities, together
with the holders of any other series of Preferred Securities having the right to
vote for the appointment of a special representative of Georgia Power Capital
and the limited partners (a "Special Representative"), in such event, acting as
a single class, will be entitled by the vote of a majority in aggregate
liquidation preference of such holders to appoint and authorize a Special
Representative to enforce Georgia Power Capital's creditor rights under the
Series A Junior Subordinated Debentures, to enforce the rights of the holders of
the Series A Preferred Securities under the Guarantee and to enforce the rights
of the holders of the Series A Preferred Securities to receive dividends on the
Series A Preferred Securities, subject in each case to Georgia Power's retaining
all rights under the Indenture as described in the next following paragraph. The
Special Representative shall not, by virtue of acting in such capacity, be
admitted as a general partner in Georgia Power Capital or otherwise be deemed to
be a general partner in Georgia Power Capital and shall have no liability for
the debts, obligations or liabilities of Georgia Power Capital. Not later than
30 days after such right to appoint a Special Representative arises, the General
Partner will convene a meeting for the purpose of appointing a Special
Representative. If the General Partner fails to convene such meeting within such
30-day period, the holders of 10% in liquidation preference of the outstanding
Preferred Securities will be entitled to convene such meeting. The provisions of
the Limited Partnership Agreement relating to the convening and conduct of the
meetings of the partners will apply with respect to any such meeting. In the
event that, at any such meeting, holders of less than a majority in aggregate
liquidation preference of Preferred Securities entitled to vote for the
appointment of a Special Representative vote for such appointment, no Special
Representative shall be appointed. Any Special Representative appointed shall
cease to be a Special Representative of Georgia Power Capital and the limited
partners if Georgia Power Capital (or Georgia Power pursuant to the Guarantee)
shall have paid in full all accrued and unpaid dividends on the Preferred
Securities or such default or breach, as the case may be, shall have been cured,
and Georgia Power, in its capacity as the General Partner, shall continue the
business of Georgia Power Capital without dissolution.
Notwithstanding the appointment of any such Special Representative, Georgia
Power shall continue as General Partner and shall retain all rights under the
Indenture, including the right to extend the interest payment period from time
to time to a period not exceeding 60 consecutive months as provided under
"Description of the Series A Junior Subordinated Debentures -- Option to Extend
Interest Payment Period".
If any proposed amendment to the Limited Partnership Agreement provides
for, or the General Partner otherwise proposes to effect, (i) any action that
would adversely affect the powers, preferences or special rights of the Series A
Preferred Securities, whether by way of amendment to the Limited Partnership
Agreement or otherwise (including, without limitation, the authorization or
issuance of any
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limited partner interests in Georgia Power Capital ranking, as to participation
in the profits or dividends or in the assets of Georgia Power Capital, senior to
the Series A Preferred Securities), or (ii) the dissolution, winding up or
termination of Georgia Power Capital, other than (x) in connection with the
distribution of Series A Junior Subordinated Debentures upon the occurrence of a
Special Event or (y) as described under "Merger, Consolidation or Amalgamation
of Georgia Power Capital" above, then the holders of outstanding Series A
Preferred Securities will be entitled to vote on such amendment or proposal of
the General Partner (but not on any other amendment or proposal) as a class with
all other holders of series of Preferred Securities similarly affected, and such
amendment or proposal shall not be effective except with the approval of the
holders of 66 2/3% in liquidation preference of such outstanding Preferred
Securities having a right to vote on the matter; provided, however, that no such
approval shall be required if the dissolution, winding up or termination of
Georgia Power Capital is proposed or initiated upon the initiation of
proceedings, or after proceedings have been initiated, for the dissolution,
winding up, liquidation or termination of Georgia Power.
The rights attached to the Series A Preferred Securities will be deemed not
to be adversely affected by the creation or issue of, and no vote will be
required for the creation or issue of, any further limited partner interests of
Georgia Power Capital ranking pari passu with the Series A Preferred Securities
with regard to participation in the profits or dividends or in the assets of
Georgia Power Capital. Holders of Series A Preferred Securities have no
preemptive rights.
So long as any Series A Junior Subordinated Debentures are held by Georgia
Power Capital, the General Partner shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series, (ii) waive any past default that is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Series A Junior Subordinated Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture or the Series A Junior Subordinated Debentures, where such consent
shall be required, without, in each case, obtaining the prior approval of the
holders of at least 66 2/3% in liquidation preference of all series of Preferred
Securities who would be affected thereby if their Preferred Securities were to
be exchanged for Junior Subordinated Debentures, acting as a single class;
provided, however, that where a consent under the Indenture would require the
consent of each holder affected thereby, no such consent shall be given by the
General Partner without the prior consent of each holder of all series of
Preferred Securities affected thereby. The General Partner shall not revoke any
action previously authorized or approved by a vote of any series of Preferred
Securities. The General Partner shall notify all holders of the Series A
Preferred Securities of any notice of default received from the Trustee with
respect to the Series A Junior Subordinated Debentures.
Any required approval of holders of Series A Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for such
purpose, at a meeting of all of the partners in Georgia Power Capital or
pursuant to written consent. Georgia Power Capital will cause a notice of any
meeting at which holders of Series A Preferred Securities are entitled to vote,
or of any matter upon which action by written consent of such holders is to be
taken, to be mailed to each holder of record of Series A Preferred Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the holders of Series A Preferred Securities will be
required for Georgia Power Capital to redeem and cancel Series A Preferred
Securities in accordance with the Limited Partnership Agreement.
Notwithstanding that holders of Series A Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Series A Preferred Securities and any other series of Preferred Securities that
are entitled to vote or consent with such Series A Preferred Securities as a
single class at such time that are owned by Georgia Power or by any entity more
than 50% of which is
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owned by Georgia Power, either directly or indirectly, shall not be entitled to
vote or consent and shall, for purposes of such vote or consent, be treated as
if they were not outstanding.
Holders of the Series A Preferred Securities will have no rights to remove
or replace the General Partner.
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as securities depository for the Series A Preferred
Securities. The Series A Preferred Securities will be issued only as fully
registered securities registered in the name of Cede & Co. (DTC's nominee). One
or more fully registered global Series A Preferred Security certificates will be
issued, representing in the aggregate the total number of Series A Preferred
Securities, and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc. (the "New York
Stock Exchange"), the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Securities and
Exchange Commission.
Purchases of Series A Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a credit for the
Series A Preferred Securities on DTC's records. The ownership interest of each
actual purchaser of each Series A Preferred Security ("Beneficial Owner") is in
turn to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased Series A Preferred Securities. Transfers of ownership interests in the
Series A Preferred Securities are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in Series A
Preferred Securities, except in the event that use of the book-entry system for
the Series A Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Series A
Preferred Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Series A Preferred Securities are credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Series A Preferred Securities are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such series to
be redeemed.
Although voting with respect to the Series A Preferred Securities is
limited, in those instances in which a vote is required, neither DTC nor Cede &
Co. itself will consent or vote with respect to Series A
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Preferred Securities. Under its usual procedures, DTC would mail an Omnibus
Proxy to Georgia Power Capital as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Series A Preferred Securities are credited on
the record date (identified in a listing attached to the Omnibus Proxy).
Dividend payments on the Series A Preferred Securities will be made by
Georgia Power Capital to DTC. DTC's practice is to credit Direct Participants'
accounts on the relevant payment date in accordance with their respective
holdings shown on DTC's records unless DTC has reason to believe that it will
not receive payments on such payment date. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices and will be the responsibility of such Participants and not of DTC,
Georgia Power Capital or Georgia Power, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of dividends to DTC
is the responsibility of Georgia Power Capital, disbursement of such payments to
Direct Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to Georgia Power Capital. Under such circumstances, in the event that a
successor securities depository is not obtained, Series A Preferred Security
certificates are required to be printed and delivered. Additionally, Georgia
Power Capital (with the consent of Georgia Power) may decide to discontinue use
of the system of book-entry transfers through DTC (or a successor depository).
In that event, certificates for the Series A Preferred Securities will be
printed and delivered. In each of the above circumstances, the General Partner
will appoint a paying agent with respect to the Series A Preferred Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Georgia Power Capital and Georgia Power
believe to be reliable, but Georgia Power Capital and Georgia Power take no
responsibility for the accuracy thereof.
REGISTRAR AND TRANSFER AGENT
In the event the book-entry system for the Series A Preferred Securities is
discontinued, it is anticipated that Southern Company Services, Inc., or one of
its affiliates, will act as registrar and transfer agent for the Series A
Preferred Securities.
Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of Georgia Power Capital, but upon payment (with
the giving of such indemnity as Georgia Power Capital or Georgia Power may
require) in respect of any tax or other governmental charges that may be imposed
in relation to it.
Georgia Power Capital will not be required to register or cause to be
registered the transfer of Series A Preferred Securities after such Series A
Preferred Securities have been called for redemption.
SINKING FUND; OTHER RIGHTS
The holders of the Series A Preferred Securities will not be entitled to
the benefit of any sinking or purchase fund and will not have any pre-emptive or
conversion rights.
MISCELLANEOUS
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange. See "Underwriting".
The General Partner is authorized and directed to conduct its affairs and
to operate Georgia Power Capital in such a way that Georgia Power Capital will
not be deemed to be an "investment company" required to be registered under the
1940 Act or taxed as a corporation for federal income tax purposes and so that
the Series A Junior Subordinated Debentures will be treated as indebtedness of
Georgia
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Power for federal income tax purposes. In this connection, the General Partner
is authorized to take any action, not inconsistent with applicable law, the
certificate of limited partnership of Georgia Power Capital or the Limited
Partnership Agreement, that the General Partner determines in its discretion to
be necessary or desirable for such purposes, as long as such action does not
adversely affect the interests of the holders of the Series A Preferred
Securities.
DESCRIPTION OF THE SERIES A JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of specific terms of the Series A Junior
Subordinated Debentures evidencing the loan by Georgia Power Capital to Georgia
Power of (i) the proceeds of the issuance and sale of the Series A Preferred
Securities and (ii) the General Partner's capital contribution with respect to
the Series A Preferred Securities (the "General Partnership Payment"), which
will be an amount equal to at least 3% of the total capital contributions to
Georgia Power Capital. This description supplements the description of the
general terms and provisions of the Junior Subordinated Debentures set forth in
the accompanying Prospectus under the caption "Description of the Junior
Subordinated Debentures". The following description does not purport to be
complete and is qualified in its entirety by reference to the description in the
accompanying Prospectus and the Indenture, dated as of , 1994, between
Georgia Power and Trust Company Bank, as Trustee (the "Indenture") which has
been filed as an exhibit to the Registration Statement of which this Prospectus
Supplement forms a part.
Under certain circumstances involving the dissolution of Georgia Power
Capital following the occurrence of a Special Event, Series A Junior
Subordinated Debentures may be distributed to the holders of the Series A
Preferred Securities in liquidation of Georgia Power Capital. See "Description
of the Series A Preferred Securities -- Special Event Redemption or
Distribution".
GENERAL
The Series A Junior Subordinated Debentures will be issued as a series of
Junior Subordinated Debentures under the Indenture. The Series A Junior
Subordinated Debentures will be limited in aggregate principal amount to
approximately $ million, such amount being the sum of the aggregate stated
liquidation preference of the Series A Preferred Securities and the General
Partnership Payment.
The entire principal amount of the Series A Junior Subordinated Debentures
will become due and payable, together with any accrued and unpaid interest
thereon, including Additional Interest (as hereinafter defined), if any, on
, 2024.
The Series A Junior Subordinated Debentures, if distributed to holders of
Series A Preferred Securities in dissolution, will initially be so issued as a
Global Security (as defined below). As described herein, under certain limited
circumstances Series A Junior Subordinated Debentures may be issued in
certificated form in exchange for a Global Security. See "Book-Entry and
Settlement" below. In the event that Series A Junior Subordinated Debentures are
issued in certificated form, such Series A Junior Subordinated Debentures will
be in denominations of $25 and integral multiples thereof and may be transferred
or exchanged at the offices described below.
Payments on Series A Junior Subordinated Debentures issued as a Global
Security will be made to DTC, as the depository for the Series A Junior
Subordinated Debentures. In the event Series A Junior Subordinated Debentures
are issued in certificated form, principal and interest will be payable, the
transfer of the Series A Junior Subordinated Debentures will be registrable, and
Series A Junior Subordinated Debentures will be exchangeable for Series A Junior
Subordinated Debentures of other denominations of a like aggregate principal
amount, at the corporate trust office of the Trustee in Atlanta, Georgia;
provided that payment of interest may be made at the option of Georgia Power by
check mailed to the address of the persons entitled thereto.
If the Series A Junior Subordinated Debentures are distributed to the
holders of Series A Preferred Securities upon the dissolution of Georgia Power
Capital, Georgia Power will use its best efforts to list the
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<PAGE> 18
Series A Junior Subordinated Debentures on the New York Stock Exchange or on
such other exchange as the Series A Preferred Securities are then listed.
MANDATORY PREPAYMENT
If Georgia Power Capital redeems Series A Preferred Securities in
accordance with the terms thereof, the Series A Junior Subordinated Debentures
will become due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so redeemed,
together with any accrued and unpaid interest thereon, including Additional
Interest, if any. Any payment pursuant to this provision shall be made prior to
12:00 noon, New York City time, on the date of such redemption or at such other
time on such earlier date as the parties thereto shall agree. The Series A
Junior Subordinated Debentures are not entitled to the benefit of any sinking
fund or, except as set forth above, any other provision for mandatory
prepayment.
OPTIONAL REDEMPTION
Georgia Power shall have the right to redeem the Series A Junior
Subordinated Debentures, in whole or in part, from time to time, on or after
, 1999, upon not less than 30 nor more than 60 days' notice, at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest, including Additional Interest, if any, to the
redemption date. If Georgia Power or Georgia Power Capital purchases Series A
Preferred Securities by tender, in the open market or by private agreement,
Georgia Power shall have the right to redeem Series A Junior Subordinated
Debentures, in a principal amount not to exceed the aggregate stated liquidation
preference of the Series A Preferred Securities so purchased, together with any
accrued and unpaid interest thereon, including Additional Interest, if any, to
the redemption date.
INTEREST
Each Series A Junior Subordinated Debenture will bear interest at the rate
of % per annum from the original date of issuance, payable monthly in arrears
on the last day of each calendar month of each year (each, an "Interest Payment
Date"), commencing , 1994, to the person in whose name such
Series A Junior Subordinated Debenture is registered, subject to certain
exceptions, at the close of business on the Business Day next preceding such
Interest Payment Date. In the event the Series A Junior Subordinated Debentures
shall not continue to remain in book-entry-only form, Georgia Power shall have
the right to select record dates that shall be more than one Business Day prior
to the Interest Payment Date.
The amount of interest payable for any period will be computed for any full
monthly interest period on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full monthly interest period for which
interest is computed, interest will be computed on the basis of the actual
number of days elapsed in such period. In the event that any date on which
interest is payable on the Series A Junior Subordinated Debentures is not a
Business Day, then payment of the interest payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as Georgia Power is not in default in the payment of interest on
any series of Junior Subordinated Debentures issued under the Indenture, Georgia
Power shall have the right at any time during the term of the Series A Junior
Subordinated Debentures to extend the interest payment period from time to time
to a period not exceeding 60 consecutive months (the "Extension Period"), at the
end of which Extension Period Georgia Power shall pay all interest then accrued
and unpaid (together with interest thereon at the rate specified for the Series
A Junior Subordinated Debentures to the extent
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<PAGE> 19
permitted by applicable law); provided that, during any such Extension Period,
Georgia Power shall not declare or pay any dividend on, or purchase, acquire or
make a liquidation payment with respect to, any of its capital stock, or make
any guarantee payments with respect thereto; and provided further that any such
extended interest payment period may only be selected with respect to the Series
A Junior Subordinated Debentures if an extended interest payment period of
identical duration is simultaneously selected for all Junior Subordinated
Debentures then outstanding under the Indenture. Prior to the termination of any
such Extension Period, Georgia Power may further extend the interest payment
period, provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 60 consecutive months. Upon the
termination of any Extension Period and the payment of all amounts then due,
Georgia Power may select a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof. The failure by Georgia Power to make interest
payments during an Extension Period would not constitute a default or an event
of default under Georgia Power's currently outstanding indebtedness. If Georgia
Power Capital shall be the sole holder of the Series A Junior Subordinated
Debentures, Georgia Power shall give Georgia Power Capital notice of its
selection of such Extension Period one Business Day prior to the earlier of (i)
the next succeeding date the dividends on the Series A Preferred Securities are
payable or (ii) the date Georgia Power Capital is required to give notice to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Series A Preferred Securities of the record date or the date such
dividend is payable, but in any event not less than one Business Day prior to
such record date. Georgia Power shall cause Georgia Power Capital to give notice
of Georgia Power's selection of such Extension Period to the holders of the
Series A Preferred Securities. If Georgia Power Capital shall not be the sole
holder of the Series A Junior Subordinated Debentures, Georgia Power shall give
the holders of the Series A Junior Subordinated Debentures notice of its
selection of such Extension Period ten Business Days prior to the earlier of (i)
the next succeeding Interest Payment Date or (ii) the date Georgia Power is
required to give notice to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Series A Junior Subordinated
Debentures of the record or payment date of such related interest payment, but
in any event not less than two Business Days prior to such record date. Georgia
Power and Georgia Power Capital currently believe that the extension of an
interest payment period is unlikely.
ADDITIONAL INTEREST
If at any time Georgia Power Capital shall be required to pay any interest
on dividends in arrears in respect of the Series A Preferred Securities pursuant
to the terms thereof, then Georgia Power will pay as interest to Georgia Power
Capital as the holder of the Series A Junior Subordinated Debentures
("Additional Interest") an amount equal to such interest on dividends in
arrears.
SET-OFF
Notwithstanding anything to the contrary in the Indenture, Georgia Power
shall have the right to set-off any payment it is otherwise required to make
thereunder with and to the extent Georgia Power has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee.
EVENTS OF DEFAULT
In the case that any Event of Default (as defined in the Indenture and as
described in the accompanying Prospectus) shall occur and be continuing, Georgia
Power Capital will have the right to declare the principal of and the interest
on the Series A Junior Subordinated Debentures (including any Additional
Interest) and any other amounts payable under the Indenture to be forthwith due
and payable and to enforce its other rights as a creditor with respect to the
Series A Junior Subordinated Debentures. See "Enforcement of Certain Rights by
Special Representative" below for a discussion of certain rights available to
holders of the Series A Preferred Securities upon the occurrence of an Event of
Default.
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<PAGE> 20
ENFORCEMENT OF CERTAIN RIGHTS BY SPECIAL REPRESENTATIVE
If (i) arrearages on dividends on the Series A Preferred Securities shall
exist for 18 consecutive monthly dividend periods; (ii) an Event of Default
occurs and is continuing on the Series A Junior Subordinated Debentures; or
(iii) Georgia Power is in default on any of its payment or other obligations
under the Guarantee, under the terms of the Series A Preferred Securities, the
holders of outstanding Series A Preferred Securities will have the rights
referred to under "Description of the Series A Preferred Securities -- Voting
Rights", including the right to appoint a Special Representative, which Special
Representative shall be authorized to exercise Georgia Power Capital's right to
accelerate the principal amount of the Series A Junior Subordinated Debentures
upon an Event of Default and to enforce Georgia Power Capital's other creditor
rights under the Series A Junior Subordinated Debentures. Notwithstanding the
appointment of any such Special Representative, Georgia Power shall continue as
General Partner and shall retain all rights under the Indenture, including the
right to extend the interest payment period from time to time to a period not
exceeding 60 consecutive months, and any such extension would not constitute a
default under the Indenture or enable a holder of Series A Preferred Securities
to require the payment of a dividend that has not theretofore been declared.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Series A Preferred Securities in connection
with the dissolution of Georgia Power Capital as a result of the occurrence of a
Special Event, the Series A Junior Subordinated Debentures will be issued in the
form of one or more global certificates (each, a "Global Security") registered
in the name of the nominee of DTC. Except under the limited circumstances
described below, Series A Junior Subordinated Debentures represented by the
Global Security will not be exchangeable for, and will not otherwise be issuable
as, Series A Junior Subordinated Debentures in definitive form. The Global
Securities described above may not be transferred except by DTC to a nominee of
DTC or by a nominee of DTC to DTC or another nominee of DTC or to a successor
depository or its nominee.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Series A Junior
Subordinated Debentures in definitive form and will not be considered the
Holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Series A Junior Subordinated
Debentures shall be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of DTC or its nominee or to
a successor depository or its nominee. Accordingly, each beneficial owner must
rely on the procedures of DTC and, if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest, to
exercise any rights of a Holder under the Indenture.
THE DEPOSITORY
DTC will act as security depository for the Series A Junior Subordinated
Debentures. For a description of DTC and the specific terms of the depository
arrangements, see "Description of the Series A Preferred
Securities -- Book-Entry-Only Issuance -- The Depository Trust Company". As of
the date of this Prospectus Supplement, the description therein of DTC's
book-entry system and DTC's practices as they relate to purchases, transfers,
notices and payments with respect to the Series A Preferred Securities apply in
all material respects to any debt obligations represented by one or more Global
Securities held by DTC.
Neither Georgia Power, the Trustee, any paying agent nor any other agent of
Georgia Power or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security for such Series A Junior Subordinated
Debentures or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
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<PAGE> 21
DISCONTINUANCE OF THE DEPOSITORY'S SERVICES
A Global Security shall be exchangeable for Series A Junior Subordinated
Debentures registered in the names of persons other than DTC or its nominee only
if (i) DTC notifies Georgia Power that it is unwilling or unable to continue as
a depository for such Global Security and no successor depository shall have
been appointed, or if any time DTC ceases to be a clearing agency registered
under the Exchange Act at a time when DTC is required to be so registered to act
as such depository, (ii) Georgia Power in its sole discretion determines that
such Global Security shall be so exchangeable or (iii) there shall have occurred
an Event of Default with respect to such Series A Junior Subordinated
Debentures. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Series A Junior Subordinated Debentures
registered in such names as the Depository shall direct. It is expected that
such instructions will be based upon directions received by the Depository from
its Participants with respect to ownership of beneficial interests in such
Global Security.
MISCELLANEOUS
For restrictions on certain actions of the General Partner with respect to
Series A Junior Subordinated Debentures held by Georgia Power Capital, see
"Description of the Series A Preferred Securities -- Voting Rights".
RELATIONSHIP BETWEEN THE SERIES A PREFERRED SECURITIES, THE
SERIES A JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
As long as payments of interest and other payments are made when due on the
Series A Junior Subordinated Debentures, such payments will be sufficient to
cover dividends and other payments due on the Series A Preferred Securities
primarily because (i) the aggregate principal amount of Series A Junior
Subordinated Debentures will be equal to the sum of the aggregate stated
liquidation preference of the Series A Preferred Securities and the General
Partnership Payment; (ii) the interest rate and interest and other payment dates
on the Series A Junior Subordinated Debentures will match the dividend rate and
dividend and other payment dates for the Series A Preferred Securities; (iii)
the Limited Partnership Agreement provides that Georgia Power, as General
Partner, shall pay for all, and Georgia Power Capital shall not be obligated to
pay, directly or indirectly, for any, costs and expenses of Georgia Power
Capital, including any income taxes, duties and other governmental charges, and
all costs and expenses with respect thereto, to which Georgia Power Capital may
become subject, except for United States withholding taxes; and (iv) the Limited
Partnership Agreement further provides that the General Partner shall not cause
or permit Georgia Power Capital, among other things, to engage in any activity
that is not consistent with the limited purposes of Georgia Power Capital.
Payments of dividends and other payments due on the Series A Preferred
Securities are guaranteed by Georgia Power as and to the extent set forth under
"Description of the Guarantee" in the accompanying Prospectus. If Georgia Power
does not make interest payments on the Series A Junior Subordinated Debentures,
Georgia Power Capital will not have funds to pay dividends on the Series A
Preferred Securities. The Guarantee is a full and unconditional guarantee from
the time of issuance of the Series A Preferred Securities, but does not apply to
any payment of dividends except to the extent Georgia Power Capital shall have
sufficient cash on hand to permit such payment and funds legally available
therefor.
If Georgia Power fails to make interest or other payments on the Series A
Junior Subordinated Debentures when due, the Limited Partnership Agreement
provides a mechanism whereby the holders of the Series A Preferred Securities
may appoint a Special Representative to enforce the rights of Georgia Power
Capital under the Series A Junior Subordinated Debentures. The Limited
Partnership Agreement also provides, and Georgia Power, under the Guarantee,
acknowledges, that a Special Representative may be appointed to enforce the
Guarantee if Georgia Power is in default on any of its payment obligations under
the Guarantee. In addition, if the General Partner or the Special Representative
fails to enforce the Guarantee, a holder of a Series A Preferred Security may
institute a legal proceeding directly
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<PAGE> 22
against Georgia Power to enforce its rights under the Guarantee without first
instituting a legal proceeding against Georgia Power Capital or any other person
or entity.
Georgia Power and Georgia Power Capital believe that the above mechanisms
and obligations, taken together, constitute a full and unconditional guarantee
by Georgia Power of payments due on the Series A Preferred Securities.
If a Special Event shall occur and be continuing, the General Partner may
elect to dissolve Georgia Power Capital, and to cause Series A Junior
Subordinated Debentures to be distributed in exchange for the outstanding Series
A Preferred Securities. The Series A Preferred Securities represent limited
partner interests in Georgia Power Capital, a limited partnership which exists
for the sole purpose of issuing its partnership interests and lending the
proceeds thereof to Georgia Power, while the Series A Junior Subordinated
Debentures represent indebtedness of Georgia Power, an electric public utility
company (see "Georgia Power Company").
Upon any voluntary or involuntary dissolution, winding up or termination of
Georgia Power Capital, the holders of Series A Preferred Securities will be
entitled to receive, out of assets legally available for distribution to
partners, the Liquidation Distribution in cash or Series A Junior Subordinated
Debentures and will be entitled to the benefits of the Guarantee with respect to
any such distribution. See "Description of the Series A Preferred
Securities -- Liquidation Distribution Upon Dissolution". Upon any voluntary or
involuntary liquidation or bankruptcy of Georgia Power, the holders of Series A
Junior Subordinated Debentures would be subordinated creditors of Georgia Power,
subordinated in right of payment to all Senior Indebtedness, but entitled to
receive payment in full of principal, premium, if any, and interest, before any
holders of common stock or preferred stock of Georgia Power receive payments or
distributions.
A default or event of default under any Senior Indebtedness would not
constitute a default or event of default under the Series A Junior Subordinated
Debentures. However, in the event of payment defaults under, or acceleration of,
Senior Indebtedness, the subordination provisions of the Series A Junior
Subordinated Debentures provide that no payments may be made in respect of the
Series A Junior Subordinated Debentures. Failure to make required payments on
the Series A Junior Subordinated Debentures would constitute an event of default
under the Indenture.
UNITED STATES TAXATION
GENERAL
This section is a summary of certain United States federal income tax
considerations that may be relevant to prospective purchasers of Series A
Preferred Securities and represents the opinion of Troutman Sanders, Atlanta,
Georgia, counsel to Georgia Power and Georgia Power Capital, insofar as it
relates to matters of law and legal conclusions. This section is based upon
current provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), existing and proposed regulations thereunder and current administrative
rulings and court decisions, all of which are subject to change. Subsequent
changes may cause tax consequences to vary substantially from the consequences
described below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Series A
Preferred Securities. Moreover, the discussion generally focuses on holders of
Series A Preferred Securities who are individual citizens or residents of the
United States and who hold the Series A Preferred Securities as capital assets.
This discussion has only limited application to corporations, estates, trusts or
non-resident aliens. Accordingly, each prospective purchaser of Series A
Preferred Securities should consult, and should depend on, the purchaser's own
tax advisor in analyzing the federal, state, local and foreign tax consequences
of the purchase, ownership or disposition of Series A Preferred Securities.
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<PAGE> 23
INCOME FROM SERIES A PREFERRED SECURITIES
In the opinion of Troutman Sanders, Georgia Power Capital will be treated
as a partnership for federal income tax purposes. Accordingly, each holder of
Series A Preferred Securities (a "Preferred Securityholder") will be required to
include in gross income the Preferred Securityholder's distributive share of the
net income of Georgia Power Capital. The resulting increase in each Preferred
Securityholder's gross income will increase his or her tax basis in the Series A
Preferred Securities, and the amount of cash dividends distributed to the
Preferred Securityholder will be a nontaxable reduction in his or her tax basis
in the Series A Preferred Securities. Such income will not exceed the dividends
received on such Series A Preferred Securities, except in limited circumstances
as described below under "Potential Extension of Interest Payment Period". No
portion of such income will be eligible for the dividends received deduction.
DISPOSITION OF SERIES A PREFERRED SECURITIES
Gain or loss will be recognized on a sale of Series A Preferred Securities,
including a redemption for cash, equal to the difference between the amount
realized and the Preferred Securityholder's tax basis for the Series A Preferred
Securities sold. Depending upon the particular circumstances of the Preferred
Securityholder, gain or loss recognized by a Preferred Securityholder on the
sale or exchange of a Series A Preferred Security held for more than one year
generally will be taxable as long-term capital gain or loss.
RECEIPT OF SERIES A JUNIOR SUBORDINATED DEBENTURES UPON LIQUIDATION OF GEORGIA
POWER CAPITAL
Under certain circumstances, as described under the caption "Description of
the Series A Preferred Securities -- Special Event Redemption or Distribution",
Series A Junior Subordinated Debentures may be distributed to the Preferred
Securityholders in liquidation of Georgia Power Capital. Under current United
States federal income tax law, such a distribution would be treated as a
non-taxable exchange to each Preferred Securityholder and would result in the
Preferred Securityholder receiving an aggregate tax basis in the Series A Junior
Subordinated Debentures equal to such Preferred Securityholder's aggregate tax
basis in its Series A Preferred Securities. A Preferred Securityholder's holding
period in the Series A Junior Subordinated Debentures so received in liquidation
of Georgia Power Capital would include the period for which the Series A
Preferred Securities were held by such Preferred Securityholder. Such
circumstances might alter the tax treatment of such Debentures in the hands of
the Preferred Securityholder as compared with the consequences of holding Series
A Preferred Securities. Under a change in law, a change in legal interpretation
or the other circumstances giving rise to a Special Event, a dissolution of
Georgia Power Capital could be a taxable event to Preferred Securityholders.
GEORGIA POWER CAPITAL INFORMATION RETURNS AND AUDIT PROCEDURES
Georgia Power, as the General Partner in Georgia Power Capital, will
furnish each Preferred Securityholder with a Schedule K-1 each year setting
forth such Preferred Securityholder's allocable share of income for the prior
calendar year. Georgia Power is required to furnish such Schedule K-1 as soon as
practicable following the end of the year, but in any event prior to March 31 of
the following year.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to Georgia Power Capital (a) the name, address and
taxpayer identification number of each of the beneficial owner and the nominee;
(b) information as to whether the beneficial owner is (i) a person that is not a
United States person, (ii) a foreign government, an international organization
or any wholly-owned agency or instrumentality of either of the foregoing, or
(iii) a tax-exempt entity; (c) the amount and description of Series A Preferred
Securities held, acquired or transferred for the beneficial owner; and (d)
certain information including the dates of acquisitions and transfers, means of
acquisitions and transfers, and acquisition cost for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on Series A Preferred Securities they
acquire, hold or transfer for
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<PAGE> 24
their own accounts. A penalty of $50 per failure (up to a maximum of $100,000
per calendar year) is imposed by the Code for failure to report such information
to Georgia Power Capital. The nominee is required to supply the beneficial
owners of the Series A Preferred Securities with the information furnished to
Georgia Power Capital.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD
Under the Indenture, Georgia Power has the right to extend from time to
time the interest payment period on the Series A Junior Subordinated Debentures
to a period not exceeding 60 consecutive months. In the event that the interest
payment period is extended, Georgia Power Capital will continue to accrue income
equal to the amount of the interest payment due at the end of the Extension
Period, on a constant yield-to-maturity basis over the length of the Extension
Period.
Accrued income will be allocated, but not distributed, to holders of record
on the Business Day preceding the last day of each calendar month. As a result,
holders of record during an Extension Period will include interest in their
gross income in advance of the receipt of cash, and any such holders who dispose
of Series A Preferred Securities prior to the record date for the payment of
dividends following such Extension Period will include interest in their gross
income but will not receive any cash related thereto from Georgia Power Capital.
The tax basis of a Series A Preferred Security will be increased by the amount
of any interest that is included in income without a receipt of cash, and will
be decreased again when and if such cash is subsequently received from Georgia
Power Capital.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
holder who or which is (i) a nonresident alien individual or (ii) a foreign
corporation, partnership or estate or trust, in either case not subject to
United States federal income tax on a net income basis in respect of a Series A
Preferred Security.
Under current United States federal income tax law, subject to the
discussion below with respect to backup withholding:
(i) payments by Georgia Power Capital or any of its paying agents to
any holder of a Series A Preferred Security who or which is a United States
Alien Holder should not be subject to United States federal withholding tax
provided that (a) the beneficial owner of the Series A Preferred Security
does not actually or constructively own 10% or more of the total combined
voting power of all classes of capital stock of Georgia Power entitled to
vote, (b) the beneficial owner of the Series A Preferred Security is not a
controlled foreign corporation that is related to Georgia Power through
stock ownership and (c) either (x) the beneficial owner of the Series A
Preferred Security certifies to Georgia Power Capital or its agent, under
penalties of perjury, that it is a United States Alien Holder and provides
its name and address or (y) the holder of the Series A Preferred Security
is a securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or
business (a "financial institution"), and such holder certifies to Georgia
Power Capital or its agent under penalties of perjury that such statement
has been received from the beneficial owner by it or by a financial
institution between it and the beneficial owner and furnishes Georgia Power
Capital or its agent with a copy thereof; and
(ii) a United States Alien Holder of a Series A Preferred Security
generally will not be subject to United States federal withholding tax on
any gain realized on the sale or exchange of a Series A Preferred Security
unless such holder is present in the United States for 183 days or more in
the taxable year of sale and either has a "tax home" in the United States
or certain other requirements are met.
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<PAGE> 25
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate United States holders of the proceeds of the sale of Series A
Preferred Securities within the United States and "backup withholding" at a rate
of 31% will apply to such payments if the United States holder falls to provide
an accurate taxpayer identification number.
Payments of the proceeds from the sale by a United States Alien Holder of
Series A Preferred Securities made to or through a foreign office of a broker
generally will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments. Payments of the proceeds from the sale of Series A Preferred
Securities to or through the United States office of a broker are subject to
information reporting and backup withholding unless the holder or beneficial
owner certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, Georgia
Power Capital has agreed to sell to each of the Underwriters named below, and
each of the Underwriters, for whom Goldman, Sachs & Co., Lehman Brothers Inc.,
PaineWebber Incorporated, Prudential Securities Incorporated and Smith Barney
Inc. are acting as Representatives, has severally agreed to purchase from
Georgia Power Capital, the respective number of Series A Preferred Securities
set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF SERIES A
UNDERWRITER PREFERRED SECURITIES
------------------------------------------------------------------ --------------------
<S> <C>
Goldman, Sachs & Co...............................................
Lehman Brothers Inc...............................................
PaineWebber Incorporated..........................................
Prudential Securities Incorporated................................
Smith Barney Inc. ................................................
-----------
Total...................................................
================
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all of such Series A Preferred
Securities offered hereby, if any are taken.
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $ per Series A Preferred
Security. The Underwriters may allow, and such dealers may reallow, a concession
not in excess of $ per Series A Preferred Security to certain brokers
and dealers. After the Series A Preferred Securities are released for sale to
the public, the offering price and other selling terms may from time to time be
varied by the Representatives.
In view of the fact that the proceeds of the sale of the Series A Preferred
Securities ultimately will be loaned to Georgia Power, the Underwriting
Agreement provides that Georgia Power will pay as compensation ("Underwriters'
Compensation"), for the Underwriters' services, an amount in next day funds of
$ per Series A Preferred Security ($ per Series A Preferred
Security sold to certain institutions) for the accounts of the several
Underwriters.
Georgia Power and Georgia Power Capital have agreed during the period
beginning from the date of the Underwriting Agreement and continuing to and
including the earlier of (i) the date after the closing date on which the
distribution of the Series A Preferred Securities ceases, as determined by
Goldman, Sachs & Co., or (ii) 30 days after the closing date, not to offer,
sell, contract to sell or otherwise dispose
S-23
<PAGE> 26
of any Series A Preferred Securities, any limited partnership interests of
Georgia Power Capital, or any preferred stock or any other securities of Georgia
Power Capital or Georgia Power which are substantially similar to the Series A
Preferred Securities including the Guarantee, or any securities convertible into
or exchangeable for Series A Preferred Securities, limited partnership
interests, preferred stock or such substantially similar securities of either
Georgia Power Capital or Georgia Power, without the prior written consent of
Goldman, Sachs & Co.
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange. Prior to this offering, there has been no public market
for the Series A Preferred Securities. In order to meet one of the requirements
for listing the Series A Preferred Securities on the New York Stock Exchange,
the Underwriters will undertake to sell lots of 100 or more Series A Preferred
Securities to a minimum of 400 beneficial holders. Trading of the Series A
Preferred Securities on the New York Stock Exchange is expected to commence
within a seven-day period after the initial delivery of the Series A Preferred
Securities. The Representatives have advised Georgia Power that they intend to
make a market in the Series A Preferred Securities prior to the commencement of
trading on the New York Stock Exchange, but are not obligated to do so and may
discontinue market making at any time without notice.
No member of the National Association of Securities Dealers, Inc. is
permitted to confirm sales of the Series A Preferred Securities in any
discretionary account without prior written approval of the transactions by the
customer.
Georgia Power Capital and Georgia Power have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
Certain of the Underwriters engage in transactions with, and from time to
time have performed services for, Georgia Power and its affiliates in the
ordinary course of business.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Series A
Preferred Securities, the validity of the Limited Partnership Agreement and the
formation of Georgia Power Capital are being passed upon by Richards, Layton &
Finger, P.A., special Delaware counsel to Georgia Power and Georgia Power
Capital. The validity of the Indenture, the Guarantee and the Series A Junior
Subordinated Debentures will be passed upon on behalf of Georgia Power Capital
and Georgia Power by Troutman Sanders, Atlanta, Georgia, counsel to Georgia
Power and Georgia Power Capital, and on behalf of the Underwriters by Reid &
Priest, New York, New York, counsel to the Underwriters.
S-24
<PAGE> 27
------------------------------------------------------
------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OTHER THAN THE SECURITIES DESCRIBED IN THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR
THE PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
------------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Georgia Power Capital................. S-3
Georgia Power Company................. S-3
Investment Considerations............. S-4
Use of Proceeds....................... S-5
Description of the Series A Preferred
Securities.......................... S-5
Description of the Series A Junior
Subordinated Debentures............. S-15
Relationship Between the Series A
Preferred Securities, the Series A
Junior Subordinated Debentures and
the Guarantee....................... S-19
United States Taxation................ S-20
Underwriting.......................... S-23
Legal Matters......................... S-24
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 3
Georgia Power Capital................. 3
Georgia Power Company................. 3
Selected Information.................. 5
Use of Proceeds....................... 6
Recent Results of Operations; Recent
Developments........................ 6
Description of the Preferred
Securities.......................... 7
Description of the Guarantee.......... 8
Description of the Junior Subordinated
Debentures.......................... 10
Plan of Distribution.................. 15
Experts............................... 15
Legal Opinions........................ 16
</TABLE>
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
PREFERRED SECURITIES
GEORGIA POWER
CAPITAL
% CUMULATIVE
MONTHLY INCOME PREFERRED
SECURITIES, SERIES A
GUARANTEED TO THE EXTENT GEORGIA POWER
CAPITAL HAS FUNDS AS SET FORTH HEREIN BY
GEORGIA POWER
COMPANY
------------------
PROSPECTUS SUPPLEMENT
------------------
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
REPRESENTATIVES OF THE UNDERWRITERS
------------------------------------------------------
------------------------------------------------------
<PAGE> 28
***************************************************************************
* *
* Information contained herein is subject to completion or amendment. A *
* registration statement relating to these securities has been filed *
* with the Securities and Exchange Commission. These securities may not *
* be sold nor may offers to buy be accepted prior to the time the *
* registration statement becomes effective. This prospectus supplement *
* shall not constitute an offer to sell or the solicitation of an offer *
* to buy nor shall there be any sale of these securities in any State *
* in which such offer, solicitation or sale would be unlawful prior to *
* registration or qualification under the securities laws of any such *
* State. *
* *
***************************************************************************
SUBJECT TO COMPLETION, DATED DECEMBER 8, 1994
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1994
[ ] PREFERRED SECURITIES
GEORGIA POWER CAPITAL
CUMULATIVE ADJUSTABLE RATE MONTHLY INCOME PREFERRED SECURITIES ("MIPS"*),
SERIES A
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT GEORGIA POWER CAPITAL HAS FUNDS AS SET FORTH HEREIN BY
GEORGIA POWER COMPANY
---------------------
The Cumulative Adjustable Rate Monthly Income Preferred Securities, Series A
(the "Series A Preferred Securities"), representing the limited partner
interests offered hereby, are being issued by Georgia Power Capital, L.P., a
limited partnership formed under the laws of the State of Delaware ("Georgia
Power Capital"). Georgia Power Company, a Georgia corporation ("Georgia Power"),
is the sole general partner (the "General Partner") in Georgia Power Capital.
Georgia Power Capital exists for the sole purpose of issuing its partnership
interests and lending the proceeds thereof to Georgia Power. The limited partner
interests represented by the Series A Preferred Securities will have a
preference with respect to cash distributions and amounts payable on liquidation
over the General Partner's interest in Georgia Power Capital.
(Continued on next page)
---------------------
SEE "INVESTMENT CONSIDERATIONS" FOR CERTAIN INFORMATION RELEVANT TO AN
INVESTMENT IN THE SERIES A PREFERRED SECURITIES, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS ON THE SERIES A PREFERRED
SECURITIES AND SERIES A JUNIOR SUBORDINATED DEBENTURES MAY BE DEFERRED AND THE
RELATED FEDERAL INCOME TAX CONSEQUENCES.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
---------------------
<TABLE>
<CAPTION>
PROCEEDS TO
INITIAL PUBLIC UNDERWRITING GEORGIA POWER
OFFERING PRICE COMMISSION(1) CAPITAL(2)(3)
--------------- -------------- --------------
<S> <C> <C> <C>
Per Series A Preferred Security........................ $ (2) $
Total.................................................. $ (2) $
</TABLE>
- ---------------
<TABLE>
<S> <C>
(1) Georgia Power Capital and Georgia Power have agreed to indemnify the several Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933, as amended. See
"Underwriting".
(2) In view of the fact that the proceeds of the sale of the Series A Preferred Securities ultimately
will be loaned to Georgia Power, the Underwriting Agreement provides that Georgia Power will pay
to the Underwriters, as compensation ("Underwriters' Compensation") for their services, $ per
Series A Preferred Security; provided, that such compensation will be $ per Series A Preferred
Security sold to certain institutions. Accordingly, the maximum aggregate amount of Underwriters'
Compensation will be $ , but the actual amount of Underwriters' Compensation will be less
than such amount to the extent that Series A Preferred Securities are sold to such institutions.
See "Underwriting".
(3) Expenses of the offering, which are payable by Georgia Power, are estimated to be $ .
</TABLE>
---------------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of the Series A Preferred Securities will be made only in
book-entry form through the facilities of The Depository Trust Company on or
about , 1994.
- ---------------
* An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
---------------------
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES
INCORPORATED
SMITH BARNEY INC.
---------------------
The date of this Prospectus Supplement is , 1994.
<PAGE> 29
(Continued from front cover)
Cash distributions on the Series A Preferred Securities will be cumulative
from the date of original issuance and will be payable monthly in arrears on the
last day of each calendar month of each year, commencing , 1994
("dividends"). The dividend rate will be adjusted quarterly. The rate for the
initial period from the date of initial issuance to , 1994 will
be % per annum, which is equivalent to $ per Series A Preferred
Security per annum. Thereafter, dividends on the Series A Preferred Securities
will be payable at the "Applicable Rate" from time to time in effect. The
Applicable Rate for any quarter will be equal to % of the highest of the
"Treasury Bill Rate", the "Ten Year Constant Maturity Rate" and the "Thirty Year
Constant Maturity Rate" (each as defined herein) determined in advance of such
quarter, but not less than % per annum nor greater than % per annum. See
"Description of the Series A Preferred Securities -- Dividends".
The payment of dividends, to the extent Georgia Power Capital shall have
sufficient cash on hand to permit such payment and funds legally available
therefor, and payments on liquidation of Georgia Power Capital and the
redemption of Series A Preferred Securities, as set forth below, are guaranteed
by Georgia Power to the extent described herein and in the accompanying
Prospectus (the "Guarantee"). See "Description of the Guarantee" in the
accompanying Prospectus. The proceeds of the offering of the Series A Preferred
Securities will be loaned by Georgia Power Capital to Georgia Power, such loan
to be evidenced by Georgia Power's Adjustable Rate Junior Subordinated
Deferrable Interest Debentures, Series A, Due 2024 (the "Series A Junior
Subordinated Debentures"). Georgia Power has the right from time to time to
defer the payment of interest on the Series A Junior Subordinated Debentures for
one or more Extension Periods (as hereinafter defined) at the end of each of
which all accrued and unpaid interest is required to be paid in full. If Georgia
Power does not make interest payments on the Series A Junior Subordinated
Debentures, Georgia Power Capital will not have funds to pay dividends on the
Series A Preferred Securities. In such event, the remedy of a holder of Series A
Preferred Securities is to enforce the rights of Georgia Power Capital under the
Series A Junior Subordinated Debentures. See "Description of the Series A Junior
Subordinated Debentures" herein and "Description of the Junior Subordinated
Debentures" in the accompanying Prospectus. The Guarantee is a full and
unconditional guarantee from the time of issuance of the Series A Preferred
Securities, but does not apply to any payment of dividends except to the extent
Georgia Power Capital shall have sufficient cash on hand to permit such payment
and funds legally available therefor.
The Series A Preferred Securities are redeemable at the option of Georgia
Power Capital, in whole or in part, from time to time, on or after
, 1999, at $25 per Series A Preferred Security plus accrued and
unpaid dividends thereon to the date fixed for redemption, payable in cash (the
"Redemption Price"). See "Description of the Series A Preferred
Securities -- Optional Redemption". The Series A Preferred Securities have no
maturity date, although they are mandatorily redeemable upon the maturity or
earlier redemption or repurchase of the Series A Junior Subordinated Debentures.
See "Description of the Series A Preferred Securities -- Mandatory Redemption".
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, the Series A Preferred Securities are redeemable in whole at the
Redemption Price at the option of Georgia Power, in its capacity as the General
Partner, or the General Partner may dissolve Georgia Power Capital and cause to
be distributed to the holders of the Series A Preferred Securities, on a pro
rata basis, Series A Junior Subordinated Debentures in lieu of any cash
distribution. If the Series A Junior Subordinated Debentures are distributed to
the holders of the Series A Preferred Securities, Georgia Power will use its
best efforts to have the Series A Junior Subordinated Debentures listed on the
New York Stock Exchange or on such other exchange as the Series A Preferred
Securities are then listed. The obligations of Georgia Power under the Series A
Junior Subordinated Debentures are subordinate and junior in right of payment to
Senior Indebtedness (as defined in the accompanying Prospectus) of Georgia
Power. At September 30, 1994, Senior Indebtedness of Georgia Power aggregated
approximately $4.3 billion. See "Description of the Series A Preferred
Securities -- Special Event Redemption or Distribution" and "Description of the
Series A Junior Subordinated Debentures".
In the event of the dissolution of Georgia Power Capital, the holders of the
Series A Preferred Securities will be entitled to receive for each Series A
Preferred Security a liquidation preference of $25 plus accrued and unpaid
dividends thereon to the date of payment, subject to certain limitations,
unless, in connection with such dissolution, Series A Junior Subordinated
Debentures are distributed to the holders of the Series A Preferred Securities.
See "Description of the Series A Preferred Securities -- Liquidation
Distribution Upon Dissolution".
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange. See "Underwriting".
Prospective purchasers are urged to read the accompanying Prospectus for
certain additional material information regarding the Series A Preferred
Securities, the Series A Junior Subordinated Debentures and the Guarantee.
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
S-2
<PAGE> 30
GEORGIA POWER CAPITAL
Georgia Power Capital is a limited partnership that was formed under the
Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") on
November 10, 1994. The initial partners in Georgia Power Capital are Georgia
Power, as general partner, and Georgia Power LP Holdings Corp., a Georgia
corporation and a wholly-owned subsidiary of Georgia Power ("Georgia Power
Holdings"), as limited partner. Upon the issuance of the Series A Preferred
Securities, which securities represent limited partner interests in Georgia
Power Capital, Georgia Power Holdings will remain as a limited partner, but will
have no interest in the profits and dividends or in the assets of Georgia Power
Capital. The General Partner will agree to contribute capital to the extent
required to maintain its capital at an amount equal to at least 3% of the total
capital contributions to Georgia Power Capital. Georgia Power and Georgia Power
Holdings entered into an agreement of limited partnership dated as of November
9, 1994. Such agreement of limited partnership will be amended and restated in
its entirety (as so amended and restated, the "Limited Partnership Agreement"),
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus Supplement and the accompanying Prospectus form a part.
Georgia Power Capital is managed by the General Partner and exists for the
sole purpose of issuing its partnership interests and lending the proceeds
thereof to Georgia Power, such loans to be evidenced by junior subordinated
debentures of Georgia Power ("Junior Subordinated Debentures"). The rights of
the holders of the Series A Preferred Securities, including economic rights,
rights to information and voting rights, are set forth in the Limited
Partnership Agreement (including the action of the General Partner specifying
the terms of the Series A Preferred Securities (the "Action") taken in
accordance with the Limited Partnership Agreement) and the Partnership Act. See
"Description of the Series A Preferred Securities".
The business address of Georgia Power Capital is c/o Georgia Power Company,
333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, telephone: (404) 526-6526.
GEORGIA POWER COMPANY
Georgia Power is a wholly-owned subsidiary of The Southern Company, a
holding company registered under the Public Utility Holding Company Act of 1935,
as amended. Georgia Power was incorporated under the laws of the State of
Georgia on June 26, 1930. It is engaged in the generation and purchase of
electric energy and the transmission, distribution and sale of such energy
within the State of Georgia at retail in over 600 communities (including Athens,
Atlanta, Augusta, Columbus, Macon, Rome and Valdosta), as well as in rural
areas, and at wholesale currently to 39 electric cooperative associations
through Oglethorpe Power Corporation, a corporate cooperative of electric
membership corporations in Georgia, and to 50 municipalities, 47 of which are
served through the Municipal Electric Authority of Georgia, a public corporation
and an instrumentality of the State of Georgia. Georgia Power and one of its
affiliates, Alabama Power Company, each owns 50% of the common stock of Southern
Electric Generating Company ("SEGCO"). SEGCO owns electric generating units near
Wilsonville, Alabama. The principal executive offices of Georgia Power are
located at 333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, and the telephone
number is (404) 526-6526.
S-3
<PAGE> 31
INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities should review
carefully the information contained elsewhere in this Prospectus Supplement and
in the accompanying Prospectus and should consider particularly the following
matters:
SUBORDINATION OF GUARANTEE AND SERIES A JUNIOR SUBORDINATED DEBENTURES;
DEPENDENCE ON GEORGIA POWER
Georgia Power's obligations under the Guarantee are subordinate and junior
in right of payment to all other liabilities of Georgia Power except those made
pari passu (that is, equal in priority) by their terms. The obligations of
Georgia Power under the Series A Junior Subordinated Debentures described under
"Description of the Series A Junior Subordinated Debentures" are subordinate and
junior in right of payment to Senior Indebtedness of Georgia Power. At September
30, 1994, Senior Indebtedness of Georgia Power aggregated approximately $4.3
billion. There are no terms in the Series A Preferred Securities, the Series A
Junior Subordinated Debentures or the Guarantee that limit Georgia Power's
ability to incur additional indebtedness, including indebtedness that ranks
senior to the Series A Junior Subordinated Debentures and the Guarantee. See
"Description of the Guarantee -- Status of the Guarantee" and "Description of
the Junior Subordinated Debentures -- Subordination" in the accompanying
Prospectus.
Georgia Power Capital's ability to pay dividends on the Series A Preferred
Securities is solely dependent upon Georgia Power making interest payments on
the Series A Junior Subordinated Debentures as and when required. In the event
that Georgia Power were for any reason to be unable to make payments on the
Series A Junior Subordinated Debentures as and when required, there is a
substantial likelihood that Georgia Power, in its capacity as Guarantor, would
be unable to make payments on the Guarantee as and when required. Georgia
Power's obligations under the Guarantee are unsecured and, on a liquidation or
winding up of Georgia Power, its obligations under the Guarantee will rank
junior to all of its other liabilities except those made pari passu by their
terms.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; RESULTING DEFERRAL OF DIVIDENDS AND
TAX IMPACT THEREOF
Georgia Power has the right under the Indenture (as defined herein) to
extend the interest payment period from time to time on the Series A Junior
Subordinated Debentures to a period not exceeding 60 consecutive months (an
"Extension Period"), and, as a consequence, monthly dividends on the Series A
Preferred Securities would be deferred (but would continue to accrue with
interest thereon) by Georgia Power Capital during any such Extension Period in
the event that Georgia Power exercises this right. Georgia Power may not during
such Extension Period declare or pay dividends on, or purchase or acquire any of
its capital stock. Prior to the termination of any such Extension Period,
Georgia Power may further extend such Extension Period (with a corresponding
extension of dividend deferrals), provided that such Extension Period together
with all such previous and further extensions thereof may not exceed 60
consecutive months. Upon the termination of any Extension Period and the payment
of all amounts then due, Georgia Power may select a new Extension Period,
subject to the above requirements. Georgia Power and Georgia Power Capital
currently believe that the extension of an interest payment period is unlikely.
The entire principal amount of the Series A Junior Subordinated Debentures will
become due and payable, together with any accrued and unpaid interest thereon,
including Additional Interest (as hereinafter defined), if any, on ,
2024. See "Description of the Series A Preferred Securities -- Dividends" and
"Description of the Series A Junior Subordinated Debentures -- Option to Extend
Interest Payment Period".
Should an Extension Period (and the resulting deferral of dividends on the
Series A Preferred Securities) occur, Georgia Power Capital will continue to
accrue income for United States federal income tax purposes which will be
allocated, but not distributed by way of cash dividends, to holders of record of
Series A Preferred Securities. As a result, such a holder will include such
interest in such holder's gross income for United States federal income tax
purposes in advance of the receipt of cash, and will not receive the cash from
Georgia Power Capital related to such income if such a holder disposes of his or
S-4
<PAGE> 32
her Series A Preferred Securities prior to the record date for payment of
dividends. See "United States Taxation -- Potential Extension of Interest
Payment Period".
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence of a Special Event (as hereinafter defined), which may
occur at any time, the General Partner shall elect to either (i) cause Georgia
Power Capital to redeem the Series A Preferred Securities in whole or (ii)
dissolve Georgia Power Capital and cause the Series A Junior Subordinated
Debentures to be distributed to the holders of the Series A Preferred Securities
in connection with the liquidation of Georgia Power Capital. In the case of a
Special Event which is a Tax Event (as hereinafter defined), however, the
General Partner may, as an alternative to electing to redeem the Series A
Preferred Securities or dissolving Georgia Power Capital, elect to cause the
Series A Preferred Securities to remain outstanding. There can be no assurance
as to the market prices for the Series A Preferred Securities or the Series A
Junior Subordinated Debentures which may be distributed in exchange for Series A
Preferred Securities were a dissolution and liquidation of Georgia Power Capital
to occur. Accordingly, the Series A Preferred Securities which an investor may
purchase, or the Series A Junior Subordinated Debentures which the investor may
receive, may trade at a discount to the price which the investor paid to
purchase the Series A Preferred Securities offered hereby. See "Description of
the Series A Preferred Securities -- Special Event Redemption or Distribution"
and "Description of the Series A Junior Subordinated Debentures -- General".
Under current United States federal income tax law and interpretation, a
distribution of the Series A Junior Subordinated Debentures upon a Special Event
would not be a taxable event to holders of the Series A Preferred Securities.
Under a change in law, a change in legal interpretation or the other
circumstances giving rise to a Special Event, however, the dissolution could be
a taxable event to holders of the Series A Preferred Securities. See "United
States Taxation -- Receipt of Series A Junior Subordinated Debentures Upon
Liquidation of Georgia Power Capital".
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities will be
loaned by Georgia Power Capital to Georgia Power, such loan to be evidenced by
the Series A Junior Subordinated Debentures issued pursuant to the Indenture
described herein, and ultimately will be used by Georgia Power for general
corporate purposes, which may include the repayment or repurchase of its
securities.
DESCRIPTION OF THE SERIES A PREFERRED SECURITIES
GENERAL
All of the partnership interests in Georgia Power Capital, other than the
Series A Preferred Securities offered hereby, are owned directly or indirectly
by Georgia Power. The Limited Partnership Agreement (including the Action)
authorizes and creates the Series A Preferred Securities, which represent
limited partner interests in Georgia Power Capital ("Preferred Securities").
Other Preferred Securities may be issued from time to time in one or more series
as described in the accompanying Prospectus. The limited partner interests
represented by the Series A Preferred Securities will have a preference with
respect to dividends and amounts payable on redemption or liquidation over the
General Partner's interest in Georgia Power Capital. The Limited Partnership
Agreement does not permit the issuance of any Preferred Securities ranking, as
to participation in profits and dividends and in the assets of Georgia Power
Capital, senior or junior to the Series A Preferred Securities or the incurrence
of any indebtedness by Georgia Power Capital. The summary of certain material
terms and provisions of the Series A Preferred Securities set forth below does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the Limited Partnership Agreement (including the Action) which has
been filed as an exhibit to the Registration Statement of which this Prospectus
Supplement forms a part, and the Partnership Act.
S-5
<PAGE> 33
DIVIDENDS
Dividends on the Series A Preferred Securities will be cumulative, will
accrue from the date of initial issuance and will be payable monthly in arrears,
on the last day of each calendar month of each year, commencing ,
1994, when, as and if available and determined to be so payable by Georgia
Power, in its capacity as General Partner, except as otherwise described below.
Dividends in arrears for more than one month will bear interest monthly at the
rate per annum equal to the dividend rate for each month during the period of
arrearage. The term "dividends" as used herein includes any such interest
payable unless otherwise stated. The amount of dividends payable for any period
will be computed for any full monthly dividend period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full monthly
dividend period for which dividends are computed, dividends will be computed on
the basis of the actual number of days elapsed in such period.
The dividend rate will be adjusted quarterly. The rate for the initial
period from the date of initial issuance to , 1994 will be %
per annum, which is equivalent to $ per Series A Preferred Security per
annum. Thereafter, dividends on the Series A Preferred Securities will be
payable at the "Applicable Rate" (as defined below) from time to time in effect.
Georgia Power has the right under the Indenture (as hereinafter defined) to
extend the interest payment period from time to time on the Series A Junior
Subordinated Debentures to a period not exceeding 60 consecutive months and, as
a consequence, monthly dividends on the Series A Preferred Securities would be
deferred (but would continue to accrue with interest thereon) by Georgia Power
Capital during any such Extension Period. In the event that Georgia Power
exercises this right, Georgia Power may not declare or pay dividends on, or
purchase or acquire, any of its capital stock during such Extension Period.
Prior to the termination of any such Extension Period, Georgia Power may further
extend such Extension Period, provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 60 consecutive
months. Upon the termination of any Extension Period and the payment of all
amounts then due, Georgia Power may select a new Extension Period, subject to
the above requirements. Georgia Power and Georgia Power Capital currently
believe that the extension of an interest payment period is unlikely. See
"Description of the Series A Junior Subordinated Debentures -- Interest" and
" -- Option to Extend Interest Payment Period".
Dividends on the Series A Preferred Securities must be paid on the dates
payable to the extent that Georgia Power Capital has(i) funds legally available
for the payment of such dividends and (ii) cash on hand sufficient to permit
such payments. It is anticipated that Georgia Power Capital's earnings available
for distribution to the holders of the Series A Preferred Securities will be
limited to payments under the Series A Junior Subordinated Debentures evidencing
the loan by Georgia Power Capital of the proceeds from the issuance and sale of
the Series A Preferred Securities and the General Partnership Payment (as
hereinafter defined). See "Description of the Series A Junior Subordinated
Debentures". If Georgia Power does not make interest payments on the Series A
Junior Subordinated Debentures, Georgia Power Capital will not have funds to pay
dividends on the Series A Preferred Securities. The payment of dividends is
guaranteed by Georgia Power as and to the extent set forth under "Description of
the Guarantee" in the accompanying Prospectus. The Guarantee is a full and
unconditional guarantee from the time of issuance of the Series A Preferred
Securities, but does not apply to any payment of dividends except to the extent
Georgia Power Capital shall have sufficient cash on hand to permit such payment
and funds legally available therefor.
Dividends on the Series A Preferred Securities will be payable to the
holders thereof as they appear on the books and records of Georgia Power Capital
on the relevant record dates, which, as long as the Series A Preferred
Securities remain in book-entry-only form, will be one Business Day (as
hereinafter defined) prior to the relevant payment dates. Subject to any
applicable laws and regulations and the provisions of the Limited Partnership
Agreement, each such payment will be made as described under "Book-Entry-Only
Issuance -- The Depository Trust Company" below. In the event the Series A
Preferred Securities shall not continue to remain in book-entry-only form, the
General Partner shall have the right to select relevant record dates, which
shall be more than one Business Day prior to the relevant payment dates. In the
event that any date on which dividends are payable on the Series A Preferred
Securities is not a Business Day, then payment of the dividend payable on such
date will be made on the next
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succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. A "Business Day" shall mean any day other than a day on which
banking institutions in The City of New York are authorized or required by law
to close.
Except as provided below in this paragraph, the "Applicable Rate" for any
quarter (other than the initial period) will be equal to % of the Effective
Rate (as defined below), but not less than % per annum nor more than % per
annum. The "Effective Rate" for any quarter will be equal to the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate (each as defined below) for such quarter. In the event
that Georgia Power Capital determines in good faith that for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate or the Thirty Year Constant Maturity Rate cannot be determined for any
quarter, then the Effective Rate for such quarter will be equal to the
higher of whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Thirty Year Constant Maturity Rate can be determined
for any quarter, then the Effective Rate for such quarter will be equal to
whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Thirty Year Constant Maturity Rate can be determined for any
quarter, then the Effective Rate for the preceding quarter will be
continued for such quarter.
Except as described below in this paragraph, the "Treasury Bill Rate" for
each quarter will be the arithmetic average of the two most recent weekly per
annum market discount rates (or the one weekly per annum market discount rate,
if only one such rate is published during the relevant Calendar Period (as
defined below)) for three-month U.S. Treasury bills, as published weekly by the
Federal Reserve Board (as defined below) during the Calendar Period immediately
preceding the last ten calendar days immediately preceding the commencement of
the quarter for which the dividend rate on the Series A Preferred Securities is
being determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum market discount rate during any such Calendar Period,
then the Treasury Bill Rate for such quarter will be the arithmetic average of
the two most recent weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate is published during the
relevant Calendar Period) for three-month U.S. Treasury bills, as published
weekly during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by Georgia Power Capital. In the event
that a per annum market discount rate for three-month U.S. Treasury bills is not
published by the Federal Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such Calendar Period, then the
Treasury Bill Rate for such quarter will be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate is published during the relevant
Calendar Period) for all of the U.S. Treasury bills then having remaining
maturities of not less than 80 nor more than 100 days, as published during such
Calendar Period by the Federal Reserve Board, or if the Federal Reserve Board
does not publish such rates, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by Georgia Power Capital. In the event
that Georgia Power Capital determines in good faith that for any reason no such
U.S. Treasury bill rates are published as provided above during such Calendar
Period, then the Treasury Bill Rate for such quarter will be the arithmetic
average of the per annum market discount rates based upon the closing bids
during such Calendar Period for each of the issues of marketable non-interest
bearing U.S. Treasury securities with a remaining maturity of not less than 80
nor more than 100 days from the date of each such quotation, as chosen and
quoted daily for each Business Day in New York City (or less frequently if daily
quotations are not generally available) to Georgia Power Capital by at least
three recognized dealers in U.S. Government securities selected by Georgia Power
Capital. In the event that Georgia Power Capital determines in good faith that
for any reason Georgia Power Capital cannot determine the Treasury Bill Rate for
any quarter as provided above in this paragraph, the Treasury Bill Rate for such
quarter will be
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the arithmetic average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of marketable
interest bearing U.S. Treasury securities with a remaining maturity of not less
than 80 nor more than 100 days, as quoted daily for each business day in New
York City (or less frequently if daily quotations are not generally available)
to Georgia Power Capital by at least three recognized dealers in U.S. Government
securities selected by Georgia Power Capital.
Except as described below in this paragraph, the "Ten Year Constant
Maturity Rate" for each quarter will be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (as defined below) (or the one
weekly per annum Ten Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly by the Federal Reserve
Board during the Calendar Period immediately preceding the last ten calendar
days immediately preceding the commencement of the quarter for which the
dividend rate on the Series A Preferred Securities is being determined. In the
event that the Federal Reserve Board does not publish such a weekly per annum
Ten Year Average Yield during such Calendar Period, then the Ten Year Constant
Maturity Rate for such quarter will be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such yield is published during the relevant
Calendar Period), as published weekly during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or agency selected by Georgia
Power Capital. In the event that a per annum Ten Year Average Yield is not
published by the Federal Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such Calendar Period, then the Ten
Year Constant Maturity Rate for such quarter will be the arithmetic average of
the two most recent weekly per annum average yields to maturity (or the one
weekly per annum average yield to maturity, if only one such yield is published
during the relevant Calendar Period) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities (as
defined below)) then having remaining maturities of not less than eight nor more
than twelve years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board does not publish such yields, by
any Federal Reserve Bank or by any U.S. Government department or agency selected
by Georgia Power Capital. In the event that Georgia Power Capital determines in
good faith that for any reason Georgia Power Capital cannot determine the Ten
Year Constant Maturity Rate for any quarter as provided above in this paragraph,
then the Ten Year Constant Maturity Rate for such quarter will be the arithmetic
average of the per annum average yields to maturity based upon the closing bids
during such Calendar Period for each of the issues of actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities)
with a final maturity date not less than eight or more than twelve years from
the date of each such quotation, as quoted daily for each Business Day in New
York City (or less frequently if daily quotations are not generally available)
to Georgia Power Capital by at least three recognized dealers in U.S. Government
securities selected by Georgia Power Capital.
Except as described below in this paragraph, the "Thirty Year Constant
Maturity Rate" for each quarter will be the arithmetic average of the two most
recent weekly per annum Thirty Year Average Yields (as defined below) (or the
one weekly per annum Thirty Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately preceding the last
ten calendar days immediately preceding the commencement of the quarter for
which the dividend rate on the Series A Preferred Securities is being
determined. In the event that the Federal Reserve Board does not publish such a
weekly per annum Thirty Year Average Yield during such Calendar Period, then the
Thirty Year Constant Maturity Rate for such quarter will be the arithmetic
average of the two most recent weekly per annum Thirty Year Average Yields (or
the one weekly per annum Thirty Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government department
or agency selected by Georgia Power Capital. In the event that a per annum
Thirty Year Average Yield is not published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government department or agency during
such Calendar Period, then the Thirty Year Constant Maturity Rate for such
quarter will be the arithmetic average of the two most recent weekly per annum
average yields to maturity(or the one weekly per annum average yield to
maturity, if only one such yield is published during the relevant Calendar
Period) for all of the actively
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traded marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) then having remaining maturities of not less than
twenty-eight nor more than thirty years, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve Board does not
publish such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by Georgia Power Capital. In the event that
Georgia Power Capital determines in good faith that for any reason Georgia Power
Capital cannot determine the Thirty Year Constant Maturity Rate for any quarter
as provided above in this paragraph, then the Thirty Year Constant Maturity Rate
for such quarter will be the arithmetic average of the per annum average yields
to maturity based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not less
than twenty-eight nor more than thirty years from the date of each such
quotation, as quoted daily for each Business Day in New York City (or less
frequently if daily quotations are not generally available) to Georgia Power
Capital by at least three recognized dealers in U.S. Government securities
selected by Georgia Power Capital.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty
Year Constant Maturity Rate will each be rounded to the nearest one hundredth of
a percent.
The Applicable Rate with respect to each quarter (other than the initial
period) will be calculated as promptly as practicable by Georgia Power Capital
according to the appropriate method described above. Georgia Power Capital will
cause each Applicable Rate to be published in a newspaper of general circulation
in New York City (or, if such publication is not possible, to be published or
circulated to the public in such other manner as Georgia Power Capital may deem
appropriate) before the commencement of the quarter to which it applies and will
cause notice of such Applicable Rate to be given to The Depository Trust Company
(the "Depository" or "DTC"), New York, New York, the securities depository for
the Series A Preferred Securities. See "Book-Entry-Only Issuance -- The
Depository Trust Company" below.
As used above, the term "Calendar Period" means a period of fourteen
consecutive calendar days; the term "Federal Reserve Board" means the Board of
Governors of the Federal Reserve System; the term "Special Securities" means
securities which can, at the option of the holder, be surrendered at face value
in payment of any federal estate tax or which provide tax benefits to the holder
and are priced to reflect such tax benefits or which were originally issued at a
deep or substantial discount; the term "Ten Year Average Yield" means the
average yield to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities adjusted to constant maturities of ten years; and the
term "Thirty Year Average Yield" means the average yield to maturity for
actively traded marketable U.S. Treasury fixed interest rate securities adjusted
to constant maturities of thirty years. In November 1994, the weekly per annum
market discount rate for three-month U.S. Treasury bills, the Ten Year Average
Yield and the Thirty Year Average Yield were published weekly by the Federal
Reserve Board in "Federal Reserve Statistical Release H.15(519) -- Selected
Interest Rates".
CERTAIN RESTRICTIONS ON GEORGIA POWER CAPITAL
If dividends have not been paid in full on the Series A Preferred
Securities, Georgia Power Capital shall not:
(i) declare, pay, or set aside for payment, any dividends on any other
series of Preferred Securities, unless the amounts of any dividends
declared and paid on any other series of Preferred Securities and on the
Series A Preferred Securities are on a pro rata basis on the dates such
dividends are paid on such other series of Preferred Securities, so that
(x) the aggregate amount of dividends paid on the Series A
Preferred Securities bears to the aggregate amount of dividends paid on
such other series of Preferred Securities the same ratio as
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(y) the aggregate of all accrued and unpaid dividends in respect of
the Series A Preferred Securities bears to the aggregate of all accrued
and unpaid dividends in respect of such other series of Preferred
Securities; or
(ii) redeem, purchase or otherwise acquire any other Preferred
Securities;
until, in each case, such time as all accrued and unpaid dividends on the Series
A Preferred Securities shall have been paid in full for all dividend periods
terminating on or prior to, in the case of clause (i), such payment and, in the
case of clause (ii), the date of such redemption, purchase or acquisition.
As of the date of this Prospectus Supplement, there are no series of
Preferred Securities outstanding.
OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable, at the option of Georgia
Power Capital, in whole or in part, from time to time, on or after ,
1999, upon not less than 30 nor more than 60 days' notice, at the Redemption
Price. If Georgia Power Capital redeems Series A Preferred Securities in
accordance with the terms thereof, the Series A Junior Subordinated Debentures
will become due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so redeemed together
with any accrued and unpaid interest on such principal amount of Series A Junior
Subordinated Debentures. See "Description of the Series A Junior Subordinated
Debentures -- Mandatory Prepayment". In the event that fewer than all the
outstanding Series A Preferred Securities are to be so redeemed, the Series A
Preferred Securities to be redeemed will be selected as described under
"Book-Entry-Only Issuance -- The Depository Trust Company" below. If a partial
redemption would result in the delisting of the Series A Preferred Securities,
Georgia Power Capital may only redeem the Series A Preferred Securities in
whole.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
If a Tax Event or an Investment Company Event (each as hereinafter defined,
and each a "Special Event") shall occur and be continuing, the General Partner
shall elect to either (i) cause Georgia Power Capital to redeem the Series A
Preferred Securities in whole (and not in part), upon not less than 30 or more
than 60 days' notice at the Redemption Price, within 90 days following the
occurrence of such Special Event; provided that, if and as long as at the time
there is available to the General Partner the opportunity to eliminate, within
such 90-day period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar reasonable
such measure that has no adverse effect on Georgia Power Capital or Georgia
Power, the General Partner will pursue such measure in lieu of redemption, or
(ii) dissolve Georgia Power Capital and, after satisfaction of creditors as
required by the Partnership Act, cause Series A Junior Subordinated Debentures
to be distributed to the holders of the Series A Preferred Securities in
liquidation of Georgia Power Capital, within 90 days following the occurrence of
such Special Event. In the case of a Tax Event, the General Partner may, as an
alternative to electing to redeem the Series A Preferred Securities or
dissolving Georgia Power Capital, elect to cause the Series A Preferred
Securities to remain outstanding.
"Tax Event" means that Georgia Power shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application of
any such laws or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
effective or which interpretation or pronouncement is issued or announced or
which action is
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taken, in each case on or after the date of this Prospectus Supplement, there is
more than an insubstantial risk that (i) Georgia Power Capital is subject to
federal income tax with respect to interest accrued or received on the Series A
Junior Subordinated Debentures, (ii) Georgia Power Capital is subject to more
than a de minimis amount of taxes, duties or other governmental charges, or
(iii) interest payable by Georgia Power to Georgia Power Capital on the Series A
Junior Subordinated Debentures will not be deductible by Georgia Power for
federal income tax purposes.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that Georgia Power Capital is or will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), which Change in
1940 Act Law becomes effective on or after the date of this Prospectus
Supplement; provided that no Investment Company Event shall be deemed to have
occurred if the General Partner obtains a written opinion of nationally
recognized independent counsel to Georgia Power Capital experienced in practice
under the 1940 Act to the effect that the General Partner has successfully
issued an additional or supplemental irrevocable and unconditional guarantee or
taken such other steps as may be necessary so that, in the opinion of such
counsel, notwithstanding such Change in 1940 Act Law, Georgia Power Capital is
not required to be registered as an "investment company" within the meaning of
the 1940 Act. In case of any uncertainty regarding an Investment Company Event,
the good faith determination of the General Partner (based on the advice of
counsel) shall be conclusive.
After the date fixed for any distribution of Series A Junior Subordinated
Debentures, upon dissolution of Georgia Power Capital, (i) the Series A
Preferred Securities will no longer be deemed to be outstanding, (ii) DTC or its
nominee, as the record holder of the Series A Preferred Securities, will receive
a registered global certificate or certificates representing the Series A Junior
Subordinated Debentures to be delivered upon such distribution and (iii) any
certificates representing Series A Preferred Securities not held by DTC or its
nominee will be deemed to represent Series A Junior Subordinated Debentures
having a principal amount equal to the stated liquidation preference of such
Series A Preferred Securities, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid dividends on such Series A Preferred
Securities, until such certificates are presented to Georgia Power or its agent
for transfer or reissuance.
There can be no assurance as to the market prices for the Series A
Preferred Securities or the Series A Junior Subordinated Debentures which may be
distributed in exchange for Series A Preferred Securities were a dissolution and
liquidation of Georgia Power Capital to occur. Accordingly, the Series A
Preferred Securities which an investor may purchase, or the Series A Junior
Subordinated Debentures which the investor may receive, may trade at a discount
to the price which the investor paid to purchase the Series A Preferred
Securities offered hereby.
MANDATORY REDEMPTION
Upon the repayment of the Series A Junior Subordinated Debentures, whether
at maturity or upon redemption or otherwise, the proceeds from such repayment
will be applied to redeem the Series A Preferred Securities, in whole, upon not
less than 30 nor more than 60 days' notice, at the Redemption Price.
REDEMPTION PROCEDURES
Georgia Power Capital may not redeem fewer than all the outstanding Series
A Preferred Securities unless all accrued and unpaid dividends have been paid on
all Series A Preferred Securities for all monthly dividend periods terminating
on or prior to the date of redemption.
If Georgia Power Capital gives a notice of redemption in respect of Series
A Preferred Securities (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, Georgia Power Capital will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemp-
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tion Price and will give DTC irrevocable instructions and authority to pay the
Redemption Price to the holders of the Series A Preferred Securities. See
"Book-Entry-Only Issuance -- The Depository Trust Company". If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of holders of such Series A Preferred
Securities so called for redemption will cease, except the right of the holders
of such Series A Preferred Securities to receive the Redemption Price, but
without interest on such Redemption Price. In the event that any date fixed for
redemption of Series A Preferred Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. In the event that payment of the Redemption Price in respect of
Series A Preferred Securities is improperly withheld or refused and not paid
either by Georgia Power Capital or by Georgia Power pursuant to the Guarantee
described under "Description of the Guarantee" in the accompanying Prospectus,
dividends on such Series A Preferred Securities will continue to accrue at the
then applicable rate, from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), Georgia Power or any of its
subsidiaries, including Georgia Power Capital, may at any time and from time to
time purchase outstanding Series A Preferred Securities by tender, in the open
market or by private agreement. If Georgia Power Capital purchases and cancels
any Series A Preferred Securities, the Series A Junior Subordinated Debentures
may be repaid in a principal amount equal to the aggregate stated liquidation
preference of the Series A Preferred Securities so purchased, together with any
accrued and unpaid interest on such principal amount of Series A Junior
Subordinated Debentures. See "Description of Series A Junior Subordinated
Debentures -- Optional Prepayment".
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary dissolution, winding up or
termination of Georgia Power Capital, the holders of the Series A Preferred
Securities at the time will be entitled to receive out of the assets of Georgia
Power Capital available for distribution to partners after satisfaction of
liabilities of creditors as required by the Partnership Act, before any
distribution of assets is made to the General Partner, but together with the
holders of every other series of Preferred Securities outstanding, an amount
equal to, in the case of holders of Series A Preferred Securities, the aggregate
of the stated liquidation preference of $25 per Series A Preferred Security plus
accrued and unpaid dividends thereon to the date of payment (such amount being
the "Liquidation Distribution"), unless, in connection with such dissolution,
winding up or termination, Series A Junior Subordinated Debentures in an
aggregate principal amount equal to the stated liquidation preference of such
Series A Preferred Securities, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid dividends on such Series A Preferred
Securities, shall be distributed on a pro rata basis to the holders of the
Series A Preferred Securities. Georgia Power, as the General Partner, has agreed
to pay the costs and expenses of Georgia Power Capital.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because Georgia Power Capital has insufficient assets available to
pay in full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on any other series of Preferred Securities, then the
amounts payable directly by Georgia Power Capital on the Series A Preferred
Securities and on such other series of Preferred Securities shall be paid in
cash or in kind on a pro rata basis, so that
(x) the aggregate amount paid in respect of the Liquidation
Distribution bears to the aggregate amount paid as liquidation
distributions on the other series of Preferred Securities the same ratio as
(y) the aggregate Liquidation Distribution bears to the aggregate
maximum liquidation distributions on the other series of Preferred
Securities.
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Pursuant to the Limited Partnership Agreement, Georgia Power Capital shall
be dissolved and its affairs shall be wound up upon the occurrence of any of the
following events: (i) on December 31, 2093, the expiration of the term of
Georgia Power Capital, (ii) upon the bankruptcy of the General Partner, (iii)
upon the assignment by the General Partner of its entire interest in Georgia
Power Capital when the assignee is not admitted to Georgia Power Capital as a
general partner of Georgia Power Capital in accordance with the Limited
Partnership Agreement, or the filing of a certificate of dissolution or its
equivalent with respect to the General Partner, or the revocation of the General
Partner's charter and the expiration of 90 days after the date of notice to the
General Partner of revocation without a reinstatement of its charter, or if any
other event occurs (other than the bankruptcy of the General Partner) that
causes the General Partner to cease to be a general partner of Georgia Power
Capital under the Partnership Act, unless the business of Georgia Power Capital
is continued in accordance with the Partnership Act, (iv) in accordance with the
provisions of the Series A Preferred Securities, (v) upon the entry of a decree
of judicial dissolution or (vi) upon the written consent of all partners of
Georgia Power Capital.
MERGER, CONSOLIDATION OR AMALGAMATION OF GEORGIA POWER CAPITAL
Georgia Power Capital may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any corporation or other body, except as
described below. Georgia Power Capital may, without the consent of the holders
of the Series A Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by a limited partnership, limited liability company or
trust organized as such under the laws of any state of the United States of
America provided that (i) such successor entity either (x) expressly assumes all
of the obligations of Georgia Power Capital under the Series A Preferred
Securities or (y) substitutes for the Series A Preferred Securities other
securities having substantially the same terms as the Series A Preferred
Securities (the "Successor Securities") so long as the Successor Securities
rank, with respect to participation in the profits and dividends, and in the
assets, of the successor entity, at least as high as the Series A Preferred
Securities rank with respect to participation in the profits and dividends, and
in the assets, of Georgia Power Capital, (ii) Georgia Power expressly
acknowledges such successor entity as the holder of the Series A Junior
Subordinated Debentures, (iii) the Series A Preferred Securities or any
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Series A Preferred Securities are then listed, (iv)
such merger, consolidation, amalgamation or replacement does not cause the
Series A Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the powers, preferences and other special rights of the holders of the
Series A Preferred Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the holders'
interest in the new entity), (vi) such successor entity has a purpose
substantially identical to that of Georgia Power Capital, (vii) prior to such
merger, consolidation, amalgamation or replacement, Georgia Power has received
an opinion of nationally recognized independent counsel to Georgia Power Capital
experienced in such matters to the effect that (x) such successor entity will be
treated as a partnership for federal income tax purposes, (y) following such
merger, consolidation, amalgamation or replacement, Georgia Power Capital and
such successor entity will be in compliance with the 1940 Act without
registering thereunder as an investment company and (z) such merger,
consolidation, amalgamation or replacement will not adversely affect the limited
liability of the holders of the Series A Preferred Securities and (viii) Georgia
Power guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee.
VOTING RIGHTS
Except as provided below and under "Description of the
Guarantee -- Amendments and Assignment" in the accompanying Prospectus and as
otherwise required by law and the Limited Partnership Agreement, the holders of
the Series A Preferred Securities will have no voting rights.
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If (i) arrearages on dividends on the Series A Preferred Securities shall
exist for 18 consecutive monthly dividend periods; (ii) an Event of Default (as
defined in the Indenture) occurs and is continuing on the Series A Junior
Subordinated Debentures; or (iii) Georgia Power is in default on any of its
payment obligations under the Guarantee (as described under "Description of the
Guarantee -- Certain Covenants of Georgia Power" in the accompanying
Prospectus), then the holders of the Series A Preferred Securities, together
with the holders of any other series of Preferred Securities having the right to
vote for the appointment of a special representative of Georgia Power Capital
and the limited partners (a "Special Representative"), in such event, acting as
a single class, will be entitled by the vote of a majority in aggregate
liquidation preference of such holders to appoint and authorize a Special
Representative to enforce Georgia Power Capital's creditor rights under the
Series A Junior Subordinated Debentures, to enforce the rights of the holders of
the Series A Preferred Securities under the Guarantee and to enforce the rights
of the holders of the Series A Preferred Securities to receive dividends on the
Series A Preferred Securities, subject in each case to Georgia Power's retaining
all rights under the Indenture as described in the next following paragraph. The
Special Representative shall not, by virtue of acting in such capacity, be
admitted as a general partner in Georgia Power Capital or otherwise be deemed to
be a general partner in Georgia Power Capital and shall have no liability for
the debts, obligations or liabilities of Georgia Power Capital. Not later than
30 days after such right to appoint a Special Representative arises, the General
Partner will convene a meeting for the purpose of appointing a Special
Representative. If the General Partner fails to convene such meeting within such
30-day period, the holders of 10% in liquidation preference of the outstanding
Preferred Securities will be entitled to convene such meeting. The provisions of
the Limited Partnership Agreement relating to the convening and conduct of the
meetings of the partners will apply with respect to any such meeting. In the
event that, at any such meeting, holders of less than a majority in aggregate
liquidation preference of Preferred Securities entitled to vote for the
appointment of a Special Representative vote for such appointment, no Special
Representative shall be appointed. Any Special Representative appointed shall
cease to be a Special Representative of Georgia Power Capital and the limited
partners if Georgia Power Capital (or Georgia Power pursuant to the Guarantee)
shall have paid in full all accrued and unpaid dividends on the Preferred
Securities or such default or breach, as the case may be, shall have been cured,
and Georgia Power, in its capacity as the General Partner, shall continue the
business of Georgia Power Capital without dissolution.
Notwithstanding the appointment of any such Special Representative, Georgia
Power shall continue as General Partner and shall retain all rights under the
Indenture, including the right to extend the interest payment period from time
to time to a period not exceeding 60 consecutive months as provided under
"Description of the Series A Junior Subordinated Debentures -- Option to Extend
Interest Payment Period".
If any proposed amendment to the Limited Partnership Agreement provides
for, or the General Partner otherwise proposes to effect, (i) any action that
would adversely affect the powers, preferences or special rights of the Series A
Preferred Securities, whether by way of amendment to the Limited Partnership
Agreement or otherwise (including, without limitation, the authorization or
issuance of any limited partner interests in Georgia Power Capital ranking, as
to participation in the profits or dividends or in the assets of Georgia Power
Capital, senior to the Series A Preferred Securities), or (ii) the dissolution,
winding up or termination of Georgia Power Capital, other than (x) in connection
with the distribution of Series A Junior Subordinated Debentures upon the
occurrence of a Special Event or (y) as described under "Merger, Consolidation
or Amalgamation of Georgia Power Capital" above, then the holders of outstanding
Series A Preferred Securities will be entitled to vote on such amendment or
proposal of the General Partner (but not on any other amendment or proposal) as
a class with all other holders of series of Preferred Securities similarly
affected, and such amendment or proposal shall not be effective except with the
approval of the holders of 66 2/3% in liquidation preference of such outstanding
Preferred Securities having a right to vote on the matter; provided, however,
that no such approval shall be required if the dissolution, winding up or
termination of Georgia Power Capital is proposed or initiated upon the
initiation of proceedings, or after proceedings have been initiated, for the
dissolution, winding up, liquidation or termination of Georgia Power.
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The rights attached to the Series A Preferred Securities will be deemed not
to be adversely affected by the creation or issue of, and no vote will be
required for the creation or issue of, any further limited partner interests of
Georgia Power Capital ranking pari passu with the Series A Preferred Securities
with regard to participation in the profits or dividends or in the assets of
Georgia Power Capital. Holders of Series A Preferred Securities have no
preemptive rights.
So long as any Series A Junior Subordinated Debentures are held by Georgia
Power Capital, the General Partner shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series, (ii) waive any past default that is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Series A Junior Subordinated Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture or the Series A Junior Subordinated Debentures, where such consent
shall be required, without, in each case, obtaining the prior approval of the
holders of at least 66 2/3% in liquidation preference of all series of Preferred
Securities who would be affected thereby if their Preferred Securities were to
be exchanged for Junior Subordinated Debentures, acting as a single class;
provided, however, that where a consent under the Indenture would require the
consent of each holder affected thereby, no such consent shall be given by the
General Partner without the prior consent of each holder of all series of
Preferred Securities affected thereby. The General Partner shall not revoke any
action previously authorized or approved by a vote of any series of Preferred
Securities. The General Partner shall notify all holders of the Series A
Preferred Securities of any notice of default received from the Trustee with
respect to the Series A Junior Subordinated Debentures.
Any required approval of holders of Series A Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for such
purpose, at a meeting of all of the partners in Georgia Power Capital or
pursuant to written consent. Georgia Power Capital will cause a notice of any
meeting at which holders of Series A Preferred Securities are entitled to vote,
or of any matter upon which action by written consent of such holders is to be
taken, to be mailed to each holder of record of Series A Preferred Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the holders of Series A Preferred Securities will be
required for Georgia Power Capital to redeem and cancel Series A Preferred
Securities in accordance with the Limited Partnership Agreement.
Notwithstanding that holders of Series A Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Series A Preferred Securities and any other series of Preferred Securities that
are entitled to vote or consent with such Series A Preferred Securities as a
single class at such time that are owned by Georgia Power or by any entity more
than 50% of which is owned by Georgia Power, either directly or indirectly,
shall not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
Holders of the Series A Preferred Securities will have no rights to remove
or replace the General Partner.
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as securities depository for the Series A Preferred
Securities. The Series A Preferred Securities will be issued only as fully
registered securities registered in the name of Cede & Co. (DTC's nominee). One
or more fully registered global Series A Preferred Security certificates will be
issued, representing in the aggregate the total number of Series A Preferred
Securities, and will be deposited with DTC.
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DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc. (the "New York
Stock Exchange"), the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Securities and
Exchange Commission.
Purchases of Series A Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a credit for the
Series A Preferred Securities on DTC's records. The ownership interest of each
actual purchaser of each Series A Preferred Security ("Beneficial Owner") is in
turn to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased Series A Preferred Securities. Transfers of ownership interests in the
Series A Preferred Securities are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in Series A
Preferred Securities, except in the event that use of the book-entry system for
the Series A Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Series A
Preferred Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Series A Preferred Securities are credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Series A Preferred Securities are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such series to
be redeemed.
Although voting with respect to the Series A Preferred Securities is
limited, in those instances in which a vote is required, neither DTC nor Cede &
Co. itself will consent or vote with respect to Series A Preferred Securities.
Under its usual procedures, DTC would mail an Omnibus Proxy to Georgia Power
Capital as soon as possible after the record date. The Omnibus Proxy assigns
Cede & Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Series A Preferred Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Dividend payments on the Series A Preferred Securities will be made by
Georgia Power Capital to DTC. DTC's practice is to credit Direct Participants'
accounts on the relevant payment date in accordance with their respective
holdings shown on DTC's records unless DTC has reason to believe that it will
not receive payments on such payment date. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices and will be the responsibility of such Participants and not of DTC,
Georgia Power Capital or Georgia Power, subject to any statutory or
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regulatory requirements as may be in effect from time to time. Payment of
dividends to DTC is the responsibility of Georgia Power Capital, disbursement of
such payments to Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to Georgia Power Capital. Under such circumstances, in the event that a
successor securities depository is not obtained, Series A Preferred Security
certificates are required to be printed and delivered. Additionally, Georgia
Power Capital (with the consent of Georgia Power) may decide to discontinue use
of the system of book-entry transfers through DTC (or a successor depository).
In that event, certificates for the Series A Preferred Securities will be
printed and delivered. In each of the above circumstances, the General Partner
will appoint a paying agent with respect to the Series A Preferred Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Georgia Power Capital and Georgia Power
believe to be reliable, but Georgia Power Capital and Georgia Power take no
responsibility for the accuracy thereof.
REGISTRAR AND TRANSFER AGENT
In the event the book-entry system for the Series A Preferred Securities is
discontinued, it is anticipated that Southern Company Services, Inc., or one of
its affiliates, will act as registrar and transfer agent for the Series A
Preferred Securities.
Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of Georgia Power Capital, but upon payment (with
the giving of such indemnity as Georgia Power Capital or Georgia Power may
require) in respect of any tax or other governmental charges that may be imposed
in relation to it.
Georgia Power Capital will not be required to register or cause to be
registered the transfer of Series A Preferred Securities after such Series A
Preferred Securities have been called for redemption.
SINKING FUND; OTHER RIGHTS
The holders of the Series A Preferred Securities will not be entitled to
the benefit of any sinking or purchase fund and will not have any pre-emptive or
conversion rights.
MISCELLANEOUS
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange. See "Underwriting".
The General Partner is authorized and directed to conduct its affairs and
to operate Georgia Power Capital in such a way that Georgia Power Capital will
not be deemed to be an "investment company" required to be registered under the
1940 Act or taxed as a corporation for federal income tax purposes and so that
the Series A Junior Subordinated Debentures will be treated as indebtedness of
Georgia Power for federal income tax purposes. In this connection, the General
Partner is authorized to take any action, not inconsistent with applicable law,
the certificate of limited partnership of Georgia Power Capital or the Limited
Partnership Agreement, that the General Partner determines in its discretion to
be necessary or desirable for such purposes, as long as such action does not
adversely affect the interests of the holders of the Series A Preferred
Securities.
DESCRIPTION OF THE SERIES A JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of specific terms of the Series A Junior
Subordinated Debentures evidencing the loan by Georgia Power Capital to Georgia
Power of (i) the proceeds of the issuance and sale of the Series A Preferred
Securities and (ii) the General Partner's capital contribution with respect to
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the Series A Preferred Securities (the "General Partnership Payment"), which
will be an amount equal to at least 3% of the total capital contributions to
Georgia Power Capital. This description supplements the description of the
general terms and provisions of the Junior Subordinated Debentures set forth in
the accompanying Prospectus under the caption "Description of the Junior
Subordinated Debentures". The following description does not purport to be
complete and is qualified in its entirety by reference to the description in the
accompanying Prospectus and the Indenture, dated as of , 1994,
between Georgia Power and Trust Company Bank, as Trustee (the "Indenture") which
has been filed as an exhibit to the Registration Statement of which this
Prospectus Supplement forms a part.
Under certain circumstances involving the dissolution of Georgia Power
Capital following the occurrence of a Special Event, Series A Junior
Subordinated Debentures may be distributed to the holders of the Series A
Preferred Securities in liquidation of Georgia Power Capital. See "Description
of the Series A Preferred Securities -- Special Event Redemption or
Distribution".
GENERAL
The Series A Junior Subordinated Debentures will be issued as a series of
Junior Subordinated Debentures under the Indenture. The Series A Junior
Subordinated Debentures will be limited in aggregate principal amount to
approximately $ million, such amount being the sum of the aggregate stated
liquidation preference of the Series A Preferred Securities and the General
Partnership Payment.
The entire principal amount of the Series A Junior Subordinated Debentures
will become due and payable, together with any accrued and unpaid interest
thereon, including Additional Interest (as hereinafter defined), if any, on
, 2024.
The Series A Junior Subordinated Debentures, if distributed to holders of
Series A Preferred Securities in dissolution, will initially be so issued as a
Global Security (as defined below). As described herein, under certain limited
circumstances Series A Junior Subordinated Debentures may be issued in
certificated form in exchange for a Global Security. See "Book-Entry and
Settlement" below. In the event that Series A Junior Subordinated Debentures are
issued in certificated form, such Series A Junior Subordinated Debentures will
be in denominations of $25 and integral multiples thereof and may be transferred
or exchanged at the offices described below.
Payments on Series A Junior Subordinated Debentures issued as a Global
Security will be made to DTC, as the depository for the Series A Junior
Subordinated Debentures. In the event Series A Junior Subordinated Debentures
are issued in certificated form, principal and interest will be payable, the
transfer of the Series A Junior Subordinated Debentures will be registrable, and
Series A Junior Subordinated Debentures will be exchangeable for Series A Junior
Subordinated Debentures of other denominations of a like aggregate principal
amount, at the corporate trust office of the Trustee in Atlanta, Georgia;
provided that payment of interest may be made at the option of Georgia Power by
check mailed to the address of the persons entitled thereto.
If the Series A Junior Subordinated Debentures are distributed to the
holders of Series A Preferred Securities upon the dissolution of Georgia Power
Capital, Georgia Power will use its best efforts to list the Series A Junior
Subordinated Debentures on the New York Stock Exchange or on such other exchange
as the Series A Preferred Securities are then listed.
MANDATORY PREPAYMENT
If Georgia Power Capital redeems Series A Preferred Securities in
accordance with the terms thereof, the Series A Junior Subordinated Debentures
will become due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so redeemed,
together with any accrued and unpaid interest thereon, including Additional
Interest, if any. Any payment pursuant to this provision shall be made prior to
12:00 noon, New York City time, on the date of such redemption or at such other
time on such earlier date as the parties thereto shall agree. The Series A
Junior
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Subordinated Debentures are not entitled to the benefit of any sinking fund or,
except as set forth above,
any other provision for mandatory prepayment.
OPTIONAL REDEMPTION
Georgia Power shall have the right to redeem the Series A Junior
Subordinated Debentures, in whole or in part, from time to time, on or after
, 1999, upon not less than 30 nor more than 60 days' notice, at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest, including Additional Interest, if any, to the
redemption date. If Georgia Power or Georgia Power Capital purchases Series A
Preferred Securities by tender, in the open market or by private agreement,
Georgia Power shall have the right to redeem Series A Junior Subordinated
Debentures, in a principal amount not to exceed the aggregate stated liquidation
preference of the Series A Preferred Securities so purchased, together with any
accrued and unpaid interest thereon, including Additional Interest, if any, to
the redemption date.
INTEREST
Each Series A Junior Subordinated Debenture shall bear interest at an
interest rate that will be adjusted quarterly. The rate for the initial period
from the date of initial issuance to , 1994 will be % per
annum. Thereafter, interest on the Series A Junior Subordinated Debentures will
be payable at the "Applicable Rate" in effect from time to time. The Applicable
Rate for any quarter will be equal to % of the highest of the "Treasury
Bill Rate", the "Ten Year Constant Maturity Rate" and the "Thirty Year Constant
Maturity Rate" determined in advance of such quarter, but not less than %
per annum nor greater than % per annum. The "Treasury Bill Rate", the
"Ten Year Constant Maturity Rate" and the "Thirty Year Constant Maturity Rate"
with respect to any quarter shall be determined by Georgia Power Capital in the
same manner as, and consistent with its determinations with respect to, quarters
for the purposes of dividends payable on the Series A Preferred Securities. See
"Description of the Series A Preferred Securities -- Dividends".
Such interest is payable monthly in arrears on the last day of each
calendar month of each year (each, an "Interest Payment Date"), commencing
, 1994, to the person in whose name such Series A Junior
Subordinated Debenture is registered, subject to certain exceptions, at the
close of business on the Business Day next preceding such Interest Payment Date.
In the event the Series A Junior Subordinated Debentures shall not continue to
remain in book-entry-only form, Georgia Power shall have the right to select
record dates which shall be more than one Business Day prior to the Interest
Payment Date.
The amount of interest payable for any period will be computed for any full
monthly interest period on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full monthly interest period for which
interest is computed, interest will be computed on the basis of the actual
number of days elapsed in such period. In the event that any date on which
interest is payable on the Series A Junior Subordinated Debentures is not a
Business Day, then payment of the interest payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as Georgia Power is not in default in the payment of interest on
any series of Junior Subordinated Debentures issued under the Indenture, Georgia
Power shall have the right at any time during the term of the Series A Junior
Subordinated Debentures to extend the interest payment period from time to time
to a period not exceeding 60 consecutive months (the "Extension Period"), at the
end of which Extension Period Georgia Power shall pay all interest then accrued
and unpaid (together with interest thereon at the rate specified for the Series
A Junior Subordinated Debentures to the extent
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permitted by applicable law); provided that, during any such Extension Period,
Georgia Power shall not declare or pay any dividend on, or purchase, acquire or
make a liquidation payment with respect to, any of its capital stock, or make
any guarantee payments with respect thereto; and provided further that any such
extended interest payment period may only be selected with respect to the Series
A Junior Subordinated Debentures if an extended interest payment period of
identical duration is simultaneously selected for all Junior Subordinated
Debentures then outstanding under the Indenture. Prior to the termination of any
such Extension Period, Georgia Power may further extend the interest payment
period, provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 60 consecutive months. Upon the
termination of any Extension Period and the payment of all amounts then due,
Georgia Power may select a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof. The failure by Georgia Power to make interest
payments during an Extension Period would not constitute a default or an event
of default under Georgia Power's currently outstanding indebtedness. If Georgia
Power Capital shall be the sole holder of the Series A Junior Subordinated
Debentures, Georgia Power shall give Georgia Power Capital notice of its
selection of such Extension Period one Business Day prior to the earlier of (i)
the next succeeding date the dividends on the Series A Preferred Securities are
payable or (ii) the date Georgia Power Capital is required to give notice to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Series A Preferred Securities of the record date or the date such
dividend is payable, but in any event not less than one Business Day prior to
such record date. Georgia Power shall cause Georgia Power Capital to give notice
of Georgia Power's selection of such Extension Period to the holders of the
Series A Preferred Securities. If Georgia Power Capital shall not be the sole
holder of the Series A Junior Subordinated Debentures, Georgia Power shall give
the holders of the Series A Junior Subordinated Debentures notice of its
selection of such Extension Period ten Business Days prior to the earlier of (i)
the next succeeding Interest Payment Date or (ii) the date Georgia Power is
required to give notice to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Series A Junior Subordinated
Debentures of the record or payment date of such related interest payment, but
in any event not less than two Business Days prior to such record date. Georgia
Power and Georgia Power Capital currently believe that the extension of an
interest payment period is unlikely.
ADDITIONAL INTEREST
If at any time Georgia Power Capital shall be required to pay any interest
on dividends in arrears in respect of the Series A Preferred Securities pursuant
to the terms thereof, then Georgia Power will pay as interest to Georgia Power
Capital as the holder of the Series A Junior Subordinated Debentures
("Additional Interest") an amount equal to such interest on dividends in
arrears.
SET-OFF
Notwithstanding anything to the contrary in the Indenture, Georgia Power
shall have the right to set-off any payment it is otherwise required to make
thereunder with and to the extent Georgia Power has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee.
EVENTS OF DEFAULT
In the case that any Event of Default (as defined in the Indenture and as
described in the accompanying Prospectus) shall occur and be continuing, Georgia
Power Capital will have the right to declare the principal of and the interest
on the Series A Junior Subordinated Debentures (including any Additional
Interest) and any other amounts payable under the Indenture to be forthwith due
and payable and to enforce its other rights as a creditor with respect to the
Series A Junior Subordinated Debentures. See "Enforcement of Certain Rights by
Special Representative" below for a discussion of certain rights available to
holders of the Series A Preferred Securities upon the occurrence of an Event of
Default.
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ENFORCEMENT OF CERTAIN RIGHTS BY SPECIAL REPRESENTATIVE
If (i) arrearages on dividends on the Series A Preferred Securities shall
exist for 18 consecutive monthly dividend periods; (ii) an Event of Default
occurs and is continuing on the Series A Junior Subordinated Debentures; or
(iii) Georgia Power is in default on any of its payment or other obligations
under the Guarantee, under the terms of the Series A Preferred Securities, the
holders of outstanding Series A Preferred Securities will have the rights
referred to under "Description of the Series A Preferred Securities -- Voting
Rights", including the right to appoint a Special Representative, which Special
Representative shall be authorized to exercise Georgia Power Capital's right to
accelerate the principal amount of the Series A Junior Subordinated Debentures
upon an Event of Default and to enforce Georgia Power Capital's other creditor
rights under the Series A Junior Subordinated Debentures. Notwithstanding the
appointment of any such Special Representative, Georgia Power shall continue as
General Partner and shall retain all rights under the Indenture, including the
right to extend the interest payment period from time to time to a period not
exceeding 60 consecutive months, and any such extension would not constitute a
default under the Indenture or enable a holder of Series A Preferred Securities
to require the payment of a dividend that has not theretofore been declared.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Series A Preferred Securities in connection
with the dissolution of Georgia Power Capital as a result of the occurrence of a
Special Event, the Series A Junior Subordinated Debentures will be issued in the
form of one or more global certificates (each, a "Global Security") registered
in the name of the nominee of DTC. Except under the limited circumstances
described below, Series A Junior Subordinated Debentures represented by the
Global Security will not be exchangeable for, and will not otherwise be issuable
as, Series A Junior Subordinated Debentures in definitive form. The Global
Securities described above may not be transferred except by DTC to a nominee of
DTC or by a nominee of DTC to DTC or another nominee of DTC or to a successor
depository or its nominee.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Series A Junior
Subordinated Debentures in definitive form and will not be considered the
Holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Series A Junior Subordinated
Debentures shall be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of DTC or its nominee or to
a successor depository or its nominee. Accordingly, each beneficial owner must
rely on the procedures of DTC and, if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest, to
exercise any rights of a Holder under the Indenture.
THE DEPOSITORY
DTC will act as security depository for the Series A Junior Subordinated
Debentures. For a description of DTC and the specific terms of the depository
arrangements, see "Description of the Series A Preferred
Securities -- Book-Entry-Only Issuance -- The Depository Trust Company". As of
the date of this Prospectus Supplement, the description therein of DTC's
book-entry system and DTC's practices as they relate to purchases, transfers,
notices and payments with respect to the Series A Preferred Securities apply in
all material respects to any debt obligations represented by one or more Global
Securities held by DTC.
Neither Georgia Power, the Trustee, any paying agent nor any other agent of
Georgia Power or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security for such Series A Junior Subordinated
Debentures or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
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DISCONTINUANCE OF THE DEPOSITORY'S SERVICES
A Global Security shall be exchangeable for Series A Junior Subordinated
Debentures registered in the names of persons other than DTC or its nominee only
if (i) DTC notifies Georgia Power that it is unwilling or unable to continue as
a depository for such Global Security and no successor depository shall have
been appointed, or if any time DTC ceases to be a clearing agency registered
under the Exchange Act at a time when DTC is required to be so registered to act
as such depository, (ii) Georgia Power in its sole discretion determines that
such Global Security shall be so exchangeable or (iii) there shall have occurred
an Event of Default with respect to such Series A Junior Subordinated
Debentures. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Series A Junior Subordinated Debentures
registered in such names as the Depository shall direct. It is expected that
such instructions will be based upon directions received by the Depository from
its Participants with respect to ownership of beneficial interests in such
Global Security.
MISCELLANEOUS
For restrictions on certain actions of the General Partner with respect to
Series A Junior Subordinated Debentures held by Georgia Power Capital, see
"Description of the Series A Preferred Securities -- Voting Rights".
RELATIONSHIP BETWEEN THE SERIES A PREFERRED SECURITIES, THE SERIES A JUNIOR
SUBORDINATED DEBENTURES AND THE GUARANTEE
As long as payments of interest and other payments are made when due on the
Series A Junior Subordinated Debentures, such payments will be sufficient to
cover dividends and other payments due on the Series A Preferred Securities
primarily because (i) the aggregate principal amount of Series A Junior
Subordinated Debentures will be equal to the sum of the aggregate stated
liquidation preference of the Series A Preferred Securities and the General
Partnership Payment; (ii) the interest rate and interest and other payment dates
on the Series A Junior Subordinated Debentures will match the dividend rate and
dividend and other payment dates for the Series A Preferred Securities; (iii)
the Limited Partnership Agreement provides that Georgia Power, as General
Partner, shall pay for all, and Georgia Power Capital shall not be obligated to
pay, directly or indirectly, for any, costs and expenses of Georgia Power
Capital, including any income taxes, duties and other governmental charges, and
all costs and expenses with respect thereto, to which Georgia Power Capital may
become subject, except for United States withholding taxes; and (iv) the Limited
Partnership Agreement further provides that the General Partner shall not cause
or permit Georgia Power Capital, among other things, to engage in any activity
that is not consistent with the limited purposes of Georgia Power Capital.
Payments of dividends and other payments due on the Series A Preferred
Securities are guaranteed by Georgia Power as and to the extent set forth under
"Description of the Guarantee" in the accompanying Prospectus. If Georgia Power
does not make interest payments on the Series A Junior Subordinated Debentures,
Georgia Power Capital will not have funds to pay dividends on the Series A
Preferred Securities. The Guarantee is a full and unconditional guarantee from
the time of issuance of the Series A Preferred Securities, but does not apply to
any payment of dividends except to the extent Georgia Power Capital shall have
sufficient cash on hand to permit such payment and funds legally available
therefor.
If Georgia Power fails to make interest or other payments on the Series A
Junior Subordinated Debentures when due, the Limited Partnership Agreement
provides a mechanism whereby the holders of the Series A Preferred Securities
may appoint a Special Representative to enforce the rights of Georgia Power
Capital under the Series A Junior Subordinated Debentures. The Limited
Partnership Agreement also provides, and Georgia Power, under the Guarantee,
acknowledges, that a Special Representative may be appointed to enforce the
Guarantee if Georgia Power is in default on any of its payment obligations under
the Guarantee. In addition, if the General Partner or the Special Representative
fails to enforce the Guarantee, a holder of a Series A Preferred Security may
institute a legal proceeding directly
S-22
<PAGE> 50
against Georgia Power to enforce its rights under the Guarantee without first
instituting a legal proceeding against Georgia Power Capital or any other person
or entity.
Georgia Power and Georgia Power Capital believe that the above mechanisms
and obligations, taken together, constitute a full and unconditional guarantee
by Georgia Power of payments due on the Series A Preferred Securities.
If a Special Event shall occur and be continuing, the General Partner may
elect to dissolve Georgia Power Capital, and to cause Series A Junior
Subordinated Debentures to be distributed in exchange for the outstanding Series
A Preferred Securities. The Series A Preferred Securities represent limited
partner interests in Georgia Power Capital, a limited partnership which exists
for the sole purpose of issuing its partnership interests and lending the
proceeds thereof to Georgia Power, while the Series A Junior Subordinated
Debentures represent indebtedness of Georgia Power, an electric public utility
company (see "Georgia Power Company").
Upon any voluntary or involuntary dissolution, winding up or termination of
Georgia Power Capital, the holders of Series A Preferred Securities will be
entitled to receive, out of assets legally available for distribution to
partners, the Liquidation Distribution in cash or Series A Junior Subordinated
Debentures and will be entitled to the benefits of the Guarantee with respect to
any such distribution. See "Description of the Series A Preferred
Securities -- Liquidation Distribution Upon Dissolution". Upon any voluntary or
involuntary liquidation or bankruptcy of Georgia Power, the holders of Series A
Junior Subordinated Debentures would be subordinated creditors of Georgia Power,
subordinated in right of payment to all Senior Indebtedness, but entitled to
receive payment in full of principal, premium, if any, and interest, before any
holders of common stock or preferred stock of Georgia Power receive payments or
distributions.
A default or event of default under any Senior Indebtedness would not
constitute a default or event of default under the Series A Junior Subordinated
Debentures. However, in the event of payment defaults under, or acceleration of,
Senior Indebtedness, the subordination provisions of the Series A Junior
Subordinated Debentures provide that no payments may be made in respect of the
Series A Junior Subordinated Debentures. Failure to make required payments on
the Series A Junior Subordinated Debentures would constitute an event of default
under the Indenture.
UNITED STATES TAXATION
GENERAL
This section is a summary of certain United States federal income tax
considerations that may be relevant to prospective purchasers of Series A
Preferred Securities and represents the opinion of Troutman Sanders, Atlanta,
Georgia, counsel to Georgia Power and Georgia Power Capital, insofar as it
relates to matters of law and legal conclusions. This section is based upon
current provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), existing and proposed regulations thereunder and current administrative
rulings and court decisions, all of which are subject to change. Subsequent
changes may cause tax consequences to vary substantially from the consequences
described below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Series A
Preferred Securities. Moreover, the discussion generally focuses on holders of
Series A Preferred Securities who are individual citizens or residents of the
United States and who hold the Series A Preferred Securities as capital assets.
This discussion has only limited application to corporations, estates, trusts or
non-resident aliens. Accordingly, each prospective purchaser of Series A
Preferred Securities should consult, and should depend on, the purchaser's own
tax advisor in analyzing the federal, state, local and foreign tax consequences
of the purchase, ownership or disposition of Series A Preferred Securities.
S-23
<PAGE> 51
INCOME FROM SERIES A PREFERRED SECURITIES
In the opinion of Troutman Sanders, Georgia Power Capital will be treated
as a partnership for federal income tax purposes. Accordingly, each holder of
Series A Preferred Securities (a "Preferred Securityholder") will be required to
include in gross income the Preferred Securityholder's distributive share of the
net income of Georgia Power Capital. The resulting increase in each Preferred
Securityholder's gross income will increase his or her tax basis in the Series A
Preferred Securities, and the amount of cash dividends distributed to the
Preferred Securityholder will be a nontaxable reduction in his or her tax basis
in the Series A Preferred Securities. Such income will not exceed the dividends
received on such Series A Preferred Securities, except in limited circumstances
as described below under "Potential Extension of Interest Payment Period". No
portion of such income will be eligible for the dividends received deduction.
DISPOSITION OF SERIES A PREFERRED SECURITIES
Gain or loss will be recognized on a sale of Series A Preferred Securities,
including a redemption for cash, equal to the difference between the amount
realized and the Preferred Securityholder's tax basis for the Series A Preferred
Securities sold. Depending upon the particular circumstances of the Preferred
Securityholder, gain or loss recognized by a Preferred Securityholder on the
sale or exchange of a Series A Preferred Security held for more than one year
generally will be taxable as long-term capital gain or loss.
RECEIPT OF SERIES A JUNIOR SUBORDINATED DEBENTURES UPON LIQUIDATION OF
GEORGIA POWER CAPITAL
Under certain circumstances, as described under the caption "Description of
the Series A Preferred Securities -- Special Event Redemption or Distribution",
Series A Junior Subordinated Debentures may be distributed to the Preferred
Securityholders in liquidation of Georgia Power Capital. Under current United
States federal income tax law, such a distribution would be treated as a
non-taxable exchange to each Preferred Securityholder and would result in the
Preferred Securityholder receiving an aggregate tax basis in the Series A Junior
Subordinated Debentures equal to such Preferred Securityholder's aggregate tax
basis in its Series A Preferred Securities. A Preferred Securityholder's holding
period in the Series A Junior Subordinated Debentures so received in liquidation
of Georgia Power Capital would include the period for which the Series A
Preferred Securities were held by such Preferred Securityholder. Such
circumstances might alter the tax treatment of such Debentures in the hands of
the Preferred Securityholder as compared with the consequences of holding Series
A Preferred Securities. Under a change in law, a change in legal interpretation
or the other circumstances giving rise to a Special Event, a dissolution of
Georgia Power Capital could be a taxable event to Preferred Securityholders.
GEORGIA POWER CAPITAL INFORMATION RETURNS AND AUDIT PROCEDURES
Georgia Power, as the General Partner in Georgia Power Capital, will
furnish each Preferred Securityholder with a Schedule K-1 each year setting
forth such Preferred Securityholder's allocable share of income for the prior
calendar year. Georgia Power is required to furnish such Schedule K-1 as soon as
practicable following the end of the year, but in any event prior to March 31 of
the following year.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to Georgia Power Capital (a) the name, address and
taxpayer identification number of each of the beneficial owner and the nominee;
(b) information as to whether the beneficial owner is (i) a person that is not a
United States person, (ii) a foreign government, an international organization
or any wholly-owned agency or instrumentality of either of the foregoing, or
(iii) a tax-exempt entity; (c) the amount and description of Series A Preferred
Securities held, acquired or transferred for the beneficial owner; and (d)
certain information including the dates of acquisitions and transfers, means of
acquisitions and transfers, and acquisition cost for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on Series A Preferred Securities they
acquire, hold or transfer for
S-24
<PAGE> 52
their own accounts. A penalty of $50 per failure (up to a maximum of $100,000
per calendar year) is imposed by the Code for failure to report such information
to Georgia Power Capital. The nominee is required to supply the beneficial
owners of the Series A Preferred Securities with the information furnished to
Georgia Power Capital.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD
Under the Indenture, Georgia Power has the right to extend from time to
time the interest payment period on the Series A Junior Subordinated Debentures
to a period not exceeding 60 consecutive months. In the event that the interest
payment period is extended, Georgia Power Capital will continue to accrue income
equal to the amount of the interest payment due at the end of the Extension
Period, on a constant yield-to-maturity basis over the length of the Extension
Period.
Accrued income will be allocated, but not distributed, to holders of record
on the Business Day preceding the last day of each calendar month. As a result,
holders of record during an Extension Period will include interest in their
gross income in advance of the receipt of cash, and any such holders who dispose
of Series A Preferred Securities prior to the record date for the payment of
dividends following such Extension Period will include interest in their gross
income but will not receive any cash related thereto from Georgia Power Capital.
The tax basis of a Series A Preferred Security will be increased by the amount
of any interest that is included in income without a receipt of cash, and will
be decreased again when and if such cash is subsequently received from Georgia
Power Capital.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
holder who or which is (i) a nonresident alien individual or (ii) a foreign
corporation, partnership or estate or trust, in either case not subject to
United States federal income tax on a net income basis in respect of a Series A
Preferred Security.
Under current United States federal income tax law, subject to the
discussion below with respect to backup withholding:
(i) payments by Georgia Power Capital or any of its paying agents to
any holder of a Series A Preferred Security who or which is a United States
Alien Holder should not be subject to United States federal withholding tax
provided that (a) the beneficial owner of the Series A Preferred Security
does not actually or constructively own 10% or more of the total combined
voting power of all classes of capital stock of Georgia Power entitled to
vote, (b) the beneficial owner of the Series A Preferred Security is not a
controlled foreign corporation that is related to Georgia Power through
stock ownership and (c) either (x) the beneficial owner of the Series A
Preferred Security certifies to Georgia Power Capital or its agent, under
penalties of perjury, that it is a United States Alien Holder and provides
its name and address or (y) the holder of the Series A Preferred Security
is a securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or
business (a "financial institution"), and such holder certifies to Georgia
Power Capital or its agent under penalties of perjury that such statement
has been received from the beneficial owner by it or by a financial
institution between it and the beneficial owner and furnishes Georgia Power
Capital or its agent with a copy thereof; and
(ii) a United States Alien Holder of a Series A Preferred Security
generally will not be subject to United States federal withholding tax on
any gain realized on the sale or exchange of a Series A Preferred Security
unless such holder is present in the United States for 183 days or more in
the taxable year of sale and either has a "tax home" in the United States
or certain other requirements are met.
S-25
<PAGE> 53
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate United States holders of the proceeds of the sale of Series A
Preferred Securities within the United States and "backup withholding" at a rate
of 31% will apply to such payments if the United States holder fails to provide
an accurate taxpayer identification number.
Payments of the proceeds from the sale by a United States Alien Holder of
Series A Preferred Securities made to or through a foreign office of a broker
generally will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments. Payments of the proceeds from the sale of Series A Preferred
Securities to or through the United States office of a broker are subject to
information reporting and backup withholding unless the holder or beneficial
owner certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding.
S-26
<PAGE> 54
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, Georgia
Power Capital has agreed to sell to each of the Underwriters named below, and
each of the Underwriters, for whom Goldman, Sachs & Co., Lehman Brothers Inc.,
PaineWebber Incorporated, Prudential Securities Incorporated and Smith Barney
Inc. are acting as Representatives, has severally agreed to purchase from
Georgia Power Capital, the respective number of Series A Preferred Securities
set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF SERIES A
UNDERWRITER PREFERRED SECURITIES
------------------------------------------------------------------ --------------------
<S> <C>
Goldman, Sachs & Co. .............................................
Lehman Brothers Inc. .............................................
PaineWebber Incorporated .........................................
Prudential Securities Incorporated ...............................
Smith Barney Inc. ................................................
----------------
Total...................................................
================
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all of such Series A Preferred
Securities offered hereby, if any are taken.
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $ per Series A Preferred
Security. The Underwriters may allow, and such dealers may reallow, a concession
not in excess of $ per Series A Preferred Security to certain brokers and
dealers. After the Series A Preferred Securities are released for sale to the
public, the offering price and other selling terms may from time to time be
varied by the Representatives.
In view of the fact that the proceeds of the sale of the Series A Preferred
Securities ultimately will be loaned to Georgia Power, the Underwriting
Agreement provides that Georgia Power will pay as compensation ("Underwriters'
Compensation"), for the Underwriters' services, an amount in next day funds of
$ per Series A Preferred Security ($ per Series A Preferred
Security sold to certain institutions) for the accounts of the several
Underwriters.
Georgia Power and Georgia Power Capital have agreed during the period
beginning from the date of the Underwriting Agreement and continuing to and
including the earlier of (i) the date after the closing date on which the
distribution of the Series A Preferred Securities ceases, as determined by
Goldman, Sachs & Co., or (ii) 30 days after the closing date, not to offer,
sell, contract to sell or otherwise dispose of any Series A Preferred
Securities, any limited partnership interests of Georgia Power Capital, or any
preferred stock or any other securities of Georgia Power Capital or Georgia
Power which are substantially similar to the Series A Preferred Securities
including the Guarantee, or any securities convertible into or exchangeable for
Series A Preferred Securities, limited partnership interests, preferred stock or
such substantially similar securities of either Georgia Power Capital or Georgia
Power, without the prior written consent of Goldman, Sachs & Co.
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange. Prior to this offering, there has been no public market
for the Series A Preferred Securities. In order to meet one of the requirements
for listing the Series A Preferred Securities on the New York Stock Exchange,
the Underwriters will undertake to sell lots of 100 or more Series A Preferred
Securities to a minimum of 400 beneficial holders. Trading of the Series A
Preferred Securities on the New York Stock Exchange is expected to commence
within a seven-day period after the initial delivery of the Series A Preferred
Securities. The Representatives have advised Georgia Power that they intend to
make a market in the Series A Preferred Securities prior to the commencement of
trading on the New York Stock Exchange, but are not obligated to do so and may
discontinue market making at any time without notice.
S-27
<PAGE> 55
No member of the National Association of Securities Dealers, Inc. is
permitted to confirm sales of the Series A Preferred Securities in any
discretionary account without prior written approval of the transactions by the
customer.
Georgia Power Capital and Georgia Power have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
Certain of the Underwriters engage in transactions with, and from time to
time have performed services for, Georgia Power and its affiliates in the
ordinary course of business.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Series A
Preferred Securities, the validity of the Limited Partnership Agreement and the
formation of Georgia Power Capital are being passed upon by Richards, Layton &
Finger, P.A., special Delaware counsel to Georgia Power and Georgia Power
Capital. The validity of the Indenture, the Guarantee and the Series A Junior
Subordinated Debentures will be passed upon on behalf of Georgia Power Capital
and Georgia Power by Troutman Sanders, Atlanta, Georgia, counsel to Georgia
Power and Georgia Power Capital, and on behalf of the Underwriters by Reid &
Priest, New York, New York, counsel to the Underwriters.
S-28
<PAGE> 56
------------------------------------------------------
------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OTHER THAN THE SECURITIES DESCRIBED IN THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR
THE PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
------------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Georgia Power Capital................. S-3
Georgia Power Company................. S-3
Investment Considerations............. S-4
Use of Proceeds....................... S-5
Description of the Series A Preferred
Securities.......................... S-5
Description of the Series A Junior
Subordinated Debentures............. S-17
Relationship Between the Series A
Preferred Securities, the Series A
Junior Subordinated Debentures and
the Guarantee....................... S-22
United States Taxation................ S-23
Underwriting.......................... S-27
Legal Matters......................... S-28
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 3
Georgia Power Capital................. 3
Georgia Power Company................. 3
Selected Information.................. 5
Use of Proceeds....................... 6
Recent Results of Operations; Recent
Developments........................ 6
Description of the Preferred
Securities.......................... 7
Description of the Guarantee.......... 8
Description of the Junior Subordinated
Debentures.......................... 10
Plan of Distribution.................. 15
Experts............................... 15
Legal Opinions........................ 16
</TABLE>
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
PREFERRED SECURITIES
GEORGIA POWER
CAPITAL
CUMULATIVE ADJUSTABLE RATE
MONTHLY INCOME
PREFERRED SECURITIES, SERIES A
GUARANTEED TO THE EXTENT GEORGIA POWER
CAPITAL HAS FUNDS AS SET FORTH HEREIN BY
GEORGIA POWER
COMPANY
------------------
PROSPECTUS SUPPLEMENT
------------------
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
REPRESENTATIVES OF THE UNDERWRITERS
------------------------------------------------------
------------------------------------------------------
<PAGE> 57
***************************************************************************
* *
* Information contained herein is subject to completion or amendment. A *
* registration statement relating to these securities has been filed *
* with the Securities and Exchange Commission. These securities may not *
* be sold nor may offers to buy be accepted prior to the time the *
* registration statement becomes effective. This prospectus shall not *
* constitute an offer to sell or the solicitation of an offer to buy *
* nor shall there be any sale of these securities in any State in which *
* such offer, solicitation or sale would be unlawful prior to *
* registration or qualification under the securities laws of any such *
* State. *
* *
***************************************************************************
SUBJECT TO COMPLETION, DATED DECEMBER 8, 1994
$100,000,000
GEORGIA POWER CAPITAL
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT GEORGIA POWER CAPITAL HAS FUNDS AS SET FORTH HEREIN BY
GEORGIA POWER COMPANY
---------------------
Georgia Power Capital, L.P. ("Georgia Power Capital"), a Delaware special
purpose limited partnership in which Georgia Power Company, a Georgia
corporation ("Georgia Power"), is the general partner, may offer, from time to
time, its preferred securities, representing limited partner interests (the
"Preferred Securities"), in one or more series. The payment of periodic cash
distributions ("dividends") with respect to Preferred Securities of any series,
out of funds held by Georgia Power Capital and legally available therefor, and
payments on liquidation or redemption with respect to the Preferred Securities
are guaranteed by Georgia Power to the extent described herein (the
"Guarantee"). Georgia Power's obligations under the Guarantee are subordinate
and junior in right of payment to all other liabilities of Georgia Power (except
those made pari passu (that is, equal in priority) by their terms). Junior
subordinated debentures of Georgia Power ("Junior Subordinated Debentures") also
will be issued and sold from time to time in one or more series by Georgia Power
to Georgia Power Capital in connection with the loan of the proceeds from the
offering of Preferred Securities. The Junior Subordinated Debentures when issued
will be unsecured and subordinate and junior in right of payment to Senior
Indebtedness (as defined herein) of Georgia Power. The Junior Subordinated
Debentures subsequently may be distributed pro rata to holders of Preferred
Securities in connection with the dissolution of Georgia Power Capital upon the
occurrence of certain events as may be described in an accompanying Prospectus
Supplement (the "Prospectus Supplement").
Specific terms of the particular Preferred Securities of any series in
respect of which this Prospectus is being delivered will be set forth in the
accompanying Prospectus Supplement with respect to such series, which will
describe, without limitation and where applicable, the following: the specific
designation, number of Preferred Securities, dividend rate (or the method of
determining such rate), dates on which dividends will be payable, liquidation
preference, voting rights, any redemption provisions, terms for any conversion
or exchange into other securities, the initial public offering price, any
listing on a securities exchange, and any other rights, preferences, privileges,
limitations and restrictions.
The Preferred Securities may be offered in amounts, at prices and on terms
to be determined at the time of offering; provided, however, that the aggregate
initial public offering price of all Preferred Securities shall not exceed
$100,000,000.
The Prospectus Supplement relating to any series of Preferred Securities
will contain information concerning certain United States federal income tax
considerations, if applicable to the Preferred Securities.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
The Preferred Securities will be sold directly, through agents,
underwriters or dealers as designated from time to time, or through a
combination of such methods. If agents or any dealers or underwriters are
involved in the sale of the Preferred Securities in respect of which this
Prospectus is being delivered, the names of such agents, dealers or underwriters
and any applicable commissions or discounts will be set forth in or may be
calculated from the Prospectus Supplement with respect to such Preferred
Securities.
---------------------
The date of this Prospectus is , 1994.
<PAGE> 58
AVAILABLE INFORMATION
Georgia Power is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). These reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, as well as at the following Regional Offices:
13th Floor, 7 World Trade Center, New York, New York 10048; and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be
obtained at prescribed rates from the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, and can be inspected at the
New York Stock Exchange on which certain securities of Georgia Power are listed.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") filed by Georgia Power Capital and
Georgia Power with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"). Reference is made to the Registration Statement for
further information with respect to Georgia Power, Georgia Power Capital and the
securities offered hereby. Statements contained or incorporated by reference
herein concerning the provisions of documents are necessarily summaries of such
documents, and each statement is qualified in its entirety by reference to the
Registration Statement.
No separate financial statements of Georgia Power Capital have been
included herein. Georgia Power and Georgia Power Capital do not consider that
such financial statements would be material to holders of Preferred Securities
because Georgia Power Capital is a newly formed special purpose entity, has no
operating history, has no independent operations and is not engaged in, and does
not propose to engage in, any activity other than as set forth below. Further,
Georgia Power believes that financial statements of Georgia Power Capital are
not material to the holders of the Preferred Securities since the Preferred
Securities have been structured to provide a guarantee by Georgia Power of the
Preferred Securities on the terms described herein, and an agreement by Georgia
Power, as general partner of Georgia Power Capital, to pay costs and expenses of
Georgia Power Capital, such that the holders of the Preferred Securities with
respect to the payment of dividends and amounts upon redemption, dissolution,
liquidation and winding-up are at least in the same position vis-a-vis the
assets of Georgia Power as they would be if they were preferred stockholders of
Georgia Power. See "Georgia Power Capital", "Description of the Preferred
Securities", "Description of the Guarantee" and "Description of the Junior
Subordinated Debentures". Georgia Power Capital is a limited partnership formed
under the laws of the State of Delaware. Georgia Power is the sole general
partner in Georgia Power Capital and, as of the date hereof, directly or
indirectly beneficially owns, and until the issuance of Preferred Securities
will so own, all of Georgia Power Capital's partnership interests.
2
<PAGE> 59
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Georgia Power's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, its Quarterly Reports on Form 10-Q for the periods ended
March 31, 1994, June 30, 1994 and September 30, 1994 and its Current Report on
Form 8-K dated February 16, 1994, each as filed with the Commission pursuant to
the Exchange Act, are incorporated herein by reference. All documents
subsequently filed by Georgia Power pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the termination of the offering of the
securities offered hereby shall be deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing such documents.
Any statement contained herein or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document that also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
Georgia Power hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, including any beneficial owner, a copy of any or all
of the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents unless such
exhibits are specifically incorporated by reference into the information that
the Prospectus incorporates. Requests for such copies should be directed to
Warren Y. Jobe, Executive Vice President, Treasurer and Chief Financial Officer,
Georgia Power Company, 333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, (404)
526-6526.
GEORGIA POWER CAPITAL
Georgia Power Capital is a limited partnership formed under the laws of the
State of Delaware. Georgia Power Capital exists for the sole purpose of issuing
its partnership interests and lending the proceeds thereof to Georgia Power,
such loans to be evidenced by Junior Subordinated Debentures. Georgia Power is
the sole general partner in Georgia Power Capital (the "General Partner") and,
in such capacity, will agree to pay the costs and expenses of Georgia Power
Capital. Georgia Power LP Holdings Corp., a Georgia corporation and wholly-owned
subsidiary of Georgia Power ("Georgia Power Holdings"), is, as of the date
hereof, the sole limited partner in Georgia Power Capital. Upon the issuance of
Preferred Securities, which securities represent limited partner interests in
Georgia Power Capital, Georgia Power Holdings will remain as a limited partner,
but will have no interest in the profits and dividends or in the assets of
Georgia Power Capital. Georgia Power Capital has a term of approximately 99
years, unless earlier dissolved. Georgia Power Capital's registered office in
the State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801,
telephone: (302) 658-7581. All of Georgia Power Capital's business and affairs
will be conducted by Georgia Power, as the sole general partner. The business
address of Georgia Power Capital is c/o Georgia Power Company, 333 Piedmont
Avenue, N.E., Atlanta, Georgia 30308, telephone: (404) 526-6526.
GEORGIA POWER COMPANY
Georgia Power is a wholly-owned subsidiary of The Southern Company, a
holding company registered under the Public Utility Holding Company Act of 1935,
as amended. Georgia Power was incorporated under the laws of the State of
Georgia on June 26, 1930. It is engaged in the generation and purchase of
electric energy and the transmission, distribution and sale of such energy
within the State of Georgia at retail in over 600 communities (including Athens,
Atlanta, Augusta, Columbus, Macon, Rome and Valdosta), as well as in rural
areas, and at wholesale currently to 39 electric cooperative associations
through Oglethorpe Power Corporation, a corporate cooperative of electric
membership corporations in Georgia, and to 50 municipalities, 47 of which are
served through the Municipal Electric Authority of Georgia, a public corporation
and an instrumentality of the State of Georgia. Georgia Power and one of its
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<PAGE> 60
affiliates, Alabama Power Company, each owns 50% of the common stock of Southern
Electric Generating Company ("SEGCO"). SEGCO owns electric generating units near
Wilsonville, Alabama. The principal executive offices of Georgia Power are
located at 333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, and the telephone
number is (404)526-6526.
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SELECTED INFORMATION
The following material, which is presented herein solely to furnish limited
introductory information regarding Georgia Power, has been selected from, or is
based upon, the detailed information and financial statements appearing in the
documents incorporated herein by reference or elsewhere in this Prospectus, is
qualified in its entirety by reference thereto and, therefore, should be read
together therewith.
GEORGIA POWER COMPANY
<TABLE>
<S> <C>
Business............................. Generation, transmission, distribution and sale of
electric energy
Service Area......................... Approximately 57,200 square miles comprising most of the
State of Georgia
Service Area Population
(1990 Census)...................... Approximately 6,200,000
Customers at December 31, 1993....... 1,644,331
Generating Capacity at December 31,
1993 (kilowatts)................... 13,759,104
Sources of Generation during 1993
(kilowatt-hours)................... Coal (77%), Nuclear (20%), Hydro (3%), Oil and Gas (less
than 0.5%)
Sources of Generation Estimated for
1994 (kilowatt-hours).............. Coal (78%), Nuclear (19%), Hydro (3%), Oil and Gas (less
than 0.5%)
</TABLE>
SELECTED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 12 MONTHS ENDED
------------------------------------------ OCTOBER 31,
1989 1990(1) 1991(2) 1992 1993 1994(3)
------ ------ ------ ------ ------ ----------------
(MILLIONS, EXCEPT RATIOS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues(4).............. $4,145 $4,446 $4,301 $4,297 $4,451 $4,195
Income Before Interest Charges..... $979 $769 $1,006 $1,003 $1,033 $922
Net Income After Dividends On
Preferred Stock.................. $449 $208 $475 $521 $570 $513
Ratio of Earnings to Fixed
Charges(5)....................... 2.58 1.91 2.85 3.15 3.46 3.56
Ratio of Earnings to Fixed Charges
Plus Preferred Dividend
Requirements (Pre-Income Tax
Basis) (6)....................... 2.12 1.57 2.36 2.59 2.88 2.93
</TABLE>
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<PAGE> 62
<TABLE>
<CAPTION>
CAPITALIZATION AS OF
SEPTEMBER 30, 1994
---------------------------
ACTUAL AS ADJUSTED(7)
------ ----------------
(MILLIONS, EXCEPT
PERCENTAGES)
<S> <C> <C> <C>
Common Stock Equity............................................. $4,155 $4,155 48.3%
Cumulative Preferred Stock...................................... 693 693 8.0
Cumulative Preferred Securities of Subsidiary................... -- 100 1.2
Long-Term Debt.................................................. 3,660 3,660 42.5
------ ------ -----
Total, excluding amounts due within one year of
$644 million........................................ $8,508 $8,608 100.0%
====== ====== =====
</TABLE>
- ---------------
(1) Reflects the write-off of certain costs of Plant Vogtle, a two-unit nuclear
generating facility, recorded in 1990 in the after-tax amount of
$218,000,000.
(2) "Income Before Interest Charges" and "Net Income After Dividends On
Preferred Stock" for the year ended December 31,1991 reflect (i) an
increase of approximately $89,000,000 as the result of the consummation of
a settlement with Gulf States Utilities Company of litigation arising out
of certain power sales contracts and (ii) a charge of approximately
$33,000,000 after taxes relating to benefits provided pursuant to a
voluntary work force reduction program announced in late 1991.
(3) See "Recent Results of Operations; Recent Developments" herein. "Income
Before Interest Charges" and "Net Income After Dividends on Preferred
Stock" for the twelve months ended October 31, 1994 reflect a charge of
approximately $55,000,000 after taxes relating to benefits provided
pursuant to work force reduction programs announced in the first quarter of
1994.
(4) "Operating Revenues" for the years ended December 31, 1989 and 1990 include
amounts relating to certain energy sales (including sales to affiliates)
that formerly were classified as purchased and interchanged power, net.
Such amounts were reclassified to "Operating Revenues" effective December
31, 1991 in accordance with current accounting requirements of the Federal
Energy Regulatory Commission.
(5) This ratio is computed as follows: (i) "Earnings" have been calculated by
adding to "Income Before Interest Charges" all income taxes deducted
therefrom and the debt portion of allowance for funds used during
construction; and (ii) "Fixed Charges" consist of "Net Interest Charges"
plus the debt portion of allowance for funds used during construction.
(6) In computing this ratio, "Preferred Dividend Requirements" represent the
before income tax earnings necessary to pay such dividends, computed at the
effective tax rates for the applicable periods.
(7) Reflects the proposed sale by Georgia Power Capital of $100,000,000
(aggregate liquidation preference) of Preferred Securities.
USE OF PROCEEDS
Georgia Power Capital will lend all proceeds received from the sale of
Preferred Securities to Georgia Power, such loans to be evidenced by Junior
Subordinated Debentures. Unless otherwise specified in the Prospectus
Supplement, the net proceeds to be received by Georgia Power from such loans
will be used for general corporate purposes, which may include the repayment or
repurchase of its securities.
RECENT RESULTS OF OPERATIONS; RECENT DEVELOPMENTS
For the twelve months ended October 31, 1994, Georgia Power's "Operating
Revenues", "Income Before Interest Charges" and "Net Income After Dividends on
Preferred Stock" were $4,195,000,000, $922,000,000 and $513,000,000,
respectively. In the opinion of the management of Georgia Power, the above
amounts for the twelve months ended October 31, 1994 reflect all adjustments
(which, except for the provision for separation benefits recorded in 1994, were
only normal recurring adjustments) necessary to present fairly the results of
operations for such period, subject to the effect of such adjustments, if any,
as might have been required had the outcome of the uncertainty with respect to
the
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<PAGE> 63
actions of the regulators regarding the recoverability of Georgia Power's
investment in the Rocky Mountain hydroelectric project been known. The "Ratio of
Earnings to Fixed Charges" and the "Ratio of Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis)" for the twelve months
ended October 31, 1994 were 3.56 and 2.93, respectively.
For information regarding the uncertainty referred to in the preceding
paragraph, reference is made to "Item 1 -- Business -- Construction Programs" in
Georgia Power's Annual Report on Form 10-K for the year ended December 31, 1993,
incorporated herein by reference.
In November 1994, the Supreme Court of Georgia denied petitions for review
of a ruling by the Georgia Court of Appeals that the Georgia Public Service
Commission could lawfully provide for recovery of demand-side conservation
program costs through rate riders. For further information concerning this
matter, see Note (H) to the condensed financial statements included in Georgia
Power's Quarterly Report on Form 10-Q for the quarter ended September 30, 1994,
incorporated by reference herein.
DESCRIPTION OF THE PREFERRED SECURITIES
Georgia Power Capital may issue, from time to time, Preferred Securities,
in one or more series, having terms described in the Prospectus Supplement
relating thereto. The agreement of limited partnership of Georgia Power Capital
will be amended and restated (as so amended and restated, the "Limited
Partnership Agreement") to authorize the establishment of one or more series of
Preferred Securities, having such terms, including dividends, redemption,
voting, liquidation rights and such other preferred, deferred or other special
rights or such restrictions as shall be set forth therein or otherwise
established by the General Partner pursuant thereto. Reference is made to the
Prospectus Supplement relating to the Preferred Securities of a particular
series for specific terms, including (i) the distinctive designation of such
series that shall distinguish it from other series; (ii) the number of Preferred
Securities included in such series, which number may be increased or decreased
from time to time unless otherwise provided by the General Partner in creating
the series; (iii) the annual dividend rate (or method of determining such rate)
for Preferred Securities of such series and the date or dates upon which such
dividends shall be payable, provided, however, that dividends on any series of
Preferred Securities shall be payable on a monthly basis to holders of such
series of Preferred Securities as of a record date in each month during which
such series of Preferred Securities are outstanding; (iv) whether dividends on
Preferred Securities of such series shall be cumulative, and, in the case of
Preferred Securities of any series having cumulative dividend rights, the date
or dates or method of determining the date or dates from which dividends on
Preferred Securities of such series shall be cumulative; (v) the amount or
amounts that shall be paid out of the assets of Georgia Power Capital to the
holders of Preferred Securities of such series upon voluntary or involuntary
dissolution, winding up or termination of Georgia Power Capital; (vi) the price
or prices at which, the period or periods within which, and the terms and
conditions upon which, Preferred Securities of such series may be redeemed or
purchased, in whole or in part, at the option of Georgia Power Capital or the
General Partner; (vii) the obligation, if any, of Georgia Power Capital to
purchase or redeem Preferred Securities of such series and the price or prices
at which, the period or periods within which, and the terms and conditions upon
which, Preferred Securities of such series shall be purchased or redeemed, in
whole or in part, pursuant to such obligation; (viii) the voting rights, if any,
of Preferred Securities of such series in addition to those required by law,
including the number of votes per Preferred Security and any requirement for the
approval by the holders of Preferred Securities, or of Preferred Securities of
one or more series, or of both, as a condition to specified action or amendments
to the Limited Partnership Agreement; and (ix) any other relative rights,
preferences, privileges, limitations or restrictions of Preferred Securities of
the series not inconsistent with the Limited Partnership Agreement or with
applicable law. All Preferred Securities offered hereby will be guaranteed by
Georgia Power to the extent set forth below under "Description of the
Guarantee". Any applicable federal income tax considerations applicable to any
offering of Preferred Securities will be described in the Prospectus Supplement
relating thereto.
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<PAGE> 64
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee that
will be executed and delivered by Georgia Power for the benefit of the holders
from time to time of Preferred Securities. The summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the Guarantee, which is filed as an exhibit to
the Registration Statement of which this Prospectus forms apart.
GENERAL
Pursuant to the Guarantee, Georgia Power will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full, to the
holders of the Preferred Securities of each series, the Guarantee Payments (as
defined below) (without duplication of amounts theretofore paid by Georgia Power
Capital), as and when due, regardless of any defense, right of set-off or
counterclaim that Georgia Power Capital may have or assert. The following
payments with respect to any series of Preferred Securities to the extent not
paid by Georgia Power Capital (the "Guarantee Payments") will be subject to the
Guarantee (without duplication): (i) any accrued and unpaid dividends that are
required to be paid on such series of Preferred Securities, to the extent
Georgia Power Capital shall have sufficient cash on hand to permit such payment
and funds legally available therefor, (ii) the redemption price, including all
accrued and unpaid dividends (the "Redemption Price"), payable out of funds
legally available therefor, with respect to any Preferred Securities called for
redemption by Georgia Power Capital and (iii) upon a liquidation of Georgia
Power Capital, the lesser of (a) the aggregate of the liquidation preference and
all accrued and unpaid dividends on the Preferred Securities of such series to
the date of payment and (b) the amount of assets of Georgia Power Capital
remaining available for distribution to holders of Preferred Securities of such
series in liquidation of Georgia Power Capital, payable in kind. Georgia Power's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by Georgia Power to the holders of Preferred Securities or by
causing Georgia Power Capital to pay such amounts to such holders.
If Georgia Power does not make interest payments on the Junior Subordinated
Debentures evidencing loans by Georgia Power Capital, Georgia Power Capital will
not have funds to pay dividends on the Preferred Securities. See "Description of
the Junior Subordinated Debentures -- Certain Covenants of Georgia Power". The
Guarantee will be a full and unconditional guarantee with respect to each series
of Preferred Securities from the time of issuance of such series of Preferred
Securities, but will not apply to any payment of dividends except to the extent
Georgia Power Capital shall have sufficient cash on hand to permit such payment
and funds legally available therefor.
CERTAIN COVENANTS OF GEORGIA POWER
In the Guarantee, Georgia Power will covenant that, so long as any
Preferred Securities remain outstanding, Georgia Power will not declare or pay
any dividend on, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock or make any guarantee payment with respect
thereto if at such time Georgia Power shall be in default with respect to its
payment obligations under the Guarantee or there shall have occurred and be
continuing any Event of Default under the Indenture.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no consent will be required),
the Guarantee may be amended only with the prior approval of the holders of not
less than 66 2/3% in liquidation preference of the outstanding Preferred
Securities of each affected series (voting together as one class). The manner of
obtaining any such approval of holders of the Preferred Securities of each
series will be as set forth in an accompanying Prospectus Supplement. All
guarantees and agreements contained in the Guarantee shall bind the
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<PAGE> 65
successors, assigns, receivers, trustees and representatives of Georgia Power
and shall inure to the benefit of the holders of the Preferred Securities then
outstanding.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect as to
the Preferred Securities of any series upon full payment of the Redemption Price
of all Preferred Securities of such series, and will terminate completely upon
full payment of the amounts payable in accordance with the Limited Partnership
Agreement upon liquidation of Georgia Power Capital. See "Description of the
Junior Subordinated Debentures -- Events of Default" for a description of the
events of default and enforcement rights of the holders of Junior Subordinated
Debentures. The Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of Preferred Securities of any
series must restore payment of any sums paid under such series of Preferred
Securities or the Guarantee. The Delaware Revised Uniform Limited Partnership
Act provides that a limited partner of a limited partnership who wrongfully
receives a distribution may be liable to the limited partnership for the amount
of such distribution.
STATUS OF THE GUARANTEE
Georgia Power's obligations under the Guarantee to make the Guarantee
Payments will constitute an unsecured obligation of Georgia Power and will rank
(i) subordinate and junior in right of payment to all other liabilities of
Georgia Power, including the Junior Subordinated Debentures, except those made
pari passu by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by Georgia Power and with any guarantee
now or hereafter entered into by Georgia Power in respect of any preferred or
preference stock of any affiliate of Georgia Power, and (iii) senior to Georgia
Power's common stock. The Limited Partnership Agreement provides that each
holder of Preferred Securities by acceptance thereof agrees to the subordination
provisions and other terms of the Guarantee.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly against
guarantor to enforce its rights under the guarantee without first instituting a
legal proceeding against any other person or entity). The Guarantee will be
deposited with the General Partner to be held for the benefit of the holders of
each series of the Preferred Securities. In the event of the appointment of a
Special Representative to, among other things, enforce the Guarantee, the
Special Representative may take possession of the Guarantee for such purpose. If
no Special Representative has been appointed to enforce the Guarantee, the
General Partner has the right to enforce the Guarantee on behalf of the holders
of each series of the Preferred Securities. The holders of not less than a
majority in aggregate liquidation preference of the Preferred Securities have
the right to direct the time, method and place of conducting any proceeding for
any remedy available in respect of the Guarantee, including the giving of
directions to the General Partner or the Special Representative, as the case may
be. If the General Partner or the Special Representative fails to enforce the
Guarantee as above provided, any holder of Preferred Securities may institute a
legal proceeding directly against Georgia Power to enforce its rights under the
Guarantee, without first instituting a legal proceeding against Georgia Power
Capital or any other person or entity. The Guarantee will not be discharged
except by payment of the Guarantee Payments in full (without duplication of
amounts theretofore paid by Georgia Power Capital).
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
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<PAGE> 66
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Junior Subordinated Debentures may be issued from time to time in one or
more series under an indenture, dated as of (the "Indenture"),
between Georgia Power and Trust Company Bank, as Trustee (the "Trustee"). The
following summary does not purport to be complete and is subject in all respects
to the provisions of, and is qualified in its entirety by reference to, the
Indenture, which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part. Whenever particular provisions or defined terms in
the Indenture are referred to herein, such provisions or defined terms are
incorporated by reference herein. Section and Article references used herein are
references to provisions of the Indenture unless otherwise noted.
GENERAL
The Junior Subordinated Debentures will be unsecured, subordinated
obligations of Georgia Power. The Indenture does not limit the aggregate
principal amount of Junior Subordinated Debentures that may be issued thereunder
and provides that the Junior Subordinated Debentures may be issued thereunder
from time to time in one or more series.
The Junior Subordinated Debentures are issuable in one or more series
pursuant to an indenture supplemental to the Indenture or a resolution of
Georgia Power's Board of Directors or an authorized committee thereof (each, a
"Supplemental Indenture") (Section 2.01). The aggregate principal amount of
Junior Subordinated Debentures relating to Preferred Securities of any series
will be set forth in the Prospectus Supplement for such series and will be equal
to the sum of the aggregate liquidation preference of the Preferred Securities
for such series and the General Partner's capital contribution with respect to
the Preferred Securities for such series. Junior Subordinated Debentures
relating to Preferred Securities of any series subsequently may be distributed
pro rata to holders of Preferred Securities of such series in connection with
the dissolution of Georgia Power Capital upon the occurrence of certain events
described in the Prospectus Supplement relating to the Preferred Securities of
such series. Reference is made to the Prospectus Supplement that will accompany
this Prospectus for the following terms of the series of Junior Subordinated
Debentures relating to the Preferred Securities being offered thereby: (i) the
specific title of such Junior Subordinated Debentures; (ii) any limit on the
aggregate principal amount of such Junior Subordinated Debentures; (iii) the
date or dates on which the principal of such Junior Subordinated Debentures is
payable; (iv) the rate or rates at which such Junior Subordinated Debentures
will bear interest or the manner of calculation of such rate or rates; (v) the
date or dates from which such interest shall accrue, the interest payment dates
on which such interest will be payable or the manner of determination of such
interest payment dates and the record dates for the determination of holders to
whom interest is payable on any such interest payment dates; (vi) the right, if
any, to extend the interest payment periods and the duration of such extension;
(vii) the period or periods within which, the price or prices at which and the
terms and conditions upon which, such Junior Subordinated Debentures may be
redeemed, in whole or in part, at the option of Georgia Power; (viii) the
obligation, if any, of Georgia Power to redeem or purchase such Junior
Subordinated Debentures pursuant to any sinking fund or analogous provisions or
at the option of the holder thereof and the period or periods within which, the
price or prices at which, and the terms and conditions upon which, such Junior
Subordinated Debentures shall be redeemed or purchased, in whole or part,
pursuant to such obligation; (ix) the form of such Junior Subordinated
Debentures; (x) if other than denominations of $25 or any integral multiple
thereof, the denominations in which such Junior Subordinated Debentures shall be
issuable; (xi) any and all other terms with respect to such series; and (xii)
whether such Junior Subordinated Debentures are issuable as a global security,
and in such case, the identity of the depository. (Section 2.01).
The Indenture does not contain any provisions that afford holders of Junior
Subordinated Debentures protection in the event of a highly leveraged
transaction involving Georgia Power.
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SUBORDINATION
The Indenture provides that the Junior Subordinated Debentures are
subordinate and junior in right of payment to all Senior Indebtedness (as
defined below) of Georgia Power as provided in the Indenture. No payment of
principal of (including redemption and sinking fund payments), premium, if any,
or interest on, the Junior Subordinated Debentures may be made if any Senior
Indebtedness is not paid when due, any applicable grace period with respect to
such default has ended and such default has not been cured or waived or ceased
to exist, or if the maturity of any Senior Indebtedness has been accelerated
because of a default. Upon any distribution of assets of Georgia Power to
creditors upon any dissolution, winding up, liquidation or reorganization,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all principal of, premium, if any, and interest due or to
become due on, all Senior Indebtedness must be paid in full before the holders
of the Junior Subordinated Debentures are entitled to receive or retain any
payment. The rights of the holders of the Junior Subordinated Debentures will be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions applicable to Senior Indebtedness until all amounts
owing on the Junior Subordinated Debentures are paid in full. (Sections 14.01 to
14.04).
The term "Senior Indebtedness" shall mean the principal of, premium, if
any, interest on and any other payment due pursuant to any of the following,
whether outstanding at the date of execution of the Indenture or thereafter
incurred, created or assumed:
(a) all indebtedness of Georgia Power evidenced by notes, debentures,
bonds or other securities sold by Georgia Power for money or other
obligations for money borrowed;
(b) all indebtedness of others of the kinds described in the preceding
clause (a) assumed by or guaranteed in any manner by Georgia Power or in
effect guaranteed by Georgia Power; and
(c) all renewals, extensions or refundings of indebtedness of the
kinds described in either of the preceding clauses (a) and (b);
unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari passu
with the Junior Subordinated Debentures. Such Senior Indebtedness shall continue
to be Senior Indebtedness and entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness.(Section 1.01).
The Indenture does not limit the aggregate amount of Senior Indebtedness
that may be issued. As of September 30, 1994, Senior Indebtedness of Georgia
Power aggregated approximately $4.3 billion.
CERTAIN COVENANTS OF GEORGIA POWER
Pursuant to the Indenture, Georgia Power will covenant that it will not
declare or pay any dividend on, or purchase, acquire or make a distribution or
liquidation payment with respect to, any of its capital stock, if at such time
(i) there shall have occurred and be continuing any event that would constitute
an Event of Default under the Indenture, (ii) Georgia Power shall be in default
with respect to its payment of any obligations under the Guarantee or (iii)
Georgia Power shall have given notice of its selection of an extended interest
payment period as provided in the Indenture and such period, or any extension
thereof, shall be continuing. (Section 4.06). Georgia Power will also covenant
(i) to remain the sole general partner of Georgia Power Capital and maintain
100% ownership of the general partner interests thereof; provided that any
permitted successor of Georgia Power under the Indenture may succeed to Georgia
Power's duties as General Partner, (ii) to contribute capital to the extent
required to maintain its capital at an amount equal to at least 3% of the total
capital contributions to Georgia Power Capital, (iii) not to voluntarily
dissolve, wind-up or terminate Georgia Power Capital, except in connection with
the distribution of Junior Subordinated Debentures to the holders of Preferred
Securities in liquidation of Georgia Power Capital and in connection with
certain mergers, consolidations or amalgamations permitted by the Limited
Partnership Agreement, (iv) to perform all of its duties as the general partner
in
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<PAGE> 68
Georgia Power Capital in a timely manner and (v) to use its reasonable efforts
to cause Georgia Power Capital to remain a limited partnership, except in
connection with a distribution of Junior Subordinated Debentures and in
connection with certain mergers, consolidations or amalgamations permitted by
the Limited Partnership Agreement, and otherwise continue to be treated as a
partnership for United States federal income tax purposes. (Section 4.07).
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Junior Subordinated Debentures of each series will be issued in registered
form and in either certificated form or will be represented by one or more
global securities. If not represented by one or more global securities, Junior
Subordinated Debentures may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) or exchange, at the office of
the Debenture Registrar, without service charge and upon payment of any taxes
and other governmental charges as described in the Indenture. Such transfer or
exchange will be effected upon Georgia Power or the Debenture Registrar being
satisfied with the documents of title and identity of the person making the
request. Georgia Power has appointed the Trustee as Debenture Registrar with
respect to the Junior Subordinated Debentures. (Section 2.05).
Georgia Power shall not be required to (i) issue, register the transfer of
or exchange any Junior Subordinated Debenture during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the outstanding Junior Subordinated Debentures of
the same series and ending at the close of business on the day of such mailing
or (ii) register the transfer of or exchange any Junior Subordinated Debentures
of any series or portions thereof called for redemption. (Section 2.05).
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and premium (if any) on any Junior Subordinated Debenture will
be made only against surrender to the Paying Agent of such Junior Subordinated
Debenture. Unless otherwise indicated in an applicable Prospectus Supplement,
principal of and any premium and interest, if any, on Junior Subordinated
Debentures will be payable, subject to any applicable laws and regulations, at
the office of such Paying Agent or Paying Agents as Georgia Power may designate
from time to time, except that at the option of Georgia Power payment of any
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Debenture Register with respect to
such Junior Subordinated Debentures. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of interest on a Junior Subordinated Debenture on
any Interest Payment Date will be made to the person in whose name such Junior
Subordinated Debenture (or Predecessor Security) is registered at the close of
business on the Regular Record Date for such interest payment. (Section 2.03).
Georgia Power will act as Paying Agent with respect to the Junior
Subordinated Debentures. Georgia Power may at any time designate additional
Paying Agents or rescind the Designation of any Paying Agents or approve a
change in the office through which any Paying Agent acts, except that Georgia
Power will be required to maintain a Paying Agent in each Place of Payment for
each series of the Junior Subordinated Debentures. (Sections 4.02 and 4.03).
All moneys paid by Georgia Power to a Paying Agent for the payment of the
principal of or premium or interest, if any, on any Junior Subordinated
Debenture of any series that remain unclaimed at the end of two years after such
principal, premium, if any, or interest shall have become due and payable will
be repaid to Georgia Power and the holder of such Junior Subordinated Debenture
will thereafter look only to Georgia Power for payment thereof. (Section 11.05).
GLOBAL DEBENTURES
If any Junior Subordinated Debentures of a series are represented by one or
more global securities, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial
12
<PAGE> 69
owners of interests in any such Global Debenture may exchange such interests for
Junior Subordinated Debentures of such series and of like tenor and principal
amount in any authorized form and denomination. Principal of and any premium and
interest on a Global Debenture will be payable in the manner described in the
applicable Prospectus Supplement. (Section 2.11).
The specific terms of the depository arrangement with respect to any
portion of a series of Junior Subordinated Debentures to be represented by a
Global Debenture will be described in the applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting Georgia Power and the Trustee,
with the consent of the holders of not less than a majority in principal amount
of the Junior Subordinated Debentures of each series that are affected by the
modification, to modify the Indenture or any supplemental indenture affecting
that series or the rights of the holders of that series of Junior Subordinated
Debentures; provided, that no such modification may, without the consent of the
holder of each outstanding Junior Subordinated Debenture affected thereby, (i)
extend the fixed maturity of any Junior Subordinated Debentures of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Junior Subordinated Debenture
so affected or (ii) reduce the percentage of Junior Subordinated Debentures, the
holders of which are required to consent to any such supplemental Indenture,
without the consent of the holders of each Junior Subordinated Debenture then
outstanding and affected thereby. (Section 9.02).
In addition, Georgia Power and the Trustee may execute, without the consent
of any holder of Junior Subordinated Debentures, any supplemental indenture for
certain other usual purposes including the creation of any new series of Junior
Subordinated Debentures. (Sections 2.01, 9.01 and 10.01).
EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events, which has occurred and is continuing, constitutes an "Event of Default"
with respect to each series of Junior Subordinated Debentures:
(a) failure for 10 days to pay interest (including Additional
Interest) on the Junior Subordinated Debentures of that series when due;
provided that a valid extension of the interest payment period by Georgia
Power shall not constitute a default in the payment of interest for this
purpose; or
(b) failure to pay principal or premium, if any, on the Junior
Subordinated Debentures of that series when due whether at maturity, upon
redemption, by declaration or otherwise, or to make any required sinking
fund payment with respect to that series; or
(c) failure to observe or perform any other covenant (other than those
specifically relating to another series) contained in the Indenture for 90
days after written notice to Georgia Power from the Trustee or the holders
of at least 25% in principal amount of the outstanding Junior Subordinated
Debentures of that series; or
(d) the dissolution, winding up or termination of Georgia Power
Capital, except in connection with the distribution of Junior Subordinated
Debentures to the holders of Preferred Securities in liquidation of Georgia
Power Capital and in connection with certain mergers, consolidations or
amalgamations permitted by the Limited Partnership Agreement; or
(e) certain events in bankruptcy, insolvency or reorganization of
Georgia Power. (Section 6.01).
The holders of a majority in aggregate outstanding principal amount of any
series of the Junior Subordinated Debentures have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for that series. (Section 6.06). The Trustee or the
13
<PAGE> 70
holders of not less than 25% in aggregate outstanding principal amount of any
particular series of the Junior Subordinated Debentures may declare the
principal due and payable immediately upon an Event of Default with respect to
such series, but the holders of a majority in aggregate outstanding principal
amount of such series may annul such declaration and waive the default with
respect to such series if the default has been cured and a sum sufficient to pay
all matured installments of interest and principal otherwise than by
acceleration and any premium has been deposited with the Trustee. (Sections 6.01
and 6.06).
The holders of a majority in aggregate outstanding principal amount of any
series of the Junior Subordinated Debentures affected thereby may, on behalf of
the holders of all the Junior Subordinated Debentures of such series, waive any
past default, except a default in the payment of principal, premium, if any, or
interest when due otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal otherwise than by acceleration and any premium has been deposited with
the Trustee) or a call for redemption of Junior Subordinated Debentures of such
series. (Section 6.06). Georgia Power is required to file annually with the
Trustee a certificate as to whether or not Georgia Power is incompliance with
all the conditions and covenants under the Indenture. (Section 5.03(d)).
CONSOLIDATION, MERGER AND SALE
The Indenture does not contain any covenant that restricts Georgia Power's
ability to merge or consolidate with or into any other corporation, sell or
convey all or substantially all of its assets to any person, firm or corporation
or otherwise engage in restructuring transactions, provided that the successor
corporation assumes due and punctual payment of principal or premium, if any,and
interest on the Junior Subordinated Debentures. (Section 10.01).
DEFEASANCE AND DISCHARGE
Under the terms of the Indenture, Georgia Power will be discharged from any
and all obligations in respect of the Junior Subordinated Debentures of any
series (except in each case for certain obligations to register the transfer or
exchange of Junior Subordinated Debentures, replace stolen, lost or mutilated
Junior Subordinated Debentures, maintain paying agencies and hold moneys for
payment in trust) if Georgia Power deposits with the Trustee, in trust, moneys
or Government Obligations, in an amount sufficient to pay all the principal of,
and interest on, the Junior Subordinated Debentures of such series on the dates
such payments are due in accordance with the terms of such Junior Subordinated
Debentures. (Sections 11.01 and 11.02).
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by,
and construed in accordance with, the laws of the State of New York. (Section
13.05).
INFORMATION CONCERNING THE TRUSTEE
The Trustee, prior to default, undertakes to perform only such duties as
are specifically set forth in the Indenture and, after default, shall exercise
the same degree of care as a prudent individual would exercise in the conduct of
his or her own affairs. (Section 7.01). Subject to such provision, the Trustee
is under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Junior Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities that might be incurred thereby. (Section 7.02). The Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Trustee reasonably believes
that repayment or adequate indemnity is not reasonably assured to it. (Section
7.01).
Georgia Power has a credit relationship with Trust Company Bank, and any
borrowings by Georgia Power from such bank will constitute Senior Indebtedness.
Trust Company Bank also currently serves as
14
<PAGE> 71
trustee with respect to certain outstanding pollution control revenue bonds
issued for the benefit of Georgia Power.
MISCELLANEOUS
Georgia Power will have the right at all times to assign any of its rights
or obligations under the Indenture to a direct or indirect wholly-owned
subsidiary of Georgia Power; provided, that, in the event of any such
assignment, Georgia Power will remain liable for all such obligations. Subject
to the foregoing, the Indenture will be binding upon and inure to the benefit of
the parties thereto and their respective successors and assigns. The Indenture
provides that it may not otherwise be assigned by the parties thereto. (Section
13.11).
PLAN OF DISTRIBUTION
Georgia Power Capital may sell any series of Preferred Securities being
offered hereby in one or more of the following ways from time to time: (i) to
underwriters for resale to the public or to institutional investors; (ii)
directly to institutional investors; or (iii) through agents to the public or to
institutional investors. The Prospectus Supplement with respect to each series
of Preferred Securities will set forth the terms of the offering of such
Preferred Securities, including the name or names of any underwriters or agents,
the purchase price of such Preferred Securities and the proceeds to Georgia
Power Capital from such sale, any underwriting discounts or agency fees and
other items constituting underwriters' or agents' compensation, any initial
public offering price, any discounts or concessions allowed or reallowed or paid
to dealers and any securities exchanges on which such Preferred Securities may
be listed.
If underwriters participate in the sale, such Preferred Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the obligations of
the underwriters to purchase any series of Preferred Securities will be subject
to certain conditions precedent and the underwriters will be obligated to
purchase all of such series of Preferred Securities, if any are purchased.
Underwriters and agents may be entitled under agreements entered into with
Georgia Power and/or Georgia Power Capital to indemnification against certain
civil liabilities, including liabilities under the Securities Act of 1933, as
amended. Underwriters and agents may be customers of, engage in transactions
with, or perform services for Georgia Power in the ordinary course of business.
Each series of Preferred Securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom Preferred
Securities are sold by Georgia Power Capital for public offering and sale may
make a market in such Preferred Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. The Preferred Securities may or may not be listed on a national
securities exchange.
EXPERTS
The financial statements and schedules of Georgia Power included in Georgia
Power's Annual Report on Form 10-K for the year ended December 31, 1993,
incorporated by reference in this Prospectus, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are incorporated herein in reliance upon the authority of
said firm as experts in accounting and auditing in giving said reports.
Reference is made to said reports, which include explanatory paragraphs which
refer to an uncertainty with respect to the actions of the regulators regarding
the recoverability of Georgia Power's investment in the Rocky Mountain pumped
storage hydroelectric project and changes in Georgia Power's methods of
accounting for post-retirement benefits other than pensions and for income
taxes. With respect to the Georgia Power unaudited interim financial information
for the periods ended March 31, June 30 and September 30, 1994 and 1993 included
in
15
<PAGE> 72
Georgia Power's Quarterly Reports on Form 10-Q for the quarters ended March 31,
1994, June 30, 1994 and September 30, 1994, and incorporated by reference
herein, Arthur Andersen LLP has applied limited procedures in accordance with
professional standards for a review of that information. However, their separate
reports thereon state that they did not audit and they do not express an opinion
on that interim financial information. Accordingly, the degree of reliance on
their reports on that information should be restricted in light of the limited
nature of the review procedures applied. In addition, the accountants are not
subject to the liability provisions of Section 11 of the Securities Act for
their reports on the unaudited interim financial information because those
reports are not "reports" or "parts" of the Registration Statement prepared or
certified by the accountants within the meaning of Sections 7 and 11 of the
Securities Act.
LEGAL OPINIONS
Certain legal matters in connection with the Preferred Securities will be
passed upon for Georgia Power and Georgia Power Capital by Troutman Sanders,
Atlanta, Georgia, counsel for Georgia Power and Georgia Power Capital, and for
the purchasers or underwriters by Reid & Priest, New York, New York. Certain
matters of Delaware law relating to the validity of the Preferred Securities,
the validity of the Limited Partnership Agreement and the formation of Georgia
Power Capital will be passed upon by Richards, Layton & Finger, P.A.,
Wilmington, Delaware, as special Delaware counsel for Georgia Power and Georgia
Power Capital.
16
<PAGE> 73
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of issuance and distribution, other than
underwriting discounts and commissions, to be borne by Georgia Power are as
follows:
<TABLE>
<CAPTION>
PREFERRED SECURITIES
-------------------------
EACH
INITIAL ADDITIONAL
SALE SALE
-------- ----------
<S> <C> <C>
*Filing fees -- Securities and Exchange Commission --
registration statement................................... $ 34,483 $ --
Charges of trustee (including counsel)..................... 13,500 13,500
*Listing fees of New York Stock Exchange................... 44,300 --
Printing and preparation of registration statement,
prospectus, etc. ........................................ 30,000 15,000
Rating fees --
Moody's Investors Service, Inc. ......................... 22,500 22,500
Standard & Poor's Corporation............................ 7,500 7,500
Duff and Phelps, Inc. ................................... 10,000 10,000
Services of Southern Company Services, Inc. ............... 30,000 15,000
Fees and expenses of counsel............................... 125,000 75,000
Blue sky fees and expenses................................. 2,500 2,500
Fees of accountants, Arthur Andersen LLP. ................. 50,000 25,000
Miscellaneous, including telephone charges and
traveling expenses....................................... 5,217 4,000
-------- ----------
Total............................................ $375,000 $ 190,000
========= =========
</TABLE>
- ---------------
* The Prospectus Supplement will reflect actual filing and listing fees based
upon the amount of the related offering.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The applicable statutes of the State of Georgia provide that a corporation
may indemnify or obligate itself to indemnify an individual made a party to a
proceeding because he is or was a director of the corporation or is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or another enterprise against
liability incurred in the proceeding if he acted in a manner he believed in good
faith to be in or not opposed to the best interest of the corporation and, in
the case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. However, a corporation generally may not indemnify a
director in connection with a proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation, or in connection
with any other proceeding in which he was adjudged liable on the basis that
personal benefit was improperly received by him. In addition, unless limited by
its articles of incorporation, to the extent that a director has been
successful, on the merits or otherwise, in the defense of any proceeding to
which he was a party, or in defense of any claim, issue or matter therein,
because he is or was a director of the corporation, the corporation shall
indemnify the director against reasonable expenses incurred by him in connection
therewith. Also, unless a corporation's articles of incorporation provide
otherwise, an officer of the corporation who is not a director is entitled to
mandatory indemnification to the same extent as a director, and a corporation
may also indemnify an officer, employee or agent who is not a director to the
extent,
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<PAGE> 74
consistent with public policy, that may be provided by its articles of
incorporation, by-laws, general or specific action of its board of directors, or
contract.
Section 41 of the By-laws of Georgia Power provides in pertinent part as
follows:
Each person who is or was a director or officer of the Company or is
or was an employee of the Company holding one or more positions of
management through and inclusive of department managers (but not positions
below the level of department managers) (such positions being hereinafter
referred to as "Management Positions") and who was or is a party or was or
is threatened to be made a party to any threatened, pending or completed
claim, action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was a director or
officer of the Company or is or was an employee of the Company holding one
or more Management Positions, or is or was serving at the request of the
Company as a director, officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall be indemnified by the Company as a matter of right
against any and all expenses (including attorneys' fees) actually and
reasonably incurred by him and against any and all claims, judgments,
fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding,
including appeals, to the full extent permitted by applicable law. The
indemnification provided by this Section shall inure to the benefit of the
heirs, executors and administrators of such person.
Expenses (including attorneys' fees) incurred by a director or officer
of the Company or employee of the Company holding one or more Management
Positions with respect to the defense of any such claim, action, suit or
proceeding maybe advanced by the Company prior to the final disposition of
such claim, action, suit or proceeding, as authorized by the Board of
Directors in the specific case, upon receipt of an undertaking by or on
behalf of such person to repay such amount unless it shall ultimately be
determined that such person is entitled to be indemnified by the Company
under this Section or otherwise; provided, however, that the advancement of
such expenses shall not be deemed to be indemnification unless and until it
shall ultimately be determined that such person is entitled to be
indemnified by the Company.
The Company may purchase and maintain insurance at the expense of the
Company on behalf of any person who is or was a director, officer,
employee, or agent of the Company, or any person who is or was serving at
the request of the Company as director (or the equivalent), officer,
employee, agent or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against any
liability or expense (including attorneys' fees) asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against
such liability or expense under this Section or otherwise.
Without limiting the generality of the foregoing provisions, no
present or future director or officer of the Company, or his heirs,
executors, or administrators, shall be liable for any act, omission, step,
or conduct taken or had in good faith, which is required, authorized, or
approved by any order or orders issued pursuant to the Public Utility
Holding Company Act of 1935, the Federal Power Act, or any federal or state
statute or municipal ordinance regulating the Company or its parent by
reason of their being holding or investment companies, public utility
companies, public utility holding companies, or subsidiaries of public
utility holding companies. In any action, suit, or proceeding based on any
act, omission, step, or conduct, as in this paragraph described, the
provisions hereof shall be brought to the attention of the court. In the
event that the foregoing provisions of this paragraph are found by the
court not to constitute a valid defense on the grounds of not being
applicable to the particular class of plaintiff, each such director and
officer, and his heirs, executors and administrators, shall be reimbursed
for, or indemnified against, all expenses and liabilities incurred by him
or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or
had in good faith as in this paragraph described. Such
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<PAGE> 75
expenses and liabilities shall include, but shall not be limited to,
judgments, court costs, and attorneys' fees.
The foregoing rights shall not be exclusive of any other rights to
which any such director or officer or employee may otherwise be entitled
and shall be available whether or not the director or officer or employee
continues to be a director or officer or employee at the time of incurring
any such expenses and liabilities.
Georgia Power has an insurance policy covering its liabilities and expenses
which might arise in connection with its lawful indemnification of its directors
and officers for certain of their liabilities and expenses and also covering its
officers and directors against certain other liabilities and expenses.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
------
<C> <S> <C>
1.1 -- Form of Underwriting Agreement.*
4.1 -- Form of Indenture between Georgia Power and Trust Company Bank, as Trustee.*
4.2 -- Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Junior Subordinated Debentures and fixed rate Preferred
Securities.*
4.3 -- Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Junior Subordinated Debentures and adjustable rate Preferred
Securities.
4.4 -- Certificate of Limited Partnership of Georgia Power Capital.*
4.5 -- Form of Amended and Restated Agreement of Limited Partnership of Georgia Power
Capital.*
4.6 -- Form of Preferred Security (included in Exhibit 4.5 above).
4.7 -- Form of Action of General Partner creating fixed rate Preferred Securities.*
4.8 -- Form of Action of General Partner creating adjustable rate Preferred Securities.
4.9 -- Form of Junior Subordinated Debenture (included in Exhibit 4.2).
4.10 -- Form of Guarantee Agreement with respect to Preferred Securities.*
5.1 -- Opinion of Troutman Sanders.
5.2 -- Opinion of Richards, Layton & Finger, P.A.
8.1 -- Tax Opinion of Troutman Sanders.
12.1 -- Computations of ratio of earnings to fixed charges and ratio of earnings to fixed
charges plus preferred dividend requirements (pre-income tax basis).
15 -- Letter re unaudited interim financial information.
23.1 -- Consent of Arthur Andersen.*
23.2 -- Consent of Troutman Sanders (included in Exhibit 5.1 above).
23.3 -- Consent of Troutman Sanders (included in Exhibit 8.1 above).
23.4 -- Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2 above).
24.1 -- Powers of Attorney.*
25.1 -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
Trust Company Bank, as Trustee under the Indenture.*
</TABLE>
- ---------------
* Previously filed.
II-3
<PAGE> 76
ITEM 17. UNDERTAKINGS.
(a) Undertaking related to Rule 415 offering:
The undersigned registrants hereby undertake:
(1) To file,during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrants pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Undertaking related to filings incorporating subsequent Securities
Exchange Act of 1934 documents by reference:
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Georgia Power's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Undertaking related to acceleration of effectiveness:
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing provisions
or otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrants of expenses incurred or paid by a director,
officer or controlling person of the registrants in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrants will, unless in the opinion of their counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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<PAGE> 77
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
COMPANY CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF
THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO
THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 8TH
DAY OF DECEMBER, 1994.
GEORGIA POWER COMPANY
By: /s/ WARREN Y. JOBE
------------------------------------
Warren Y. Jobe
Executive Vice President,
Treasurer and Chief Financial
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
CAPITAL, L.P., CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF
GEORGIA, ON THE 8TH DAY OF DECEMBER, 1994.
GEORGIA POWER CAPITAL, L.P.
By: GEORGIA POWER COMPANY,
GENERAL PARTNER
By: /s/ WARREN Y. JOBE
------------------------------------
Warren Y. Jobe
Executive Vice President,
Treasurer and Chief Financial
Officer
II-5
<PAGE> 78
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING DIRECTORS AND
OFFICERS OF GEORGIA POWER COMPANY IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- --------------------------- ------------------
<C> <S> <C>
H. ALLEN FRANKLIN President and Chief
Executive Officer and
Director (Principal
Executive Officer)
WARREN Y. JOBE Executive Vice President,
Treasurer and Chief
Financial Officer and
Director (Principal
Financial Officer)
C. B. HARRELD Vice President and
Comptroller (Principal
Accounting Officer)
EDWARD L. ADDISON
BENNETT A. BROWN
A. W. DAHLBERG, III
WILLIAM A. FICKLING, JR.
L. G. HARDMAN III
JAMES R. LIENTZ, JR.
WILLIAM A. PARKER, JR. Directors
G. JOSEPH PRENDERGAST
HERMAN J. RUSSELL
GLORIA M. SHATTO
WILLIAM JERRY VEREEN
THOMAS R. WILLIAMS
By: /s/ WAYNE BOSTON December 8, 1994
- ---------------------------------------------
(Wayne Boston, Attorney-in-Fact)
</TABLE>
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<PAGE> 79
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
------
<C> <S> <C>
1.1 -- Form of Underwriting Agreement.*
4.1 -- Form of Indenture between Georgia Power and Trust Company Bank, as Trustee.*
4.2 -- Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Junior Subordinated Debentures and fixed rate Preferred
Securities.*
4.3 -- Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Junior Subordinated Debentures and adjustable rate Preferred
Securities.
4.4 -- Certificate of Limited Partnership of Georgia Power Capital.*
4.5 -- Form of Amended and Restated Agreement of Limited Partnership of Georgia Power
Capital.*
4.6 -- Form of Preferred Security (included in Exhibit 4.5 above).
4.7 -- Form of Action of General Partner creating fixed rate Preferred Securities.*
4.8 -- Form of Action of General Partner creating adjustable rate Preferred Securities.
4.9 -- Form of Junior Subordinated Debenture (included in Exhibit 4.2).
4.10 -- Form of Guarantee Agreement with respect to Preferred Securities.*
5.1 -- Opinion of Troutman Sanders.
5.2 -- Opinion of Richards, Layton & Finger, P.A.
8.1 -- Tax Opinion of Troutman Sanders.
12.1 -- Computations of ratio of earnings to fixed charges and ratio of earnings to fixed
charges plus preferred dividend requirements (pre-income tax basis).
15 -- Letter re unaudited interim financial information.
23.1 -- Consent of Arthur Andersen.*
23.2 -- Consent of Troutman Sanders (included in Exhibit 5.1 above).
23.3 -- Consent of Troutman Sanders (included in Exhibit 8.1 above).
23.4 -- Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2 above).
24.1 -- Powers of Attorney.*
25.1 -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
Trust Company Bank, as Trustee under the Indenture.*
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
EXHIBIT 4.3
DRAFT
12/7/94
----------------------------------------------------------------
GEORGIA POWER COMPANY
AND
TRUST COMPANY BANK,
as Trustee
-----------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of ____________, 1994
TO
INDENTURE
Dated as of ______________, 1994
-----------------------
Adjustable Rate Junior Subordinated
Deferrable Interest Debentures,
Series A, Due 2024
----------------------------------------------------------------
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of the _____ day of
____________, 1994 (the "First Supplemental Indenture"), between GEORGIA POWER
COMPANY, a corporation duly organized and existing under the laws of the State
of Georgia (hereinafter sometimes referred to as the "Company"), and TRUST
COMPANY BANK, a banking corporation organized and existing under the laws of
the State of Georgia, as trustee (hereinafter sometimes referred to as the
"Trustee") under the Indenture dated as of _____________, 1994 between the
Company and the Trustee (the "Indenture"; all terms used and not defined herein
are used as defined in the Indenture).
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), said Debentures to be issued from time to time
in series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Debentures to be known
as its Adjustable Rate Junior Subordinated Deferrable Interest Debentures,
Series A, Due 2024 (said series being hereinafter referred to as the "Series A
Debentures"), the form and substance of such Series A Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture; and
WHEREAS, Georgia Power Capital, L.P., a Delaware limited partnership
("Georgia Power Capital"), has offered to the public its Cumulative Adjustable
Rate Monthly Income Preferred Securities, Series A (the "Series A Preferred
Securities"), representing limited partnership interests in Georgia Power
Capital and proposes to loan the proceeds from such offering to the Company,
such loan to be evidenced by the Series A Debentures; and
WHEREAS, upon the occurrence of a Special Event (as defined in the
Amended and Restated Agreement of Limited Partnership of Georgia Power Capital,
dated ______________, 1994 (the "Limited Partnership Agreement")), the Company
may dissolve Georgia Power Capital and cause to be distributed to the holders
of the Series A Preferred Securities, on a pro rata basis, Series A Debentures
(a "Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee to join
with it in the execution and delivery of this First Supplemental Indenture, and
all requirements necessary to make this First Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Series A Debentures,
when executed by the Company and authenticated and delivered by the Trustee,
the valid obligations of the Company, have been
<PAGE> 3
performed and fulfilled, and the execution and delivery hereof have been in all
respects duly authorized:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Series A Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Series A
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is hereby authorized a series of
Debentures designated the " Adjustable Rate Junior Subordinated Deferrable
Interest Debentures, Series A, Due 2024", limited in aggregate principal amount
to (i) $[____________], plus (ii) the amount of capital contributions made by
the Company from time to time as general partner of Georgia Power Capital,
which amount shall be as set forth in any written order of the Company for the
authentication and delivery of Series A Debentures pursuant to Section 2.01 of
the Indenture. The Series A Debentures shall mature and the principal shall be
due and payable together with all accrued and unpaid interest thereon,
including Additional Interest (as hereinafter defined), on _____________, 2024,
and shall be issued in the form of registered Series A Debentures without
coupons.
SECTION 1.02. Except as provided in Section 1.03 herein, the Series
A Debentures shall be issued in certificated form. Principal and interest on
the Series A Debentures issued in certificated form will be payable, the
transfer of such Series A Debentures will be registrable and such Series A
Debentures will be exchangeable for Series A Debentures bearing identical terms
and provisions at the office or agency of the Company in the Borough of
Manhattan, The City and State of New York; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture Register.
Notwithstanding the foregoing, so long as the holder of the Series A Debentures
is Georgia Power Capital, the payment of the principal of and interest
(including Additional Interest, if any) on the Series A Debentures will be made
at such place and to such account as may be designated by Georgia Power
Capital.
SECTION 1.03. In connection with a Dissolution Event, the Series A
Debentures in certificated form may be presented to the Trustee by Georgia
Power Capital in exchange for a Global Debenture in an aggregate principal
amount equal to all
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<PAGE> 4
Outstanding Series A Debentures, to be registered in the name of the
Depository, or its nominee, and delivered by the Trustee to the Depository for
crediting to the accounts of its participants pursuant to the instructions of
Georgia Power Capital. The Company upon any such presentation shall execute a
Global Debenture in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery as hereinabove and in the Indenture
provided. Payments on the Series A Debentures issued as a Global Debenture
will be made to the Depository. The Depository for the Series A Debentures
shall be The Depository Trust Company, New York, New York.
SECTION 1.04. Each Series A Debenture shall bear interest at a
variable rate from the date it is made until maturity. The interest rate will
be adjusted quarterly. The rate for the initial period from the date of
original issuance to ________ will be __% per annum. Thereafter, interest on
the Series A Debentures will be payable at the "Applicable Rate" (as defined
below) from time to time in effect. The interest rate on any overdue principal
and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest will be at the same rate
per annum, during such overdue period. Interest is payable (subject to the
provisions of Article Three) monthly in arrears on the last day of each
calendar month of each year (each, an "Interest Payment Date", commencing on
____________, 1994), to the person in whose name such Series A Debenture or any
predecessor Series A Debenture is registered at the close of business on the
regular record date for such interest installment, which shall be the close of
business on the business day next preceding that Interest Payment Date. If
pursuant to the provisions of Section 2.11(c) of the Indenture the Series A
Debentures are no longer represented by a Global Debenture, the Company may
select a regular record date for such interest installment which shall be any
date not later than fifteen days preceding an Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holders on such regular record date, and
may be paid to the person in whose name the Series A Debenture (or one or more
Predecessor Debentures) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of the Series
A Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Series A Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
The amount of interest payable for any period will be computed for any
full monthly interest period on the basis of a 360-day year of twelve 30-day
months and for any period shorter
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<PAGE> 5
than a full monthly interest period for which interest is computed, interest
will be computed on the basis of the actual number of days elapsed in such
period. In the event that any date on which interest is payable on the Series
A Debentures is not a business day, then payment of interest payable on such
date will be made on the next succeeding day which is a business day (and
without any interest or other payment in respect of any such delay), except
that, if such business day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding business day, in each case
with the same force and effect as if made on such date.
If at any time when Georgia Power Capital is the holder of the Series
A Debentures, Georgia Power Capital shall be required to pay any interest on
dividends in arrears in respect of the Series A Preferred Securities pursuant
to the terms thereof, then the Company will pay as interest (the "Additional
Interest") an amount equal to such interest on dividends in arrears.
Except as provided below in this paragraph, the "Applicable Rate" for
any quarter (other than the initial period) will be equal to % of the
Effective Rate (as defined below), but not less than % per annum nor more than
% per annum. The "Effective Rate" for any quarter will be equal to the highest
of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty
Year Constant Maturity Rate (each as defined below) for such quarter. In the
event that Georgia Power Capital determines in good faith that for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity Rate
cannot be determined for any quarter, then the Effective Rate for such
quarter will be equal to the higher of whichever two of such rates can
be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate and the Thirty Year Constant Maturity Rate can
be determined for any quarter, then the Effective Rate for such
quarter will be equal to whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Thirty Year Constant Maturity Rate can be
determined for any quarter, then the Effective Rate for the preceding
quarter will be continued for such quarter.
Except as described below in this paragraph, the "Treasury Bill Rate"
for each quarter will be the arithmetic average of the two most recent weekly
per annum market discount rates (or the one weekly per annum market discount
rate, if only one such rate is published during the relevant Calendar Period
(as defined
-4-
<PAGE> 6
below)) for three-month U.S. Treasury bills, as published weekly by the Federal
Reserve Board (as defined below) during the Calendar Period immediately
preceding the last ten calendar days immediately preceding the commencement of
the quarter for which the dividend rate on the Series A Preferred Securities is
being determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum market discount rate during any such Calendar Period,
then the Treasury Bill Rate for such quarter will be the arithmetic average of
the two most recent weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate is published during the
relevant Calendar Period) for three-month U.S. Treasury bills, as published
weekly during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by Georgia Power Capital. In the
event that a per annum market discount rate for three-month U.S. Treasury bills
is not published by the Federal Reserve Board or by any Federal Reserve Bank or
by any U.S. Government department or agency during such Calendar Period, then
the Treasury Bill Rate for such quarter will be the arithmetic average of the
two most recent weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate is published during the
relevant Calendar Period) for all of the U.S. Treasury bills then having
remaining maturities of not less than 80 nor more than 100 days, as published
during such Calendar Period by the Federal Reserve Board, or if the Federal
Reserve Board does not publish such rates, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by Georgia Power Capital. In
the event that Georgia Power Capital determines in good faith that for any
reason no such U.S. Treasury bill rates are published as provided above during
such Calendar Period, then the Treasury Bill Rate for such quarter will be the
arithmetic average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of marketable
non-interest bearing U.S. Treasury securities with a remaining maturity of not
less than 80 nor more than 100 days from the date of each such quotation, as
chosen and quoted daily for each Business Day in New York City (or less
frequently if daily quotations are not generally available) to Georgia Power
Capital by at least three recognized dealers in U.S. Government securities
selected by Georgia Power Capital. In the event that Georgia Power Capital
determines in good faith that for any reason Georgia Power Capital cannot
determine the Treasury Bill Rate for any quarter as provided above in this
paragraph, the Treasury Bill Rate for such quarter will be the arithmetic
average of the per annum market discount rates based upon the closing bids
during such Calendar Period for each of the issues of marketable interest
bearing U.S. Treasury securities with a remaining maturity of not less than 80
nor more than 100 days, as quoted daily for each business day in New York City
(or less frequently if daily quotations are not generally available) to Georgia
Power Capital by at least three recognized
-5-
<PAGE> 7
dealers in U.S. Government securities selected by Georgia Power Capital.
Except as described below in this paragraph, the "Ten Year Constant
Maturity Rate" for each quarter will be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (as defined below) (or the one
weekly per annum Ten Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly by the Federal
Reserve Board during the Calendar Period immediately preceding the last ten
calendar days immediately preceding the commencement of the quarter for which
the dividend rate on the Series A Preferred Securities is being determined. In
the event that the Federal Reserve Board does not publish such a weekly per
annum Ten Year Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such quarter will be the arithmetic average of the
two most recent weekly per annum Ten Year Average Yields (or the one weekly per
annum Ten Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by Georgia Power Capital. In the event that a per annum Ten Year
Average Yield is not published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such quarter will
be the arithmetic average of the two most recent weekly per annum average
yields to maturity (or the one weekly per annum average yield to maturity, if
only one such yield is published during the relevant Calendar Period) for all
of the actively traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities (as defined below)) then having remaining
maturities of not less than eight nor more than twelve years, as published
during such Calendar Period by the Federal Reserve Board or, if the Federal
Reserve Board does not publish such yields, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by Georgia Power Capital.
In the event that Georgia Power Capital determines in good faith that for any
reason Georgia Power Capital cannot determine the Ten Year Constant Maturity
Rate for any quarter as provided above in this paragraph, then the Ten Year
Constant Maturity Rate for such quarter will be the arithmetic average of the
per annum average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities) with a
final maturity date not less than eight or more than twelve years from the date
of each such quotation, as quoted daily for each Business Day in New York City
(or less frequently if daily quotations are not generally available) to Georgia
Power Capital by at least three recognized dealers in U.S. Government
securities selected by Georgia Power Capital.
-6-
<PAGE> 8
Except as described below in this paragraph, the "Thirty Year Constant
Maturity Rate" for each quarter will be the arithmetic average of the two most
recent weekly per annum Thirty Year Average Yields (as defined below) (or the
one weekly per annum Thirty Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately preceding the last
ten calendar days immediately preceding the commencement of the quarter for
which the dividend rate on the Series A Preferred Securities is being
determined. In the event that the Federal Reserve Board does not publish such
a weekly per annum Thirty Year Average Yield during such Calendar Period, then
the Thirty Year Constant Maturity Rate for such quarter will be the arithmetic
average of the two most recent weekly per annum Thirty Year Average Yields (or
the one weekly per annum Thirty Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by Georgia Power Capital. In the event that a
per annum Thirty Year Average Yield is not published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Thirty Year Constant Maturity Rate
for such quarter will be the arithmetic average of the two most recent weekly
per annum average yields to maturity (or the one weekly per annum average yield
to maturity, if only one such yield is published during the relevant Calendar
Period) for all of the actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities) then having remaining
maturities of not less than twenty-eight nor more than thirty years, as
published during such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such yields, by any Federal Reserve Bank
or by any U.S. Government department or agency selected by Georgia Power
Capital. In the event that Georgia Power Capital determines in good faith that
for any reason Georgia Power Capital cannot determine the Thirty Year Constant
Maturity Rate for any quarter as provided above in this paragraph, then the
Thirty Year Constant Maturity Rate for such quarter will be the arithmetic
average of the per annum average yields to maturity based upon the closing bids
during such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than twenty-eight nor more than
thirty years from the date of each such quotation, as quoted daily for each
Business Day in New York City (or less frequently if daily quotations are not
generally available) to Georgia Power Capital by at least three recognized
dealers in U.S. Government securities selected by Georgia Power Capital.
-7-
<PAGE> 9
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Thirty Year Constant Maturity Rate will each be rounded to the nearest one
hundredth of a percent.
The Applicable Rate with respect to each quarter (other than the
initial period) will be calculated as promptly as practicable by Georgia Power
Capital according to the appropriate method described above. Georgia Power
Capital will cause each Applicable Rate to be published in a newspaper of
general circulation in New York City (or, if such publication is not possible,
to be published or circulated to the public in such other manner as Georgia
Power Capital may deem appropriate) before the commencement of the quarter to
which it applies and will cause notice of such Applicable Rate to be given to
The Depository Trust Company (the "Depository"), New York, New York, the
securities depository for the Series A Preferred Securities.
As used above, the term "Calendar Period" means a period of fourteen
consecutive calendar days; the term "Federal Reserve Board" means the Board of
Governors of the Federal Reserve System; the term "Special Securities" means
securities which can, at the option of the holder, be surrendered at face value
in payment of any federal estate tax or which provide tax benefits to the
holder and are priced to reflect such tax benefits or which were originally
issued at a deep or substantial discount; the term "Ten Year Average Yield"
means the average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities adjusted to constant maturities of ten
years; and the term "Thirty Year Average Yield" means the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities adjusted to constant maturities of thirty years.
ARTICLE TWO
Mandatory Prepayment and Optional Redemption
of the Series A Debentures
SECTION 2.01. If Georgia Power Capital redeems the Series A
Preferred Securities in accordance with the terms thereof, the Series A
Debentures will become due and payable in a principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred Securities so
redeemed, together with all accrued and unpaid interest thereon, including
Additional Interest, if any. Any payment pursuant to this provision shall be
made prior to 12:00 noon, New York City time, on the date of such redemption or
at such earlier time as the Company and Georgia Power Capital shall agree.
SECTION 2.02. Subject to the terms of Article Three of the
Indenture, the Company shall have the right to redeem the Series A Debentures,
in whole or in part, from time to time, on or after
-8-
<PAGE> 10
______________, 1999, at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon, including
any Additional Interest, if any, to the date of such redemption (the "Optional
Redemption Price"). Any redemption pursuant to this paragraph will be made
upon not less than 30 nor more than 60 days' notice, at the Optional Redemption
Price. If the Series A Debentures are only partially redeemed pursuant to this
Section, the Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided, that if at the time of redemption,
the Series A Debentures are registered as a Global Debenture, the Depository
shall determine by lot the principal amount of such Series A Debentures held by
each Series A Debentureholder to be redeemed.
SECTION 2.03. If the Company or Georgia Power Capital purchases
Series A Preferred Securities by tender, in the open market or by private
agreement, the Company shall have the right to redeem Series A Debentures, in
an amount not to exceed the aggregate stated liquidation preference of the
Series A Preferred Securities so purchased, together with any accrued and
unpaid interest thereon, including Additional Interest, if any, to the
redemption date. Any payment pursuant to this provision shall be made prior to
12:00 noon, New York City time, on the date of such repurchase, or at such
earlier time as the Company and Georgia Power Capital shall agree.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on any series of Debentures issued under the Indenture, the
Company shall have the right, at any time during the term of the Series A
Debentures, from time to time to extend the interest payment period of such
Series A Debentures for up to 60 consecutive months (the "Extended Interest
Payment Period"), at the end of which period the Company shall pay all interest
accrued and unpaid thereon (together with interest thereon at the rate
specified for the Series A Debentures to the extent permitted by applicable
law); provided that, during such Extended Interest Payment Period the Company
shall not declare or pay any dividend on, or purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, or make any
guarantee payments with respect thereto; provided further that any such
extended interest payment period may only be selected with respect to the
Series A Debentures if an extended interest payment period of identical
duration is simultaneously selected for all Debentures then outstanding under
the Indenture. Prior to the termination of any such Extended Interest Payment
Period, the Company may further extend such period, provided that such
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<PAGE> 11
period together with all such further extensions thereof shall not exceed 60
consecutive months. Upon the termination of any Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may select a new Extended Interest
Payment Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extended Interest Payment Period, except at the end
thereof.
SECTION 3.02. (a) If Georgia Power Capital is the sole holder of
the Series A Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give both Georgia Power Capital and the
Trustee written notice of its selection of such Extended Interest Payment
Period one business day prior to the earlier of (i) the next succeeding date on
which dividends on the Series A Preferred Securities are payable or (ii) the
date Georgia Power Capital is required to give notice of the record date or the
date such dividends are payable to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Series A Preferred
Securities, but in any event not less than one business day prior to such
record date. The Company shall cause Georgia Power Capital to give notice of
the Company's selection of such Extended Interest Payment Period to the holders
of the Series A Preferred Securities.
(b) If Georgia Power Capital is not the sole holder of the Series
A Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Series A Debentures and the
Trustee written notice of its selection of such Extended Interest Payment
Period 10 business days prior to the earlier of (i) the next succeeding
Interest Payment Date or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Series A Debentures, but in any event not less than two business days prior to
such record date.
(c) The month in which any notice is given pursuant to paragraphs
(a) or (b) of this Section shall constitute one of the 60 months which comprise
the maximum Extended Interest Payment Period.
ARTICLE FOUR
Right of Set-Off
SECTION 4.01. Notwithstanding anything to the contrary in the
Indenture or herein, the Company shall have the right to set-off any payment it
is otherwise required to make thereunder or hereunder with and to the extent
the Company has heretofore made,
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<PAGE> 12
or is concurrently on the date of such payment making, a payment under the
Guarantee Agreement, dated as of _________________, executed by the Company and
furnished to Georgia Power Capital for the benefit of the holders of the Series
A Preferred Securities.
ARTICLE FIVE
Covenant to List on Exchange
SECTION 5.01. If the Series A Debentures are to be issued as a
Global Debenture in connection with the distribution of the Series A Debentures
to the holders of the Series A Preferred Securities upon a Dissolution Event,
the Company will use its best efforts to list such Series A Debentures on the
New York Stock Exchange or on such other exchange as the Series A Preferred
Securities are then listed and traded.
ARTICLE SIX
Form of Series A Debenture
SECTION 6.01. The Series A Debentures and the Trustee's Certificate
of Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE SERIES A DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depository or a nominee of a
Depository. This Debenture is exchangeable for Debentures registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to the issuer or its
agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust
-11-
<PAGE> 13
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
No. _________________ $___________
CUSIP No. ___________
GEORGIA POWER COMPANY
ADJUSTABLE RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE,
SERIES A, DUE 2024
GEORGIA POWER COMPANY, a corporation duly organized and existing under
the laws of the State of Georgia (herein referred to as the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________ or
registered assigns, the principal sum of ______________ Dollars on
____________, 2024, and to pay interest on said principal sum from
____________, 1994 or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, monthly (subject to deferral as set forth herein) in arrears on
the last day of each calendar month of each year commencing ____________, 1994
at the Applicable Rate (as defined in the First Supplemental Indenture)
adjusted quarterly, determined by Georgia Power Capital in the manner described
in the First Supplemental Indenture, plus Additional Interest, if any, until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum during such overdue period.
The amount of interest payable on any Interest Payment Date shall be computed
for any full monthly interest period on the basis of a 360-day year of twelve
30-day months and for any period shorter than a full monthly interest period
for which interest is computed, interest will be computed on the basis of the
actual number of days elapsed in such period. In the event that any date on
which interest is payable on this Debenture is not a business day, then payment
of interest payable on such date will be made on the next succeeding day which
is a business day (and without any interest or other payment in respect of any
such delay), except that, if such business day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding business
day, in each case with the same force and effect as if made on such date. The
interest
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<PAGE> 14
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Debentures, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, [which shall be the close of business on
the business day next preceding such Interest Payment Date.] [IF PURSUANT TO
THE PROVISIONS OF SECTION 2.11(C) OF THE INDENTURE THE SERIES A DEBENTURES ARE
NO LONGER REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the close of
business on the _____ business day next preceding such Interest Payment Date.]
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered holders on such regular record
date, and may be paid to the person in whose name this Debenture (or one or
more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium, if any) and
the interest on this Debenture shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City and
State of New York, in any coin or currency of the United States of America
which at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option of
the Company by check mailed to the registered holder at such address as shall
appear in the Debenture Register. Notwithstanding the foregoing, so long as
the holder of this Debenture is Georgia Power Capital, L.P. ("Georgia Power
Capital"), the payment of the principal of (and premium, if any) and interest
(including Additional Interest, if any) on this Debenture will be made at such
place and to such account as may be designated by Georgia Power Capital.
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<PAGE> 15
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been executed by
the Trustee or a duly appointed Authentication Agent referred to on the reverse
side hereof, this Debenture shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
executed.
Dated ____________________
GEORGIA POWER COMPANY
By ____________________________
Attest:
By____________________
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<PAGE> 16
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in
the within-mentioned Indenture.
TRUST COMPANY BANK
____________________________ ____________________________
as Trustee or as Authentication Agent
By__________________________ By__________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of _____________, 1994 duly executed and delivered
between the Company and Trust Company Bank, a banking corporation organized and
existing under the laws of the State of Georgia, as Trustee (herein referred to
as the "Trustee"), as supplemented by the First Supplemental Indenture dated as
of ______________, 1994 between the Company and the Trustee (said Indenture as
so supplemented being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Debentures. By the terms of the Indenture, the Debentures are issuable in
series which may vary as to amount, date of maturity, rate of interest and in
other respects as in the Indenture provided. This series of Debentures is
limited in aggregate principal amount as specified in said First Supplemental
Indenture.
If Georgia Power Capital redeems its Cumulative Adjustable Rate
Monthly Income Preferred Securities, Series A (the "Series A Preferred
Securities") in accordance with the terms thereof, this Debenture will become
due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so redeemed,
together with any interest accrued thereon, including Additional Interest (the
"Mandatory
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<PAGE> 17
Prepayment"). Any Mandatory Prepayment shall be made prior to 12:00 noon, New
York time, on the date of such redemption or at such earlier time as the
Company and Georgia Power Capital shall agree.
Subject to the terms of Article Three of the Indenture, the Company
shall have the right to redeem this Debenture at the option of the Company,
without premium or penalty, in whole or in part at any time on or after
______________, 1999 (an "Optional Redemption"), at a redemption price equal to
100% of the principal amount plus any accrued but unpaid interest, including
any Additional Interest, if any, to the date of such redemption (the "Optional
Redemption Price"). Any redemption pursuant to this paragraph will be made
upon not less than 30 nor more than 60 days' notice, at the Optional Redemption
Price. If the Debentures are only partially redeemed by the Company pursuant
to an Optional Redemption, the Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Trustee; provided that if at the time of
redemption, the Debentures are registered as a Global Debenture, the Depository
shall determine by lot the principal amount of such Debentures held by each
Debentureholder to be redeemed.
If the Company or Georgia Power Capital purchases Series A Preferred
Securities by tender, in the open market or by private agreement, the Company
shall have the right to redeem Debentures of this series, in an amount not to
exceed the aggregate stated liquidation preference of the Series A Preferred
Securities so purchased, together with any accrued and unpaid interest thereon,
including Additional Interest, if any, to the redemption date.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating
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<PAGE> 18
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the fixed
maturity of any Debentures of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any premium payable upon the redemption thereof, without the consent
of the holder of each Debenture so affected or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of each
Debenture then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount
of the Debentures of all series at the time outstanding affected thereby, on
behalf of the Holders of the Debentures of such series, to waive any past
default in the performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium,
if any, or interest on any of the Debentures of such series. Any such consent
or waiver by the registered Holder of this Debenture (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Debenture and of any Debenture
issued in exchange herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
So long as the Company is not in default in the payment of interest on
any series of Debentures issued under the Indenture, the Company shall have the
right at any time during the term of the Debentures, from time to time to
extend the interest payment period of such Debentures to up to 60 consecutive
months (the "Extended Interest Payment Period"), at the end of which period the
Company shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Debentures to the extent that payment of
such interest is enforceable under applicable law); provided that, during such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, or purchase, acquire or make a liquidation payment with respect
to, any of its capital stock, or make any guarantee payments with respect
thereto; provided further that any such extended interest payment period may
only be selected with respect to the Series A Debentures if an extended
interest
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<PAGE> 19
payment period of identical duration is simultaneously selected for all
Debentures then outstanding under the Indenture. Prior to the termination of
any such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Period together with all
such further extensions thereof shall not exceed 60 consecutive months. At the
termination of any such Extended Interest Payment Period and upon the payment
of all accrued and unpaid interest and any additional amounts then due, the
Company may select a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Debenture Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
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<PAGE> 20
[The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.]
[This Global Debenture is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [herein and] therein set forth,
Debentures of this series [so issued] are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ARTICLE SEVEN
Original Issue of Series A Debentures
SECTION 7.01. Series A Debentures in the aggregate principal amount
of $____________ plus the amount of capital contributions made by the Company
from time to time as general partner of Georgia Power Capital, may, upon
execution of this First Supplemental Indenture, or from time to time
thereafter, be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by its Chairman,
its President, or any Vice President and its Treasurer or an Assistant
Treasurer, without any further action by the Company.
ARTICLE EIGHT
Miscellaneous Provisions
SECTION 8.01. Except as otherwise expressly provided in this First
Supplemental Indenture or in the form of Series A Debenture or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Series A Debenture that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
SECTION 8.02. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
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<PAGE> 21
SECTION 8.03. The recitals herein contained are made by the Company
and not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 8.04. This First Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
GEORGIA POWER COMPANY
By: _____________________________
Attest:
_________________________
TRUST COMPANY BANK,
as Trustee
By: _____________________________
By: _____________________________
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<PAGE> 22
STATE OF GEORGIA )
COUNTY OF FULTON ) ss.: Atlanta, ___________, 1994
On the ____ day of ___________, in the year one thousand nine hundred
ninety-four, before me personally came _________________ to me known, who,
being by me duly sworn, did depose and say that he resides at
____________________________; that he is __________________________ of GEORGIA
POWER COMPANY, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
___________________________
NOTARY PUBLIC
My Commission Expires:
STATE OF GEORGIA )
COUNTY OF FULTON ) ss.: Atlanta, _____________, 1994
On the ____ day of ___________, in the year one thousand nine hundred
ninety-four, before me personally came ___________________ to me known, who,
being by me duly sworn, did depose and say that he resides
at_______________________; that he is __________________________ of TRUST
COMPANY BANK, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
___________________________
NOTARY PUBLIC
My Commission Expires
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<PAGE> 1
EXHIBIT 4.8
DRAFT
12/7/94
ACTION OF GENERAL PARTNER
OF GEORGIA POWER CAPITAL, L.P.
CREATING THE
CUMULATIVE ADJUSTABLE RATE
MONTHLY INCOME PREFERRED SECURITIES, SERIES
Pursuant to Section 6.1 of the Amended and Restated Agreement of
Limited Partnership of Georgia Power Capital, L.P. dated as of ____________,
1994 (as amended from time to time, the "Partnership Agreement"), Georgia
Power Company, a Georgia corporation, as general partner (the "General
Partner") of Georgia Power Capital, L.P., a Delaware limited partnership (the
"Partnership"), desiring to state the designations, rights, privileges,
restrictions, preferences and other terms and provisions of a new series of
Preferred Securities, hereby authorizes and establishes such new series of
Preferred Securities according to the following terms and conditions (each
capitalized term used but not defined herein having the meaning set forth in
the Partnership Agreement):
1. Designation and Number. ______________ Preferred Securities
of the Partnership, with an aggregate liquidation preference of $_________
million ($__,000,000) and a liquidation preference of $25 per Preferred
Security, are hereby designated as "Cumulative Adjustable Rate Monthly Income
Preferred Securities, Series _____" (hereinafter called the "Series ___
Preferred Securities"). The LP Certificates evidencing the Series ______
Preferred Securities shall be substantially in the form attached hereto as
Exhibit A. The proceeds of the Series ____Preferred Securities shall be loaned
to the General Partner in return for Adjustable Rate Junior Subordinated
Deferrable Interest Debentures, Series _____ (the "Series ____ Junior
Subordinated Debentures") in an aggregate principal amount equal to the
aggregate liquidation preference of the Series _____ Preferred Securities,
bearing interest at an annual rate equal to the annual Dividend rate on the
Series _____ Preferred Securities and having certain payment and redemption
provisions which correspond to the payment and redemption provisions of the
Series _____ Preferred Securities.
2. Dividends. (a) Dividends on the Series _____ Preferred
Securities will be cumulative, will accrue from the date of initial issuance
and will be payable monthly in arrears, on the last day of each calendar month
of each year, commencing ____________, 1994, when, as and if available and
determined to be so payable by the General Partner, except as otherwise
<PAGE> 2
described below. Dividends in arrears for more than one month will bear
interest monthly thereon at the rate per annum equal to the dividend rate for
each month during the period of arrearage. The term "Dividends" as used herein
includes any such interest payable unless otherwise stated. The amount of
Dividends payable for any period will be computed for any full monthly Dividend
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full monthly Dividend period for which Dividends are
computed, Dividends will be computed on the basis of the actual number of days
elapsed in such period.
(b) The Dividend rate will be adjusted quarterly. The rate for the
initial period from the date of initial issuance to , 1994 will be % per
annum, which is equivalent to $ per Series ___ Preferred Security per
annum. Thereafter, Dividends on the Series ___ Preferred Securities will be
payable at the "Applicable Rate" (as defined below) from time to time in
effect. Georgia Power Company has the right under the indenture for the Series
_____ Junior Subordinated Debentures (the "Indenture") to extend the interest
payment period from time to time on the Series _____Junior Subordinated
Debentures to a period not exceeding 60 consecutive months (each an "Extension
Period") and, as a consequence, monthly Dividends on the Series _____ Preferred
Securities would be deferred (but would continue to accrue with interest
thereon) by the Partnership during any such Extension Period. Prior to the
termination of any such Extension Period, Georgia Power Company may further
extend such Extension Period, provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 60 consecutive
months. Upon the termination of any Extension Period and the payment of all
amounts then due, Georgia Power Company may select a new Extension Period,
subject to the above requirements.
(c) Dividends on the Series __ Preferred Securities must be paid
on the date such Dividends are payable to the extent that the Partnership has,
on the date such Dividends are payable, (x) funds legally available for the
payment of such Dividends and (y) cash on hand sufficient to permit such
payments. Dividends on the Series _____ Preferred Securities will be payable
to the Holders thereof as they appear on the books and records of the
Partnership on the relevant record dates, which, as long as the Series _____
Preferred Securities remain in book-entry-only form, will be one Business Day
prior to the relevant payment dates. Subject to any applicable laws and
regulations and the provisions of the Partnership Agreement, each such payment
will be made as described under the heading "Description of the Series _____
Preferred Securities--Book-Entry-Only Issuance - The Depository Trust Company"
in the prospectus for the Series _____ Preferred Securities. In the event the
Series _____ Preferred Securities shall not continue to remain in
book-entry-only form, the General Partner shall have the right to select
relevant record dates,
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<PAGE> 3
which shall be more than one Business Day prior to the relevant payment dates.
In the event that any date on which Dividends are payable on the Series _____
Preferred Securities is not a Business Day, then payment of the Dividend
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(d) Except as provided below in this paragraph, the "Applicable
Rate" for any quarter (other than the initial period) will be equal to % of
the Effective Rate (as defined below), but not less than % per annum nor more
than % per annum. The "Effective Rate" for any quarter will be equal to the
highest of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Thirty Year Constant Maturity Rate (each as defined below) for such quarter.
In the event that the Partnership determines in good faith that for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Maturity Rate
cannot be determined for any quarter, then the Effective Rate for such
quarter will be equal to the higher of whichever two of such rates can
be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate and the Thirty Year Constant Maturity Rate can
be determined for any quarter, then the Effective Rate for such
quarter will be equal to whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Thirty Year Constant Maturity Rate can be
determined for any quarter, then the Effective Rate for the preceding
quarter will be continued for such quarter.
Except as described below in this paragraph, the "Treasury Bill Rate"
for each quarter will be the arithmetic average of the two most recent weekly
per annum market discount rates (or the one weekly per annum market discount
rate, if only one such rate is published during the relevant Calendar Period
(as defined below)) for three-month U.S. Treasury bills, as published weekly by
the Federal Reserve Board (as defined below) during the Calendar Period
immediately preceding the last ten calendar days immediately preceding the
commencement of the quarter for which the dividend rate on the Series __
Preferred Securities is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum market discount rate
during any such Calendar Period, then the Treasury Bill Rate for such
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<PAGE> 4
quarter will be the arithmetic average of the two most recent weekly per annum
market discount rates (or the one weekly per annum market discount rate, if
only one such rate is published during the relevant Calendar Period) for
three-month U.S. Treasury bills, as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Partnership. In the event that a per annum market
discount rate for three-month U.S. Treasury bills is not published by the
Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury Bill Rate
for such quarter will be the arithmetic average of the two most recent weekly
per annum market discount rates (or the one weekly per annum market discount
rate, if only one such rate is published during the relevant Calendar Period)
for all of the U.S. Treasury bills then having remaining maturities of not less
than 80 nor more than 100 days, as published during such Calendar Period by the
Federal Reserve Board, or if the Federal Reserve Board does not publish such
rates, by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Partnership. In the event that the Partnership
determines in good faith that for any reason no such U.S. Treasury bill rates
are published as provided above during such Calendar Period, then the Treasury
Bill Rate for such quarter will be the arithmetic average of the per annum
market discount rates based upon the closing bids during such Calendar Period
for each of the issues of marketable non-interest bearing U.S. Treasury
securities with a remaining maturity of not less than 80 nor more than 100 days
from the date of each such quotation, as chosen and quoted daily for each
Business Day in New York City (or less frequently if daily quotations are not
generally available) to the Partnership by at least three recognized dealers in
U.S. Government securities selected by the Partnership. In the event that the
Partnership determines in good faith that for any reason the Partnership cannot
determine the Treasury Bill Rate for any quarter as provided above in this
paragraph, the Treasury Bill Rate for such quarter will be the arithmetic
average of the per annum market discount rates based upon the closing bids
during such Calendar Period for each of the issues of marketable interest
bearing U.S. Treasury securities with a remaining maturity of not less than 80
nor more than 100 days, as quoted daily for each business day in New York City
(or less frequently if daily quotations are not generally available) to the
Partnership by at least three recognized dealers in U.S. Government securities
selected by the Partnership.
Except as described below in this paragraph, the "Ten Year Constant
Maturity Rate" for each quarter will be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (as defined below) (or the one
weekly per annum Ten Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly by the Federal
-4-
<PAGE> 5
Reserve Board during the Calendar Period immediately preceding the last ten
calendar days immediately preceding the commencement of the quarter for which
the dividend rate on the Series __ Preferred Securities is being determined.
In the event that the Federal Reserve Board does not publish such a weekly per
annum Ten Year Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such quarter will be the arithmetic average of the
two most recent weekly per annum Ten Year Average Yields (or the one weekly per
annum Ten Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by the Partnership. In the event that a per annum Ten Year Average
Yield is not published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such Calendar
Period, then the Ten Year Constant Maturity Rate for such quarter will be the
arithmetic average of the two most recent weekly per annum average yields to
maturity (or the one weekly per annum average yield to maturity, if only one
such yield is published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate securities (other
than Special Securities (as defined below)) then having remaining maturities of
not less than eight nor more than twelve years, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
does not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Partnership. In the event that
the Partnership determines in good faith that for any reason the Partnership
cannot determine the Ten Year Constant Maturity Rate for any quarter as
provided above in this paragraph, then the Ten Year Constant Maturity Rate for
such quarter will be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not less
than eight or more than twelve years from the date of each such quotation, as
quoted daily for each Business Day in New York City (or less frequently if
daily quotations are not generally available) to the Partnership by at least
three recognized dealers in U.S. Government securities selected by the
Partnership.
Except as described below in this paragraph, the "Thirty Year Constant
Maturity Rate" for each quarter will be the arithmetic average of the two most
recent weekly per annum Thirty Year Average Yields (as defined below) (or the
one weekly per annum Thirty Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately preceding the last
ten calendar days immediately preceding the commencement of the quarter for
which the dividend
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<PAGE> 6
rate on the Series __ Preferred Securities is being determined. In the event
that the Federal Reserve Board does not publish such a weekly per annum Thirty
Year Average Yield during such Calendar Period, then the Thirty Year Constant
Maturity Rate for such quarter will be the arithmetic average of the two most
recent weekly per annum Thirty Year Average Yields (or the one weekly per annum
Thirty Year Average Yield, if only one such yield is published during the
relevant Calendar Period), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by the Partnership. In the event that a per annum Thirty Year Average
Yield is not published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such Calendar
Period, then the Thirty Year Constant Maturity Rate for such quarter will be
the arithmetic average of the two most recent weekly per annum average yields
to maturity (or the one weekly per annum average yield to maturity, if only one
such yield is published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate securities (other
than Special Securities) then having remaining maturities of not less than
twenty-eight nor more than thirty years, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve Board does not
publish such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Partnership. In the event that the
Partnership determines in good faith that for any reason the Partnership cannot
determine the Thirty Year Constant Maturity Rate for any quarter as provided
above in this paragraph, then the Thirty Year Constant Maturity Rate for such
quarter will be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not less
than twenty-eight nor more than thirty years from the date of each such
quotation, as quoted daily for each Business Day in New York City (or less
frequently if daily quotations are not generally available) to the Partnership
by at least three recognized dealers in U.S. Government securities selected by
the Partnership.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Thirty Year Constant Maturity Rate will each be rounded to the nearest one
hundredth of a percent.
The Applicable Rate with respect to each quarter (other than the
initial period) will be calculated as promptly as practicable by the
Partnership according to the appropriate method described above. The
Partnership will cause each Applicable Rate to be published in a newspaper of
general circulation in New York City (or, if such publication is not possible,
to be published or circulated to the public in such other manner as the
Partnership
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<PAGE> 7
may deem appropriate) before the commencement of the quarter to which it
applies and will cause notice of such Applicable Rate to be given to The
Depository Trust Company (the "Depository"), New York, New York, the securities
depository for the Series ___ Preferred Securities.
As used above, the term "Calendar Period" means a period of fourteen
consecutive calendar days; the term "Federal Reserve Board" means the Board of
Governors of the Federal Reserve System; the term "Special Securities" means
securities which can, at the option of the holder, be surrendered at face value
in payment of any federal estate tax or which provide tax benefits to the
holder and are priced to reflect such tax benefits or which were originally
issued at a deep or substantial discount; the term "Ten Year Average Yield"
means the average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities adjusted to constant maturities of ten
years; and the term "Thirty Year Average Yield" means the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities adjusted to constant maturities of thirty years.
3. Certain Restrictions on the Partnership. If Dividends have
not been paid in full on the Series _____ Preferred Securities, the Partnership
shall not:
(i) declare, pay, or set aside for payment, any Dividends
on any other series of Preferred Securities, unless the amounts of any
Dividends declared and paid on any other series of Preferred
Securities and on the Series _____ Preferred Securities are on a pro
rata basis on the dates such Dividends are paid on such other series
of Preferred Securities, so that
(x) the aggregate amount of Dividends paid on the
Series _____ Preferred Securities bears to the aggregate
amount of Dividends paid on such other series of Preferred
Securities the same ratio as
(y) the aggregate of all accrued and unpaid
Dividends in respect of the Series _____ Preferred Securities
bears to the aggregate of all accrued and unpaid Dividends in
respect of such other series of Preferred Securities; or
(ii) redeem, purchase or otherwise acquire any other
Preferred Securities;
until, in each case, such time as all accrued and unpaid Dividends on the
Series _____ Preferred Securities shall have been paid in full for all Dividend
periods terminating on or prior to, in the case of clause (i), such payment
and, in the case of
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<PAGE> 8
clause (ii), the date of such redemption, purchase or acquisition.
4. Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary dissolution, winding up or termination of the
Partnership, the Holders of the Series _____ Preferred Securities at the time
will be entitled to receive out of the assets of the Partnership available for
distribution to Partners after satisfaction of liabilities of creditors as
required by the Act, before any distribution of assets is made to the General
Partner, but together with the Holders of every other series of Preferred
Securities outstanding, an amount equal to, in the case of Holders of Series
_____ Preferred Securities, the aggregate of the stated liquidation preference
of $25 per Series _____ Preferred Security plus accrued and unpaid Dividends
thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution, winding up or
termination, Series _____ Junior Subordinated Debentures in an aggregate
principal amount equal to the stated liquidation preference of such Series
_____ Preferred Securities, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Dividends on such Series _____ Preferred
Securities, shall be distributed on a pro rata basis to the Holders of the
Series _____ Preferred Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Partnership has insufficient assets available to
pay in full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on any other series of Preferred Securities, then the
amounts payable directly by the Partnership on the Series _____ Preferred
Securities and on such other series of Preferred Securities shall be paid in
cash or in kind on a pro rata basis, so that
(x) the aggregate amount paid in respect of the
Liquidation Distribution bears to the aggregate amount paid as
liquidation distributions on the other series of Preferred Securities
the same ratio as
(y) the aggregate Liquidation Distribution bears to the
aggregate maximum liquidation distributions on the other series of
Preferred Securities.
5. Redemption. (a) The Series _____ Preferred Securities shall
be redeemable, at the option of the Partnership in whole or in part from time
to time, on or after _______________, 1999, upon not less than 30 nor more than
60 days' notice, at a redemption price of $25 per Series _____ Preferred
Security plus an amount equal to accrued and unpaid Dividends thereon to the
date fixed for redemption, payable in cash (the "Redemption Price"). In the
event that fewer than all the outstanding Series _____ Preferred Securities are
to be so redeemed, the Series _____
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<PAGE> 9
Preferred Securities to be redeemed will be selected as described in Section
5(e)(ii) below. If a partial redemption would result in the delisting of the
Series _____ Preferred Securities by any national securities exchange or other
organization on which the Series _____ Preferred Securities are then listed,
the Partnership may only redeem the Series _____ Preferred Securities in whole.
(b) If at any time Georgia Power Company (1) pays at maturity or
(2) redeems Series _____ Junior Subordinated Debentures, the proceeds from such
payment or redemption of such Series _____ Junior Subordinated Debentures shall
be applied to redeem Series _____ Preferred Securities at the Redemption Price
upon not less than 30 nor more than 60 days' notice.
(c) If a Tax Event or an Investment Company Event (each as
hereinafter defined, and each a "Special Event") shall occur and be continuing,
the General Partner shall elect to either (x) cause the Partnership to redeem
the Series _____ Preferred Securities in whole (and not in part), upon not less
than 30 or more than 60 days' notice at the Redemption Price, within 90 days
following the occurrence of such Special Event; provided that, if and as long
as at the time there is available to the General Partner the opportunity to
eliminate, within such 90-day period, the Special Event by taking some
ministerial action, such as filing a form or making an election, or pursuing
some other similar reasonable measure that has no adverse effect on the
Partnership or Georgia Power Company, the General Partner will pursue such
measure in lieu of redemption, or (y) dissolve the Partnership and, after
satisfaction of creditors as required by the Act, cause Series _____ Junior
Subordinated Debentures to be distributed to the Holders of the Series _____
Preferred Securities in liquidation of the Partnership, within 90 days
following the occurrence of such Special Event. In the case of a Tax Event,
the General Partner may, as an alternative to electing to redeem the Series
_____ Preferred Securities or dissolving the Partnership, elect to cause the
Series _____ Preferred Securities to remain outstanding.
"Tax Event" means that the General Partner shall have obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including
the enactment of any legislation and the publication of any judicial decision
or regulatory determination), (c) any interpretation or pronouncement that
provides for a position with respect to such
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<PAGE> 10
laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
effective or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the date of issuance of the
Series _____ Preferred Securities, there is more than an insubstantial risk
that (i) the Partnership is subject to federal income tax with respect to
interest accrued or received on the Series _____ Junior Subordinated
Debentures, (ii) the Partnership is subject to more than a de minimis amount of
taxes, duties or other governmental charges, or (iii) interest payable by
Georgia Power Company to the Partnership on the Series _____ Junior
Subordinated Debentures will not be deductible by Georgia Power Company for
federal income tax purposes.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that the Partnership is or will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), which Change in
1940 Act Law becomes effective on or after the date of issuance of the Series
_____ Preferred Securities; provided that no Investment Company Event shall be
deemed to have occurred if the General Partner obtains a written opinion of
nationally recognized independent counsel to the Partnership experienced in
practice under the 1940 Act to the effect that the General Partner has
successfully issued an additional or supplemental irrevocable and unconditional
guarantee or taken such other actions as may be necessary so that, in the
opinion of such counsel, notwithstanding such Change in 1940 Act Law, the
Partnership is not required to be registered as an "investment company" within
the meaning of the 1940 Act. In case of any uncertainty regarding an
Investment Company Event, the good faith determination of the General Partner
(based on the advice of counsel) shall be conclusive.
After the date fixed for any distribution of Series _____ Junior
Subordinated Debentures, upon dissolution of the Partnership, (i) the Series
_____ Preferred Securities will no longer be deemed to be outstanding, (ii) the
Depository or its nominee, as the record Holder of the Series _____ Preferred
Securities, will receive a registered global certificate or certificates
representing the Series ____ Junior Subordinated Debentures to be delivered
upon such distribution and (iii) any certificates representing Series _____
Preferred Securities not held by the Depository or its nominee will be deemed
to represent Series _____ Junior Subordinated Debentures having a principal
amount equal to the stated liquidation preference of such Series ___ Preferred
Securities, and bearing accrued and unpaid
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<PAGE> 11
interest in an amount equal to the accrued and unpaid Dividends on such Series
___ Preferred Securities until such certificates are presented to Georgia Power
Company or its agent for transfer or reissuance.
(d) The Partnership may not redeem fewer than all the outstanding
Series _____ Preferred Securities unless all accrued and unpaid Dividends have
been paid on all Series _____ Preferred Securities for all monthly Dividend
periods terminating on or prior to the date of redemption.
(e) Redemption or Exchange Procedures. (i) Notice of any
redemption (a "Notice of Redemption") of, or notice of distribution of Series
_____ Junior Subordinated Debentures in exchange for, the Series _____
Preferred Securities will be given by the Partnership by mail to each Holder of
Series _____ Preferred Securities to be redeemed or exchanged not fewer than 30
nor more than 60 days prior to the date fixed for redemption or exchange
thereof; provided, that no such notice shall be required in the case of a
redemption of Series _____ Preferred Securities resulting from payment at
maturity of the Series _____ Junior Subordinated Debentures as contemplated in
paragraph 5(b)(1) above, the redemption date for the Series _____ Preferred
Securities being the same as such maturity date in such case. For purposes of
the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (e)(i), a Notice of Redemption or
notice of distribution shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to Holders of Series _____
Preferred Securities. Each Notice of Redemption or notice of distribution
shall be addressed to the Holders of Series _____ Preferred Securities at the
address of each such Holder appearing in the books and records of the
Partnership. No defect in the Notice of Redemption or notice of distribution
or in the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding Series _____
Preferred Securities are to be redeemed, the Series __ __ Preferred Securities
to be redeemed will be selected in accordance with paragraph (e)(iv) below or,
in the event that Series _____ Preferred Securities are not held by the
Depository, by lot or in such other manner as the General Partner shall deem
fair or appropriate.
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<PAGE> 12
(iii) If the Partnership gives a Notice of Redemption in respect of
Series _____ Preferred Securities (which notice will be irrevocable) then, by
12:00 noon, New York City time, on the redemption date, the Partnership will
deposit irrevocably with the Depository funds sufficient to pay the applicable
Redemption Price and will give the Depository irrevocable instructions and
authority to pay the Redemption Price to the Holders of the Series _____
Preferred Securities. If Notice of Redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Holders of such Series _____ Preferred Securities so called for redemption will
cease, except the right of the Holders of such Series _____ Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price. Neither the General Partner nor the Partnership shall be
required to register or cause to be registered the transfer of any Series _____
Preferred Securities which have been so called for redemption. In the event
that any date fixed for redemption of Series _____ Preferred Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. In the event that payment of the
Redemption Price in respect of Series _____ Preferred Securities is improperly
withheld or refused and not paid either by the Partnership or by Georgia Power
Company pursuant to the Guarantee described in the Prospectus for the Series
_____ Preferred Securities (the "Guarantee"), Dividends on such Series _____
Preferred Securities will continue to accrue, from the original redemption date
to the date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
(iv) Redemption or exchange notices shall be sent to the Depository
or its nominee. If less than all of the Series _____ Preferred Securities are
being redeemed, interests to be redeemed shall be determined in accordance with
the Depository's practice which at the date hereof is to determine by lot the
amount of the interest of each direct participant in such series to be
redeemed.
(v) Under the circumstances described in clause (y) of Section
5(c) above and as of the date fixed for distribution of Series _____ Junior
Subordinated Debentures, any LP Certificates representing Series _____
Preferred Securities outstanding shall be deemed to represent the Series _____
Junior Subordinated Debentures to be distributed on such an exchange, and the
Series _____ Preferred Securities will no longer be deemed outstanding and may
be cancelled by the General Partner. The Series _____
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<PAGE> 13
Junior Subordinated Debentures distributed upon such an exchange shall have an
aggregate principal amount equal to the aggregate liquidation preference of $25
per security of the Series _____ Preferred Securities so exchanged, and shall
bear interest at a rate per annum equal to the annual Dividend rate on such
Series _____ Preferred Securities from the last date on which Dividends on such
Series _____ Preferred Securities were paid.
(vi) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), Georgia Power
Company or any of its subsidiaries, including the Partnership, may at any time
and from time to time purchase outstanding Series _____ Preferred Securities by
tender, in the open market or by private agreement. If the Partnership
purchases and cancels any Series _____ Preferred Securities, the Series _____
Junior Subordinated Debentures may be repaid in a principal amount equal to the
aggregate stated liquidation preference of the Series _____ Preferred
Securities so purchased, together with any accrued and unpaid interest on such
principal amount of Series ____ Junior Subordinated Debentures.
6. Voting Rights. (a) Except as provided under paragraph 6(b)
below and as otherwise required by law and the Partnership Agreement, the
Holders of the Series _____ Preferred Securities will have no voting rights.
(b) If (i) arrearages on Dividends on the Series _____ Preferred
Securities shall exist for 18 consecutive monthly Dividend periods; (ii) an
Event of Default (as defined in the Indenture) occurs and is continuing on the
Series _____ Junior Subordinated Debentures; or (iii) Georgia Power Company is
in default on any of its payment obligations under the Guarantee, then the
Holders of the Series _____ Preferred Securities, together with the Holders of
any other series of Preferred Securities having the right to vote for the
appointment of a special representative of the Partnership and the Limited
Partners (a "Special Representative"), in such event, acting as a single class,
will be entitled by the vote of a majority in aggregate liquidation preference
of such Holders to appoint and authorize a Special Representative to enforce
the Partnership's creditor rights under the Series _____ Junior Subordinated
Debentures, to enforce the rights of the Holders of the Series ____Preferred
Securities under the Guarantee and to enforce the rights of the Holders of the
Series _____ Preferred Securities to receive Dividends on the Series _____
Preferred Securities. The Special Representative shall not, by virtue of
acting in such capacity, be admitted as a general partner in the Partnership or
otherwise be deemed to be a general partner in the Partnership and shall have
no liability for the debts, obligations or liabilities of the Partnership. Not
later than 30 days after such right to appoint a Special Representative arises,
the General Partner will convene a meeting for the purpose of
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<PAGE> 14
appointing a Special Representative. If the General Partner fails to convene
such meeting within such 30-day period, the Holders of 10% in liquidation
preference of the outstanding Preferred Securities will be entitled to convene
such meeting. The provisions of the Partnership Agreement relating to the
convening and conduct of the meetings of the Partners will apply with respect
to any such meeting. In the event that, at any such meeting, Holders of less
than a majority in aggregate liquidation preference of Preferred Securities
entitled to vote for the appointment of a Special Representative vote for such
appointment, no Special Representative shall be appointed. Any Special
Representative appointed shall cease to be a special representative of the
Partnership and the Limited Partners if the Partnership (or Georgia Power
Company pursuant to the Guarantee) shall have paid in full all accrued and
unpaid Dividends on the Preferred Securities or such default or breach, as the
case may be, shall have been cured, and the General Partner shall continue the
business of the Partnership without dissolution. Notwithstanding the
appointment of any such Special Representative, Georgia Power Company shall
continue as General Partner and shall retain all rights under the Indenture,
including the right to extend the interest payment period.
In furtherance of the foregoing, and without limiting the powers of
any Special Representative so appointed and for the avoidance of any doubt
concerning the powers of the Special Representative, any Special
Representative, in its own name, in the name of the Partnership, in the name of
the Limited Partners, or otherwise, may institute or cause to be instituted a
proceeding, including, without limitation, any suit in equity, an action at law
or other judicial or administrative proceeding, to enforce the Partnership's
rights directly against Georgia Power Company or any other obligor in
connection with such obligations to the same extent as the Partnership and on
behalf of the Partnership, and may prosecute such proceeding to judgment or
final decree, and enforce the same against Georgia Power Company, or any other
obligor in connection with such obligations.
If any proposed amendment to the Partnership Agreement provides for,
or the General Partner otherwise proposes to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Series _____
Preferred Securities, whether by way of amendment to the Partnership Agreement
or otherwise (including, without limitation, the authorization or issuance of
any limited partner interests in the Partnership ranking, as to participation
in the profits or Dividends or in the assets of the Partnership, senior to the
Series _____ Preferred Securities), or (ii) the dissolution, winding up or
termination of the Partnership, other than (x) in connection with the
distribution of Series _____ Junior Subordinated Debentures upon the occurrence
of a Special Event or (y) as described in paragraph 8 below, then the Holders
of outstanding
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<PAGE> 15
Series _____ Preferred Securities will be entitled to vote on such amendment or
proposal of the General Partner (but not on any other amendment or proposal) as
a class with all other Holders of series of Preferred Securities similarly
affected, and such amendment or proposal shall not be effective except with the
approval of the Holders of 66-2/3% in liquidation preference of such
outstanding Preferred Securities having a right to vote on the matter;
provided, however, that no such approval shall be required if the dissolution,
winding up or termination of the Partnership is proposed or initiated upon the
initiation of proceedings, or after proceedings have been initiated, for the
dissolution, winding up, liquidation or termination of Georgia Power Company.
The rights attached to the Series _____ Preferred Securities will be
deemed not to be adversely affected by the creation or issue of, and no vote
will be required for the creation or issue of, any further limited partner
interests of the Partnership ranking pari passu with the Series _____ Preferred
Securities with regard to participation in the profits or Dividends or in the
assets of the Partnership. Holders of Series _____ Preferred Securities have
no preemptive rights.
So long as any Series _____ Junior Subordinated Debentures are held by
the Partnership, the General Partner shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series, (ii) waive any past default that is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Series _____ Junior Subordinated Debentures shall be due
and payable or (iv) consent to any amendment, modification or termination of
the Indenture or the Series ____ Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the prior approval
of the Holders of at least 66-2/3% in liquidation preference of all series of
Preferred Securities who would be affected thereby if their Preferred
Securities were to be exchanged for Junior Subordinated Debentures, acting as a
single class; provided, however, that where a consent under the Indenture would
require the consent of each Holder affected thereby, no such consent shall be
given by the General Partner without the prior consent of each Holder of all
series of Preferred Securities who would be affected thereby if its Preferred
Securities were to be exchanged for Junior Subordinated Debentures. The
General Partner shall not revoke any action previously authorized or approved
by a vote of the Holders of any series of Preferred Securities who would be
affected thereby if their Preferred Securities were to be exchanged for Junior
Subordinated Debentures. The General Partner shall notify all Holders of the
Series _____ Preferred Securities of any notice of
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<PAGE> 16
default received from the Trustee under the Indenture with respect to the
Series _____ Junior Subordinated Debentures.
Any required approval of Holders of Series _____ Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Partners in the Partnership or
pursuant to written consent. The Partnership will cause a notice of any
meeting at which Holders of Series _____ Preferred Securities are entitled to
vote, or of any matter upon which action by written consent of such Holders is
to be taken, to be mailed to each Holder of record of Series _____ Preferred
Securities. Each such notice will include a statement setting forth (i) the
date of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Series _____ Preferred Securities
will be required for the Partnership to redeem and cancel Series _____
Preferred Securities in accordance with the Partnership Agreement.
Notwithstanding that Holders of Series _____ Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Series _____ Preferred Securities and any other series of Preferred
Securities that are entitled to vote or consent with such Series _____
Preferred Securities as a single class at such time that are owned by Georgia
Power Company or by any entity more than 50% of which is owned by Georgia Power
Company, either directly or indirectly, shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if they
were not outstanding.
Holders of the Series _____ Preferred Securities will have no rights
to remove or replace the General Partner.
7. Ranking. So long as any Series _____ Preferred Securities are
outstanding, the Partnership will not issue any partnership interests ranking,
as to participation in the profits or Dividends or in the assets of the
Partnership, senior to the Series _____ Preferred Securities.
8. Mergers, Consolidations or Amalgamations. The Partnership may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to,
any corporation or other body, except as described below. The Partnership may,
without the consent of the Holders of the Series _____ Preferred Securities,
consolidate, amalgamate, merge with or into, or be
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<PAGE> 17
replaced by a limited partnership, limited liability company or trust organized
as such under the laws of any state of the United States of America provided
that (i) such successor entity either (x) expressly assumes all of the
obligations of the Partnership under the Series _____ Preferred Securities or
(y) substitutes for the Series _____ Preferred Securities other securities
having substantially the same terms as the Series _____ Preferred Securities
(the "Successor Securities") so long as the Successor Securities rank, with
respect to participation in the profits and Dividends, and in the assets, of
the successor entity, at least as high as the Series _____ Preferred Securities
rank with respect to participation in the profits and Dividends, and in the
assets, of the Partnership, (ii) Georgia Power Company expressly acknowledges
such successor entity as the Holder of the Series _____ Junior Subordinated
Debentures, (iii) the Series _____ Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Series _____ Preferred Securities are then listed,
(iv) such merger, consolidation, amalgamation or replacement does not cause the
Series _____ Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the powers, preferences and other special rights of the Holders of the
Series _____ Preferred Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the Holders'
interest in the new entity), (vi) such successor entity has a purpose
substantially identical to that of the Partnership, (vii) prior to such merger,
consolidation, amalgamation or replacement, Georgia Power Company has received
an opinion of nationally recognized independent counsel to the Partnership
experienced in such matters to the effect that (x) such successor entity will
be treated as a partnership for federal income tax purposes, (y) following such
merger, consolidation, amalgamation or replacement, the Partnership and such
successor entity will be in compliance with the 1940 Act without registering
thereunder as an investment company, and (z) such merger, consolidation,
amalgamation or replacement will not adversely affect the limited liability of
the Holders of the Series _____ Preferred Securities and (viii) Georgia Power
Company guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee.
This written Action shall constitute an Action for purposes of the
Partnership Agreement and shall be deemed for all purposes to be a part of the
Partnership Agreement.
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<PAGE> 18
IN WITNESS WHEREOF, the undersigned has executed this Action of
General Partner this ____ day of ______________, 1994.
GEORGIA POWER COMPANY,
GENERAL PARTNER
By: ________________________________________
Name:
Title:
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<PAGE> 1
Exhibit 5.1
TROUTMAN SANDERS
600 Peachtree Street, N.E.
NationsBank Plaza, Suite 5200
Atlanta, Georgia 30308-2216
December 8, 1994
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Company
Georgia Power Capital, L.P.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3, including a
preliminary prospectus and two preliminary prospectus supplements, filed with
the Securities and Exchange Commission (the "Commission") on November 10, 1994
and amended by Amendment No. 1 filed with the Commission on December 8, 1994
(File No. 33-56423/33-56423-01) (as so amended, the "Registration Statement")
of Georgia Power Company ("Georgia Power") and Georgia Power Capital, L.P.
("Georgia Power Capital"), for the registration under the Securities Act of
1933, as amended (the "Act"), of (i) $100,000,000 aggregate liquidation
preference of preferred securities (the "Preferred Securities") of Georgia
Power Capital, (ii) junior subordinated debentures of Georgia Power (the "Debt
Securities") to be issued to Georgia Power Capital in connection with the
offering of the Preferred Securities and (iii) a guarantee of Georgia Power
with respect to the Preferred Securities (the "Guarantee"). We have also
examined Georgia Power's Charter, as amended, and its by-laws, as amended, and
such corporate records and other documents as we have deemed necessary to
enable us to express the opinions with respect to the Debt Securities and the
Guarantee set forth below.
We are of the opinion that:
1. When (i) the Registration Statement shall have become
effective under the Act and (ii) the Indenture (the "Indenture")
between Georgia Power and Trust Company Bank, as Trustee (the
"Trustee"), substantially in the form of Exhibit 4.1 to the
Registration Statement, and any supplements and amendments thereto,
shall have been qualified under the Trust Indenture Act of 1939, as
amended, and duly executed and delivered by Georgia Power and the
<PAGE> 2
Trustee, the Debt Securities, upon their issuance, authentication and
sale in the manner contemplated in the Registration Statement and the
Indenture, will be legally and validly issued, and will constitute
legal, valid and binding obligations of Georgia Power, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or limiting creditors' rights generally and general
principles of equity.
2. When (i) the Registration Statement shall have become
effective under the Act, (ii) the Guarantee, substantially in the form
of Exhibit 4.10 to the Registration Statement, shall have been duly
executed and delivered by Georgia Power and (iii) Preferred Securities
have been duly issued and sold and the purchase price therefor
received by Georgia Power Capital, the Guarantee will be legally and
validly issued and will constitute a legal, valid and binding
obligation of Georgia Power, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
limiting creditors' rights generally and general principles of equity.
We hereby consent to the reference made to our firm under the caption
"Legal Opinions" in the preliminary prospectus and under the caption "Legal
Matters" in the forms of preliminary prospectus supplement pertaining to the
Preferred Securities, the Debt Securities and the Guarantee, each forming a
part of the Registration Statement, and to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ TROUTMAN SANDERS
--------------------
TROUTMAN SANDERS
<PAGE> 1
Exhibit 5.2
RICHARDS, LAYTON & FINGER
One Rodney Square
P. O. Box 551
Wilmington, Delaware 19899
December 8, 1994
Georgia Power Capital, L.P.
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital, L.P.
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power Company, a
Georgia corporation ("Georgia Power"), and Georgia Power Capital, L.P., a
Delaware limited partnership (the "Partnership"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of executed or
conformed counterparts, or copies otherwise proved to our satisfaction, of the
following:
(a) The Certificate of Limited Partnership of the Partnership,
dated as of November 9, 1994 (the "Certificate"), as filed in the office of the
Secretary of State of the State of Delaware (the "Secretary of State") on
November 10, 1994;
(b) The Agreement of Limited Partnership of the Partnership, dated
as of November 9, 1994;
(c) Amendment No. 1 to the registration statement (the
"Registration Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus") and two preliminary prospectus supplements (the "Prospectus
Supplements"), relating to the Preferred Securities, as proposed to be filed by
Georgia Power and the Partnership with the Securities and Exchange Commission
on December 8, 1994;
<PAGE> 2
Georgia Power Capital, L.P.
December 8, 1994
Page 2
(d) A form of Amended and Restated Agreement of Limited
Partnership of the Partnership, attached as an exhibit to the Registration
Statement (the "Agreement");
(e) Two forms of Action of Georgia Power, as general partner of
the Partnership, relating to the Preferred Securities, each attached as an
exhibit to the Registration Statement; and
(f) A Certificate of Good Standing for the Partnership, dated
December 8, 1994, obtained from the Secretary of State.
The Agreement as amended and supplemented by a written action of
Georgia Power, providing for the issue of Preferred Securities, in one of the
forms attached as an exhibit to the Registration Statement (the "Action"), is
hereinafter referred to as the "Partnership Agreement." Initially capitalized
terms used herein and not otherwise defined are used as defined in the
Partnership Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (f) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (f) above) that is referred to in or incorporated by
reference into the Partnership Agreement or the Registration Statement. We
have assumed that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein. We have
conducted no independent factual investigation of our own but rather have
relied solely upon the foregoing documents, the statements and information set
forth therein and the additional matters recited or assumed herein, all of
which we have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Partnership
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the admission
of partners to, and the creation, operation and
<PAGE> 3
Georgia Power Capital, L.P.
December 8, 1994
Page 3
termination of, the Partnership, and that the Partnership Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due organization or due
formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its organization or formation, (iii) the legal capacity of natural
persons who are parties to the documents examined by us, (iv) that each of the
parties to the documents examined by us has the power and authority to execute
and deliver, and to perform its obligations under, such documents, (v) the due
authorization, execution and delivery by all parties thereto of all documents
examined by us, including the Agreement and the Action, (vi) the receipt by
each Person to be admitted to the Partnership as a limited partner of the
Partnership in connection with its purchase of Preferred Securities (each, a
"Preferred Security Holder" and collectively, the "Preferred Security Holders")
of an LP Certificate and the payment for the Preferred Securities acquired by
it, in accordance with the Partnership Agreement, (vii) that the books and
records of the Partnership set forth all information required by the
Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act
(6 Del. C. Section 17-101, et seq.) (the "Act"), including all information
with respect to all Persons to be admitted as Partners and their contributions
to the Partnership, and (viii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Registration
Statement and the Partnership Agreement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered
only with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
<PAGE> 4
Georgia Power Capital, L.P.
December 8, 1994
Page 4
1. The Partnership has been duly formed and is validly existing
in good standing as a limited partnership under the laws of the State of
Delaware.
2. Assuming that the Preferred Security Holders, as limited
partners of the Partnership, do not participate in the control of the business
of the Partnership, upon issuance and payment as contemplated by the
Partnership Agreement, the Preferred Securities will represent valid and,
subject to the qualifications set forth herein, will be fully paid and
nonassessable limited partner interests in the Partnership, as to which the
Preferred Security Holders, as limited partners of the Partnership, will have
no liability in excess of their obligations to make payments provided for in
the Partnership Agreement and their share of the Partnership's assets and
undistributed profits (subject to the obligation of a Preferred Security Holder
to repay any funds wrongfully distributed to it).
3. There are no provisions in the Partnership Agreement the
inclusion of which, subject to the terms and conditions therein, or, assuming
that the Preferred Security Holders, as limited partners of the Partnership,
take no action other than actions permitted by the Partnership Agreement, the
exercise of which, in accordance with the terms and conditions therein, would
cause the Preferred Security Holders, as limited partners of the Partnership,
to be deemed to be participating in the control of the business of the
Partnership.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus Supplements and under the heading "Legal Opinions" in the
Prospectus. We hereby consent to the reliance by Troutman Sanders upon this
opinion as to matters of Delaware law for purposes of its opinion being
rendered in connection with the Registration Statement. In giving the
foregoing consents, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities and Exchange
Commission
<PAGE> 5
Georgia Power Capital, L.P.
December 8, 1994
Page 5
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER
-----------------------------
RICHARDS, LAYTON & FINGER
PMA/BJK/lds
<PAGE> 1
Exhibit 8.1
TROUTMAN SANDERS
600 Peachtree Street, N.E.
NationsBank Plaza, Suite 5200
Atlanta, Georgia 30308-2216
December 8, 1994
Georgia Power Company
Georgia Power Capital, L.P.
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Ladies and Gentlemen:
We have acted as your counsel in connection with the registration by
Georgia Power Capital, L.P. of Monthly Income Preferred Securities and hereby
confirm to you our opinion as set forth in the section entitled "United States
Taxation" of the forms of preliminary prospectus supplement forming part of the
Registration Statement referred to below.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission (the "Commission") as an exhibit to the Registration
Statement on Form S-3, as amended, filed by Georgia Power Company and Georgia
Power Capital, L.P. with the Commission on the date hereof (File No.
33-56423/56423-01), and to the use of our name under the heading "United States
Taxation" in the forms of preliminary prospectus supplement forming part of
such Registration Statement. In giving the foregoing consent, we do not hereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/TROUTMAN SANDERS
-------------------
TROUTMAN SANDERS
<PAGE> 1
Exhibit 12.1
11/21/94
GEORGIA POWER COMPANY
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 1993
and the twelve months ended October 31, 1994
<TABLE>
<CAPTION>
Twelve
Months
Year ended December 31, Ended
---------------------------------------------------------------- October 31,
1989 1990 1991 1992 1993 1994
---- ---- ---- ---- ---- ----
-----------------------------------------Thousands of Dollars------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $ 981,336 $ 772,164 $ 1,009,019 $ 1,004,886 $ 1,034,795 $ 923,721
Federal and state income taxes 82,992 99,476 315,507 165,667 266,771 308,233
Deferred income taxes, net 184,465 89,075 52,941 194,748 168,372 93,244
Deferred investment tax credits (8,017) (52) (9,524) (5,704) (18,274) (4,568)
AFUDC - Debt funds 34,421 9,559 10,584 8,459 8,294 11,686
------------ ---------- ----------- ----------- ----------- ----------
Earnings as defined $ 1,275,197 $ 970,222 $ 1,378,527 $ 1,368,056 $ 1,459,958 $1,332,316
============ ========== =========== =========== =========== ==========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 479,537 $ 483,975 $ 462,415 $ 404,854 $ 345,552 $ 317,967
Interest on interim obligations 1,059 8,512 4,906 9,694 15,530 15,830
Amort of debt disc, premium and expense, net 5,414 5,644 5,784 7,891 14,087 15,626
Other interest charges 8,869 9,404 9,941 12,426 47,393 24,536
------------ ---------- ----------- ----------- ----------- ----------
Fixed charges as defined $ 494,879 $ 507,535 $ 483,046 $ 434,865 $ 422,562 $ 373,959
============ ========== =========== =========== =========== ==========
RATIO OF EARNINGS TO FIXED CHARGES 2.58 1.91 2.85 3.15 3.46 3.56
============ ========== =========== =========== =========== ==========
</TABLE>
Note: The above figures have been adjusted to give effect to Georgia Power
Company's 50% ownership of Southern Electric Generating Company.
<PAGE> 2
Exhibit 12.1
11/21/94
GEORGIA POWER COMPANY
Computation of ratio of earnings to fixed charges plus preferred
dividend requirements for the five years ended December 31, 1993
and the twelve months ended October 31, 1994
<TABLE>
<CAPTION>
Twelve
Months
Year ended December 31, Ended
------------------------------------------------------------------- October 31,
1989 1990 1991 1992 1993 1994
---- ---- ---- ---- ---- ----
----------------------------Thousands of Dollars-------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $ 981,336 $ 772,164 $ 1,009,019 $ 1,004,886 $ 1,034,795 $ 923,721
Federal and state income taxes 82,992 99,476 315,507 165,667 266,771 308,233
Deferred income taxes, net 184,465 89,075 52,941 194,748 168,372 93,244
Deferred investment tax credits (8,017) (52) (9,524) (5,704) (18,274) (4,568)
AFUDC - Debt funds 34,421 9,559 10,584 8,459 8,294 11,686
------------ ---------- ----------- ----------- ----------- ----------
Earnings as defined $ 1,275,197 $ 970,222 $ 1,378,527 $ 1,368,056 $ 1,459,958 $1,332,316
============ ========== =========== =========== =========== ==========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 479,537 $ 483,975 $ 462,415 $ 404,854 $ 345,552 $ 317,967
Interest on interim obligations 1,059 8,512 4,906 9,694 15,530 15,830
Amort of debt disc, premium and expense, net 5,414 5,644 5,784 7,891 14,087 15,626
Other interest charges 8,869 9,404 9,941 12,426 47,393 24,536
------------ ---------- ----------- ----------- ----------- ----------
Fixed charges as defined 494,879 507,535 483,046 434,865 422,562 373,959
Tax deductible preferred dividends 1,805 1,805 1,804 1,804 1,753 1,753
------------ ---------- ----------- ----------- ----------- ----------
496,684 509,340 484,850 436,669 424,315 375,712
------------ ---------- ----------- ----------- ----------- ----------
Non-tax deductible preferred dividends 69,974 64,318 59,897 56,138 48,921 46,274
Ratio of net income before taxes to
net income x 1.498 x 1.687 x 1.669 x 1.613 x 1.672 x 1.707
------------ ---------- ----------- ----------- ----------- ----------
Pref dividend requirements before income
taxes 104,821 108,504 99,968 90,551 81,796 78,990
------------ ---------- ----------- ----------- ----------- ----------
Fixed charges plus pref dividend
requirements $ 601,505 $ 617,844 $ 584,818 $ 527,220 $ 506,111 $ 454,702
============ ========== =========== =========== =========== ==========
RATIO OF EARNINGS TO FIXED CHARGES PLUS
PREFERRED DIVIDEND REQUIREMENTS 2.12 1.57 2.36 2.59 2.88 2.93
============ ========== =========== =========== =========== ==========
</TABLE>
Note: The above figures have been adjusted to give effect to Georgia Power
Company's 50% ownership of Southern Electric Generating Company.
<PAGE> 1
EXHIBIT 15
ARTHUR
ANDERSEN
ARTHUR ANDERSEN & CO. SC
Arthur Andersen LLP
Suite 2500
133 Peachtree Street NE
Atlanta GA 30303-1846
404 658 1776
December 8, 1994
Georgia Power Company
333 Piedmont Avenue, NE
Atlanta, GA 30308
Ladies and Gentlemen:
We are aware that Georgia Power Company has incorporated by reference in this
Registration Statement its Form 10-Q for the quarters ended March 31, June 30
and September 30, 1994, which include our reports on Georgia Power Company
dated May 6, August 5 and November 9, 1994, respectively, covering the
unaudited interim financial information contained therein. Pursuant to
Regulation C of the Securities Act of 1933 (the "Act"), such reports are not
considered a part of the Registration Statement prepared or certified by our
firm or reports prepared or certified by our firm within the meaning of
Sections 7 and 11 of the Act.
Very truly yours,
/s/Arthur Andersen LLP
