SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM U-1
APPLICATION OR DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
GEORGIA POWER COMPANY
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Name of company or companies filing this statement
and addresses of principal executive offices)
THE SOUTHERN COMPANY
(Name of top registered holding company parent
of each applicant or declarant)
Judy M. Anderson
Vice President and Secretary
Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Names and addresses of agents for service)
The Commission is requested to mail signed copies of all
orders, notices and communications to:
W. L. Westbrook
Financial Vice President
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Wayne T. Dahlke John D. McLanahan, Esq.
Power Delivery Senior Vice President Troutman Sanders LLP
Georgia Power Company 600 Peachtree Street, N.E.
241 Ralph McGill Boulevard, N.E. Suite 5200
Atlanta, Georgia 30308-3374 Atlanta, Georgia 30308
<PAGE>
9
INFORMATION REQUIRED
Item 1. Description of Proposed Transactions.
Georgia Power Company ("Georgia Power") is a wholly-owned
subsidiary of The Southern Company, a registered holding company under the
Public Utility Holding Company Act of 1935 (the "Act"). Georgia Transmission
Corporation ("GTC") is a Georgia electric membership corporation comprised of
thirty-nine (39) electric membership cooperatives.
Georgia Power proposes, pursuant to an Agreement of Exchange
("Exchange Agreement") with GTC, to convey to GTC all of Georgia Power's right,
title and interest in and to the real and personal property comprising up to 27
of Georgia Power's distribution and transmission substation facilities which are
listed on Schedule 1 attached hereto and by this reference incorporated herein
(the "Georgia Power Substation Facilities"), in exchange for all of GTC's right,
title and interest in and to the real and personal property comprising up to 4
of GTC's distribution and transmission substation facilities which are listed on
Schedule 2 attached hereto and by this reference incorporated herein (the "GTC
Substation Facilities"). The estimated exchange value of the GTC Substation
Facilities represents GTC's original book cost of the GTC Substation Facilities,
including land, incurred through the date of closing. The estimated exchange
value of the Georgia Power Substation Facilities represents Georgia Power's
original book cost of the Georgia Power Substation Facilities, including land,
incurred through the date of closing plus an additional amount in order to
insure that Georgia Power does not incur any after-tax loss on the exchange. A
<PAGE>
payment to equalize the value of the Georgia Power Substation Facilities and the
GTC Substation Facilities will be made by GTC to Georgia Power at the closing.
This payment is expected to equal approximately 3.8 million dollars.
Currently, the Georgia Power Facilities primarily serve GTC's load
and vice-versa. Under the Revised and Restated Integrated Transmission System
Agreement, dated as of November 12, 1990 (the "System Agreement"), between
Georgia Power and GTC as assignee of Oglethorpe Power Corporation (An Electric
Membership Corporation), the owner of Integrated Transmission System assets is
responsible for the operation and maintenance of those assets. This exchange
will realign Georgia Power and GTC's interests so that GTC is responsible for
the operation and maintenance payments for facilities which principally serve
GTC's load and Georgia Power is responsible for the operation and maintenance
for facilities which principally serve Georgia Power's load. The 27 substations
being disposed of by Georgia Power represent less than 1% of Georgia Power's
total substation facilities (based on original cost).
Georgia Power will obtain from its First Mortgage Bond Trustee a
release of the Georgia Power Substation Facilities from the lien of Georgia
Power's First Mortgage Bond Indenture. GTC will obtain a release executed by
SunTrust Bank, Atlanta, as Trustee under GTC's Indenture dated as of March 1,
1997 releasing the GTC Substation Facilities from the lien of said Indenture.
The closing for the proposed exchange is scheduled to take place
at the later of May 1, 1999 or as soon as all requisite regulatory approvals
have been obtained; however, Georgia Power requests authority to consummate the
transaction at any time on or before December 31, 1999. The closing is subject
to Georgia Power's and GTC's receiving the requisite approvals of all applicable
<PAGE>
regulatory agencies, including the Commission. The proposed transaction is not
subject to the jurisdiction of any regulatory agency other than the Commission.
To the extent that the facilities to be exchanged are currently
part of the integrated transmission system operated by Georgia Power and GTC,
they will remain a part of such integrated transmission system and thus will
remain available for the use of Georgia Power and GTC without charge in
accordance with the provisions of the System Agreement.
Item 2. Fees, Commissions and Expenses.
The estimated fees and expenses to be paid or incurred, directly
or indirectly, in connection with the proposed transaction are:
Legal Fees ....................................$22,000.00
Miscellaneous.................................$ 1,000.00
Total .........................................$23,000.00
Item 3. Applicable Statutory Provisions.
3.1 The proposed transaction is subject to Sections 9(a) and 12(d) of
the Act and Rule 44 thereunder.
3.2 The proposed transaction will be carried out in accordance with the
procedure specified in Rule 23 and pursuant to an order of the Commission in
respect thereto. It is expected that the proposed transaction will be
consummated as soon as practicable after receipt of all necessary regulatory
approvals, as discussed in Item 1. However, Georgia Power requests authority to
consummate the transaction at any time on or before December 31, 1999.
3.3 Rule 54 Analysis: The proposed transaction is also subject to
Rule 54, which provides that, in determining whether to approve an application
which does not relate to any "exempt wholesale generator" ("EWG") or "foreign
utility company" ("FUCO"), the Commission shall not consider the effect of the
<PAGE>
capitalization or earnings of any such EWG or FUCO which is a subsidiary of a
registered holding company if the requirements of Rule 53(a), (b) and (c) are
satisfied.
Southern currently meets all of the conditions of Rule 53(a),
except for clause (1). At November 30, 1998, Southern's "aggregate investment,"
as defined in Rule 53(a)(1), in EWGs and FUCOs was approximately $2.959 billion,
or about 75.19% of Southern's "consolidated retained earnings," also as defined
in Rule 53(a)(1), for the four quarters ended September 30, 1998 ($3.935
billion). With respect to Rule 53(a)(1), however, the Commission has determined
that Southern's financing of investments in EWGs and FUCOs in an amount greater
than the amount that would otherwise be allowed by Rule 53(a)(1) would not have
either of the adverse effects set forth in Rule 53(c). See The Southern Company,
Holding Company Act Release No. 26501, dated April 1, 1996 (the "Rule 53(c)
Order"); and Holding Company Act Release No. 26646, dated January 15, 1997
(order denying request for reconsideration and motion to stay).
In addition, Southern has complied and will continue to comply
with the record-keeping requirements of Rule 53(a)(2), the limitation under Rule
53(a)(3) on the use of Operating Company personnel to render services to EWGs
and FUCOs, and the requirements of Rule 53(a)(4) concerning the submission of
copies of certain filings under the Act to retail rate regulatory commissions.
Further, none of the circumstances described in Rule 53(b) has occurred.
Moreover, even if the effect of the capitalization and earnings of
EWGs and FUCOs in which Southern has an ownership interest upon the Southern
holding company system were considered, there is no basis for the Commission to
<PAGE>
withhold or deny approval for the proposal made in this Application-Declaration.
The action requested in the instant filing (viz. like-kind exchange of
substations between GTC and Georgia Power) would not, by itself, or even
considered in conjunction with the effect of the capitalization and earnings of
Southern's EWGs and FUCOs, have a material adverse effect on the financial
integrity of the Southern system, or an adverse impact on Southern's
public-utility subsidiaries, their customers, or the ability of State
commissions to protect such public-utility customers.
The Rule 53(c) Order was predicated, in part, upon an assessment
of Southern's overall financial condition which took into account, among other
factors, Southern's consolidated capitalization ratio and the recent growth
trend in Southern's retained earnings. As of December 31, 1995, the most recent
fiscal year preceding the Rule 53(c) Order, Southern's consolidated
capitalization consisted of 49.3% equity (including mandatorily redeemable
preferred securities) and 50.7% debt (including $1.68 billion of long-term,
non-recourse debt and short-term debt related to EWGs and FUCOs). As of year-end
1997, that ratio was 47.5% equity and 52.5% debt (including $4.593 billion of
long-term, non-recourse debt and short-term debt related to EWGs and FUCOs). On
a pro forma basis, taking into consideration, among other things, the
transactions contemplated hereby such ratios are 49.6% and 50.4%, respectively,
for equity and debt. The common equity component of Southern's pro forma
consolidated capitalization represents 36.1% of total capitalization at
September 30, 1998. Thus, since the date of the Rule 53(c) Order, there has been
no material change in Southern's consolidated capitalization ratio, which
remains within acceptable ranges and limits of rating agencies as evident by the
continued "A" corporate credit rating of Southern. Specifically, in January 1997
Standard & Poor's assigned Southern its corporate credit rating of "A" which was
consistent with the implied corporate rating previously held by Southern. This
<PAGE>
implied rating had been in effect since May 1995. Therefore, since the April
1996 issue of the Rule 53(c) Order, the Southern consolidated credit rating has
remained at "A" thereby demonstrating Southern's continued strong financial
integrity. In addition, the underlying ratings of the affiliated operating
companies, which have a strong influence on the Southern corporate rating, are
all "A+". As a point of reference, the pro forma percentage of debt in the total
capital structure of the Southern domestic operating utility companies is 43.1%,
which is at the median total debt ratio of the Standard & Poor's "A" rated
vertically integrated utilities.1
Southern's consolidated retained earnings grew on average
approximately 8.6% per year from 1992 through 1996. In 1997, consolidated
retained earnings increased $78,148,000, or slightly more than 2%. The reduction
in the rate of earnings growth in 1997 was primarily due to a $111 million
windfall profits tax assessed against South Western Electricity in the United
Kingdom. The total windfall profits tax for South Western Electricity was $148
million; however, the $111 million reflects only Southern's 75% ownership.
Despite the imposition of this tax, Southern's interests in EWGs and FUCOs have
made a positive contribution to earnings in the two calendar years ending after
the Rule 53(c) order.
Accordingly, since the date of the Rule 53(c) Order, the
capitalization and earnings attributable to Southern's investments in EWGs and
FUCOs has not had any adverse impact on Southern's financial integrity.
- --------
1 Currently, capitalization ratios, including short-term debt, for "A" rated
vertically integrated electric utilities have a median total debt to total
capital ratio of 45% as noted by Standard & Poor's in May 1997 for companies
rated both publicly and confidentially. Prior to issuing this rating standard,
the Standard & Poor's total debt to total capital benchmark for an "A" rated
vertically integrated investor-owned-utility having an average business position
was 47%.
<PAGE>
Reference is made to Exhibit I which reflects capitalization at
September 30, 1998 and the Statement of Income for the year ended September 30,
1998 for Southern and subsidiaries consolidated.
Item 4. Regulatory Approval.
The proposed transaction is not subject to the jurisdiction of any
state commission. The proposed transaction is not subject to the jurisdiction of
any federal commission other than the Commission.
Item 5. Procedure.
Georgia Power requests that the Commission's order herein be
issued as soon as the rules will allow and that there be no thirty-day waiting
period between the issuance of the Commission's order and the date on which it
is to become effective. Georgia Power waives a recommended decision by a hearing
officer or other responsible officer of the Commission and hereby consents that
the Division of Investment Management may assist in the preparation of the
Commission's decision and/or order herein, unless such division opposes the
matter covered by this application or declaration.
Item 6. Exhibits and Financial Statements.
(a) Exhibits.
A - None.
B-1 - Agreement of Exchange between GTC and Georgia
Power with drafts of forms of conveying
instruments attached.
<PAGE>
B-2 - System Agreement, dated as of November 12, 1990,
between Georgia Power and Oglethorpe Power
Corporation. (Designated in Georgia Power's Form
10-K for the year ended December 31, 1990, File
No. 1-6468, as Exhibit 10(g)).
C - None.
D - None.
E - None.
F - Opinion of Troutman Sanders LLP.
G - None.
H - Form of Notice.
I - Capitalization and Income Statement of The
Southern Company and Subsidiary Companies after
giving effect to certain transactions.
Exhibits heretofore filed with the Commission designated as set
forth above are hereby incorporated herein by reference and made a part hereof
with the same effect as if filed herewith.
(b) Financial Statements.
Georgia Power's Form 10-Q for the quarter ended September 30,
1998, File number 1-6468, is incorporated herein by reference.
Item 7. Information as to Environmental Effects.
(a) In view of the nature of the proposed transaction described
herein, the Commission's action in this matter will not constitute any major
federal action significantly affecting the quality of the human environment.
(b) No other federal agency has prepared or is preparing an
environmental impact statement with regard to the proposed transaction.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company
Act of 1935, the undersigned company has duly caused this statement to be signed
on its behalf by the undersigned thereunto duly authorized.
Dated: January 22, 1999 GEORGIA POWER COMPANY
By: /s/Wayne Boston
Wayne Boston
Assistant Secretary
<PAGE>
1
Schedule 1 Georgia Power Substation Facilities
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Substation Orig. Book Value
(as of 5/5/98)
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GPC Distribution Subs:
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1. Register 46/12 - Excelsior #1 57,194
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2. Geneva 46/12 - Flint #9 47,276
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3. Oglethorpe 46/12 - Flint #10 61,785
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4. Beaver Creek 46/25 - Flint #13 64,241
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5. Oaky Woods 46/7.2 - Flint #34 3,245
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6. Climax 69/12 - Grady #7 205,782
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7. Sylvester 46/12 - Mitchell #2 41,817
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8. Acree 115/12 - Mitchell #5 409,509
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9. Cotton 46/12 - Mitchell #9 73,028
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10. Crestview 46/12 - Mitchell #10 42,068
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11. Lester 115/25 - Mitchell #11 462,833
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12. NW Dublin 115/12 - Oconee #8 278,464
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13. Waverly 46/12 - Okefenokee #1 126,918
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14. Hoboken 69/20/12 - Okefenokee #5 204,453
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15. Waycross-Brunswick Hwy. 46/12 - Okefenokee #8 179,076
- ----------------------------------------------------------------------
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16. Edison 46/12 - Pataula #2 54,607
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17. Cordreys Mill 46/12 - Pataula #3 64,394
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18. Bluffton 46/12 - Pataula #4 47,659
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19. Robinson 46/12kv - Rayle #8 49,431
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20. Leesburg 46/12 - Sumter #6 316,692
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21. Leslie 46/12 - Sumter #7 61,930
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22. Richland 46/12 - Sumter #8 46,307
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23. Blakely 46/12 - Three Notch #1 227,797
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24. Lucille 46/12 - Three Notch #3 65,272
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25. North Eatonton 46/12 - Tri - County #2 336,314
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26. Walnut Creek 115/12 - Tri County #5 149,643
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27. Jefferson 46/12 - Jackson #1 113,541
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28. Sycamore 46/12 - Irwin #2 206,253
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3,997,529
GPC Transmission Subs:
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29. Hawkinsville 115/46/25 - Ocmulgee #6 1,192,905
- ----------------------------------------------------------------------
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30. Riceboro 115/46 984,803
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2,177,708
- ----------------------------------------------------==================
Total 6,175,237
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<PAGE>
Schedule 2 GTC Substation Facilities
- -------------------------------------------------------------------------------
Substation Orig. Book Value
(5/5/98)
- -------------------------------------------------------------------------------
GTC Distribution Subs:
- ----------------------------------------------------
North Metter 46/12 - Excelsior #8 284,564
- ----------------------------------------------------
- ----------------------------------------------------
Clarkesville 46/12 221,028
- ----------------------------------------------------
505,592
GTC Transmission Subs:
- ----------------------------------------------------
Forrest Road 115/69/12 1,513,343
- ----------------------------------------------------
- ----------------------------------------------------
Reids 115/46 347,471
- ----------------------------------------------------
1,860,814
- -------------------------------------===============
Total 2,366,406
- -------------------------------------===============
Exhibit B-1
AGREEMENT OF EXCHANGE
between
GEORGIA POWER COMPANY
and
GEORGIA TRANSMISSION CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
Dated as of November 12, 1998
<PAGE>
TABLE OF CONTENTS
Section 1. Exchange of Substation Facilities.....................5
Section 2. Exchange Values and Equalization Payment..............6
Section 3. Closing...............................................7
Section 4. Property Not Included.................................8
Section 5. Transmission, Distribution and
Communications Easements.............................10
Section 6. Communication Covenant...............................13
Section 7. Taxes and Fees.......................................13
Section 8. Further Assurances...................................14
Section 9. "AS IS" and "WHERE IS" Sale..........................14
Section 10. Environmental Law....................................15
Section 11. Certain Representations and Warranties
by GTC...............................................16
Section 12. Certain Representations and Warranties by Georgia Power 16
Section 13. Conditions Precedent to Closing......................17
Section 14. Costs of Sale........................................18
Section 15. Surveys..............................................18
Section 16. Modification and Termination.........................18
Section 17. Miscellaneous........................................19
LIST OF EXHIBITS
Exhibit A: Georgia Power Substation Facilities
Exhibit B1: Form of Limited Warranty Deed and Bill of Sale for Georgia
Power Substation Facilities with Respect to Fee Simple
Property
Exhibit B2: Form of Quitclaim Deed and Bill of Sale for Georgia Power
Substation Facilities with Respect to Fee Simple Property
Exhibit B3: Form of Quitclaim Deed and Bill of Sale for Georgia Power
Substation Facilities with Respect to Non-Fee Simple
Property
Exhibit C: GTC Substation Facilities
Exhibit D1: Form of Limited Warranty Deed and Bill of Sale for GTC
Substation Facilities with Respect to Fee Simple Property
Exhibit D2: Form of Quitclaim Deed and Bill of Sale for GTC Substation
Facilities with Respect to Fee Simple Property
<PAGE>
AGREEMENT OF EXCHANGE
This AGREEMENT OF EXCHANGE (this "Agreement"), dated as of November 12,
1998, is between GEORGIA POWER COMPANY, a corporation organized and existing
under the laws of the State of Georgia ("Georgia Power"), and GEORGIA
TRANSMISSION CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), an electric
membership corporation organized and existing under Section 46-3-170 et seq. of
the Official Code of Georgia Annotated ("GTC"). Georgia Power and GTC are
sometimes hereinafter collectively called the "Parties" or singularly called a
"Party."
W I T N E S S E T H:
WHEREAS, Georgia Power and GTC desire to exchange with one another
certain substation facilities and real and personal property presently owned by
the other pursuant to the provisions of Section 1031 of the Internal Revenue
Code of 1986, as amended;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements herein set forth, Georgia Power and GTC hereby agree as
follows:
Section 1. Exchange of Substation Facilities.
(a) Subject to the terms and conditions hereinafter set forth, Georgia
Power shall transfer and convey to GTC and GTC shall accept from Georgia Power
at the "Closing" provided for in Section 3 hereof, and in exchange for the GTC
Substation Facilities (as hereinafter defined), all of Georgia Power's right,
title and interest in and to the real and personal property, including
engineering drawings, comprising the substation facilities listed on Exhibit A
attached hereto, which is by this reference made a part hereof and incorporated
herein (collectively, the "Georgia Power Substation Facilities"). Such
conveyance by Georgia Power shall be either (i) by Limited Warranty Deed and
Bill of Sale with respect to the record legal descriptions substantially in the
form of Exhibit B1 attached hereto and made a part hereof and Quitclaim Deed and
Bill of Sale with respect to the survey legal descriptions substantially in the
form of Exhibit B2 attached hereto and made a part hereof where Georgia Power
owns the substation facility in fee simple or (ii) by Quitclaim Deed and Bill of
Sale substantially in the form of Exhibit B3 attached hereto and made a part
hereof in all other cases. At the Closing, Georgia Power will provide GTC with a
copy of the most recent continuing property records and substation information
systems records in Georgia Power's possession with respect to the Georgia Power
Substation Facilities; provided, however, Georgia Power makes no representation
or warranty as to the correctness or accuracy thereof or as to whether the
property comprising the Georgia Power Substation Facilities conforms in any
respect to the information in such records.
(b) Subject to the terms and conditions hereinafter set forth, GTC
shall transfer and convey to Georgia Power and Georgia Power shall accept from
GTC, at the Closing provided for in Section 3 hereof, and in exchange for the
Georgia Power Substation Facilities, all of GTC's right, title and interest in
and to the real and personal property, including engineering drawings,
comprising the substation facilities listed on Exhibit C attached hereto, which
is by this reference made a part hereof and incorporated herein (collectively,
the "GTC Substation Facilities"). Such conveyance by GTC shall be by Limited
Warranty Deed and Bill of Sale with respect to the record legal descriptions
substantially in the form of Exhibit D1 attached hereto and made a part hereof
and by Quitclaim Deed and Bill of Sale with respect to survey legal descriptions
substantially in the form of Exhibit D2 attached hereto and made a part hereof.
At the Closing, GTC will provide Georgia Power with a copy of the most recent
continuing property records and substation information systems records in GTC's
possession with respect to the GTC Substation Facilities; provided, however, GTC
makes no representation or warranty as to the correctness or accuracy thereof or
as to whether the property comprising the GTC Substation Facilities conforms in
any respect to the information in such records.
Section 2. Exchange Values and Equalization Payment.
(a) For the purpose of the exchange of the GTC Substation Facilities
for the Georgia Power Substation Facilities contemplated in Section 1, the
agreed value of the Georgia Power Substation Facilities ("Georgia Power
Substation Exchange Value") shall be an amount equal to the sum of:
(i) Georgia Power's original book cost of the Georgia Power
Substation Facilities, including land, incurred through the date of the
Closing; plus
(ii) an amount necessary to insure that Georgia Power does not
incur any after-tax loss on the exchange of the Georgia Power
Substation Facilities (which amount is estimated to be approximately
$560,000 based on the exchange of substations currently listed on
Exhibit A and Exhibit C hereof.)
Prior to the Closing, Georgia Power shall furnish GTC a statement showing the
estimated Georgia Power Substation Exchange Value computed in accordance with
the provisions of this Section 2(a). Either party may seek a true-up of the
Georgia Power Substation Exchange Value in accordance with Section 2(d) below.
(b) For the purpose of the exchange of the GTC Substation Facilities
for the Georgia Power Substation Facilities contemplated in Section 1, the
agreed value of the GTC Substation Facilities ("GTC Substation Exchange Value")
shall be an amount equal to GTC's original book cost of the GTC Substation
Facilities, including land, incurred through the date of the Closing.
Prior to the Closing, GTC shall furnish Georgia Power a statement showing the
estimated GTC Substation Exchange Value computed in accordance with the
provisions of this Section 2(b). Either party may seek a true-up of the GTC
Substation Exchange Value in accordance with Section 2(d) below.
(c) A payment (the "Equalization Payment") to equalize valuation of the
Georgia Power Substation Facilities and the GTC Substation Facilities shall be
payable by GTC to Georgia Power at the Closing in immediately available funds.
Such payment shall be equal to the difference between the Georgia Power
Substation Exchange Value and the GTC Substation Exchange Value.
(d) Each party shall have until the one hundred eightieth (180th) day
after the Closing to question or contest the correctness of the Georgia Power
Substation Exchange Value, the GTC Substation Exchange Value and the
Equalization Payment, after which time the correctness of such values shall be
conclusively presumed. In the event of an error in the calculation of such
agreed values, Georgia Power or GTC shall, following notice of such erroneous
calculations from GTC or Georgia Power, as the case may be, only reimburse the
other for the amount charged or failed to be charged in error.
(e) The statements required to be delivered by Georgia Power and GTC
pursuant to Sections 2(a) and 2(b) above shall also include a certificate to the
effect that Georgia Power or GTC, as the case may be, keeps its books in
conformity with the Federal Energy Regulatory Commission Uniform System of
Accounts in the case of Georgia Power or the Federal Energy Regulatory
Commission Uniform System of Accounts as modified and adopted by the Rural
Utilities Service ("RUS") in the case of GTC, that the Georgia Power Substation
Exchange Value or the GTC Substation Exchange Value, as the case may be, has
been calculated in accordance with Section 2(a) or Section 2(b) of this
Agreement, as the case may be, and that such estimated exchange value is
calculated based on amounts that appear on the books of Georgia Power or GTC, as
the case may be.
(f) The exchange of the GTC Substation Facilities for the Georgia Power
Substation Facilities is intended by both Georgia Power and GTC to be an
exchange of "like-kind" property under Section 1031 of the Internal Revenue Code
of 1986, as amended (26 U.S.C. ss. 1031 (1998)).
Section 3. Closing.
(a) Subject to the fulfillment or satisfaction of the various
conditions precedent and other duties and obligations of the Parties set forth
herein, the closing of the exchange provided for in Section 1 hereof (the
"Closing") shall take place at the offices of Troutman Sanders LLP, 600
Peachtree Street NE, Suite 5200, Atlanta, Georgia at 10:00 am on May 1, 1999, or
on such other date or at such other time as Georgia Power and GTC shall mutually
agree (such date and time being herein referred to as the "Closing Date"). Each
of the Parties agrees to use its best efforts to expeditiously obtain the
governmental, regulatory and other approvals required in order for it to
consummate the transactions contemplated by this Agreement.
(b) At the Closing, GTC shall deliver to Georgia Power (i) the deeds
specified in Section 1(b) hereof, (ii) the Equalization Payment specified in
Section 2(c) hereof, (iii) evidence satisfactory to Georgia Power that the
conditions precedent to the Closing have been satisfied and (iv) all other
documents required to be delivered by this Agreement.
(c) At the Closing, Georgia Power shall deliver to GTC (i) the deeds
specified in Section 1(a) hereof, (ii) evidence satisfactory to GTC that all
conditions precedent to the Closing have been satisfied and (iii) all other
documents required to be delivered by this Agreement.
Section 4. Property Not Included.
(a) Notwithstanding any other provision of this Agreement, the transfer
and conveyance of the Georgia Power Substation Facilities by Georgia Power to
GTC and the acceptance of the Georgia Power Substation Facilities by GTC from
Georgia Power shall be limited to the Georgia Power Substation Facilities and
shall not include any equipment, systems or facilities owned or leased by
Georgia Power or its affiliates, whether used exclusively by Georgia Power or
its affiliates, jointly used with any other person or entity or used by any
lessee, permittee or licensee of Georgia Power or its affiliates, which are
(i) equipment, systems or facilities used for or in connection
with communications by radio, including without limitation,
(A) microwave towers, mobile base radio towers, radio
base repeater towers, telemeter transmitters, multiple address
system radios or power line carrier equipment,
(B) power supplies, telecommunications racks or
auxiliary support systems associated therewith,
(C) separate control buildings which contain radio
communications equipment but do not contain substation
equipment which is part of the Georgia Power Substation
Facilities,
(D) radio communications equipment contained in
control buildings which contain both radio communications
equipment and substation equipment, or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (i) being
hereinafter collectively referred to as "Georgia Power Radio
Communication Facilities"); or
(ii) equipment, systems or facilities used for or in
connection with light wave communications over optical fibers,
including without limitation,
(A) optical fibers, optronic or photo-optronic
equipment, repeaters, junctions, splice enclosures or
equipment for the conversion of light signals to or from radio
or electronic signals,
(B) power supplies, telecommunications racks, alarm
monitoring equipment or auxiliary support systems associated
therewith,
(C) separate control buildings that contain fiber
optic communications equipment but do not contain substation
equipment which is part of the Georgia Power Substation
Facilities,
(D) fiber optic communications equipment contained in
control buildings that contain both fiber optic communications
equipment and substation equipment, or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (ii) being
hereinafter collectively referred to as "Georgia Power Fiber Optic
Facilities").
(b) Notwithstanding any other provision of this Agreement, the transfer
and conveyance of the GTC Substation Facilities by GTC to Georgia Power and the
acceptance of the GTC Substation Facilities by Georgia Power from GTC shall be
limited to the GTC Substation Facilities and shall not include any equipment,
systems or facilities owned or leased by GTC or its affiliates, whether used
exclusively by GTC or its affiliates, jointly used with any other person or
entity or used by any lessee, permittee or licensee of GTC or its affiliates,
which are
(i) equipment, systems or facilities used for or in connection
with communications by radio, including without limitation,
(A) microwave towers, mobile base radio towers, radio
base repeater tower, telemeter transmitters, multiple address
system radios or power line carrier equipment,
(B) power supplies, telecommunications racks or
auxiliary support systems associated therewith,
(C) separate control buildings that contain radio
communications equipment but do not contain substation
equipment which is part of the GTC Substation Facilities,
(D) radio communications equipment contained in
control buildings which contain both radio communications
equipment and substation equipment, or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (i) being
hereinafter collectively referred to as "GTC Radio Communication Facilities");
or
(ii) equipment, systems or facilities used for or in
connection with light wave communications over optical fibers,
including without limitation,
(A) optical fibers, optronic or photo-optronic
equipment, repeaters, junctions, splice enclosures or
equipment for the conversion of light signals to or from radio
or electronic signals,
(B) power supplies, telecommunications racks, alarm
monitoring equipment or auxiliary support systems associated
therewith,
(C) separate control buildings that contain fiber
optic communications equipment but do not contain substation
equipment which is part of the GTC Substation Facilities,
(D) fiber optic communications equipment contained in
control buildings which contain both fiber optic
communications equipment and substation equipment, or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (ii)
being hereinafter collectively referred to as "GTC Fiber Optic
Facilities").
(c) Notwithstanding any other provision of this Agreement, the transfer
and conveyance of the Georgia Power Substation Facilities by Georgia Power to
GTC and the acceptance of the Georgia Power Substation Facilities shall be
limited to the Georgia Power Substation Facilities and shall not include any or
all property (owned by Georgia Power and not otherwise conveyed to GTC) of any
kind or nature whatsoever which comprises a part of or appertains to or is
reasonably necessary for the use, occupancy or enjoyment of any present or
future electric transmission or distribution line or lines which either begin or
terminate in or upon, or which traverse or transect, the Georgia Power
Substation Facilities or any portion or portions of any of them.
(d) Notwithstanding any other provision of this Agreement, the transfer
and conveyance of the GTC Substation Facilities by GTC to Georgia Power and the
acceptance of the GTC Substation Facilities by Georgia Power shall be limited to
the GTC Substation Facilities and shall not include any or all property (owned
by GTC and not otherwise conveyed to Georgia Power) of any kind or nature
whatsoever which comprises a part of or appertains to or is reasonably necessary
for the use, occupancy or enjoyment of any present or future electric
transmission or distribution line or lines of GTC and its members which either
begin or terminate in or upon, or which traverse or transect, the GTC Substation
Facilities or any portion or portions of any of them.
Section 5. Transmission, Distribution and Communications Easements.
(a) The conveyancing instruments from Georgia Power to GTC shall
reserve, and by acceptance of such conveyancing instruments GTC shall grant to
Georgia Power, its successors, assigns, agents, contractors and subcontractors,
the right and a perpetual easement to use the real and personal property
comprising the Georgia Power Substation Facilities and the right of ingress and
egress in, over, under and across the Georgia Power Substation Facilities for
the purpose of access where necessary or convenient for the purpose of:
(i) constructing, installing, attaching, using, operating,
maintaining, repairing, reconstructing, replacing, relocating,
improving and upgrading existing and additional electric transmission
and distribution lines including all poles, supporting facilities,
towers, equipment, hardware, wires, and all other property, real,
personal and mixed, attached to or directly related to or located upon
or upon which are located such electric transmission and distribution
lines;
(ii) using, operating, maintaining, repairing, reconstructing,
replacing, improving, upgrading and enhancing Georgia Power Radio
Communication Facilities and Georgia Power Fiber Optic Facilities,
including all poles, supporting facilities, towers, equipment,
hardware, wires, and all other property, real, personal and mixed,
attached to or directly related to or located upon or upon which are
located existing Georgia Power Radio Communication Facilities and
existing Georgia Power Fiber Optic Facilities or any of them;
(iii) constructing, installing, attaching, using, operating,
maintaining, repairing, reconstructing, replacing, improving, upgrading
and enhancing Georgia Power Radio Communication Facilities, that are
part of the Integrated Transmission System or are the subject of a
joint use agreement between GTC and Georgia Power, including all poles,
supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly
related to or located upon or upon which are located such Georgia Power
Radio Communication Facilities;
(iv) constructing, installing, attaching, using, operating,
maintaining, relocating, improving, repairing, reconstructing,
replacing and upgrading coal slurry pipelines that provide economic
benefits to GTC or its members and Georgia Power; and
(v) constructing, installing, attaching, using, maintaining,
repairing, reconstructing, replacing, relocating, improving, upgrading
and enhancing such towers, poles, lines, cables, anchors and guy wires
as Georgia Power may deem necessary or convenient for the operation of
any of the facilities described in paragraphs (i), (ii) and (iii)
above, or any Georgia Power Radio Communication Facilities and Georgia
Power Fiber Optic Facilities, or any of them, which are located near
the Georgia Power Substation Facilities;
provided, however, that (A) Georgia Power shall give GTC at least sixty (60)
days prior notice before any future lines or Georgia Power Radio Communication
Facilities are constructed (except in the event of an emergency, in which case
Georgia Power shall give GTC as much prior notice as is practicable under the
circumstances), and (B) Georgia Power shall attempt to locate such future lines
and Georgia Power Radio Communication Facilities at locations mutually agreed
upon by the parties, but in the absence of such agreement and in all events,
Georgia Power's exercise of the rights enumerated in this Section 5(a) shall not
unduly interfere with GTC's use of the Georgia Power Substation Facilities.
(b) The conveyancing instrument from GTC to Georgia Power shall
reserve, and by acceptance of such conveyancing instrument Georgia Power shall
grant to GTC, its successors, assigns, agents, contractors and subcontractors,
the right and a perpetual easement to use the real and personal property
comprising the GTC Substation Facilities and the right of ingress and egress in,
over, under and across the GTC Substation Facilities for the purpose of access
where necessary or convenient for the purpose of:
(i) constructing, installing, attaching, using, operating,
maintaining, repairing, reconstructing, replacing, relocating,
improving and upgrading existing and additional electric transmission
and distribution lines of GTC and its members including all poles,
supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly
related to or located upon or upon which are located such electric
transmission and distribution lines;
(ii) using, operating, maintaining, repairing, reconstructing,
replacing, improving, upgrading and enhancing GTC Radio Communication
Facilities and GTC Fiber Optic Facilities, including all poles,
supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly
related to or located upon or upon which are located existing GTC Radio
Communication Facilities and existing GTC Fiber Optic Facilities or any
of them;
(iii) constructing, installing, attaching, using, operating,
maintaining, repairing, reconstructing, replacing, improving, upgrading
and enhancing GTC Radio Communication Facilities, that are part of the
Integrated Transmission System or are the subject of a joint use
agreement between GTC and Georgia Power, including all poles,
supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly
related to or located upon or upon which are located such GTC Radio
Communication Facilities;
(iv) constructing, installing, attaching, using, operating,
maintaining, relocating, improving, repairing, reconstructing,
replacing and upgrading coal slurry pipelines that provide economic
benefits to GTC or its members and Georgia Power; and
(v) constructing, installing, attaching, using, maintaining,
repairing, reconstructing, replacing, relocating, improving, upgrading
and enhancing such towers, poles, lines, cables, anchors and guy wires
as GTC may deem necessary or convenient for the operation of any of the
facilities described in paragraphs (i), (ii) and (iii) above, or any
GTC Radio Communication Facilities and GTC Fiber Optic Facilities, or
any of them, which are located near the GTC Substation Facilities;
provided, however, that (A) GTC shall give Georgia Power at least sixty (60)
days prior notice before any future lines or GTC Radio Communication Facilities
are constructed (except in the event of an emergency, in which case GTC shall
give Georgia Power as much prior notice as is practicable under the
circumstances), and (B) GTC shall attempt to locate such future lines and GTC
Radio Communication Facilities at locations mutually agreed upon by the parties,
but in the absence of such agreement and in all events, GTC's exercise of the
rights enumerated in this Section 5(b) shall not unduly interfere with Georgia
Power's use of the GTC Substation Facilities.
Section 6. Communication Covenant.
(a) GTC shall not construct, use or operate, or permit any other person
or entity other than Georgia Power, its successors, assigns, lessees,
permittees, licensees, agents, contractors, subcontractors and affiliates (the
"Georgia Power Benefited Parties"), to construct, use or operate any
telecommunications equipment, facilities or system located over, under or upon
the Georgia Power Substation Facilities, unless such construction, use or
operation is permitted by applicable law and does not unduly interfere with the
use or operation of any Georgia Power Radio Communication Facilities or Georgia
Power Fiber Optic Facilities owned or operated (prior to such construction, use
or operation) by any one or more of the Benefited Parties (regardless of whether
any such interference is permitted by applicable regulations of the Federal
Communications Commission or any successor agency).
(b) Georgia Power shall not construct, use or operate, or permit any
other person or entity other than GTC, its successors, assigns, lessees,
permittees, licensees, agents, contractors, subcontractors and affiliates (the
"GTC Benefited Parties"), to construct, use or operate any telecommunications
equipment, facilities or system located over, under or upon the GTC Substation
Facilities, unless such construction, use or operation is permitted by
applicable law and does not unduly interfere with the use or operation of any
GTC Radio Communication Facilities or GTC Fiber Optic Facilities owned or
operated (prior to such construction, use or operation) by any one or more of
the GTC Benefited Parties (regardless of whether any such interference is
permitted by applicable regulations of the Federal Communications Commission or
any successor agency).
Section 7. Taxes and Fees.
Ad valorem, real property and other taxes against the ownership of the
GTC Substation Facilities and the Georgia Power Substation Facilities for the
calendar year during which the Closing occurs will be prorated between the
parties as of the Closing Date based on the number of days such facilities are
or are to be owned by each Party during such calendar year. Such proration shall
be based on estimated taxes for such calendar year and shall be adjusted between
the parties upon receipt of the actual tax bills for such calendar year.
GTC shall be responsible for all sales and transfer taxes, if any, and
all recording fees incurred in connection with the exchange and conveyance of
the Georgia Power Substation Facilities to GTC pursuant to this Agreement.
Georgia Power shall be responsible for all sales and transfer taxes, if any, and
all recording fees incurred in connection with the exchange and conveyance of
the GTC Substation Facilities to Georgia Power pursuant to this Agreement.
Section 8. Further Assurances.
From time to time after the Closing, GTC and Georgia Power will execute
such other instruments of conveyance and other documents and instruments upon
request of the other as may be necessary or appropriate to carry out the
transfer and conveyance to GTC of Georgia Power's right, title and interest in
and to the Georgia Power Substation Facilities and the transfer and conveyance
to Georgia Power of GTC's right, title and interest in and to the GTC Substation
Facilities.
Section 9. "AS IS" and "WHERE IS" Sale.
(a) The transfer and conveyance of the Georgia Power Substation
Facilities pursuant to this Agreement is made on an "AS IS" and "WHERE IS"
basis. EXCEPT AS PROVIDED IN SECTIONS 10(a) AND 12 HEREOF, GEORGIA POWER MAKES
NO REPRESENTATION OR WARRANTY WHATSOEVER IN THIS AGREEMENT, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO
THE VALUE, QUANTITY, CONDITION, SALABILITY, OBSOLESCENCE, MERCHANTABILITY,
FITNESS OR SUITABILITY FOR USE OR WORKING ORDER OF ANY OF THE GEORGIA POWER
SUBSTATION FACILITIES, NOR DOES GEORGIA POWER REPRESENT OR WARRANT THAT THE USE
OR OPERATION OF THE GEORGIA POWER SUBSTATION FACILITIES WILL NOT VIOLATE PATENT,
TRADE SECRET, TRADEMARK OR SERVICE MARK RIGHTS OF ANY THIRD PARTY. GTC IS
WILLING TO ACQUIRE THE GEORGIA POWER SUBSTATION FACILITIES "AS IS" AND "WHERE
IS" IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. AS OF THE
CLOSING, GTC WILL HAVE MADE SUCH INSPECTION OF THE GEORGIA POWER SUBSTATION
FACILITIES AS IT BELIEVES TO BE WARRANTED UNDER THE CIRCUMSTANCES AND WILL NOT
RELY UPON ANY REPRESENTATION OF GEORGIA POWER IN THE SELECTION OF THE SUBSTATION
FACILITIES TO BE ACQUIRED. Notwithstanding the foregoing, GTC shall have the
benefit of all manufacturers' and vendors' warranties and all patent, trademark
and service mark rights running to Georgia Power in connection with the Georgia
Power Substation Facilities to the extent the same are assignable by Georgia
Power.
(b) The transfer and conveyance of the GTC Substation Facilities
pursuant to this Agreement is made on an "AS IS" and "WHERE IS" basis. EXCEPT AS
PROVIDED IN SECTIONS 10(b) AND 11 HEREOF, GTC MAKES NO REPRESENTATION OR
WARRANTY WHATSOEVER IN THIS AGREEMENT, EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO THE VALUE, QUANTITY,
CONDITION, SALABILITY, OBSOLESCENCE, MERCHANTABILITY, FITNESS OR SUITABILITY FOR
USE OR WORKING ORDER OF ANY OF THE GTC SUBSTATION FACILITIES, NOR DOES GTC
REPRESENT OR WARRANT THAT THE USE OR OPERATION OF THE GTC SUBSTATION FACILITIES
WILL NOT VIOLATE PATENT, TRADE SECRET, TRADEMARK OR SERVICE MARK RIGHTS OF ANY
THIRD PARTY. GEORGIA POWER IS WILLING TO ACQUIRE THE GTC SUBSTATION FACILITIES
"AS IS" AND "WHERE IS" IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT. AS OF THE CLOSING, GEORGIA POWER WILL HAVE MADE SUCH INSPECTION OF
THE GTC SUBSTATION FACILITIES AS IT BELIEVES TO BE WARRANTED UNDER THE
CIRCUMSTANCES AND WILL NOT RELY UPON ANY REPRESENTATION OF GTC IN THE SELECTION
OF THE SUBSTATION FACILITIES TO BE ACQUIRED. Notwithstanding the foregoing,
Georgia Power shall have the benefit of all manufacturers' and vendors'
warranties and all patent, trademark and service mark rights running to GTC in
connection with the GTC Substation Facilities to the extent the same are
assignable by GTC.
Section 10. Environmental Law.
(a) As of the Closing, GTC will have had adequate opportunity to make
appropriate inquiries and investigations into conditions at the Georgia Power
Substation Facilities and will have made all such inquiries and investigations
as GTC believes are necessary or appropriate to protect GTC's interests in
regard to liabilities and risks related to, associated with or deriving from
conditions at the Georgia Power Substation Facilities. Georgia Power hereby
represents and warrants to GTC that to the best of its knowledge, (i) none of
the Georgia Power Substation Facilities is currently listed on the National
Priorities List, 40 C.F.R. Part 300, Appendix B, (ii) none of the Georgia Power
Substation Facilities is listed on the July 1, 1998 Georgia Hazardous Site
Inventory, developed and published by the Georgia Environmental Protection
Division pursuant to O.C.G.A. ss. 12-8-97, and (iii) there are no currently
documented spills of polychlorinated biphenyls from the equipment at the Georgia
Power Substation Facilities requiring notification under the Toxic Substances
Control Act, 15 U.S.C. ss. 2601 et. seq. and applicable regulations, 40 C.F.R.
Part 761 and there are no spill incident reports currently on file at Georgia
Power relating to the Georgia Power Substation Facilities. Except for breach of
the immediately foregoing representations and warranties, GTC specifically
agrees and hereby waives, releases, and discharges any claim (statutory,
contractual or otherwise) it has, or may have in the future, against Georgia
Power with respect to or arising out of the past, present or future conditions
or compliance or noncompliance of the Georgia Power Substation Facilities in
regard to any environmental laws, rules, regulations, orders or requirements
(including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. ss.ss. 9601 et seq., the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. ss.ss. 6901 et
seq., the Toxic Substances Control Act, as amended, 15 U.S.C. ss.ss. 2601 et
seq., and the Georgia Hazardous Site Response Act, as amended, O.C.G.A. ss.ss.
12-8-90 et. seq.).
(b) As of the Closing, Georgia Power will have had adequate opportunity
to make appropriate inquiries and investigations into conditions at the GTC
Substation Facilities and will have made all such inquiries and investigations
as Georgia Power believes are necessary or appropriate to protect Georgia
Power's interests in regard to liabilities and risks related to, associated with
or deriving from conditions at the GTC Substation Facilities. GTC hereby
represents and warrants to Georgia Power that to the best of its knowledge, (i)
none of the GTC Substation Facilities is currently listed on the National
Priorities List, 40 C.F.R. Part 300, Appendix B, (ii) none of the GTC Substation
Facilities is listed on the July 1, 1998 Georgia Hazardous Site Inventory,
developed and published by the Georgia Environmental Protection Division
pursuant to O.C.G.A. ss. 12-8-97, and (iii) there are no currently documented
spills of polychlorinated biphenyls from the equipment at the GTC Substation
Facilities requiring notification under the Toxic Substances Control Act, 15
U.S.C. ss. 2601 et. seq. and applicable regulations, 40 C.F.R. Part 761 and
there are no spill incident reports currently on file at GTC relating to the GTC
Substation Facilities. Except for breach of the immediately foregoing
representations and warranties, Georgia Power specifically agrees and hereby
waives, releases, and discharges any claim (statutory, contractual or otherwise)
it has, or may have in the future, against GTC with respect to or arising out of
the past, present or future conditions or compliance or noncompliance of the GTC
Substation Facilities in regard to any environmental laws, rules, regulations,
orders or requirements (including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
ss.ss. 9601 et seq., the Resource Conservation and Recovery Act, as amended, 42
U.S.C. ss.ss. 6901 et seq., the Toxic Substances Control Act, as amended, 15
U.S.C. ss.ss. 2601 et seq., and the Georgia Hazardous Site Response Act, as
amended, O.C.G.A. ss.ss. 12-8-90 et. seq.).
Section 11. Certain Representations and Warranties by GTC.
GTC hereby represents and warrants to Georgia Power as follows:
(a) GTC is an electric membership corporation duly organized, validly
existing and in good standing under Section 46-3-170 et seq. of the Official
Code of Georgia Annotated and other applicable laws of the State of Georgia and
has the corporate power and authority to purchase and to own the Georgia Power
Substation Facilities, to transfer and convey the GTC Substation Facilities, to
conduct its business as it is now being conducted and to carry out and perform
its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by GTC
has been duly and effectively authorized by all requisite corporate and
membership action.
(c) This Agreement has been duly and validly executed and delivered by
and on behalf of GTC and constitutes the legal, valid and binding obligation of
GTC, enforceable against GTC in accordance with its terms.
Section 12. Certain Representations and Warranties by Georgia Power.
Georgia Power hereby represents and warrants to GTC as follows:
(a) Georgia Power is a corporation duly organized, validly existing and
in good standing under the laws of the State of Georgia and has corporate power
to purchase and to own the GTC Substation Facilities, to transfer and convey the
Georgia Power Substation Facilities, to conduct its business as it is now being
conducted and to carry out and perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by
Georgia Power has been duly and effectively authorized by all requisite
corporate action.
(c) This Agreement has been duly and validly executed and delivered by
and on behalf of Georgia Power and constitutes the legal, valid and binding
obligation of Georgia Power, enforceable against Georgia Power in accordance
with its terms.
Section 13. Conditions Precedent to Closing.
(a) All obligations of Georgia Power under this Agreement are subject
to: (i) the fulfillment (or the waiver thereof in writing by Georgia Power),
prior to or at the Closing, of the condition that GTC's representations and
warranties contained in this Agreement shall be true in all material respects at
and as of the time of the Closing; and (ii) GTC's performance of and compliance
with all agreements and conditions required by this Agreement to be performed or
complied with by GTC prior to or at the Closing.
(b) All obligations of GTC under this Agreement are subject to: (i) the
fulfillment (or the waiver thereof in writing by GTC), prior to or at the
Closing, of the condition that Georgia Power's representations and warranties
contained in this Agreement shall be true in all material respects at and as of
the time of the Closing; and (ii) Georgia Power's performance of and compliance
with all agreements and conditions required by this Agreement to be performed or
complied with by Georgia Power prior to or at the Closing.
(c) All obligations of Georgia Power under this Agreement and all
obligations of GTC under this Agreement are subject to the condition that the
Securities and Exchange Commission under the Public Utility Holding Company Act
of 1935 shall have granted all necessary approvals of the execution, delivery
and performance of this Agreement and the consummation of the transaction
contemplated hereby.
(d) All obligations of GTC under this Agreement are subject to receipt
by GTC of good, marketable and indefeasible title, as specified in Section 1(a)
hereof, to each of the Georgia Power Substation Facilities free and clear of all
liens, mortgages, security interests, claims, charges and encumbrances (except
for liens for current taxes or assessments not yet due and payable), with such
exceptions as are acceptable to GTC.
(e) All obligations of Georgia Power under this Agreement are subject
to receipt by Georgia Power of good, marketable and indefeasible title, as
specified in Section 1(b) hereof, to each of the GTC Substation Facilities free
and clear of all liens, mortgages, security interests, claims, charges and
encumbrances (except for liens for current taxes or assessments not yet due and
payable), with such exceptions as are acceptable to Georgia Power.
(f) All obligations of Georgia Power under this Agreement and all
obligations of GTC under this Agreement are subject to the fulfillment, prior to
the Closing, of the condition that Georgia Power shall have obtained and
delivered to GTC a release in recordable form executed by Chase Manhattan Bank
as Trustee under Georgia Power's First Mortgage Indenture, dated as of March 1,
1941, releasing the Georgia Power Substation Facilities from the lien of said
Indenture.
(g) All obligations of Georgia Power under this Agreement and all
obligations of GTC under this Agreement are subject to the fulfillment, prior to
the Closing, of the condition that GTC shall have obtained and delivered to
Georgia Power a release in recordable form executed by SunTrust Bank, Atlanta,
as Trustee under GTC's Indenture dated as of March 1, 1997, releasing the GTC
Substation Facilities from the lien of said Indenture.
(h) All obligations of Georgia Power under this Agreement and all
obligations of GTC under this Agreement are subject to the receipt of all
requisite governmental and regulatory approvals of the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
Section 14. Costs of Sale.
Except as provided in Section 7 hereof, all costs of the parties
incurred by reason of or in connection with this Agreement and the transactions
contemplated hereby, including, without limitation, legal and accounting fees,
regulatory fees and expenses and the cost of obtaining the releases required by
Section 13 hereof, shall be the responsibility of the party incurring the cost.
The agreement regarding payment of costs contained in this Section 14 shall
survive the Closing or any termination of this Agreement.
Section 15. Surveys.
(a) At any time prior to the Closing, GTC, at its expense, may enter
upon the Georgia Power Substation Facilities for the purpose of performing
surveys or conducting any and all studies and investigations. GTC shall
indemnify, defend and hold Georgia Power harmless from and against any and all
loss, cost, claims, damages or expense, including reasonable attorneys' fees at
trial or on appeal, arising from any mechanics' liens or injuries to persons or
property, which result from GTC's entry or operation on the Georgia Power
Substation Facilities.
(b) At any time prior to the Closing, Georgia Power, at its expense,
may enter upon the GTC Substation Facilities for the purpose of performing
surveys or conducting any and all studies and investigations. Georgia Power
shall indemnify, defend and hold GTC harmless from and against any and all loss,
cost, claims, damages or expense, including reasonable attorneys' fees at trial
or on appeal, arising from any mechanics' liens or injuries to persons or
property, which result from Georgia Power's entry or operation on the GTC
Substation Facilities.
Section 16. Modification and Termination
(a) Georgia Power shall have the unilateral right to remove one or more
substation facilities from the GTC Substation Facilities listed on Exhibit C
hereto as long as the total of the original book cost of such GTC Substation
Facilities to be removed is not greater than 15% of the original book cost of
the GTC Substation Facilities listed on Exhibit C hereto. Upon such election to
remove a substation, such property shall be removed from the substation
facilities listed on Exhibit C hereto and the GTC Substation Exchange Value and
the Equalization Payments specified in Section 2 hereof shall be adjusted
accordingly.
(b) GTC shall have the unilateral right to remove one or more
substation facilities from the Georgia Power Substation Facilities listed on
Exhibit A hereto as long as the total of the original book cost of such Georgia
Power Substation Facilities to be removed is not greater than 15% of the
original book cost of the Georgia Power Substation Facilities listed on Exhibit
A hereto. Upon such election to remove a substation, such property shall be
removed from the substation facilities listed on Exhibit A hereto and the
Georgia Power Substation Exchange Value and the Equalization Payments specified
in Section 2 hereof shall be adjusted accordingly.
(c) The obligation of the parties hereto to consummate the transactions
contemplated hereby may be terminated and abandoned at any time on or before the
Closing Date, without cost, expense or liability to either party, except for
costs to be borne as provided in Section 14 hereof, by:
(i) The mutual agreement of Georgia Power and GTC;
(ii) By Georgia Power, if there has been a material breach by
GTC of any of its representations, warranties, agreements or covenants
set forth in this Agreement or any condition to its obligations to
close hereunder has not occurred or been satisfied; or
(iii) By GTC, if there has been a material breach by Georgia
Power of any of its representations, warranties, agreements or
covenants set forth in this Agreement or any condition to its
obligations to close hereunder has not occurred or been satisfied.
Section 17. Miscellaneous.
(a) Governing Law. The validity, interpretation and performance of this
Agreement and each of its provisions shall be governed by the laws of the State
of Georgia.
(b) Notice. Any notice, request, consent or other communication
permitted or required by this Agreement shall be in writing and shall be deemed
given when hand delivered or deposited in the United States Mail, first class
postage prepaid, and if given to Georgia Power shall be addressed to:
Georgia Power Company
241 Ralph McGill Blvd., N.E.
Atlanta, Georgia 30308
Attention: Ron Hampton
with a copy to:
Jennifer Oswald
Troutman Sanders LLP
NationsBank Plaza
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
and if given to GTC shall be addressed to:
Georgia Transmission Corporation
2100 East Exchange Place
Post Office Box 2088
Tucker, Georgia 30085-2088
Attention: George B. Taylor, Jr.
with a copy to:
Herbert J. Short, Jr.
Sutherland Asbill & Brennan LLP
999 Peachtree Street, N.E.
Atlanta, Georgia 30309-3996
unless a different officer or address shall be designated by the respective
party by notice in writing.
(c) Section Headings Not to Affect Meaning. The descriptive headings of
the various Sections of this Agreement have been inserted for convenience of
reference and shall in no way affect, modify or restrict any of the terms and
provisions thereof.
(d) Time of Essence. Time is of the essence of this Agreement.
(e) Amendments. This Agreement may be amended only by a written
instrument duly executed by each of the parties hereto.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon Georgia Power and GTC and their respective successors and
assigns. Nothing in this Agreement, express or implied, is intended to confer
upon any other person any rights or remedies hereunder.
(g) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(h) Survival. All agreements, covenants, representations and warranties
contained in this Agreement shall survive the Closing.
(i) Merger. This Agreement constitutes the entire agreement and
understanding between the Parties concerning all subject matters hereof and
supersedes any and all prior agreements, understandings, arrangements or
communications between the Parties concerning any or all of the subject matters
hereof, whether written or oral.
(j) Cooperation of GTC. GTC shall cooperate with Georgia Power and
shall use its best efforts, at Georgia Power's sole cost and expense (including
but not limited to reimbursement of GTC personnel costs and expenses) to take
all reasonable actions requested by Georgia Power or required by any nationally
recognized title insurance company chosen by Georgia Power to resolve title
exceptions or remove from policies of title insurance any standard exceptions,
including without limitation, attempting to obtain affidavits regarding
possession and encumbrances.
(k) Cooperation of Georgia Power. Georgia Power shall cooperate with
GTC and shall use its best efforts, at GTC's sole cost and expense (including
but not limited to reimbursement of Georgia Power personnel costs and expenses)
to take all reasonable actions requested by GTC or required by any nationally
recognized title insurance company chosen by GTC to resolve title exceptions or
remove from policies of title insurance any standard exceptions, including
without limitation, attempting to obtain affidavits regarding possession and
encumbrances.
(l) Brokers and Agents. Georgia Power and GTC each represents and
warrants to the other that it has not employed or engaged any real estate broker
in connection with this Agreement for the exchange of Georgia Power Substation
Facilities or the GTC Substation Facilities contemplated herein. Georgia Power
and GTC each hereby agree to indemnify, defend and hold the other harmless from
and against any and all loss, costs, claims, damages and expense, including
reasonable attorneys' fees at trial or on appeal, ever suffered or incurred by
the indemnified party by reason of any claim or demand by any broker or agent
for any commissions, fees or other compensation in connection with this
Agreement or the exchange of the Georgia Power Substation Facilities or the GTC
Substation Facilities arising out of any agreements, negotiations, or acts of
each respective indemnifying party or any person claiming by or through each
such indemnifying party. The express indemnities contained in this Section 17(l)
shall expressly survive the Closing or any termination of this Agreement.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the undersigned Parties hereto have duly executed
this Agreement in Atlanta, Georgia, as of the date first above written.
<TABLE>
<S> <C>
GEORGIA TRANSMISSION CORPORATION (AN ELECTRIC MEMBERSHIP GEORGIA POWER COMPANY
CORPORATION) ("Georgia Power")
("GTC")
By: /s/ Jack L. King
Name: Jack L. King By: /s/ Wayne T. Dahlke
Title: President and Chief Executive Officer Name: Wayne T. Dahlke
Title: Senior Vice President, Power Delivery
Attest: /s/ Patricia N. Nash
Name: Patricia N. Nash Attest: /s/ Cherry C. Hudgins
Title: Assistant Secretary Name: Cherry C. Hudgins
Title: Assistant Corporate Secretary
[Corporate Seal]
[Corporate Seal]
</TABLE>
<PAGE>
Exhibit A
Georgia Power Substation Facilities
- --------------------------------------------------------------------------
Substation Orig. Book Value
(as of 5/5/98)
- --------------------------------------------------------------------------
GPC Distribution Subs:
- -------------------------------------------------------------------
1. Register 46/12 - Excelsior #1 57,194
- -------------------------------------------------------------------
- -------------------------------------------------------------------
2. Geneva 46/12 - Flint #9 47,276
- -------------------------------------------------------------------
- -------------------------------------------------------------------
3. Oglethorpe 46/12 - Flint #10 61,785
- -------------------------------------------------------------------
- -------------------------------------------------------------------
4. Beaver Creek 46/25 - Flint #13 64,241
- -------------------------------------------------------------------
- -------------------------------------------------------------------
5. Oaky Woods 46/7.2 - Flint #34 3,245
- -------------------------------------------------------------------
- -------------------------------------------------------------------
6. Climax 69/12 - Grady #7 205,782
- -------------------------------------------------------------------
- -------------------------------------------------------------------
7. Sylvester 46/12 - Mitchell #2 41,817
- -------------------------------------------------------------------
- -------------------------------------------------------------------
8. Acree 115/12 - Mitchell #5 409,509
- -------------------------------------------------------------------
- -------------------------------------------------------------------
9. Cotton 46/12 - Mitchell #9 73,028
- -------------------------------------------------------------------
- -------------------------------------------------------------------
10. Crestview 46/12 - Mitchell #10 42,068
- -------------------------------------------------------------------
- -------------------------------------------------------------------
11. Lester 115/25 - Mitchell #11 462,833
- -------------------------------------------------------------------
- -------------------------------------------------------------------
12. NW Dublin 115/12 - Oconee #8 278,464
- -------------------------------------------------------------------
- -------------------------------------------------------------------
13. Waverly 46/12 - Okefenokee #1 126,918
- -------------------------------------------------------------------
- -------------------------------------------------------------------
14. Hoboken 69/20/12 - Okefenokee #5 204,453
- -------------------------------------------------------------------
- -------------------------------------------------------------------
15. Waycross-Brunswick Hwy. 46/12 - Okefenokee #8 179,076
- -------------------------------------------------------------------
- -------------------------------------------------------------------
16. Edison 46/12 - Pataula #2 54,607
- -------------------------------------------------------------------
- -------------------------------------------------------------------
17. Cordreys Mill 46/12 - Pataula #3 64,394
- -------------------------------------------------------------------
- -------------------------------------------------------------------
18. Bluffton 46/12 - Pataula #4 47,659
- -------------------------------------------------------------------
- -------------------------------------------------------------------
19. Robinson 46/12kv - Rayle #8 49,431
- -------------------------------------------------------------------
- -------------------------------------------------------------------
20. Leesburg 46/12 - Sumter #6 316,692
- -------------------------------------------------------------------
- -------------------------------------------------------------------
21. Leslie 46/12 - Sumter #7 61,930
- -------------------------------------------------------------------
- -------------------------------------------------------------------
22. Richland 46/12 - Sumter #8 46,307
- -------------------------------------------------------------------
- -------------------------------------------------------------------
23. Blakely 46/12 - Three Notch #1 227,797
- -------------------------------------------------------------------
- -------------------------------------------------------------------
24. Lucille 46/12 - Three Notch #3 65,272
- -------------------------------------------------------------------
- -------------------------------------------------------------------
25. North Eatonton 46/12 - Tri - County #2 336,314
- -------------------------------------------------------------------
- -------------------------------------------------------------------
26. Walnut Creek 115/12 - Tri County #5 149,643
- -------------------------------------------------------------------
- -------------------------------------------------------------------
27. Jefferson 46/12 - Jackson #1 113,541
- -------------------------------------------------------------------
- -------------------------------------------------------------------
28. Sycamore 46/12 - Irwin #2 206,253
- -------------------------------------------------------------------
3,997,529
GPC Transmission Subs:
- -------------------------------------------------------------------
29. Hawkinsville 115/46/25 - Ocmulgee #6 1,192,905
- -------------------------------------------------------------------
- -------------------------------------------------------------------
30. Riceboro 115/46 984,803
- -------------------------------------------------------------------
2,177,708
- -------------------------------------------------------============
Total 6,175,237
- -------------------------------------------------------============
<PAGE>
26
Exhibit B1
Form of Limited Warranty Deed and Bill of Sale for Georgia Power
Substation Facilities with Respect to Fee Simple Property
STATE OF GEORGIA
COUNTY OF _______________
LIMITED WARRANTY DEED AND BILL OF SALE
MADE BY
GEORGIA POWER COMPANY
TO
GEORGIA TRANSMISSION CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
- -------------------------------------------------------------------------------
SUBSTATION
THIS LIMITED WARRANTY DEED AND BILL OF SALE is made as of the _____ day
of ___________, 199__, by and between GEORGIA POWER COMPANY, a Georgia
corporation having its principal offices in Atlanta, Fulton County, Georgia, as
party of the first part (hereinafter referred to as "Grantor"), and GEORGIA
TRANSMISSION CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), an electric
membership corporation organized and existing under Section 46-3-170, et seq.,
of the Official Code of Georgia Annotated, as party of the second part
(hereinafter referred to as "Grantee").
W I T N E S S E T H:
THAT GRANTOR, FOR AND IN CONSIDERATION of the sum of TEN AND NO/100
DOLLARS ($10.00) in hand paid at and before the sealing and delivery of these
presents, and for other good and valuable consideration, the receipt, adequacy
and sufficiency whereof are hereby acknowledged, has this day granted,
bargained, sold, conveyed, aliened, transferred, and assigned, and by these
presents does hereby grant, bargain, sell, convey, alien, transfer, and assign
unto Grantee, its successors and assigns, all that certain real property lying
and being in _____________ County, Georgia, and more particularly described in
Exhibit "A" attached hereto and for all purposes by this reference incorporated
herein and made a part hereof (the "Property"). The Property, together with the
property described in the paragraph immediately following this paragraph, less
and except the property excluded from this conveyance, being herein collectively
referred to as the "Premises".
TOGETHER WITH all right, title, and interest which Grantor has or may
have had in and to all buildings, facilities and improvements situated on the
Property, all easements, rights-of-way, permits, privileges, machinery,
equipment, appliances, appurtenances, materials, supplies, and all other
property, tangible or intangible, real, personal or mixed, located thereon and
comprising a part of or reasonably necessary for the use, occupation and
enjoyment of the Property or any buildings, facilities or improvements situated
thereon.
LESS AND EXCEPT from the foregoing conveyance, however:
(a) any and all property (owned by Grantor and not otherwise conveyed
to Grantee) of any kind and nature whatsoever which comprises a part of or
appertains to or is reasonably necessary for the use, occupancy or enjoyment of
any present or future electric transmission or distribution line or lines which
either begin or terminate in or upon, or which traverse or transect, the
Premises or any portion or portions thereof; and
(b) any equipment, systems or facilities owned or leased by Grantor or
its affiliates, whether used exclusively by Grantor or its affiliates, jointly
used with any other person or entity or used by any lessee, permittee or
licensee of Grantor or its affiliates, which are
(i) equipment, systems or facilities used for or in connection
with communications by radio, including without limitation,
(A) microwave towers, mobile base radio towers, radio
base repeater towers, telemeter transmitters, multiple address
system radios or power line carrier equipment,
(B) power supplies, telecommunications racks or
auxiliary support systems associated therewith,
(C) separate control buildings which contain radio
communications equipment but do not contain substation
equipment which is part of the Premises,
(D) radio communications equipment contained in
control buildings which contain both radio communications
equipment and substation equipment, or
(E) any permits, licenses and leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (i) being
hereinafter collectively referred to as "Radio Communication Facilities");
(ii) equipment, systems or facilities used for or in
connection with light wave communications over optical fibers,
including without limitation,
(A) optical fibers, optronic or photo-optronic
equipment, repeaters, junctions, splice enclosures or
equipment for the conversion of light signals to or from radio
or electronic signals,
(B) power supplies, telecommunications racks, alarm
monitoring equipment or auxiliary support systems associated
therewith,
(C) separate control buildings that contain fiber
optic communications equipment but do not contain substation
equipment which is part of the Premises,
(D) fiber optic communications equipment contained in
control buildings which contain both fiber optic
communications equipment and substation equipment, or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (ii) being hereinafter
collectively referred to as "Fiber Optic Facilities").
Further, notwithstanding anything contained in the within instrument to
the contrary, Grantor does hereby expressly except from the within conveyance
and reserve and retain unto itself, its successors, assigns, agents,
contractors, subcontractors, and legally permitted licensees and permittees,
and, by its acceptance hereof, Grantee does hereby grant unto Grantor, its
successors, assigns, agents, contractors subcontractors, and legally permitted
licensees and permittees, a perpetual easement in, on, over, upon, under,
through, and across the Premises and every portion thereof for the purposes of:
(a) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, relocating, improving and upgrading
existing and additional electric transmission and distribution lines, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such electric transmission and
distribution lines;
(b) using, operating, maintaining, repairing, reconstructing,
replacing, improving, upgrading and enhancing Radio Communication Facilities and
Fiber Optic Facilities, including all poles, supporting facilities, towers,
equipment, hardware, wires, and all other property, real, personal and mixed,
attached to or directly related to or located upon or upon which are located
existing Radio Communication Facilities and existing Fiber Optic Facilities or
any of them;
(c) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, improving, upgrading and enhancing Radio
Communication Facilities that are part of the Integrated Transmission System or
are the subject of a joint use agreement between Grantee and Grantor, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such Radio Communication Facilities;
(d) constructing, installing, attaching, using, operating, maintaining,
relocating, improving, repairing, reconstructing, replacing and upgrading coal
slurry pipelines that provide economic benefits to both Grantee and Grantor; and
(e) constructing, installing, attaching, using, maintaining, repairing,
reconstructing, replacing, relocating, improving, upgrading and enhancing such
towers, poles, lines, cables, anchors and guy wires as Grantor may deem
necessary or convenient for the operation of any of the facilities described in
paragraphs (a), (b) and (c) above, or any Radio Communication Facilities and
Fiber Optic Facilities, or any of them, which are located near the Premises;
together with the right of ingress and egress in, over, under, across, and
through the Premises and every portion thereof and all adjacent property in
which Grantee has an interest for the purpose of access where necessary or
convenient in Grantor's use of the Premises as aforesaid; provided, however,
that:
(A) Grantor shall give Grantee at least sixty (60) days prior
notice before any future lines or Radio Communication Facilities are
constructed (except in the event of an emergency, in which case Grantor
shall give Grantee as much prior notice as is practicable under the
circumstances); and
(B) Grantor shall attempt to locate such future lines and
Radio Communication Facilities at locations mutually agreed upon by
Grantor and Grantee, but in the absence of such agreement and in all
events, Grantor's exercise of the rights enumerated in this paragraph
shall not unduly interfere with Grantee's use of the Premises.
Grantee, by its acceptance of the within instrument, does hereby
covenant and agree that:
(a) Grantee shall not construct, use or operate, or permit any other
person or entity other than Grantor, its successors, assigns, lessees,
permittees, licensees, agents, contractors, subcontractors and affiliates (the
"Benefited Parties"), to construct, use or operate any telecommunications
equipment, facilities or system located over, under or upon the Premises, unless
such construction, use or operation is permitted by applicable law and does not
unduly interfere with the use or operation of any Radio Communication Facilities
or Fiber Optic Facilities owned or operated (prior to such construction, use or
operation) by any one or more of the Benefited Parties (regardless of whether
any such interference is permitted by applicable regulations of the Federal
Communications Commission or any successor agency); and
(b) Grantee shall not, without the consent of Granter, construct, use
or operate or permit or consent to the construction, use or operation of any
equipment or facilities of any kind in such a manner as to unduly interfere with
the use or operation of any Radio Communication Facilities or Fiber Optic
Facilities located as of the date hereof on the real and personal property
comprising the Premises (regardless of whether any such interference is
permitted by applicable regulations of the Federal Communications Commission or
any successor agency).
This conveyance and the warranties as to title set forth herein are
made subject to those matters set forth in Exhibit "B" attached hereto and for
all purposes by this reference incorporated herein and made a part hereof (the
"Permitted Exceptions") and to the rights and easements of Grantor, its
successors and assigns in and to the Premises set forth herein.
TO HAVE AND TO HOLD the Premises, with all and singular the rights,
members and appurtenances thereof, to the same being, belonging or in anywise
appertaining, to the only proper uses, benefit, and behoof of Grantee, its
successors and assigns forever in fee simple.
AND GRANTOR, for itself, its successors and assigns, will warrant and
forever defend the right and title to the Premises unto Grantee, its successors
and assigns against the claims of all persons claiming by, through or under
Grantor, subject, however, to the Permitted Exceptions, and subject to the
rights and easements of Grantor, its successors and assigns in and to the
Premises as set forth herein.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE
BUILDINGS, OTHER STRUCTURES AND IMPROVEMENTS, FIXTURES AND REAL AND PERSONAL
PROPERTY HEREIN CONVEYED ARE HEREBY CONVEYED BY GRANTOR TO GRANTEE UPON AN "AS
IS" AND "WHERE IS" BASIS. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OF
EXCHANGE BETWEEN GRANTOR AND GRANTEE DATED AS OF ___________ ____, 19__, NEITHER
GRANTOR NOR ANY PERSON OR ENTITY OF ANY KIND OR NATURE WHATSOEVER ACTING FOR OR
ON BEHALF OF GRANTOR EITHER HAS MADE OR HEREBY MAKES ANY REPRESENTATION OR
WARRANTY WHATSOEVER WITH RESPECT THERETO, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO
THE VALUE, QUANTITY, CONDITION, SALABILITY, OBSOLESCENCE, MERCHANTABILITY,
FITNESS OR SUITABILITY FOR USE OR WORKING ORDER THEREOF OR THAT THE USE OR
OPERATION THEREOF WILL NOT VIOLATE PATENT, TRADE SECRET, TRADEMARK OR SERVICE
MARK RIGHTS OF ANY THIRD PARTIES. GRANTEE HAS ACQUIRED THE PREMISES "AS IS" AND
"WHERE IS" IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT OF
EXCHANGE. GRANTEE HAS MADE SUCH INSPECTION OF THE PREMISES AS IT BELIEVES TO BE
WARRANTED UNDER THE CIRCUMSTANCES AND HAS NOT RELIED UPON ANY REPRESENTATION OF
GRANTOR IN THE SELECTION OF THE TRANSMISSION AND SUBSTATION FACILITIES ACQUIRED.
Notwithstanding the foregoing, Grantee shall, together with Grantor, have the
benefit of all manufacturers' and vendors' warranties and all patent, trademark
and service mark rights running to Grantor in connection with the property
herein conveyed to the extent the same are assignable by Grantor.
Except as otherwise provided in the Agreement of Exchange between
Grantor and Grantee dated as of ___________ ____, 199__, Grantee specifically
agrees and hereby waives, releases, and discharges any claim (statutory,
contractual or otherwise) it has, or may have in the future, against Grantor
with respect to or arising out of the past, present or future conditions or
compliance or noncompliance of the Premises in regard to any environmental laws,
rules, regulations, orders or requirements (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss.ss. 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. ss.ss. 6901 et seq., the Toxic Substances Control
Act, as amended, 15 U.S.C. ss.ss. 2601 et seq., and the Georgia Hazardous Site
Response Act, O.C.G.A. ss.ss. 12-8-90 et. seq.).
This instrument shall inure to the benefit of, and shall be binding
upon, Grantor and Grantee and their respective successors and assigns.
By its acceptance hereof, Grantee covenants and agrees that any ad
valorem, real or personal property taxes and any other taxes levied upon or
assessed against any real property or personal property conveyed herein and
hereby for the year 199__ shall be apportioned and prorated by and between
Grantor and Grantee as of the date hereof, based on estimated taxes for 199__,
and each party hereto shall be and remain liable to the other party for each
party's pro rata portion thereof, when the actual tax bills are received.
This Limited Warranty Deed and Bill of Sale may be executed and sealed
in multiple counterparts all of which shall be executed and delivered as an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed
and sealed with its corporate seal by its duly authorized officers as of the day
and year first above written.
Signed, sealed and GRANTOR:
delivered in the
presence of: GEORGIA POWER COMPANY
By:
Unofficial Witness Its:
Attest:
Notary Public Its:
(NOTARIAL SEAL)
My Commission Expires: (CORPORATE SEAL)
Date Notarized:
<PAGE>
EXHIBIT "B"
ATTACHED TO AND MADE A PART OF THAT CERTAIN LIMITED WARRANTY DEED AND
BILL OF SALE (THE "DEED") DATED AS OF THE ______TH DAY OF ___________,
199_, BETWEEN GEORGIA POWER COMPANY AS "GRANTOR" AND GEORGIA
TRANSMISSION CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION) AS
"GRANTEE"
MATTERS THAT MAY AFFECT THE RIGHTS AND
INTERESTS CONVEYED BY THE DEED
The following matters may affect the rights and interests of Grantor in
the "Premises" as that term is defined in the Deed and thus may affect Grantee's
use and enjoyment thereof. Accordingly, the following are and shall be deemed to
be permitted exceptions and encumbrances to title and use in all respects and
for all purposes as between Grantor and Grantee, including, but not limited to,
those of limited warranty and contract. Reference herein to the "Plats" shall
mean and include those certain recorded and unrecorded plats of survey: (a)
describing the Premises and by which the same were acquired and by which the
Premises are being conveyed to Grantee; and (b) which were delivered to Grantee
by Grantor in connection with and in contemplation of the transactions as
contemplated in the Deed.
1. (a) All matters which would be disclosed by a current and accurate
certified plat of survey and inspection of the Premises by a Georgia registered
land surveyor, and (b) all matters which are disclosed by the Plats.
2. All taxes due with respect to the Premises in 199__ and subsequent
years.
3. All covenants, agreements, reservations, grants and written
conveyances, recorded or unrecorded, and whether between Grantor and any other
person, or between any predecessor in title to Grantor and Grantor, or between
any predecessor in title to Grantor and any other person, or between any
predecessor in title to any grantor to Grantor and any other person, which may
affect the Premises or all or any portion thereof and respecting, without
limitation, any easement, lease, right, privilege, license or grant, or any or
all of them, for, without limitation: access (pedestrian or vehicular); ingress,
egress; mining or minerals; aviation; parking; hunting or fishing; wells and
springs and their use and maintenance; timber cutting and removal; pasturage and
maintenance of cattle; pipes and pipeline rights for natural gas and petroleum
products or other transmission; construction, use and maintenance of utility
services and lines (public and private and including, without limitation,
transmission, generation and distribution of natural gas, water, electrical
energy, steam and all other forms of energy and any form of communications);
highways (free access or limited), rights-of-way, roads, roadways and driveways
(public or private); railroad operation and maintenance purposes, including line
and grade crossing (public or private); camping and recreational purposes;
lakes, ponds and streams or agricultural and timber purposes of any nature or
type whatsoever.
4. Reversionary restrictions or rights of reverter set forth and
contained in any instrument whereby Grantor acquired any interest in the
Premises or any portion thereof.
5. The rights of all upper and lower riparian owners in and to the
waters of all rivers, streams, creeks or branches crossing or adjoining the
Premises or any portion or portions thereof, and to the natural flow thereof
free from diminution or pollution; littoral rights of others as to any lake or
pond located anywhere on the Premises.
6. The location, use, maintenance or existence of any cemetery, burial
ground or historical site or monument anywhere on the Premises.
7. All rights of the federal or state governments with respect to any
water way which is adjacent to or which crosses the Premises or any portion or
portions thereof.
8. Any obligation of Grantor to reimburse any person for any cost
resulting from the use of the Premises or any portion thereof, the same being
hereby expressly assumed by Grantee by its acceptance of the Deed.
9. Any obligation of Grantor to indemnify and hold harmless any person
resulting from and respecting the use of the Premises or any portion thereof,
the same being hereby expressly assumed by Grantee by its acceptance of the
Deed.
10. Rights of any present or future owner or assignee of Grantor's
rights in and to electrical energy transmission and distribution systems and
facilities which are or may be parallel to, contiguous with, adjacent to, or
located upon the Premises or any portion thereof, including, without limitation,
Municipal Electric Authority of Georgia and the City of Dalton, Georgia, and
their respective successors and assigns.
11. Rights of any present or future owner, assignee, licensee,
permittee or grantee of an indefeasible right of user of Grantor's rights in and
to communications facilities which are parallel to, adjacent to or located upon,
the Premises or any portion or portions thereof, including, without limitation,
MPX Systems, Inc., SouthernNet of the Southeast, Inc., AT&T Company, AT&T
Communications of the Southern States, Inc., BellSouth Telecommunications, Inc.,
Western Union Corporation and MCI Communications, Inc., and their respective
successors and assigns.
12. Any discrepancy between the courses, distances, lines, monuments
and other descriptive matters and information reflected in and upon the Plats
and the courses, distances, lines, monuments and other descriptive matters and
information recited in or attached to any deed, grant or other instrument
(including without limitation condemnation documents) whereby Grantor acquired
all or any portion of the Premises.
13. Title to all or any portion of the Premises being in one other than
a grantor to Grantor due to a failure of such prior grantor's title based upon
(a) lack of continuous possession or (b) breach of condition which effects a
reversion or defeasance, or (c) the absence of proper application of the laws of
descent, distribution and administration.
14. Bankruptcy of any prior owner of all or any portion of the
Premises.
15. Recorded or unrecorded claims of liens for labor or material
furnished for the improvements of or upon the Premises.
16. Rights of the public in and to streets, highways, and other
roadways located on, over, or across the Premises.
17. Any uncancelled or unsatisfied security instrument now of record
which, under State Bar of Georgia Title Standard 12.6 (in effect on June 2,
1972) would not be deemed an encumbrance to title to the Premises or any portion
thereof, together with any security instrument of record given to secure
original principal indebtedness of up to $5,000.00 which, notwithstanding that
it would be deemed an encumbrance to title under the application of said Title
Standard or otherwise, has a stated maturity date more than twenty (20) years
prior to the date of the Deed or if, where no such maturity date is stated or
such instrument is updated, said instrument is recorded on a date which is more
than twenty (20) years prior to the date of the Deed.
18. Any and all violations of applicable zoning laws. Any and all
violations of applicable building codes.
<PAGE>
36
Exhibit B2
Form of Quitclaim Deed and Bill of Sale for Georgia Power Substation Facilities
with Respect to Fee Simple Property
NO TRANSFER TAX DUE -
GIVEN FOR TITLE CLEARANCE PURPOSES
IN CONNECTION WITH LIMITED WARRANTY
DEED AND BILL OF SALE OF EVEN DATE
STATE OF GEORGIA
COUNTY OF ______________
QUITCLAIM DEED AND BILL OF SALE
MADE BY
GEORGIA POWER COMPANY
TO
GEORGIA TRANSMISSION CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
- -------------------------------------------------------------------------------
SUBSTATION
TITLE CLEARANCE
THIS QUITCLAIM DEED AND BILL OF SALE is made as of the _____ day of
___________, 199__, by and between GEORGIA POWER COMPANY, a Georgia corporation
having its principal offices in Atlanta, Fulton County, Georgia, as party of the
first part (hereinafter referred to as "Grantor"), and GEORGIA TRANSMISSION
CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), an electric membership
corporation organized and existing under Section 46-3-170, et seq., of the
Official Code of Georgia Annotated, as party of the second part (hereinafter
referred to as "Grantee").
W I T N E S S E T H:
WHEREAS, Grantor has executed and delivered to Grantee that certain
Limited Warranty Deed (the "Limited Warranty Deed") dated of even date herewith,
recorded in Deed Book ___________, page _____, in the Office of the Clerk of the
Superior Court of ________________ County, Georgia, with respect to certain
property more particularly described therein;
WHEREAS, Grantee has requested that Grantor execute this Quitclaim Deed
and Bill of Sale based upon a survey obtained by Grantee;
WHEREAS, a description of the property shown on the survey is attached
hereto as Exhibit "A" and by this reference incorporated herein and made a part
hereof (the "Quitclaim Property");
WHEREAS, the Limited Warranty Deed contained certain rights and
easements of Grantor, which Grantor does not intend to release or modify by
virtue of this Quitclaim Deed and Bill of Sale;
WHEREAS, the Quitclaim Property less and except the rights and
easements of Grantor under or pursuant to the Limited Warranty Deed is
hereinafter referred to as the "Property"; and
WHEREAS, Grantor desires to execute this Quitclaim Deed and Bill of
Sale for the purposes and subject to the terms and conditions set forth herein.
NOW, THEREFORE, GRANTOR, FOR AND IN CONSIDERATION of the sum of TEN AND
NO/100 DOLLARS ($10.00) in hand paid at and before the sealing and delivery of
these presents, and for other good and valuable consideration, the receipt,
adequacy and sufficiency whereof are hereby acknowledged, has this day granted,
bargained, sold, conveyed, aliened, transferred, remised, quitclaimed and
assigned, and by these presents does hereby grant, bargain, sell, convey, alien,
transfer, remise, quitclaim and assign unto Grantee, its successors and assigns,
all the right, title, and interest which Grantor has or may have had in and to
the Property. The Property, together with the property described in the
paragraph immediately following this paragraph, less and except the property
excluded from this conveyance, being herein collectively referred to as the
"Premises".
TOGETHER WITH all right, title, and interest which Grantor has or may
have had in and to all buildings, facilities and improvements situated on the
Property, all easements, rights-of-way, permits, privileges, machinery,
equipment, appliances, appurtenances, materials, supplies, and all other
property, tangible or intangible, real, personal or mixed, located thereon and
comprising a part of or reasonably necessary for the use, occupation and
enjoyment of the Property or any buildings, facilities or improvements situated
thereon.
LESS AND EXCEPT from the foregoing conveyance, however:
(a) any and all property (owned by Grantor and not otherwise conveyed
to Grantee) of any kind and nature whatsoever which comprises a part of or
appertains to or is reasonably necessary for the use, occupancy or enjoyment of
any present or future electric transmission or distribution line or lines which
either begin or terminate in or upon, or which traverse or transect, the
Premises or any portion or portions thereof; and
(b) equipment, systems or facilities owned or leased by Grantor or its
affiliates, whether used exclusively by Grantor or its affiliates, jointly used
with any other person or entity or used by any lessee, permittee or licensee of
Grantor or its affiliates, which are:
(i) equipment, systems or facilities used for or in connection with
communications by radio, including without limitation,
(A) microwave towers, mobile base radio towers, radio
base repeater towers, telemeter transmitters, multiple address
system radios or power line carrier equipment,
(B) power supplies, telecommunications racks or
auxiliary support systems associated therewith,
(C) separate control buildings which contain radio
communications equipment but do not contain substation
equipment which is part of the Premises,
(D) radio communications equipment contained in
control buildings which contain both radio communications
equipment and substation equipment, or
(E) any permits, licenses and leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (i) being
hereinafter collectively referred to as "Radio Communication Facilities"); or
(ii) equipment, systems or facilities used for or in
connection with light wave communications over optical fibers,
including without limitation,
(A) optical fibers, optronic or photo-optronic
equipment, repeaters, junctions, splice enclosures or
equipment for the conversion of light signals to or from radio
or electronic signals,
(B) power supplies, telecommunications racks, alarm
monitoring equipment or auxiliary support systems associated
therewith,
(C) separate control buildings that contain fiber
optic communications equipment but do not contain substation
equipment which is part of the Premises,
(D) fiber optic communications equipment contained in
control buildings which contain both fiber optic
communications equipment and substation equipment, or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (ii) being
hereinafter collectively referred to as "Fiber Optic Facilities"); and
(c) all rights and easements of Grantor, its successors and assigns
arising under or pursuant to the Limited Warranty Deed.
Further, notwithstanding anything contained in the within instrument to
the contrary, Grantor does hereby expressly except from the within conveyance
and reserve and retain unto itself, its successors, assigns, agents,
contractors, subcontractors, and legally permitted licensees and permittees,
and, by its acceptance hereof, Grantee does hereby grant unto Grantor, its
successors, assigns, agents, contractors, subcontractors and legally permitted
licensees and permittees, a perpetual easement in, on, over, upon, under,
through, and across the Premises and every portion thereof for the purposes of:
(a) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, relocating, improving and upgrading
existing and additional electric transmission and distribution lines, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such electric transmission and
distribution lines;
(b) using, operating, maintaining, repairing, reconstructing,
replacing, improving, upgrading and enhancing Radio Communication Facilities and
Fiber Optic Facilities, including all poles, supporting facilities, towers,
equipment, hardware, wires, and all other property, real, personal and mixed,
attached to or directly related to or located upon or upon which are located
existing Radio Communication Facilities and existing Fiber Optic Facilities or
any of them;
(c) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, improving, upgrading and enhancing Radio
Communication Facilities, that are part of the Integrated Transmission System or
are the subject of a joint use agreement between Grantee and Grantor, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such Radio Communication Facilities;
(d) constructing, installing, attaching, using, operating, maintaining,
relocating, improving, repairing, reconstructing, replacing and upgrading coal
slurry pipelines that provide economic benefits to both Grantee and Grantor; and
(e) constructing, installing, attaching, using, maintaining, repairing,
reconstructing, replacing, relocating, improving, upgrading and enhancing such
towers, poles, lines, cables, anchors and guy wires as Grantor may deem
necessary or convenient for the operation of any of the facilities described in
paragraphs (a), (b) and (c) above, or any Radio Communication Facilities and
Fiber Optic Facilities, or any of them, which are located near the Premises;
together with the right of ingress and egress over, across, and through the
Premises and every portion thereof and all adjacent property in which Grantee
has an interest for the purpose of access where necessary or convenient in
Grantor's use of the Premises as aforesaid; provided, however, that:
(A) Grantor shall give Grantee at least sixty (60)
days prior notice before any future lines or Radio
Communication Facilities are constructed (except in the event
of an emergency, in which case Grantor shall give Grantee as
much prior notice as is practicable under the circumstances);
and
(B) Grantor shall attempt to locate such future lines
and Radio Communication Facilities at locations mutually
agreed upon by Grantor and Grantee, but in the absence of such
agreement and in all events, Grantor's exercise of the rights
enumerated in this paragraph shall not unduly interfere with
Grantee's use of the Premises.
Grantee, by its acceptance of the within instrument, does hereby
covenant and agree that:
(a) Grantee shall not construct, use or operate, or permit any other
person or entity other than Grantor, its successors, assigns, lessees,
permittees, licensees, agents, contractors, subcontractors and affiliates (the
"Benefited Parties"), to construct, use or operate any telecommunications
equipment, facilities or system located over, under or upon the Premises, unless
such construction, use or operation is permitted by applicable law and does not
unduly interfere with the use or operation of any Radio Communication Facilities
or Fiber Optic Facilities owned or operated (prior to such construction, use or
operation) by any one or more of the Benefited Parties (regardless of whether
any such interference is permitted by applicable regulations of the Federal
Communications Commission or any successor agency); and
(b) Grantee shall not, without the consent of Granter, construct, use
or operate or permit or consent to the construction, use or operation of any
equipment or facilities of any kind in such a manner as to unduly interfere with
the use or operation of any Radio Communication Facilities or Fiber Optic
Facilities located as of the date hereof on the real and personal property
comprising the Premises (regardless of whether any such interference is
permitted by applicable regulations of the Federal Communications Commission or
any successor agency).
TO HAVE AND TO HOLD the Premises unto Grantee, its successors, and
assigns, so that neither Grantor nor its successors, nor any other person
claiming under Grantor, shall at any time claim or demand any right, title, or
interest to the premises or its appurtenances, subject to the rights and
easements of Grantor, its successors and assigns in and to the Premises as set
forth herein.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE
BUILDINGS, OTHER STRUCTURES AND IMPROVEMENTS, FIXTURES AND REAL AND PERSONAL
PROPERTY HEREIN CONVEYED ARE HEREBY CONVEYED BY GRANTOR TO GRANTEE UPON AN "AS
IS" AND "WHERE IS" BASIS. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OF
EXCHANGE BETWEEN GRANTOR AND GRANTEE DATED AS OF ___________ ____, 19__, NEITHER
GRANTOR NOR ANY PERSON OR ENTITY OF ANY KIND OR NATURE WHATSOEVER ACTING FOR OR
ON BEHALF OF GRANTOR EITHER HAS MADE OR HEREBY MAKES ANY REPRESENTATION OR
WARRANTY WHATSOEVER WITH RESPECT THERETO, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO
THE VALUE, QUANTITY, CONDITION, SALABILITY, OBSOLESCENCE, MERCHANTABILITY,
FITNESS OR SUITABILITY FOR USE OR WORKING ORDER THEREOF OR THAT THE USE OR
OPERATION THEREOF WILL NOT VIOLATE PATENT, TRADE SECRET, TRADEMARK OR SERVICE
MARK RIGHTS OF ANY THIRD PARTIES. GRANTEE HAS ACQUIRED THE PREMISES "AS IS" AND
"WHERE IS" IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT OF
EXCHANGE. GRANTEE HAS MADE SUCH INSPECTION OF THE PREMISES AS IT BELIEVES TO BE
WARRANTED UNDER THE CIRCUMSTANCES AND HAS NOT RELIED UPON ANY REPRESENTATION OF
GRANTOR IN THE SELECTION OF THE TRANSMISSION AND SUBSTATION FACILITIES ACQUIRED.
Notwithstanding the foregoing, Grantee shall, together with Grantor, have the
benefit of all manufacturers' and vendors' warranties and all patent, trademark
and service mark rights running to Grantor in connection with the property
herein conveyed to the extent the same are assignable by Grantor.
Except as otherwise provided in the Agreement of Exchange between
Grantor and Grantee dated as of ____________ ___, 19__, Grantee specifically
agrees and hereby waives, releases, and discharges any claim (statutory,
contractual or otherwise) it has, or may have in the future, against Grantor
with respect to or arising out of the past, present or future conditions or
compliance or noncompliance of the Premises in regard to any environmental laws,
rules, regulations, orders or requirements (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss.ss. 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. ss.ss. 6901 et seq., the Toxic Substances Control
Act, as amended, 15 U.S.C. ss.ss. 2601 et seq., and the Georgia Hazardous Site
Response Act, O.C.G.A. ss.ss. 12-8-90 et. seq.).
This instrument shall inure to the benefit of, and shall be binding
upon, Grantor and Grantee and their respective successors and assigns.
By its acceptance hereof, Grantee covenants and agrees that any ad
valorem, real or personal property taxes and any other taxes levied upon or
assessed against any real property or personal property conveyed herein and
hereby for the year 199__ shall be apportioned and prorated by and between
Grantor and Grantee as of the date hereof, based on estimated taxes for 199__,
and each party hereto shall be and remain liable to the other party for each
party's pro rata portion thereof, when the actual tax bills are received.
This Quitclaim Deed and Bill of Sale may be executed and sealed in
multiple counterparts all of which shall be executed and delivered as an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed
and sealed with its corporate seal by its duly authorized officers as of the day
and year first above written.
Signed, sealed and GRANTOR:
delivered in the
presence of: GEORGIA POWER COMPANY
By:
Unofficial Witness Its:
Attest:
Notary Public Its:
(NOTARIAL SEAL)
My Commission Expires: (CORPORATE SEAL)
Date Notarized:
<PAGE>
42
Exhibit B3
Form of Quitclaim Deed and Bill of Sale for Georgia Power Substation Facilities
with Respect to Non-Fee Simple Property
STATE OF GEORGIA
COUNTY OF ______________
QUITCLAIM DEED AND BILL OF SALE
MADE BY
GEORGIA POWER COMPANY
TO
GEORGIA TRANSMISSION CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
- -------------------------------------------------------------------------------
SUBSTATION
THIS QUITCLAIM DEED AND BILL OF SALE is made as of the _____ day of
___________, 199__, by and between GEORGIA POWER COMPANY, a Georgia corporation
having its principal offices in Atlanta, Fulton County, Georgia, as party of the
first part (hereinafter referred to as "Grantor"), and GEORGIA TRANSMISSION
CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), an electric membership
corporation organized and existing under Section 46-3-170, et seq., of the
Official Code of Georgia Annotated, as party of the second part (hereinafter
referred to as "Grantee").
W I T N E S S E T H:
THAT GRANTOR, FOR AND IN CONSIDERATION of the sum of TEN AND NO/100
DOLLARS ($10.00) in hand paid at and before the sealing and delivery of these
presents, and for other good and valuable consideration, the receipt, adequacy
and sufficiency whereof are hereby acknowledged, has this day granted,
bargained, sold, conveyed, aliened, transferred, and remised, quitclaimed and
assigned, and by these presents does hereby grant, bargain, sell, convey, alien,
transfer, remise, quitclaim and assign unto Grantee, its successors and assigns,
all the right, title and interest which Grantor has or may have had in and to
all that certain real property lying and being in _____________ County, Georgia,
and more particularly described in Exhibit "A" attached hereto and for all
purposes by this reference incorporated herein and made a part hereof (the
"Property"). The Property, together with the property described in the paragraph
immediately following this paragraph, less and except the property excluded from
this conveyance, being herein collectively referred to as the "Premises".
TOGETHER WITH all right, title, and interest which Grantor has or may
have had in and to all buildings, facilities and improvements situated on the
Property, all easements, rights-of-way, permits, privileges, machinery,
equipment, appliances, appurtenances, materials, supplies, and all other
property, tangible or intangible, real, personal or mixed, located thereon and
comprising a part of or reasonably necessary for the use, occupation and
enjoyment of the Property or any buildings, facilities or improvements situated
thereon.
LESS AND EXCEPT from the foregoing conveyance, however:
(a) any and all property (owned by Grantor and not otherwise conveyed
to Grantee) of any kind and nature whatsoever which comprises a part of or
appertains to or is reasonably necessary for the use, occupancy or enjoyment of
any present or future electric transmission or distribution line or lines which
either begin or terminate in or upon, or which traverse or transect, the
Premises or any portion or portions thereof; and
(b) any equipment, systems or facilities owned or leased by Grantor or
its affiliates, whether used exclusively by Grantor or its affiliates, jointly
used with any other person or entity or used by any lessee, permittee or
licensee of Grantor or its affiliates, which are
(i) equipment, systems or facilities used for or in connection
with communications by radio, including without limitation,
(A) microwave towers, mobile base radio towers, radio
base repeater towers, telemeter transmitters, multiple address
system radios or power line carrier equipment,
(B) power supplies, telecommunications racks or
auxiliary support systems associated therewith,
(C) separate control buildings which contain radio
communications equipment but do not contain substation
equipment which is part of the Premises,
(D) radio communications equipment contained in
control buildings which contain both radio communications
equipment and substation equipment, or
(E) any permits, licenses and leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (i) being
hereinafter collectively referred to as "Radio Communication Facilities");
(ii) equipment, systems or facilities used for or in
connection with light wave communications over optical fibers,
including without limitation,
(A) optical fibers, optronic or photo-optronic
equipment, repeaters, junctions, splice enclosures or
equipment for the conversion of light signals to or from radio
or electronic signals,
(B) power supplies, telecommunications racks, alarm
monitoring equipment or auxiliary support systems associated
therewith,
(C) separate control buildings that contain fiber
optic communications equipment but do not contain substation
equipment which is part of the Premises,
(D) fiber optic communications equipment contained in
control buildings which contain both fiber optic
communications equipment and substation equipment, or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (ii) being
hereinafter collectively referred to as "Fiber Optic Facilities").
Further, notwithstanding anything contained in the within instrument to
the contrary, Grantor does hereby expressly except from the within conveyance
and reserve and retain unto itself, its successors, assigns, agents,
contractors, subcontractors, and legally permitted licensees and permittees,
and, by its acceptance hereof, Grantee does hereby grant unto Grantor, its
successors, assigns, agents, contractors, subcontractors, and legally permitted
licensees and permittees, a perpetual easement in, on, over, upon, under,
through, and across the Premises and every portion thereof for the purposes of:
(a) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, relocating, improving and upgrading
existing and additional electric transmission and distribution lines, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such electric transmission and
distribution lines;
(b) using, operating, maintaining, repairing, reconstructing,
replacing, improving, upgrading and enhancing Radio Communication Facilities and
Fiber Optic Facilities, including all poles, supporting facilities, towers,
equipment, hardware, wires, and all other property, real, personal and mixed,
attached to or directly related to or located upon or upon which are located
existing Radio Communication Facilities and existing Fiber Optic Facilities or
any of them;
(c) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, improving, upgrading and enhancing Radio
Communication Facilities, that are part of the Integrated Transmission System or
are the subject of a joint use agreement between Grantee and Grantor, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such Radio Communication Facilities;
(d) constructing, installing, attaching, using, operating, maintaining,
relocating, improving, repairing, reconstructing, replacing and upgrading coal
slurry pipelines that provide economic benefits to both Grantee and Grantor; and
(e) constructing, installing, attaching, using, maintaining, repairing,
reconstructing, replacing, relocating, improving, upgrading and enhancing such
towers, poles, lines, cables, anchors and guy wires as Grantor may deem
necessary or convenient for the operation of any of the facilities described in
paragraphs (a), (b) and (c) above, or any Radio Communication Facilities and
Fiber Optic Facilities, or any of them, which are located near the Premises;
together with the right of ingress and egress in, over, under, across, and
through the Premises and every portion thereof and all adjacent property in
which Grantee has an interest for the purpose of access where necessary or
convenient in Grantor's use of the Premises as aforesaid; provided, however,
that:
(A) Grantor shall give Grantee at least sixty (60)
days prior notice before any future lines or Radio
Communication Facilities are constructed (except in the event
of an emergency, in which case Grantor shall give Grantee as
much prior notice as is practicable under the circumstances);
and
(B) Grantor shall attempt to locate such future lines
and Radio Communication Facilities at locations mutually
agreed upon by Grantor and Grantee, but in the absence of such
agreement and in all events, Grantor's exercise of the rights
enumerated in this paragraph shall not unduly interfere with
Grantee's use of the Premises.
Grantee, by its acceptance of the within instrument, does hereby
covenant and agree that:
(a) Grantee shall not construct, use or operate, or permit any other
person or entity other than Grantor, its successors, assigns, lessees,
permittees, licensees, agents, contractors, subcontractors and affiliates (the
"Benefited Parties"), to construct, use or operate any telecommunications
equipment, facilities or system located over, under or upon the Premises, unless
such construction, use or operation is permitted by applicable law and does not
unduly interfere with the use or operation of any Radio Communication Facilities
or Fiber Optic Facilities owned or operated (prior to such construction, use or
operation) by any one or more of the Benefited Parties (regardless of whether
any such interference is permitted by applicable regulations of the Federal
Communications Commission or any successor agency); and
(b) Grantee shall not, without the consent of Granter, construct, use
or operate or permit or consent to the construction, use or operation of any
equipment or facilities of any kind in such a manner as to unduly interfere with
the use or operation of any Radio Communication Facilities or Fiber Optic
Facilities located as of the date hereof on the real and personal property
comprising the Premises (regardless of whether any such interference is
permitted by applicable regulations of the Federal Communications Commission or
any successor agency).
TO HAVE AND TO HOLD the Premises unto Grantee, its successors, and
assigns, so that neither Grantor nor its successors, nor any other person
claiming under Grantor, shall at any time claim or demand any right, title, or
interest to the premises or its appurtenances, subject to the rights and
easements of Grantor, its successors and assigns in and to the Premises as set
forth herein.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE
BUILDINGS, OTHER STRUCTURES AND IMPROVEMENTS, FIXTURES AND REAL AND PERSONAL
PROPERTY HEREIN CONVEYED ARE HEREBY CONVEYED BY GRANTOR TO GRANTEE UPON AN "AS
IS" AND "WHERE IS" BASIS. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OF
EXCHANGE BETWEEN GRANTOR AND GRANTEE DATED AS OF ___________ ____, 19__, NEITHER
GRANTOR NOR ANY PERSON OR ENTITY OF ANY KIND OR NATURE WHATSOEVER ACTING FOR OR
ON BEHALF OF GRANTOR EITHER HAS MADE OR HEREBY MAKES ANY REPRESENTATION OR
WARRANTY WHATSOEVER WITH RESPECT THERETO, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO
THE VALUE, QUANTITY, CONDITION, SALABILITY, OBSOLESCENCE, MERCHANTABILITY,
FITNESS OR SUITABILITY FOR USE OR WORKING ORDER THEREOF OR THAT THE USE OR
OPERATION THEREOF WILL NOT VIOLATE PATENT, TRADE SECRET, TRADEMARK OR SERVICE
MARK RIGHTS OF ANY THIRD PARTIES. GRANTEE HAS ACQUIRED THE PREMISES "AS IS" AND
"WHERE IS" IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT OF
EXCHANGE. GRANTEE HAS MADE SUCH INSPECTION OF THE PREMISES AS IT BELIEVES TO BE
WARRANTED UNDER THE CIRCUMSTANCES AND HAS NOT RELIED UPON ANY REPRESENTATION OF
GRANTOR IN THE SELECTION OF THE TRANSMISSION AND SUBSTATION FACILITIES ACQUIRED.
Notwithstanding the foregoing, Grantee shall, together with Grantor, have the
benefit of all manufacturers' and vendors' warranties and all patent, trademark
and service mark rights running to Grantor in connection with the property
herein conveyed to the extent the same are assignable by Grantor.
Except as otherwise provided in the Agreement of Exchange between
Grantor and Grantee dated as of ____________ ___, 19__, Grantee specifically
agrees and hereby waives, releases, and discharges any claim (statutory,
contractual or otherwise) it has, or may have in the future, against Grantor
with respect to or arising out of the past, present or future conditions or
compliance or noncompliance of the Premises in regard to any environmental laws,
rules, regulations, orders or requirements (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss.ss. 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. ss.ss. 6901 et seq., the Toxic Substances Control
Act, as amended, 15 U.S.C. ss.ss. 2601 et seq., and the Georgia Hazardous Site
Response Act, O.C.G.A. ss.ss. 12-8-90 et. seq.).
This instrument shall inure to the benefit of, and shall be binding
upon, Grantor and Grantee and their respective successors and assigns.
By its acceptance hereof, Grantee covenants and agrees that any ad
valorem, real or personal property taxes and any other taxes levied upon or
assessed against any real property or personal property conveyed herein and
hereby for the year 199__ shall be apportioned and prorated by and between
Grantor and Grantee as of the date hereof, based on estimated taxes for 199__,
and each party hereto shall be and remain liable to the other party for each
party's pro rata portion thereof, when the actual tax bills are received.
This Quitclaim Deed and Bill of Sale may be executed and sealed in
multiple counterparts all of which shall be executed and delivered as an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed
and sealed with its corporate seal by its duly authorized officers as of the day
and year first above written.
Signed, sealed and GRANTOR:
delivered in the
presence of: GEORGIA POWER COMPANY
By:
Unofficial Witness Its:
Attest:
Notary Public Its:
(NOTARIAL SEAL)
My Commission Expires: (CORPORATE SEAL)
Date Notarized:
<PAGE>
43
Exhibit C
GTC Substation Facilities
- ------------------------------------------------------------------------
Substation Orig. Book Value
(5/5/98)
- ------------------------------------------------------------------------
GTC Distribution Subs:
- -----------------------------------------------------------
North Metter 46/12 - Excelsior #8 284,564
- -----------------------------------------------------------
- -----------------------------------------------------------
Clarkesville 46/12 221,028
- -----------------------------------------------------------
505,592
GTC Transmission Subs:
- -----------------------------------------------------------
Forrest Road 115/69/12 1,513,343
- -----------------------------------------------------------
- -----------------------------------------------------------
Reids 115/46 347,471
- -----------------------------------------------------------
1,860,814
- ------------------------------------------=================
Total 2,366,406
- ------------------------------------------=================
<PAGE>
49
Exhibit D1
Form of Limited Warranty Deed and Bill of Sale for GTC Substation
Facilities with Respect to Fee Simple Property
STATE OF GEORGIA
COUNTY OF ______________
LIMITED WARRANTY DEED AND BILL OF SALE
MADE BY
GEORGIA TRANSMISSION CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
TO
GEORGIA POWER COMPANY
SUBSTATION
THIS LIMITED WARRANTY DEED AND BILL OF SALE is made as of the _____ day
of ___________, 199__, by and between GEORGIA TRANSMISSION CORPORATION (AN
ELECTRIC MEMBERSHIP CORPORATION), an electric membership corporation organized
and existing under Section 46-3-170, et seq., of the Official Code of Georgia
Annotated, as party of the first part (hereinafter referred to as "Grantor"),
and GEORGIA POWER COMPANY, a Georgia corporation having its principal offices in
Atlanta, Fulton County, Georgia, as party of the second part (hereinafter
referred to as "Grantee").
W I T N E S S E T H:
THAT GRANTOR, FOR AND IN CONSIDERATION of the sum of TEN AND NO/100
DOLLARS ($10.00) in hand paid at and before the sealing and delivery of these
presents, and for other good and valuable consideration, the receipt, adequacy
and sufficiency whereof are hereby acknowledged, has this day granted,
bargained, sold, conveyed, aliened, transferred, and assigned, and by these
presents does hereby grant, bargain, sell, convey, alien, transfer, and assign
unto Grantee, its successors and assigns, all that certain real property lying
and being in _____________ County, Georgia, and more particularly described in
Exhibit "A" attached hereto and for all purposes by this reference incorporated
herein and made a part hereof (the "Property"). The Property, together with the
property described in the paragraph immediately following this paragraph, less
and except the property excluded from this conveyance, being herein collectively
referred to as the "Premises".
TOGETHER WITH all right, title, and interest which Grantor has or may
have had in and to all buildings, facilities and improvements situated on the
Property, all easements, rights-of-way, permits, privileges, machinery,
equipment, appliances, appurtenances, materials, supplies, and all other
property, tangible or intangible, real, personal or mixed, located thereon and
comprising a part of or reasonably necessary for the use, occupation and
enjoyment of the Property or any buildings, facilities or improvements situated
thereon.
LESS AND EXCEPT from the foregoing conveyance, however:
(a) any and all property (owned by Grantor and not otherwise conveyed
to Grantee) of any kind and nature whatsoever which comprises a part of or
appertains to or is reasonably necessary for the use, occupancy or enjoyment of
any present or future electric transmission or distribution line or lines which
either begin or terminate in or upon, or which traverse or transect, the
Premises or any portion or portions thereof; and
(b) any equipment, systems or facilities owned or leased by Grantor or
its affiliates, whether used exclusively by Grantor or its affiliates, jointly
used with any other person or entity or used by any lessee, permittee or
licensee of Grantor or its affiliates, which are
(i) equipment, systems or facilities used for or in connection
with communications by radio, including without limitation,
(A) microwave towers, mobile base radio towers, radio
base repeater towers, telemeter transmitters, multiple address
system radios or power line carrier equipment,
(B) power supplies, telecommunications racks or
auxiliary support systems associated therewith,
(C) separate control buildings which contain radio
communications equipment but do not contain substation
equipment which is part of the Premises,
(D) radio communications equipment contained in
control buildings which contain both radio communications
equipment and substation equipment, or
(E) any permits, licenses and leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (i) being
hereinafter collectively referred to as "Radio Communication Facilities");
(ii) equipment, systems or facilities used for or in
connection with light wave communications over optical fibers,
including without limitation,
(A) optical fibers, optronic or photo-optronic
equipment, repeaters, junctions, splice enclosures or
equipment for the conversion of light signals to or from radio
or electronic signals,
(B) power supplies, telecommunications racks, alarm
monitoring equipment or auxiliary support systems associated
therewith,
(C) separate control buildings that contain fiber
optic communications equipment but do not contain substation
equipment which is part of the Premises,
(D) fiber optic communications equipment contained in
control buildings which contain both fiber optic
communications equipment and substation equipment, or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (ii) being
hereinafter collectively referred to as "Fiber Optic Facilities").
Further, notwithstanding anything contained in the within instrument to
the contrary, Grantor does hereby expressly except from the within conveyance
and reserve and retain unto itself, its successors, assigns, agents,
contractors, subcontractors, and legally permitted licensees and permittees,
and, by its acceptance hereof, Grantee does hereby grant unto Grantor, its
successors, assigns, agents, contractors subcontractors, and legally permitted
licensees and permittees, a perpetual easement in, on, over, upon, under,
through, and across the Premises and every portion thereof for the purposes of:
(a) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, relocating, improving and upgrading
existing and additional electric transmission and distribution lines, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such electric transmission and
distribution lines;
(b) using, operating, maintaining, repairing, reconstructing,
replacing, improving, upgrading and enhancing Radio Communication Facilities and
Fiber Optic Facilities, including all poles, supporting facilities, towers,
equipment, hardware, wires, and all other property, real, personal and mixed,
attached to or directly related to or located upon or upon which are located
existing Radio Communication Facilities and existing Fiber Optic Facilities or
any of them;
(c) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, improving, upgrading and enhancing Radio
Communication Facilities that are part of the Integrated Transmission System or
are the subject of a joint use agreement between Grantee and Grantor, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such Radio Communication Facilities;
(d) constructing, installing, attaching, using, operating, maintaining,
relocating, improving, repairing, reconstructing, replacing and upgrading coal
slurry pipelines that provide economic benefits to both Grantee and Grantor; and
(e) constructing, installing, attaching, using, maintaining, repairing,
reconstructing, replacing, relocating, improving, upgrading and enhancing such
towers, poles, lines, cables, anchors and guy wires as Grantor may deem
necessary or convenient for the operation of any of the facilities described in
paragraphs (a), (b) and (c) above, or any Radio Communication Facilities and
Fiber Optic Facilities, or any of them, which are located near the Premises;
together with the right of ingress and egress in, over, under, across, and
through the Premises and every portion thereof and all adjacent property in
which Grantee has an interest for the purpose of access where necessary or
convenient in Grantor's use of the Premises as aforesaid; provided, however,
that:
(A) Grantor shall give Grantee at least sixty (60)
days prior notice before any future lines or Radio
Communication Facilities are constructed (except in the event
of an emergency, in which case Grantor shall give Grantee as
much prior notice as is practicable under the circumstances);
and
(B) Grantor shall attempt to locate such future lines
and Radio Communication Facilities at locations mutually
agreed upon by Grantor and Grantee, but in the absence of such
agreement and in all events, Grantor's exercise of the rights
enumerated in this paragraph shall not unduly interfere with
Grantee's use of the Premises.
Grantee, by its acceptance of the within instrument, does hereby
covenant and agree that:
(a) Grantee shall not construct, use or operate, or permit any other
person or entity other than Grantor, its successors, assigns, lessees,
permittees, licensees, agents, contractors, subcontractors and affiliates (the
"Benefited Parties"), to construct, use or operate any telecommunications
equipment, facilities or system located over, under or upon the Premises, unless
such construction, use or operation is permitted by applicable law and does not
unduly interfere with the use or operation of any Radio Communication Facilities
or Fiber Optic Facilities owned or operated (prior to such construction, use or
operation) by any one or more of the Benefited Parties (regardless of whether
any such interference is permitted by applicable regulations of the Federal
Communications Commission or any successor agency); and
(b) Grantee shall not, without the consent of Granter, construct, use
or operate or permit or consent to the construction, use or operation of any
equipment or facilities of any kind in such a manner as to unduly interfere with
the use or operation of any Radio Communication Facilities or Fiber Optic
Facilities located as of the date hereof on the real and personal property
comprising the Premises (regardless of whether any such interference is
permitted by applicable regulations of the Federal Communications Commission or
any successor agency).
This conveyance and the warranties as to title set forth herein are
made subject to those matters set forth in Exhibit "B" attached hereto and for
all purposes by this reference incorporated herein and made a part hereof (the
"Permitted Exceptions") and to the rights and easements of Grantor, its
successors and assigns in and to the Premises set forth herein.
TO HAVE AND TO HOLD the Premises, with all and singular the rights,
members and appurtenances thereof, to the same being, belonging or in anywise
appertaining, to the only proper uses, benefit, and behoof of Grantee, its
successors and assigns forever in fee simple.
AND GRANTOR, for itself, its successors and assigns, will warrant and
forever defend the right and title to the Premises unto Grantee, its successors
and assigns against the claims of all persons claiming by, through or under
Grantor, subject, however, to the Permitted Exceptions, and subject to the
rights and easements of Grantor, its successors and assigns in and to the
Premises as set forth herein.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE
BUILDINGS, OTHER STRUCTURES AND IMPROVEMENTS, FIXTURES AND REAL AND PERSONAL
PROPERTY HEREIN CONVEYED ARE HEREBY CONVEYED BY GRANTOR TO GRANTEE UPON AN "AS
IS" AND "WHERE IS" BASIS. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OF
EXCHANGE BETWEEN GRANTOR AND GRANTEE DATED AS OF ___________ ____, 19__, NEITHER
GRANTOR NOR ANY PERSON OR ENTITY OF ANY KIND OR NATURE WHATSOEVER ACTING FOR OR
ON BEHALF OF GRANTOR EITHER HAS MADE OR HEREBY MAKES ANY REPRESENTATION OR
WARRANTY WHATSOEVER WITH RESPECT THERETO, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO
THE VALUE, QUANTITY, CONDITION, SALABILITY, OBSOLESCENCE, MERCHANTABILITY,
FITNESS OR SUITABILITY FOR USE OR WORKING ORDER THEREOF OR THAT THE USE OR
OPERATION THEREOF WILL NOT VIOLATE PATENT, TRADE SECRET, TRADEMARK OR SERVICE
MARK RIGHTS OF ANY THIRD PARTIES. GRANTEE HAS ACQUIRED THE PREMISES "AS IS" AND
"WHERE IS" IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT OF
EXCHANGE. GRANTEE HAS MADE SUCH INSPECTION OF THE PREMISES AS IT BELIEVES TO BE
WARRANTED UNDER THE CIRCUMSTANCES AND HAS NOT RELIED UPON ANY REPRESENTATION OF
GRANTOR IN THE SELECTION OF THE TRANSMISSION AND SUBSTATION FACILITIES ACQUIRED.
Notwithstanding the foregoing, Grantee shall, together with Grantor, have the
benefit of all manufacturers' and vendors' warranties and all patent, trademark
and service mark rights running to Grantor in connection with the property
herein conveyed to the extent the same are assignable by Grantor.
Except as otherwise provided in the Agreement of Exchange between
Grantor and Grantee dated as of ______________ ____, 199__, Grantee specifically
agrees and hereby waives, releases, and discharges any claim (statutory,
contractual or otherwise) it has, or may have in the future, against Grantor
with respect to or arising out of the past, present or future conditions or
compliance or noncompliance of the Premises in regard to any environmental laws,
rules, regulations, orders or requirements (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss.ss. 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. ss.ss. 6901 et seq., the Toxic Substances Control
Act, as amended, 15 U.S.C. ss.ss. 2601 et seq., and the Georgia Hazardous Site
Response Act, O.C.G.A. ss.ss. 12-8-90 et. seq.).
This instrument shall inure to the benefit of, and shall be binding
upon, Grantor and Grantee and their respective successors and assigns.
By its acceptance hereof, Grantee covenants and agrees that any ad
valorem, real or personal property taxes and any other taxes levied upon or
assessed against any real property or personal property conveyed herein and
hereby for the year 199__ shall be apportioned and prorated by and between
Grantor and Grantee as of the date hereof, based on estimated taxes for 199__,
and each party hereto shall be and remain liable to the other party for each
party's pro rata portion thereof, when the actual tax bills are received.
This Limited Warranty Deed and Bill of Sale may be executed and sealed
in multiple counterparts all of which shall be executed and delivered as an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed
and sealed with its corporate seal by its duly authorized officers as of the day
and year first above written.
Signed, sealed and GRANTOR:
delivered in the
presence of: GEORGIA TRANSMISSION CORPORATION (AN ELECTRIC
MEMBERSHIP CORPORATION)
Unofficial Witness By:
Its:
Notary Public Attest:
(NOTARIAL SEAL) Its:
My Commission Expires:
Date Notarized: (CORPORATE SEAL)
<PAGE>
52
EXHIBIT "B"
ATTACHED TO AND MADE A PART OF THAT CERTAIN LIMITED WARRANTY DEED AND
BILL OF SALE (THE "DEED") DATED AS OF THE ______TH DAY OF
_____________, 199_, BETWEEN GEORGIA TRANSMISSION CORPORATION (AN
ELECTRIC MEMBERSHIP CORPORATION) AS "GRANTOR" AND GEORGIA POWER COMPANY
AS "GRANTEE"
MATTERS THAT MAY AFFECT THE RIGHTS AND
INTERESTS CONVEYED BY THE DEED
The following matters may affect the rights and interests of Grantor in
the "Premises" as that term is defined in the Deed and thus may affect Grantee's
use and enjoyment thereof. Accordingly, the following are and shall be deemed to
be permitted exceptions and encumbrances to title and use in all respects and
for all purposes as between Grantor and Grantee, including, but not limited to,
those of limited warranty and contract. Reference herein to the "Plats" shall
mean and include those certain recorded and unrecorded plats of survey: (a)
describing the Premises and by which the same were acquired and by which the
Premises are being conveyed to Grantee; and (b) which were delivered to Grantee
by Grantor in connection with and in contemplation of the transactions as
contemplated in the Deed.
1. (a) All matters which would be disclosed by a current and accurate
certified plat of survey and inspection of the Premises by a Georgia registered
land surveyor, and (b) all matters which are disclosed by the Plats.
2. All taxes due with respect to the Premises in 199__ and subsequent
years.
3. All covenants, agreements, reservations, grants and written
conveyances, recorded or unrecorded, and whether between Grantor and any other
person, or between any predecessor in title to Grantor and Grantor, or between
any predecessor in title to Grantor and any other person, or between any
predecessor in title to any grantor to Grantor and any other person, which may
affect the Premises or all or any portion thereof and respecting, without
limitation, any easement, lease, right, privilege, license or grant, or any or
all of them, for, without limitation: access (pedestrian or vehicular); ingress,
egress; mining or minerals; aviation; parking; hunting or fishing; wells and
springs and their use and maintenance; timber cutting and removal; pasturage and
maintenance of cattle; pipes and pipeline rights for natural gas and petroleum
products or other transmission; construction, use and maintenance of utility
services and lines (public and private and including, without limitation,
transmission, generation and distribution of natural gas, water, electrical
energy, steam and all other forms of energy and any form of communications);
highways (free access or limited), rights-of-way, roads, roadways and driveways
(public or private); railroad operation and maintenance purposes, including line
and grade crossing (public or private); camping and recreational purposes;
lakes, ponds and streams or agricultural and timber purposes of any nature or
type whatsoever.
4. Reversionary restrictions or rights of reverter set forth and
contained in any instrument whereby Grantor acquired any interest in the
Premises or any portion thereof.
5. The rights of all upper and lower riparian owners in and to the
waters of all rivers, streams, creeks or branches crossing or adjoining the
Premises or any portion or portions thereof, and to the natural flow thereof
free from diminution or pollution; littoral rights of others as to any lake or
pond located anywhere on the Premises.
6. The location, use, maintenance or existence of any cemetery, burial
ground or historical site or monument anywhere on the Premises.
7. All rights of the federal or state governments with respect to any
water way which is adjacent to or which crosses the Premises or any portion or
portions thereof.
8. Any obligation of Grantor to reimburse any person for any cost
resulting from the use of the Premises or any portion thereof, the same being
hereby expressly assumed by Grantee by its acceptance of the Deed.
9. Any obligation of Grantor to indemnify and hold harmless any person
resulting from and respecting the use of the Premises or any portion thereof,
the same being hereby expressly assumed by Grantee by its acceptance of the
Deed.
10. Rights of any present or future owner or assignee of Grantor's
rights in and to electrical energy transmission and distribution systems and
facilities which are or may be parallel to, contiguous with, adjacent to, or
located upon the Premises or any portion thereof, including, without limitation,
Municipal Electric Authority of Georgia and the City of Dalton, Georgia, and
their respective successors and assigns.
11. Rights of any present or future owner, assignee, licensee,
permittee or grantee of an indefeasible right of user of Grantor's rights in and
to communications facilities which are parallel to, adjacent to or located upon,
the Premises or any portion or portions thereof, including, without limitation,
MPX Systems, Inc., SouthernNet of the Southeast, Inc., AT&T Company, AT&T
Communications of the Southern States, Inc., BellSouth Telecommunications, Inc.,
Western Union Corporation and MCI Communications, Inc., and their respective
successors and assigns.
12. Any discrepancy between the courses, distances, lines, monuments
and other descriptive matters and information reflected in and upon the Plats
and the courses, distances, lines, monuments and other descriptive matters and
information recited in or attached to any deed, grant or other instrument
(including without limitation condemnation documents) whereby Grantor acquired
all or any portion of the Premises.
13. Title to all or any portion of the Premises being in one other than
a grantor to Grantor due to a failure of such prior grantor's title based upon
(a) lack of continuous possession or (b) breach of condition which effects a
reversion or defeasance, or (c) the absence of proper application of the laws of
descent, distribution and administration.
14. Bankruptcy of any prior owner of all or any portion of the
Premises.
15. Recorded or unrecorded claims of liens for labor or material
furnished for the improvements of or upon the Premises.
16. Rights of the public in and to streets, highways, and other
roadways located on, over, or across the Premises.
17. Any uncancelled or unsatisfied security instrument now of record
which, under State Bar of Georgia Title Standard 12.6 (in effect on June 2,
1972) would not be deemed an encumbrance to title to the Premises or any portion
thereof, together with any security instrument of record given to secure
original principal indebtedness of up to $5,000.00 which, notwithstanding that
it would be deemed an encumbrance to title under the application of said Title
Standard or otherwise, has a stated maturity date more than twenty (20) years
prior to the date of the Deed or if, where no such maturity date is stated or
such instrument is updated, said instrument is recorded on a date which is more
than twenty (20) years prior to the date of the Deed.
18. Any and all violations of applicable zoning laws. Any and all
violations of applicable building codes.
<PAGE>
59
Exhibit D2
Form of Quitclaim Deed and Bill of Sale for Georgia Power Substation
Facilities with Respect to Fee Simple Property
NO TRANSFER TAX DUE -
GIVEN FOR TITLE CLEARANCE PURPOSES
IN CONNECTION WITH LIMITED WARRANTY
DEED AND BILL OF SALE OF EVEN DATE
STATE OF GEORGIA
COUNTY OF ______________
QUITCLAIM DEED AND BILL OF SALE
MADE BY
GEORGIA TRANSMISSION CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
TO
GEORGIA POWER COMPANY
- -------------------------------------------------------------------------------
SUBSTATION
TITLE CLEARANCE
THIS QUITCLAIM DEED AND BILL OF SALE is made as of the _____ day of
___________, 199__, by and between GEORGIA TRANSMISSION CORPORATION (AN ELECTRIC
MEMBERSHIP CORPORATION), an electric membership corporation organized and
existing under Section 46-3-170, et seq., of the Official Code of Georgia
Annotated, as party of the first part (hereinafter referred to as "Grantor"),
and GEORGIA POWER COMPANY, a Georgia corporation having its principal offices in
Atlanta, Fulton County, Georgia, as party of the second part (hereinafter
referred to as "Grantee").
W I T N E S S E T H:
WHEREAS, Grantor has executed and delivered to Grantee that certain
Limited Warranty Deed (the "Limited Warranty Deed") dated of even date herewith,
recorded in Deed Book ___________, page _____, in the Office of the Clerk of the
Superior Court of ________________ County, Georgia, with respect to certain
property more particularly described therein;
WHEREAS, Grantee has requested that Grantor execute this Quitclaim Deed
and Bill of Sale based upon a survey obtained by Grantee;
WHEREAS, a description of the property shown on the survey is attached
hereto as Exhibit "A" and by this reference incorporated herein and made a part
hereof (the "Quitclaim Property");
WHEREAS, the Limited Warranty Deed contained certain rights and
easements of Grantor, which Grantor does not intend to release or modify by
virtue of this Quitclaim Deed and Bill of Sale;
WHEREAS, the Quitclaim Property less and except the rights and
easements of Grantor under or pursuant to the Limited Warranty Deed is
hereinafter referred to as the "Property"; and
WHEREAS, Grantor desires to execute this Quitclaim Deed and Bill of
Sale for the purposes and subject to the terms and conditions set forth herein.
NOW, THEREFORE, GRANTOR, FOR AND IN CONSIDERATION of the sum of TEN AND
NO/100 DOLLARS ($10.00) in hand paid at and before the sealing and delivery of
these presents, and for other good and valuable consideration, the receipt,
adequacy and sufficiency whereof are hereby acknowledged, has this day granted,
bargained, sold, conveyed, aliened, transferred, remised, quitclaimed and
assigned, and by these presents does hereby grant, bargain, sell, convey, alien,
transfer, remise, quitclaim and assign unto Grantee, its successors and assigns,
all the right, title, and interest which Grantor has or may have had in and to
the Property. The Property, together with the property described in the
paragraph immediately following this paragraph, less and except the property
excluded from this conveyance, being herein collectively referred to as the
"Premises".
TOGETHER WITH all right, title, and interest which Grantor has or may
have had in and to all buildings, facilities and improvements situated on the
Property, all easements, rights-of-way, permits, privileges, machinery,
equipment, appliances, appurtenances, materials, supplies, and all other
property, tangible or intangible, real, personal or mixed, located thereon and
comprising a part of or reasonably necessary for the use, occupation and
enjoyment of the Property or any buildings, facilities or improvements situated
thereon.
LESS AND EXCEPT from the foregoing conveyance, however:
(a) any and all property (owned by Grantor and not otherwise conveyed
to Grantee) of any kind and nature whatsoever which comprises a part of or
appertains to or is reasonably necessary for the use, occupancy or enjoyment of
any present or future electric transmission or distribution line or lines which
either begin or terminate in or upon, or which traverse or transect, the
Premises or any portion or portions thereof; and
(b) equipment, systems or facilities owned or leased by Grantor or its
affiliates, whether used exclusively by Grantor or its affiliates, jointly used
with any other person or entity or used by any lessee, permittee or licensee of
Grantor or its affiliates, which are:
(i) equipment, systems or facilities used for or in connection
with communications by radio, including without limitation,
(A) microwave towers, mobile base radio towers, radio
base repeater towers, telemeter transmitters, multiple address
system radios or power line carrier equipment,
(B) power supplies, telecommunications racks or
auxiliary support systems associated therewith,
(C) separate control buildings which contain radio
communications equipment but do not contain substation
equipment which is part of the Premises,
(D) radio communications equipment contained in
control buildings which contain both radio communications
equipment and substation equipment or
(E) any permits, licenses and leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (i) being
hereinafter collectively referred to as "Radio Communication Facilities"); or
(ii) equipment, systems or facilities used for or in
connection with light wave communications over optical fibers,
including without limitation,
(A) optical fibers, optronic or photo-optronic
equipment, repeaters, junctions, splice enclosures or
equipment for the conversion of light signals to or from radio
or electronic signals,
(B) power supplies, telecommunications racks, alarm
monitoring equipment or auxiliary support systems associated
therewith,
(C) separate control buildings that contain fiber
optic communications equipment but do not contain substation
equipment which is part of the Premises,
(D) fiber optic communications equipment contained in
control buildings which contain both fiber optic
communications equipment and substation equipment or
(E) any permits, licenses or leases relating to any
one or more of the foregoing
(any or all of the foregoing specified in this paragraph (ii) being
hereinafter collectively referred to as "Fiber Optic Facilities").
(c) all rights and easements of Grantor, its successors and assigns
arising under or pursuant to the Limited Warranty Deed.
Further, notwithstanding anything contained in the within instrument to
the contrary, Grantor does hereby expressly except from the within conveyance
and reserve and retain unto itself, its successors, assigns, agents,
contractors, subcontractors, and legally permitted licensees and permittees,
and, by its acceptance hereof, Grantee does hereby grant unto Grantor, its
successors, assigns, agents, contractors, subcontractors and legally permitted
licensees and permittees, a perpetual easement in, on, over, upon, under,
through, and across the Premises and every portion thereof for the purposes of:
(a) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, relocating, improving and upgrading
existing and additional electric transmission and distribution lines, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such electric transmission and
distribution lines;
(b) using, operating, maintaining, repairing, reconstructing,
replacing, improving, upgrading and enhancing Radio Communication Facilities and
Fiber Optic Facilities, including all poles, supporting facilities, towers,
equipment, hardware, wires, and all other property, real, personal and mixed,
attached to or directly related to or located upon or upon which are located
existing Radio Communication Facilities and existing Fiber Optic Facilities or
any of them;
(c) constructing, installing, attaching, using, operating, maintaining,
repairing, reconstructing, replacing, improving, upgrading and enhancing Radio
Communication Facilities, that are part of the Integrated Transmission System or
are the subject of a joint use agreement between Grantee and Grantor, including
all poles, supporting facilities, towers, equipment, hardware, wires, and all
other property, real, personal and mixed, attached to or directly related to or
located upon or upon which are located such Radio Communication Facilities;
(d) constructing, installing, attaching, using, operating, maintaining,
relocating, improving, repairing, reconstructing, replacing and upgrading coal
slurry pipelines that provide economic benefits to both Grantee and Grantor; and
(e) constructing, installing, attaching, using, maintaining, repairing,
reconstructing, replacing, relocating, improving, upgrading and enhancing such
towers, poles, lines, cables, anchors and guy wires as Grantor may deem
necessary or convenient for the operation of any of the facilities described in
paragraphs (a), (b) and (c) above, or any Radio Communication Facilities and
Fiber Optic Facilities, or any of them, which are located near the Premises;
together with the right of ingress and egress over, across, and through the
Premises and every portion thereof and all adjacent property in which Grantee
has an interest for the purpose of access where necessary or convenient in
Grantor's use of the Premises as aforesaid; provided, however, that:
(A) Grantor shall give Grantee at least sixty (60)
days prior notice before any future lines or Radio
Communication Facilities are constructed (except in the event
of an emergency, in which case Grantor shall give Grantee as
much prior notice as is practicable under the circumstances);
and
(B) Grantor shall attempt to locate such future lines
and Radio Communication Facilities at locations mutually
agreed upon by Grantor and Grantee, but in the absence of such
agreement and in all events, Grantor's exercise of the rights
enumerated in this paragraph shall not unduly interfere with
Grantee's use of the Premises.
Grantee, by its acceptance of the within instrument, does hereby
covenant and agree that:
(a) Grantee shall not construct, use or operate, or permit any other
person or entity other than Grantor, its successors, assigns, lessees,
permittees, licensees, agents, contractors, subcontractors and affiliates (the
"Benefited Parties"), to construct, use or operate any telecommunications
equipment, facilities or system located over, under or upon the Premises, unless
such construction, use or operation is permitted by applicable law and does not
unduly interfere with the use or operation of any Radio Communication Facilities
or Fiber Optic Facilities owned or operated (prior to such construction, use or
operation) by any one or more of the Benefited Parties (regardless of whether
any such interference is permitted by applicable regulations of the Federal
Communications Commission or any successor agency);
(b) Grantee shall not, without the consent of Granter, construct, use
or operate or permit or consent to the construction, use or operation of any
equipment or facilities of any kind in such a manner as to unduly interfere with
the use or operation of any Radio Communication Facilities or Fiber Optic
Facilities located as of the date hereof on the real and personal property
comprising the Premises (regardless of whether any such interference is
permitted by applicable regulations of the Federal Communications Commission or
any successor agency); and
TO HAVE AND TO HOLD the Premises unto Grantee, its successors, and
assigns, so that neither Grantor nor its successors, nor any other person
claiming under Grantor, shall at any time claim or demand any right, title, or
interest to the premises or its appurtenances, subject to the rights and
easements of Grantor, its successors and assigns in and to the Premises as set
forth herein.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE
BUILDINGS, OTHER STRUCTURES AND IMPROVEMENTS, FIXTURES AND REAL AND PERSONAL
PROPERTY HEREIN CONVEYED ARE HEREBY CONVEYED BY GRANTOR TO GRANTEE UPON AN "AS
IS" AND "WHERE IS" BASIS. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OF
EXCHANGE BETWEEN GRANTOR AND GRANTEE DATED AS OF ___________ ____, 19__, NEITHER
GRANTOR NOR ANY PERSON OR ENTITY OF ANY KIND OR NATURE WHATSOEVER ACTING FOR OR
ON BEHALF OF GRANTOR EITHER HAS MADE OR HEREBY MAKES ANY REPRESENTATION OR
WARRANTY WHATSOEVER WITH RESPECT THERETO, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO
THE VALUE, QUANTITY, CONDITION, SALABILITY, OBSOLESCENCE, MERCHANTABILITY,
FITNESS OR SUITABILITY FOR USE OR WORKING ORDER THEREOF OR THAT THE USE OR
OPERATION THEREOF WILL NOT VIOLATE PATENT, TRADE SECRET, TRADEMARK OR SERVICE
MARK RIGHTS OF ANY THIRD PARTIES. GRANTEE HAS ACQUIRED THE PREMISES "AS IS" AND
"WHERE IS" IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT OF
EXCHANGE. GRANTEE HAS MADE SUCH INSPECTION OF THE PREMISES AS IT BELIEVES TO BE
WARRANTED UNDER THE CIRCUMSTANCES AND HAS NOT RELIED UPON ANY REPRESENTATION OF
GRANTOR IN THE SELECTION OF THE TRANSMISSION AND SUBSTATION FACILITIES ACQUIRED.
Notwithstanding the foregoing, Grantee shall, together with Grantor, have the
benefit of all manufacturers' and vendors' warranties and all patent, trademark
and service mark rights running to Grantor in connection with the property
herein conveyed to the extent the same are assignable by Grantor.
Except as otherwise provided in the Agreement of Exchange between
Grantor and Grantee dated as of ____________ ___, 19__, Grantee specifically
agrees and hereby waives, releases, and discharges any claim (statutory,
contractual or otherwise) it has, or may have in the future, against Grantor
with respect to or arising out of the past, present or future conditions or
compliance or noncompliance of the Premises in regard to any environmental laws,
rules, regulations, orders or requirements (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss.ss. 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. ss.ss. 6901 et seq., the Toxic Substances Control
Act, as amended, 15 U.S.C. ss.ss. 2601 et seq., and the Georgia Hazardous Site
Response Act, O.C.G.A. ss.ss. 12-8-90 et. seq.).
This instrument shall inure to the benefit of, and shall be binding
upon, Grantor and Grantee and their respective successors and assigns.
By its acceptance hereof, Grantee covenants and agrees that any ad
valorem, real or personal property taxes and any other taxes levied upon or
assessed against any real property or personal property conveyed herein and
hereby for the year 199__ shall be apportioned and prorated by and between
Grantor and Grantee as of the date hereof, based on estimated taxes for 199__,
and each party hereto shall be and remain liable to the other party for each
party's pro rata portion thereof, when the actual tax bills are received.
This Quitclaim Deed and Bill of Sale may be executed and sealed in
multiple counterparts all of which shall be executed and delivered as an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed
and sealed with its corporate seal by its duly authorized officers as of the day
and year first above written.
Signed, sealed and GRANTOR:
delivered in the
presence of: GEORGIA TRANSMISSION CORPORATION (AN ELECTRIC
MEMBERSHIP CORPORATION)
Unofficial Witness By:
Its:
Notary Public Attest:
(NOTARIAL SEAL) Its:
My Commission Expires:
Date Notarized: (CORPORATE SEAL)
Exhibit F
Troutman Sanders
600 Peachtree Street
Atlanta, GA 30308
404-885-30000
January 22, 1999
Securities and Exchange Commission
Washington, DC 20549
RE: Georgia Power Company
Application or Declaration on Form U-1
Ladies and Gentlemen:
We are familiar with the statement on Form U-1 filed by Georgia Power
Company ("Georgia Power"), a wholly-owned subsidiary of The Southern Company, a
registered holding company, in the above-referenced proceeding, and are
furnishing this opinion with respect to the actions requested therein, which, if
granted, would authorize Georgia Power to engage in a like-kind exchange of
assets, specifically substations, in accordance with that certain Agreement of
Exchange between Georgia Power and Georgia Transmission Corporation (An Electric
Membership Corporation) dated as of November 12, 1998.
We are of the opinion that Georgia Power is a validly organized and
duly existing corporation under the laws of the State of Georgia and that, upon
the issuance of your order or orders herein, and in the event the proposed
transaction is carried out in accordance with the terms of such statement on
Form U-1 and your order or orders:
(a) all state laws applicable to the proposed transaction will have
been complied with; and
(b) the consummation of the proposed transaction will not violate the
legal rights of the holders of any securities issued by Georgia Power or any
associate company of Georgia Power.
We hereby consent to the use of this opinion in connection with the
filing of such statement on Form U-1.
Very truly yours,
/s/Troutman Sanders
Troutman Sanders LLP
Exhibit H
Georgia Power Company
Proposed Notice of Proceedings
- -------------------------------------------------------------------------------
Georgia Power Company ("Georgia Power"), a wholly-owned subsidiary of
The Southern Company ("Southern"), a registered holding company under the Public
Utility Holding Company Act of 1935, as amended (the "Act"), has filed an
application-declaration (the "Application") under Sections 9(a) and 12(d) of the
Act and Rules 44 and 23 thereunder. Georgia Power is sometimes hereinafter
referred to as the "Applicant."
Georgia Power seeks authorization to convey to Georgia Transmission
Corporation ("GTC") all of Georgia Power's right, title and interest in and to
the real and personal property, including engineering drawings, comprising up to
27 of Georgia Power's distribution and transmission substation facilities (the
"Georgia Power Substation Facilities"), in exchange for all of GTC's right,
title and interest in and to the real and personal property comprising up to 4
of GTC's distribution and transmission substation facilities (the "GTC
Substation Facilities"). The estimated exchange value of Georgia Power's
Substation Facilities and the GTC Substation Facilities are equal to the
original book cost of the facilities, including land, incurred through the date
of closing. GTC will also pay an additional amount to insure that Georgia Power
does not incur any after-tax loss on the exchange. A payment to equalize the
value of the Georgia Power Substation Facilities and the GTC Substation
Facilities will be paid by GTC to Georgia Power at the closing.
Currently, the Georgia Power Facilities primarily serve GTC's load and
vice versa. This exchange will realign Georgia Power and GTC's interests so that
Georgia Power and GTC are responsible for the operation and maintenance payments
for facilities which serve their respective loads. The 27 substations being sold
by Georgia Power represent less than 1% of Georgia power's total substation
facilities (based on original cost). To the extent that the facilities to be
exchanged are currently part of the integrated transmission system operated by
Georgia Power and GTC, they will remain a part of such integrated transmission
system and thus will remain available for the use of Georgia Power and GTC
without charge in accordance with the provisions of the Revised and Restated
Integrated Transmission System Agreement, dated as of November 12, 1990, between
Georgia Power and GTC as assignee of Oglethorpe Power Corporation (An Electric
Membership Corporation).
The closing for the proposed exchange is scheduled to take place at the
later of May 1, 1999 or as soon as all requisite regulatory approvals have been
obtained; however, Georgia Power is requesting authority to consummate the
transaction on or before December 31, 1999. The closing is subject to Georgia
Power's receiving the requisite approval of the Commission.
For the Commission, by the Division of Investment Management, pursuant
to delegated authority.
Exhibit I
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
Capitalization Ratios at September 30, 1998
<TABLE>
<CAPTION>
Consolidated Pro Forma
per 10-Q Amounts (A) Equity Debt
--------------- -------------- ---------------- ----------------
Capitalization (in thousands of dollars):
<S> <C> <C> <C> <C>
Common stock..........................................$3,498,857 $ - $3,498,857
Paid-in capital........................................2,461,899 - 2,461,899
Retained earnings......................................4,164,073 (94,188)(B) 4,069,885
Accumulated other comprehensive income....................22,820 - 22,820
Preferred stock..........................................405,912 200,000 (B) 605,912
Capital & preferred securities.........................1,991,220 930,750 (B) 2,921,970
Long-term debt........................................10,697,270 1,030,550.(B) $11,727,820
Preferred due within one year............................238,002 - 238,002
Long-term debt due within one year.......................954,665 - 954,665
Notes payable & commercial paper.......................1,370,091 - 1,370,091
=============== ============== ================ ================
Total (Incl Amts Due in 1 Year)...............$25,804,809 $2,067,112 $13,819,345 $14,052,576
=============== ============== ================ ================
--------------- ---------------- ----------------
Actual Amounts in Millions of Dollars....................$25,805 $12,783 $13,022
Actual Capitalization Ratios..............................100.0% 49.5% 50.5%
Pro Forma Amounts in Millions of Dollars.................$27,872 $13,819 $14,053
Pro Forma Capitalization Ratios...........................100.0% 49.6% 50.4%
</TABLE>
Pro Forma Consolidated Statements of Income (Unaudited)
(Stated in Thousands of Dollars)
<TABLE>
<CAPTION>
For the Twelve Pro Forma
MonthsEnded Amounts (A) As Adjusted
September 30,
1998
<S> <C> <C> <C>
OPERATING REVENUES $12,122,040 $ - $12,122,040
------------ --------- ------------
OPERATING EXPENSES:
Operation--
Fuel 2,412,852 - 2,412,852
Purchased power 1,893,244 - 1,893,244
Other 2,100,079 - 2,100,079
Maintenance 838,009 - 838,009
Depreciation and amortization 1,478,932 - 1,478,932
Amortization of deferred Plant Vogtle costs 31,143 - 31,143
Taxes other than income taxes 574,811 - 574,811
Income taxes 708,510 (50,684)(C) 657,826
------------ --------- ------------
Total operating expenses 10,037,580 (50,684) 9,986,896
------------ --------- ------------
OPERATING INCOME 2,084,460 50,684 2,135,144
OTHER INCOME:
Equity in earnings of unconsolidated subsidiaries 90,086 - 90,086
Interest income 240,368 - 240,368
Other, net (28,600) - (28,600)
Income taxes applicable to other income 38,769 - 38,769
INCOME BEFORE INTEREST CHARGES 2,425,083 50,684 2,475,767
------------ --------- ------------
INTEREST CHARGES AND OTHER:
Interest on long-term debt 704,726 67,779 (C) 772,505
Allowance for debt funds used during construction (12,623) - (12,623)
Interest on notes payable 115,687 - 115,687
Amortization of debt discount, premium and expense, net 65,314 - 65,314
Other interest charges 91,894 - 91,894
Minority interest in subsidiaries 72,768 - 72,768
Distributions on capital and preferred securities of subsidiary companies 144,230 65,093 (C) 209,323
Preferred dividends of subsidiary companies 19,525 12,000 (C) 31,525
------------ --------- ------------
Interest charges and other, net 1,201,521 144,872 1,346,393
------------ --------- ------------
CONSOLIDATED NET INCOME $ 1,223,562 $(94,188) $ 1,129,374
============ ========= ============
</TABLE>
(See Notes on Following Page)
<PAGE>
NOTES
(A) The amounts and types of the securities to be issued will be dependent
upon, among other things, market conditions prevailing at the time of
issuance. The amounts estimated to be issued are the maximum amounts
requested in the remaining authorizations in certain previous
applications, and are used solely for the purpose of illustrating the
effect upon Southern Company consolidated capitalization and earnings.
In addition, no assumptions are made in connection with possible
refundings.
(B) To give effect to (i) the proposed issuance of $500,000,000 of
preferred securities by Alabama Power Company; (ii) the proposed
issuance of $310,750,000 of preferred securities by Georgia Power
Company; (iii) the proposed issuance by Gulf Power Company of
$5,000,000 additional preferred securities, $200,000,000 of first
mortgage bonds, $200,000,000 of preferred stock, $159,070,000 of
pollution control obligations, and $300,000,000 of senior notes; (iv)
the proposed issuance of $75,000,000 of preferred securities,
$61,480,000 of pollution control obligations and $310,000,000 of senior
notes by Mississippi Power Company; and (v) the issuance of $40,000,000
of preferred securities by Savannah Electric.
(C) To give effect to (i) the proposed issuance of $500,000,000 of
preferred securities at an assumed rate of 7% by Alabama Power Company;
(ii) the proposed issuance of $310,750,000 of preferred securities at
an assumed rate of 7% by Georgia Power Company; (iii) the proposed
issuance by Gulf Power Company of $5,000,000 additional preferred
securities at an assumed rate of 7%, $200,000,000 of first mortgage
bonds at an assumed rate of 6.75%, $200,000,000 of preferred stock at
an assumed rate of 6%, $159,070,000 of pollution control obligations at
an assumed rate of 5.25%, and $300,000,000 of senior notes at an
assumed rate of 7%; (iv) the proposed issuance of $75,000,000 of
preferred securities at an assumed rate of 7%, $61,480,000 of pollution
control obligations at an assumed rate of 5.25% and $310,000,000 of
senior notes at an assumed rate of 7% by Mississippi Power Company; and
(v) the issuance in December 1998 of $40,000,000 of preferred
securities at a rate of 6.85% by Savannah Electric.
