SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM U-1
APPLICATION OR DECLARATION
under
The Public Utility Holding Company Act of 1935
GULF POWER COMPANY
500 Bayfront Parkway
Pensacola, Florida 32501
(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)
Warren E. Tate
Secretary and Treasurer
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
(Names and addresses of agents for service)
The Commission is requested to mail signed copies of all orders, notices
and communications to the above agents for service and to:
W. L. Westbrook John D. McLanahan, Esq.
Financial Vice President Troutman Sanders LLP
The Southern Company 600 Peachtree Street, N.E.
270 Peachtree Street, N.W. Suite 5200
Atlanta, Georgia 30303 Atlanta, Georgia 30308-2216
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INFORMATION REQUIRED
Item 1. Description of Proposed Transactions.
1.1 Gulf Power Company ("Gulf"), 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"), proposes to issue
and sell from time to time, prior to January 1, 2004, short-term and/or term
loan notes to lenders, commercial paper to or through dealers and/or issue
non-negotiable promissory notes to public entities for their revenue
anticipation notes in an aggregate principal amount at any one time outstanding
of up to $300,000,000. At September 30, 1996, the maximum aggregate principal
amounts of unsecured short-term borrowings permissible under Gulf's charter and
pursuant to the exemption from the provisions of Section 6(a) of the Act
afforded by the first sentence of Section 6(b) of the Act were $91,435,000 and
$21,889,999, respectively. In no circumstances will Gulf have unsecured
borrowings outstanding at any one time that exceed applicable charter
limitations.
In view of the restriction on the amount of unsecured short-term debt
that Gulf may have outstanding under the terms of its charter, it is proposed
that any borrowings pursuant to authority granted hereunder may be, and any such
borrowings in excess of such restricted amount of short-term unsecured debt
would be, secured by a subordinated lien on certain assets of Gulf. To the
extent required, Gulf hereby requests authority therefor pursuant to Section
12(d) of the Act and Rule 44 thereunder.
1.2 Gulf proposes to effect borrowings from certain banks or other
lending institutions. Such institutional borrowings will be evidenced by notes
to be dated as of the date of such borrowings and to mature in not more than
10 years after the date of issue, or by "grid" notes evidencing all
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outstanding borrowings from each lender to be dated as of the date of the
initial borrowing and to mature not more than 10 years after the date of
issue. Gulf proposes that it may provide that any note evidencing such
borrowings may not be prepayable, or that it may be prepaid with payment of a
premium that is not in excess of the stated interest rate on the borrowing to be
prepaid, which premium in the case of a note having a maturity of more than one
year may thereafter decline to the date of the note's final maturity. The form
of note applicable to this paragraph is filed herewith as Exhibit A-1.
Borrowings will be at the lender's prevailing rate offered to corporate
borrowers of similar quality. Such rates will not exceed the prime rate or (i)
LIBOR plus up to 2%, (ii) the lender's certificate of deposit rate plus up to
1-3/4%, or (iii) a rate not to exceed the prime rate plus 1% to be established
by bids obtained from the lenders prior to a proposed borrowing; provided,
however, that with respect to borrowings with a maturity in excess of one year,
the rate will not exceed the yield for a comparable maturity Treasury note plus
one percent.
Compensation for the credit facilities may be provided by fees of up to
1/2 of 1% per annum of the amount of the facility. Compensating balances may be
used in lieu of fees to compensate certain of the lenders.
1.3 Gulf also may effect short-term borrowings hereunder in connection
with the financing of certain pollution control facilities through the issuance
by public entities of their revenue bond anticipation notes. Under an agreement
with each such public entity, the entity would effectively loan to Gulf the
proceeds of the sale of such revenue bond anticipation notes, having a maturity
of not more than one year after date of issue, and Gulf may issue its
non-negotiable promissory note therefor. Such note would provide for payments
thereon to be made at times and in amounts which shall correspond to the
payments with respect to the principal of, premium, if any, and interest, which
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shall not exceed the prime rate, on such revenue bond anticipation notes,
whenever and in whatever manner the same shall become due, whether at stated
maturity, upon redemption or declaration or otherwise.
Gulf requests that the Commission reserve jurisdiction over the
issuance by Gulf of its non-negotiable promissory notes pursuant to this Item
1.3 pending completion of the record with respect thereto.
1.4 Gulf also proposes that it will have authority to issue and sell
commercial paper to or through dealers from time to time prior to January 1,
2004. Such commercial paper will be in the form of promissory notes with varying
maturities not to exceed nine months. Actual maturities will be determined by
market conditions, the effective interest costs and Gulf's anticipated cash
flow, including the proceeds of other borrowings, at the time of issuance. The
commercial paper notes will be issued in denominations of not less than $50,000
and will not by their terms be prepayable prior to maturity. The form of
commercial paper note is filed herewith as Exhibit A-2.
The commercial paper will be sold by Gulf directly to or through a
dealer or dealers (the "dealer"). The discount rate (or the interest rate in the
case of interest-bearing notes), including any commissions, will not be in
excess of the discount rate per annum (or equivalent interest rate) prevailing
at the date of issuance for commercial paper of comparable quality of the
particular maturity sold by issuers thereof to commercial paper dealers.
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No commission or fee will be payable in connection with the issuance
and sale of commercial paper, except for a commission not to exceed 1/8 of 1%
per annum payable to the dealer in respect of commercial paper sold through the
dealer as principal. The dealer will reoffer such commercial paper at a discount
rate of up to 1/8 of 1% per annum less than the prevailing interest rate to Gulf
or at an equivalent cost if sold on an interest-bearing basis.
1.5 Pursuant to orders of the Commission, Gulf has authority to effect
short-term borrowings prior to January 1, 1997 as set forth in Commission File
No. 70-8397 (HCAR No. 35-26049, dated May 9, 1994). At September 30, 1996,
borrowings in an aggregate principal amount of approximately $64,100,000 were
outstanding pursuant to such authorization. Gulf proposes that the authorization
sought in this file would supersede and replace authorizations in File No.
70-8397 effective immediately upon the date of the Commission's order herein.
1.6 The proceeds from the proposed borrowings will be used by Gulf for
working capital purposes, including the financing in part of its construction
program.
None of the proceeds from any borrowing or from the sale of any of the
notes authorized herein will be used by Gulf, directly or indirectly, for the
acquisition of any interest in an "exempt wholesale generator" or a "foreign
utility company".
1.7 Except as may be otherwise authorized by the Commission, any
short-term borrowings of Gulf outstanding hereunder after December 31, 2003 will
be retired from internal cash resources, the proceeds of equity financings, or
the proceeds of long-term debt.
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1.8 With respect to the financing transactions proposed hereunder, Gulf
hereby requests authority to file certificates of notification under Rule 24 on
a quarterly basis (within 45 days following the close of each calendar quarter).
Item 2. Fees, Commissions and Expenses.
The fees, commissions, and expenses paid or incurred or to be paid or
incurred in connection with the proposed transactions (in addition to those
described in Item 1 hereof) of this Application or Declaration are estimated not
to exceed $10,000.
Item 3. Applicable Statutory Provisions.
3.1 Gulf considers that the issuance and sale of the short-term notes
and commercial paper notes are currently exempt to the extent set forth above
from the provisions of Sections 6(a) and 7 of the Act under the first sentence
of Section 6(b) and that upon the granting of this application will be so exempt
to the extent of the maximum aggregate principal amounts of the bank notes and
commercial paper notes which it proposes to issue. With respect to the term-loan
borrowings and the issuance of notes as described in Item 1.3, Gulf considers
that the provisions of Sections 6(a) and 7 of the Act are applicable to the
proposed transactions.
3.2 The proposed transactions will be carried out in accordance with
the procedure specified in Rule 23 and pursuant to an order of the Commission
with respect thereto.
3.3 Rule 54 Analysis. The proposed transactions are 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
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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). At
September 30, 1996, Southern's "aggregate investment," as defined in Rule
53(a)(1), in EWGs and FUCOs was approximately $889.5 million, or about 25% of
Southern's "consolidated retained earnings," also as defined in Rule 53(a)(1),
for the four quarters ended June 30, 1996 ($3.523 billion). In addition,
Southern has complied and will continue to comply with the record-keeping
requirements of Rule 53(a)(2), the limitation under Rule 53(a)(3) on the use of
Operating Company personnel to render services to EWGs and FUCOs, and the
requirements of Rule 53(a)(4) concerning the submission of copies of certain
filings under the Act to retail rate regulatory commissions. Accordingly, since
the requirements of Rule 53(a) are currently met and none of the circumstances
described in Rule 53(b) has occurred, the provisions of Rule 53(c) are currently
inapplicable.
Moreover, even if the effect of the capitalization and earnings
of EWGs and FUCOs in which Southern has an ownership interest upon the Southern
holding company system were considered, there is no basis for the Commission to
withhold or deny approval for the proposal made in this Application-Declaration.
The action requested in the instant filing (viz. approval for certain financing
transactions by Gulf) 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.
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Item 4. Regulatory Approval.
The proposed issuance by Gulf of its notes to institutions and the
proposed issuance and sale of its commercial paper notes will have been
expressly authorized by the Florida Public Service Commission, which has
jurisdiction over the issuance of securities by public utility companies
operating in Florida.
Such transactions are not subject to the jurisdiction of any federal
commission other than the Commission.
Item 5. Procedure.
Gulf hereby requests that the Commission issue its order with respect
to these transactions as soon as the rules allow and requests that there be no
30-day waiting period between the issuance of the Commission's order and the
date on which it is to become effective. Gulf hereby 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 in this matter unless such
Division opposes the matters covered hereby.
Item 6. Exhibits and Financial Statements.
(a) Exhibits.
A-1 - Form of note.
A-2 - Form of commercial paper note.
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A-3 - Restated Articles of Incorporation of GULF and amendments
thereto through November 8, 1993. (Designated in
Registration No.33-43739 as Exhibit 4(b)-1, in Form 8-K
dated January 15, 1992, File No.0-2429, as Exhibit 1(b),in
Form 8-K dated August 18, 1992, File No.0-2429, as Exhibit
4(b)-2, in Form 8-K dated September 22, 1993, File No.
0-2429, as Exhibit 4 and in Form 8-K dated November 3,
1993, File No. 0-2429, as Exhibit 4.)
A-4 - By-laws of Gulf as amended effective July 26, 1996, and as
presently in effect.
B - None.
C - None.
D-1 - Petition of Gulf to the Florida Public Service Commission.
(To be filed by amendment.)
D-2 - Copy of order of Florida Public Service Commission.
E - None.
F - Opinion of Beggs & Lane, counsel for Gulf. (To be filed by
amendment.)
G - Form of Notice.
Exhibits heretofore filed with the Commission and 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.
Balance sheet of Gulf at June 30, 1996. (Designated in Gulf's
Form 10-Q for the quarter ended June 30, 1996, File No.
0-2429.)
Statements of income and cash flows of Gulf for the six
months ended June 30, 1996. (Designated in Gulf's Form 10-Q
for the quarter ended June 30, 1996, File No. 0-2429.)
Since June 30, 1996, there have been no material changes, not in the
ordinary course of business, in the financial condition of Gulf from that set
forth in or contemplated by the foregoing financial statements.
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Item 7. Information as to Environmental Effects.
(a) As described in Item 1, the proposed transactions are of a
routine and strictly financial nature in the ordinary course of business.
Accordingly, 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 transactions.
SIGNATURES
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 November 1, 1996 GULF POWER COMPANY
By__/s/Wayne Boston_____
Wayne Boston
Assistant Secretary
Exhibit A-1
COMPANY
PROMISSORY NOTE
Dated:
FOR VALUE RECEIVED, COMPANY, a corporation (herein called the
"Company"), hereby promises to pay to the order of (the "Bank), the principal
sum of million dollars ($ )or, if less, the aggregate unpaid principal balance
of all borrowings by the Company from the Bank under this Note as indicated on
the grid attached hereto, and to pay interest (calculated on the basis of a year
of 360 days and the actual number of days elapsed) on the unpaid principal
balance from the date of each borrowing hereunder until paid in full at such
rate or rates and payable on such date or dates as the Company and the Bank
shall mutually agree upon. The unpaid principal of this Note shall be due and
payable on such date or dates as the Company and the Bank shall mutually agree
upon. Any principal not paid when due shall bear interest from maturity until
paid in full at a floating rate per annum equal to 110% of that rate of interest
from time to time announced by the Bank at its principal office as its reference
rate, such interest to be payable on demand and upon payment in full of such
principal.
Payment of principal and interest on this Note shall be made in lawful
money of the United States of America to the account of the Bank at its
principal office in , or at such other place within the United States of America
as the Bank may from time to time designate on not less than ten days notice in
writing to the Company. If any such payment of principal or interest would be
otherwise due and payable on a Saturday, Sunday or other day on which commercial
banks in are authorized by law to close, such payment shall be due and payable
on the next succeeding business day and such extension of time shall in such
case be included in computing interest, if any, in connection with such payment.
The principal of this Note may not be prepaid by the Company.
The Bank shall endorse all borrowings made by the Company under this
Note and all payments of principal of such borrowings on the grid attached
hereto and made a part hereof but no failure to make or any error in making such
endorsement shall affect the obligations of the Company hereunder.
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If any of the following events of default shall occur and be
continuing:
(a) the Company fails to make or cause to be made any payment of
principal of this Note when due; or
(b) the Company fails to make or cause to be made any payment of
interest on this Note within five (5) days of when due; or
(c) a receiver, liquidator or trustee of the Company or of all or a
substantial part of its assets is appointed by court order and
such order remains in effect for more than 60 days; or a petition
is filed against the Company under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now
or hereafter in effect, and is not dismissed or stayed within 60
days after such filing; or
(d) the Company files a petition in voluntary bankruptcy or seeking
relief under any provision of any bankruptcy, reorganization,
arrangement, insolvency, readjustment or debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in
effect, or consents to the filing of any petition against it
under any such law; or
(e) the Company makes an assignment for the benefit of its creditors,
or admits in writing its inability to pay its debts generally as
they become due, or consents to the appointment of a receiver,
trustee or liquidator of the Company, or of all or a substantial
part of its assets;
then the Bank may exercise any right, power or remedy permitted to it by law and
shall have, in particular, without limiting the generality of the foregoing, the
right, by written notice given to the Company, to declare the unpaid principal
and all interest accrued on this note then outstanding to be, and the same shall
thereupon become, forthwith due and payable without any presentment, demand,
protest or further notice of any kind, all of which are expressly waived.
The Bank may from time to time enter into participation agreements and
pursuant thereto assign its rights under this Note. All amounts payable by the
Company under this Note shall be determined as if the Bank had not entered into
any such participation agreement. The Bank may furnish any information
concerning the
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Company in the possession of the Bank from time to time to participants and
prospective participants.
Such information will be limited to that which has been customarily provided to
the Bank for credit decisions.
This Note shall be governed by and construed in accordance with the
laws of the State of .
COMPANY
By:
Title:
Attest:
Title:
Exhibit A-2
FORM OF COMMERCIAL PAPER NOTE
(Name of Company)
$_________________________ No.________________
On_______________________for value received we promise to pay to the order of
bearer the sum of_____________________________DOLLARS payable at the principal
office of ________________________New York, N.Y.
Date Issued_________________________
Countersigned (Name of Company)
as agent
By____________________ By___________________
(Title) (Title)
--------------------
(Title)
Exhibit A-4
July 26, 1996
GULF POWER COMPANY
BY-LAWS
Section 1. The annual meeting of the stockholders of the
corporation for the election of directors and for the transaction of such other
corporate business as may properly come before such meeting shall be held at the
corporation's office at Augusta, in the State of Maine, or at such other place
within or without the State of Maine as the Board of Directors may determine, on
the last Tuesday in June in each year; provided, however, that the Board of
Directors may fix an earlier day for such annual meeting of stockholders in any
particular year; and provided further that, if the day fixed for such annual
meeting of stockholders is a legal holiday, such meeting shall be held on the
first day there-after which is not a legal holiday.
Section 2. Special meetings of the stockholders of the
corporation may be held at such time and at such place within or without the
State of Maine as may be determined by the President or the Board of Directors
or Executive Committee, or stockholders holding one-fourth of the then
outstanding capital stock entitled to vote.
Section 3. Notice of the time, place and purpose of every
meeting of stockholders shall be mailed by the Secretary or the officer
performing his duties at least ten days before the meeting to each stockholder
of record entitled to vote, at his post office address as shown by the records
of the corporation, but meetings may be held without notice if all stockholders
entitled to vote are present or if notice is waived before or after the meeting
by those not present. No stockholder shall be entitled to notice of any meeting
of stockholders with respect to any shares registered in his name after the date
upon which notice of such meeting is required by law or by these by-laws to have
been mailed or otherwise given to stockholders.
Section 4. Subject to the provisions of the articles of
incorporation, as amended, the holders of a majority of the stock of the
corporation entitled to vote, present in person or by proxy, shall constitute a
quorum, but less than a quorum shall have power to adjourn.
At all meetings of stockholders, each stockholder entitled to
vote may vote and otherwise act either in person or by proxy.
Section 5. The stock of the corporation shall be transferable
or assignable on the books of the corporation by the holders in person or by
attorney on the surrender of the certificates therefor duly endorsed. The
certificates of stock of the corporation shall be numbered and shall be entered
shall be numbered and shall be entered in the books of the corporation and
registered as they are issued. They shall
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exhibit the name of the registered holder and shall certify the number of shares
owned by him and shall be signed by, or in the name of the corporation by, the
President or a Vice-President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, and shall be sealed with the corporate
seal of the corporation. Where such certificate is signed by a Transfer Agent or
by a Transfer Clerk acting on behalf of the corporation and by a Registrar, the
signature of any such President, Vice-President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary and the seal of the corporation may be
facsimile. In case any officer or officers who shall have signed, or whose
facsimile signature or signatures shall have been used on, any such certificate
or certificates, shall cease to be such officer or officers of the corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the corporation, such certificate or
certificates may nevertheless be adopted by the corporation and be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the corporation and the
issuance and delivery of any such certificate or certificates shall be
conclusive evidence of such adoption.
The stock transfer books of the corporation may be closed by
order of the Board of Directors for such period, not to exceed sixty days
previous to any meeting of the stockholders or previous to the payment of any
dividend upon the stock of the corporation, as the Board may determine, during
which time no transfer of stock upon the books of the Corporation shall be made,
and said books shall be re-opened the day following the date fixed for such
meeting or for the payment of such dividend. If the stock transfer books of the
corporation are ordered closed by the Board of Directors, every stockholder who
appears of record at the time of closing said books shall be entitled to vote at
the meeting or to receive the dividend on account of which the said books were
ordered closed. In lieu of providing for the closing of the stock transfer books
of the corporation, the Board of Directors may fix a date not exceeding sixty
days preceding the date of any meeting of stockholders, or any dividend payment
date, as the record date for the determination of the stockholders entitled to
notice of and to vote at such meeting, or entitled to receive such dividend, as
the case may be. If the stock transfer books of the corporation are not ordered
closed by the Board of Directors of if the Board of Directors does not fix a
date of record in lieu thereof, every stockholder who appears of record on the
date of a stockholders' meeting shall be entitled to vote at such meeting and
every stockholder who appears of record on the
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date specified by the Board of Directors in their declaration of a dividend
shall be entitled to such dividend.
Section 6. Upon receipt by this corporation of evidence,
satisfactory to the Board of Directors, of the loss, destruction or mutilation
of any certificate of stock of this corporation and, if required by the Board of
Directors, upon receipt of indemnity satisfactory to the Board of Directors and
upon surrender and cancellation of such certificate, if mutilated, the Board of
Directors may, if it so determines, direct the officers of this corporation to
execute and deliver a new certificate of like tenor and for the same number of
shares of the same class of stock to be issued in lieu of such lost, destroyed
or mutilated certificate.
Section 7. The affairs of this corporation shall be managed by a
Board consisting of not less than six directors, nor more than fifteen
directors, their number to be fixed at the annual or any special meeting of the
stockholders, who shall be elected annually by the stockholders entitled to
vote, to hold office until their successors are elected and qualify. Directors
need not be stockholders. A majority of the members of the Board then in office
shall constitute a quorum. Vacancies in the Board of Directors may be filled by
the Board at any meeting, except that vacancies arising from the election of
fewer directors than the total number fixed shall be filled at a meeting of the
stockholders called for the purpose of filling such vacancies, or by the Board
of Directors under special authorization from the stockholders. Any and all of
the directors may at any time be removed without cause assigned by the vote of
the holders of a majority in number of all of the outstanding stock entitled to
vote given at a meeting called for the purpose of considering such action. The
foregoing provisions of this Section 7 relating to the election of directors and
to the filling of vacancies in the Board of Directors shall be subject to the
provisions of the Articles of Incorporation, as amended.
A person being a full-time executive employee of the corporation
or its parent company or any affiliated company when first elected a director of
the corporation (hereinafter sometimes referred to as an "employee-director")
shall not be eligible for election as a director when he ceases to be an
executive employee, whether by reason of resignation, retirement or other cause.
Any employee-director shall resign as a director effective on the date he ceases
to be an executive employee.
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A person not an employee-director shall not be eligible to serve
as a director of the corporation (1) after his 70th birthday, (2) one year after
permanent separation from the business or professional organization with which
he was primarily associated when first elected a director, (3) one year after
any other material change in his primary occupation or executive position from
that which he pursued or held when first elected a director, or (4) one year
after moving his principal residence outside the service area in which he was a
resident when first elected a director, whichever event first occurs. The
application to an individual of any provision of this paragraph may be waived by
the Board of Directors. Any such waiver shall only be effective on a
year-to-year basis. The provisions of this paragraph, with the exception of item
(1) above, shall apply only to those individuals elected as a member of the
Board of Directors after the annual meeting of this Board held July 26, 1996.
Any employee-director who is not eligible for election as a
director by reason of the foregoing provisions shall be eligible for election
and re-election by the Board of Directors as an advisory director, upon the
recommen-dation of the Chief Executive Officer of the corporation, for a term
ending at the first meeting of the Board of Directors following the annual
meeting of stockholders next following such election. Any person eligible for
election as an advisory director must be one whose services as such will be, in
the opinion of the Board of Directors, of value to the corporation. An advisory
director shall be entitled to notice of and to attend and advise but not to vote
at, meetings of the Board of Directors, and of any committees thereof to which
he shall be appointed, nor shall he be counted in determining the existence of a
quorum, and for his services may be paid, in the discretion of the Board of
Directors, compensation and reimbursement of expenses on the same basis as if he
were a director.
Section 8. The annual meeting of the Board of Directors shall be
held as soon as practicable after the annual meeting of the stockholders. Other
meetings of the Board of Directors shall be held at the times fixed by
resolution of the Board or upon call of the Chairman of the Board, the President
or a Vice-President or any person upon whom powers have devolved pursuant to
Section 12 hereof. The Secretary or officer performing his duties shall give at
least two days' notice of all meetings of Directors, provided that a meeting may
be held without notice immediately after the annual election of Directors, and
notice need not be given of regular meetings held at times fixed by resolution
of the Board. Meetings may be held at any time without notice if all the
Directors are present or if those not present waive notice either before or
after the meeting. Notice by mail or telegraph to the
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usual business or residence address of the director shall be sufficient. The
purpose of special meetings of the Board of Directors need not be stated in such
notice unless required by law and unless otherwise indicated in the notice any
and all business may be transacted at a special meeting of the Board of
Directors.
Section 9. The Board of Directors, as soon as may be convenient
after the election of directors in each year, may appoint one of their number
Chairman of the Board and shall appoint one of their number President of the
corporation, and shall also appoint one or more Vice-presidents, a Secretary, a
Clerk and a Treasurer, none of whom need be members of the Board, and shall,
from time to time, appoint such other officers as they may deem proper. The same
person may be appointed to more than one office. The term of office of all
officers shall be for one year and until their respective successors are chosen
and qualified, but any officer may be removed from office at any time by the
Board of Directors without cause assigned. Vacancies in the offices shall be
filled by the Board of Directors.
Section 10. The Board of Directors, as soon as may be after the
election in each year, may appoint an executive committee to consist of the
President and such number of directors as the Board may from time to time
determine. Such committee shall have and may exercise all of the powers of the
Board during the intervals between its meetings which may be lawfully delegated,
subject to such limitations as may be provided by a resolution of the Board. The
Board shall have the power at any time to change the membership of such
committee and to fill vacancies in it. The executive committee may make rules
for the conduct of its business and may appoint such committees and assistants
as it may deem necessary. The Board may, from time to time, determine by
resolution the number of members of such committee required to constitute a
quorum. The Board shall designate the Chairman of the executive committee and
the proceedings of the executive committee shall from time to time be reported
to the Board of Directors.
Section 11. Unless otherwise designated as separate offices by
the Board of Directors, the President shall be the Chief Executive Officer of
the corporation; he shall preside at all meetings of the stockholders and
directors; he shall have general supervision of the business of the corporation;
shall see that all orders and resolutions of the Board are carried into effect,
subject, however, to the rights of the directors to delegate any specific
powers, except such as may be by statute exclusively conferred on the President,
to any other officer of the corporation. He shall, unless otherwise ordered,
execute bonds, deeds, mortgages, and other contracts, and when required shall
cause the seal of the
<PAGE>
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corporation to be affixed thereto and shall sign certifi-cates of stock. He
shall be ex officio a member of all standing committees, and shall submit to the
stockholders at their annual meeting a report of the year's business. Should the
offices of President and Chief Executive Officer be held by different persons,
the above duties shall be as delegated to each office by the Board of Directors.
Section 12. Notwithstanding the provisions of
Section 9 hereof, in the event of the absence or inability of the President to
act, the powers and duties of the President shall, subject to the control of the
Board of Directors, devolve successively upon such other persons as shall have
been designated in a resolution adopted by the Board of Directors, and in
accordance with the order of succession set forth therein.
Section 13. The Secretary shall attend all sessions of the Board
and record all votes and the minutes of all proceedings in a book to be kept for
that purpose; and shall perform like duties for standing committees when
required. He shall give or cause to be given notice of all meetings of the
stockholders and the Board of Directors, and of standing committees when
required, and shall perform such other duties as may be prescribed by the Board
of Directors or the President under whose supervision he shall act. He shall
keep in safe custody the seal of the Corporation, and when authorized, affix the
same to any instrument requiring a seal, and attest the signatures thereof, when
directed or required to do so.
Section 14. The Treasurer shall have the custody of the
corporate funds and securities, and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation, in such depositaries as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the President, and to the directors at the regular meetings of the Board or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the corporation. He shall give the corporation
a bond for the faithful performance of the duties of his office, and for the
restoration to the corporation in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind, in his possession or under his control belonging to the
corporation.
<PAGE>
-7-
Section 15. It shall be the duty of the Controller to supervise
and be responsible for accounting transactions of the corporation; to have
charge of the installation and supervision of all accounting and statistical
records, the preparation of all financial and statistical statements and
reports, and the accounting methods, systems and forms in use by all
departments; he shall perform such other duties as may be assigned to him from
time to time by the President.
Section 16. One or more Assistant Secretaries or Assistant
Treasurers or Assistant Controllers may be elected by the Board or appointed by
the President to hold office until the next annual meeting of the Board of
Directors and until their successors are elected or appointed, but may be
removed at any time. They shall perform any or all of the duties of the
Secretary or Treasurer, or Controller as the case may be, and such other duties
as may be assigned to them from time to time.
Section 17. The Clerk of the corporation shall be a resident of
Maine, and shall be sworn to the faithful performance of his duties. He need not
be a stockholder. He shall keep a full and accurate record of all stock-holders'
meetings, shall keep an office in said Augusta as required by law, and shall
have the custody of all books and papers belonging to the corporation which are
located in said office. He shall receive as compensation for his services in
acting as proxy at annual meetings, keeping an office in Maine, preparing
records of annual meetings and furnishing the Secretary with duplicate copies of
same and of necessary blanks and forms at proper times the sum of fifty dollars
annually, payable in advance. He shall receive a reasonable compensation for all
additional services. In the absence of the Clerk, a Clerk pro tempore may be
chosen, who shall be a resident of Maine, and shall be duly sworn.
Section 18. In the case of the absence of any officer of the
corporation, or for any other reason that the Board may deem sufficient, the
Board may delegate the powers or duties of such officers to any other officer or
to any director, for the time being.
Section 19. If the office of any director becomes vacant by
reason of death, resignation, retirement, disqualification, removal from office,
or otherwise, the remaining directors then in office, even though less than a
quorum, by a majority vote may choose a successor or successors, who shall hold
office for the unexpired term in respect of which such vacancy occurred; but
vacancies in the Board of Directors arising from the election of fewer directors
than the total number fixed shall be filled in the manner prescribed by Section
7 thereof.
<PAGE>
-8-
Section 20. The Board of Directors shall have power to authorize
the payment of compensation to the directors for services to the corporation,
including fees for attendance at meetings of the Board of Directors, of the
executive committee and all other committees and to determine the amount of such
compensation and fees.
Section 21.
A. Indemnity
To the fullest extent permitted by law, the Company shall
indemnify each person made, or threatened to be made, a party to any
threatened, pending, or completed claim, action, suit or proceeding, whether
civil or criminal, administrative or investigative, and whether by or in the
right of the Company or otherwise, by reason of the fact that such person, or
such person's testator or intestate, is or was a director, officer or was an
employee of the Company holding one or more management positions through and
inclusive of managers (but not positions below the level of managers) (such
positions being hereinafter referred to as "Management Positions") or is or
was serving at the request of the Company as a director, officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, in any capacity at the request of
the Company, against all loss and expense actually or reasonably incurred by
him including, without limiting the generality of the foregoing, judgments,
fines, penalties, liabilities, sanctions, and amounts paid in settlement and
attorneys fees and disbursements actually and necessarily incurred by him in
defense of such action or proceeding, or any appeal therefrom. The
indemnification provided by this Section shall inure to the benefit of the
heirs, executors and administrators of such person.
In any case in which a director, officer of the Company or
employee of the Company holding one or more Management Positions requests
indemnification with respect to the defense of any such claim, action, suit or
proceedings, the Company may advance expenses (including attorney's fees)
incurred by such person prior to the final disposition of such claim, action,
suit or proceeding, as authorized by the Board of Directors in the specific
case, upon receipt of a written undertaking by or on behalf of such person to
repay amounts advanced if it shall ultimately be determined that such person
was not entitled to be indemnified by the Company under this Section or
otherwise; provided, however, that the advancement of such expenses shall not
be deemed to be indemnification unless and until it shall ultimately be
determined that such person is entitled to be indemnified by the Company. Such
a person claiming indemnification shall be entitled to indemnification upon a
determination that no judgment or other final adjudication adverse to such
person has established that such person's
<PAGE>
-9-
acts were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or such
person personally obtained an economic benefit including a financial profit or
other advantage to which such person was not legally entitled. Without
limiting the generality of the foregoing provision, no former, present or
future director or officer of the Company or employee of the Company holding
one or more management positions, or his heirs, executors or administrators,
shall be liable for any undertaking entered into by the Company or its
subsidiaries or affiliates as required by the Securities and Exchange
Commission pursuant to any rule or regulation of the Securities and Exchange
Commission now or hereafter in effect or orders issued pursuant to the Public
Utility Holding Company Act of 1935, the Federal Power Act, or any undertaking
entered into by the Company due to environmental requirements including all
legally enforceable environmental compliance obligations imposed by federal,
state or local statute, regulation, permit, judicial or administrative decree,
order and judgment or other similar means, or any undertaking entered into by
the Company pursuant to any approved Company compliance plan or any federal or
state or municipal ordinance which directly or indirectly regulates the
Company, or its parent by reason of their being holding or investment
companies, public utility companies, public utility holding companies or
subsidiaries of public utility holding companies.
The foregoing rights shall not be exclusive of any other rights
to which any such director, officer or employee may otherwise be entitled and
shall be available whether or not the director, officer or employee continues
to be a director, officer or employee at the time of incurring any such
expenses and liabilities.
If any word, clause or provision of the By-laws or any
indemnification made under this Section 21 shall for any reason be determined
to be invalid, the remaining provisions of the By-Laws shall not otherwise be
affected thereby but shall remain in full force and effect. The masculine
pronoun, as used in the By-Laws, means the masculine and feminine wherever
applicable.
B. Insurance
The Company may purchase and maintain insurance on behalf of any
person described in Section 21 against any liability or expense (including
attorney fees) which may be asserted against such person whether or not the
Company would have the power to indemnify such person against such liability or
expense under this Section 21 or
otherwise.
<PAGE>
-10-
Section 22. The Board of Directors are authorized to select such
depositaries as they shall deem proper for the funds of the corporation. All
checks and drafts against such deposited funds shall be signed by such officers
or such other persons as may be specified by the Board of Directors.
Section 23. The corporate seal shall be circular in form, and
shall have inscribed thereon the name of the corporation, followed by the word
"Maine" and shall have the word "Seal" inscribed in the center thereof.
Section 24. A director of this corporation shall not be
disqualified by his office from dealing or contrac-ting with the corporation,
either as vendor, purchaser or otherwise, nor shall any transaction or contract
of this corporation be void or voidable by reason of the fact that any director
or any firm of which any director is a member or any corporation of which any
director is a shareholder or director is in any way interested in such
transaction or shall be authorized, ratified or approved either (a) by vote of a
majority of a quorum of the Board of Directors or the executive committee,
without counting in such majority or quorum any directors so interested or being
a member of a firm so interested or a shareholder or director of a corpo-ration
so interested, or (b) by vote at a stockholders' meeting of the holders of a
majority of all the outstanding shares of the stock of the corporation entitled
to vote or by a writing or writings signed by a majority of such holders; nor
shall any director be liable to account to the corporation for any profit
realized by him from or through any transaction or contract of this corporation
authorized, ratified or approved as aforesaid, by reason of the fact that he or
any firm of which he is a member or any corpo-ration of which he is a
shareholder or director was inte-rested in such transaction or contract. Nothing
herein contained shall create any liability in the events above described or
prevent the authorization, ratification or approval of such contracts or
transactions in any other manner provided by law.
Section 25. These by-laws may be altered or amended (a) by a
majority vote of the outstanding stock entitled to vote at any annual meeting or
upon notice at any special meeting of stockholders, or (b) at any meeting of the
Board of Directors by a majority vote of the entire Board then in office.
Exhibit D-2
BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
In Re: Application for ) DOCKET NO. 960127-EI
authority to receive common ) ORDER NO. PSC-96-0414-FOF-EI
equity contributions and to ) ISSUED: March 25, 1996
issue and sell securities during )
the 12 months ending 3/31/97 by )
Gulf Power Company )
)
The following Commissioners participated in the disposition of this
matter:
SUSAN F. CLARK, Chairman
J. TERRY DEASON
JOE GARCIA
JULIA L. JOHNSON
DIANE K. KIESLING
ORDER AUTHORIZING GULF POWER COMPANY
TO ISSUE AND SELL SECURITIES
BY THE COMMISSION:
On February 5, 1996, Gulf Power Company (Gulf or the Company), pursuant
to Section 366.04, Florida Statutes, and Chapter 25-8, Florida Administrative
Code, filed a petition with this Commission seeking authority to receive common
equity funds from Southern Company (Gulf's parent company) and to issue and sell
long-term debt and equity securities in an aggregate amount not to total more
than $320 million during the twelve months ending March 31, 1997. The company
also seeks authorization to issue short-term notes whose maximum principal
amount at any one time will total not more than $150 million.
The Company advised that the issuance and sale of equity securities and
long-term debt may be through either negotiated underwritten public offering,
public offering at competitive bidding, or private sale. Further, Gulf stated
that the equity funds from Southern Company are common equity contribution; that
the equity securities may take the form of preferred stock or preference stock,
with such par values, terms and conditions, and relative rights and preferences
as may be permitted by the Company's Articles of Incorporation; and that the
long-term debt securities may take the form of first mortgage bonds, debentures,
notes, or other long-term obligations, pollution control bonds, installment
contracts or other obligations securing pollution control bonds, with maturities
<PAGE>
ORDER NO. PSC-96-0414-FOF-EI
DOCKET NO. 960127-EI
PAGE 2
ranging from one to forty years and issued in both domestic and international
markets.
According to Gulf, it has established lines of credit with a group of
banks under which borrowing may be made by the issuance of unsecured promissory
notes. The interest rate on the proposed borrowings will be the interest rate
available to the preferred corporate customers of the bank in effect at the time
of issuance and may be subject to change, either up or down, at the time the
preferred customer rate changes. None of the promissory notes are to be resold
by the banks to the public. The Company will reserve the right under the lines
of credit to prepay all or any portion of the loans without penalty and to
reborrow the amount of any notes so prepaid.
Gulf also proposes to issue short-term notes to be sold in the
commercial paper market. The notes will not be extendable or renewable nor will
they contain any other provision for automatic "roll over," either at the option
of the holder or at the option of the Company. The notes will be sold at a
discount, plus a commission to the commercial paper dealer, with the aggregate
interest cost to the Company equalling or approximating the prime rate in effect
at the time of sale.
Having reviewed this petition, we find that the issuance of the
above-discussed securities within the limits prescribed, will not impair Gulf's
ability to perform its services as a public utility, are for lawful purpose
within its corporate power, and that the petition shall be granted, subject to
the conditions hereinafter stated.
Based on the foregoing, it is
ORDERED by the Florida Public Service Commission that the application
of the Gulf Power Company for authorization to receive equity funds from
Southern Company, to issue and sell up to $320 million in long-term debt and
equity security, and to issue and sell a maximum of $150 million of short-term
debt securities during the twelve months ending March 31, 1997, is hereby
granted. It is further
ORDERED that Gulf Power Company shall file a Consummation Report with
the Commission in compliance with Rule 25-8.008, Florida Administrative Code,
within 90 days after the end of the fiscal year in which it issues securities
pursuant to the authorization conferred by this Order. It is further
<PAGE>
ORDER NO. PSC-96-0414-FOF-EI
DOCKET NO. 960127-EI
PAGE 3
ORDERED that the foregoing authorization is without prejudice to the
authority of this Commission with respect to rates, service, accounts,
evaluation, estimates of determinations of costs, or any other matter
whatsoever, not pending or which may come before this Commission, as provided in
Section 366.04, Florida Statutes.
By ORDER of the Florida Public Service Commission, this 25th day of
March, 1996.
Blanca S. Bayo, Director
Division of Records and Reporting
(S E A L )
SLE
NOTICE OF FURTHER PROCEEDINGS OR JUDICIAL REVIEW
The Florida Public Service Commission is required by Section 120.59(4),
Florida Statutes, to notify parties of any administrative hearing or judicial
review of Commission orders that is available under Section 120.57 or 120.68,
Florida Statutes, as well as the procedures and time limits that apply. This
notice should not be construed to mean all requests for an administrative
hearing or judicial review will be granted or result in the relief sought.
Any party adversely affected by the Commission's final action in this
matter may request: 1) reconsideration of the decision by filing a motion for
reconsideration with the Director, Division of Records and Reporting, 2540
Shumard Oak Boulevard, Tallahassee, Florida 32399-0850, within fifteen (15) days
of the issuance of this order in the form prescribed by Rule 25-22.060, Florida
Administrative Code; or 2) judicial review by the Florida Supreme Court in the
case of an electric, gas or telephone utility or the First District Court of
Appeal in the case of a water and/or wastewater utility by filing a notice of
appeal with the Director, Division of Records and Reporting and filing a copy of
the notice of appeal and the filing fee with the appropriate court. This filing
must be completed within thirty (30) days after the issuance of this order,
pursuant to Rule 9.110, Florida Rules of Appellate Procedure. The notice of
appeal must be in the form specified in Rule 9.900 (a), Florida Rules of
Appellate Procedure.
Exhibit G
Gulf Power Company (70- )
Gulf Power Company ("Gulf"), 500 Bayfront Parkway, Pensacola, Florida
32501, a wholly-owned subsidiary of The Southern Company, a registered holding
company, has filed an application-declaration under sections 6(a), 6(b), 7 and
12(d) of the Act and rules 23, 44 and 53 thereunder.
Gulf proposes to issue and sell from time to time, prior to January 1,
2004, short-term and/or term-loan notes to lenders, commercial paper to or
through dealers and/or issue non-negotiable promissory notes to public entities
for their revenue anticipation notes in an aggregate principal amount at any one
time outstanding of up to $300,000,000.
Gulf states that any borrowings proposed herein may be, and any such
borrowings in excess of its charter limits on short-term unsecured debt would
be, secured by a subordinated lien on certain assets of Gulf. In no
circumstances will Gulf have unsecured borrowings outstanding at any one time
that exceed applicable charter limitations.
Gulf proposes to borrow from certain banks or other lending
institutions. Such institutional borrowings will be evidenced by notes to be
dated as of the date of such borrowings and to mature in not more than 10
years after the date of issue, or by "grid" notes evidencing all outstanding
borrowings from each lender to be dated as of the date of the initial borrowing
and to mature not more than 10 years after the date of issue. Gulf proposes
that any note evidencing such borrowings may not be prepayable, or that it may
be prepaid with payment of a premium that is not in excess of the stated
interest rate on the borrowing to be prepaid, which premium in the case of a
note having a maturity of more than one year may thereafter decline to the date
of the note's final maturity.
<PAGE>
Borrowings will be at the lender's prevailing rate offered to corporate
borrowers of similar quality. Such rates will not exceed the prime rate or (i)
LIBOR plus up to 2%, (ii) the lender's certificate of deposit rate plus up to
1-3/4%, or (iii) a rate not to exceed the prime rate plus 1% to be established
by bids obtained from the lenders prior to a proposed borrowing; provided,
however, that with respect to borrowings with a maturity in excess of one year,
the rate will not exceed the yield for a comparable maturity Treasury note plus
1%. Compensation for the credit facilities may be provided by fees of up to 1/2
of 1% per annum of the amount of the facility. Compensating balances may be used
in lieu of fees to compensate certain of the lenders.
Gulf also may effect short-term borrowings hereunder in connection with
the financing of certain pollution control facilities through the issuance by
public entities of their revenue bond anticipation notes. Under an agreement
with each such public entity, the entity would effectively loan to Gulf the
proceeds of the sale of such revenue bond anticipation notes, having a maturity
of not more than one year after date of issue, and Gulf may issue its
non-negotiable promissory note therefor. Such note would provide for payments
thereon to be made at times and in amounts which shall correspond to the
payments with respect to the principal of, premium, if any, and interest, which
shall not exceed the prime rate, on such revenue bond anticipation notes,
whenever and in whatever manner the same shall become due, whether at stated
maturity, upon redemption or declaration or otherwise.
Gulf also proposes to issue and sell commercial paper to or through
dealers from time to time prior to January 1, 2004. Such commercial paper will
be in the form of promissory notes with varying maturities not to exceed nine
months. The commercial paper notes will be issued in denominations of not less
than $50,000 and will not by their terms be prepayable prior to maturity.
<PAGE>
Pursuant to orders of the Commission, Gulf has authority to effect
short-term borrowings prior to January 1, 1997 as set forth in Commission File
No. 70-8397 (HCAR No. 35-26049, dated May 9, 1994). At September 30, 1996,
borrowings in an aggregate principal amount of approximately $64,100,000 were
outstanding pursuant to such authorization. Gulf proposes that the authorization
sought in this file would supersede and replace authorizations in File No.
70-8397 effective immediately upon the date of the Commission's order herein.
The proceeds from the proposed borrowings will be used by Gulf for
working capital purposes, including the financing in part of its construction
program. None of the proceeds from any borrowing or from the sale of any of the
notes authorized herein will be used by Gulf, directly or indirectly, for the
acquisition of any interest in an "exempt wholesale generator" or a "foreign
utility company".
