-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Mu2gPDXWyZ4Y15BVz5lXCMNG0LWo9m4RfOXlurzQMGkEYXxv5m5GEZt75pAqGBmR G95aGbfbgQPzYjl5JPGJ6w== 0000003153-96-000003.txt : 19960118 0000003153-96-000003.hdr.sgml : 19960118 ACCESSION NUMBER: 0000003153-96-000003 CONFORMED SUBMISSION TYPE: POS AMC PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19960117 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALABAMA POWER CO CENTRAL INDEX KEY: 0000003153 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 630004250 STATE OF INCORPORATION: AL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AMC SEC ACT: 1935 Act SEC FILE NUMBER: 070-08461 FILM NUMBER: 96504100 BUSINESS ADDRESS: STREET 1: 600 N 18TH ST STREET 2: P O BOX 2641 CITY: BIRMINGHAM STATE: AL ZIP: 35291 BUSINESS PHONE: 2052501000 POS AMC 1 AMENDMENT NO. 6 (POST-EFFECTIVE NO. 3) File No. 70-8461 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO. 6 (Post-Effective No. 3) TO FORM U-1 APPLICATION OR DECLARATION under The Public Utility Holding Company Act of 1935 ALABAMA POWER COMPANY GULF POWER COMPANY 600 North 18th Street 500 Bayfront Parkway Birmingham, Alabama 35291 Pensacola, Florida 32501 GEORGIA POWER COMPANY MISSISSIPPI POWER COMPANY 333 Piedmont Avenue, N.E. 2992 West Beach Atlanta, Georgia 30308 Gulfport, Mississippi 39501 SAVANNAH ELECTRIC AND POWER COMPANY 600 Bay Street, East Savannah, Georgia 31401 (Name of company or companies filing this statement and addresses of principal executive offices) THE SOUTHERN COMPANY (Name of top registered holding company parent of each applicant or declarant) Art P. Beattie, Vice President, Warren E. Tate, Secretary Secretary and Treasurer and Treasurer Alabama Power Company Gulf Power Company 600 North 18th Street 500 Bayfront Parkway Birmingham, Alabama 35291 Pensacola, Florida 32501 Judy M. Anderson, Vice President Michael W. Southern, Vice and Corporate Secretary President, Secretary and Treasurer Georgia Power Company Mississippi Power Company 333 Piedmont Avenue, N.E. 2992 West Beach Atlanta, Georgia 30308 Gulfport, Mississippi 39501 Kirby R. Willis, Vice President, Treasurer and Chief Financial Officer Savannah Electric and Power Company 600 Bay Street, East Savannah, Georgia 31401 (Names and addresses of agents for service) The Commission is requested to mail signed copies of all orders, notices and communications to: W. L. Westbrook John D. McLanahan, Esq. Financial Vice President Troutman Sanders LLP The Southern Company 600 Peachtree Street, N.E. 64 Perimeter Center East Suite 5200 Atlanta, Georgia 30346 Atlanta, Georgia 30308-2216 ITEM 1. DESCRIPTION OF PROPOSED TRANSACTIONS. Item 1 is hereby amended by adding thereto the following: "Alabama proposes, in addition to a Special Purpose Subsidiary organized as either a limited liability company or a limited partnership, to organize its Special Purpose Subsidiary as a trust, Alabama Power Capital Trust I ("Alabama Power Capital"). The proposed Preferred Securities transactions effected through Alabama Power Capital will be carried out in the same manner, will have the same terms and conditions, and will be subject to the same rules and regulations as the proposed Preferred Securities transactions effected through a Special Purpose Subsidiary organized as a limited liability company or limited partnership. Alabama Power Capital is a statutory business trust formed under Delaware law pursuant to the filing of a certificate of trust with the Delaware Secretary of State on November 8, 1995. Alabama Power Capital's business is defined in a trust agreement, executed by Alabama, as Depositor, and the Delaware Trustee (the "Trustee") thereunder, filed as Exhibit A-1 hereto. Alabama, as grantor of Alabama Capital, selected Chemical Bank as the Trustee. It is proposed that this trust agreement will be amended and restated in its entirety, substantially in the form of Exhibit A-2 hereto, on the date of the offering (the "Trust Agreement"). Alabama Power Capital exists for the exclusive purposes of (i) issuing the Trust Preferred Securities (as defined below) and the Trust Common Securities (as defined below)(the Trust Preferred Securities and the Trust Common Securities herein called the "Trust Securities") which represent the undivided beneficial interests in the assets of Alabama Power Capital, (ii) investing the gross proceeds of the Trust Securities in the Junior Subordinated Notes (as defined below) and (iii) engaging in only those other activities necessary, appropriate, convenient or incidental thereto. Alabama Power Capital has a term of approximately thirty (30) years, but may terminate earlier. It is proposed that Alabama Power Capital will issue 3,880,000 of its Trust Preferred Securities (the "Trust Preferred Securities"), with a liquidation preference of $25 per Trust Preferred Security and an aggregate liquidation preference of $97,000,000. It is contemplated that the interest rate to be borne by the Trust Preferred Securities (which shall also be the rate for the Trust Common Securities and Junior Subordinated Notes) will be a fixed rate which shall not be above an annual rate of 10% of the liquidation preference of $25 per Trust Preferred Security (the "Interest Rate"). It is proposed that Alabama Power Capital will issue its Trust Common Securities, registered in the name of Alabama, in an aggregate amount of $3,000,000 (the "Trust Common Securities") to Alabama. The proceeds realized by Alabama Power Capital from the sale of the Trust Preferred Securities, together with Alabama's payment to Alabama Power Capital in the amount of $3,000,000 for the Trust Common Securities, will be loaned to Alabama, such loan to be evidenced by $100,000,000 aggregate principal amount of Alabama's Series A Junior Subordinated Notes (the "Junior Subordinated Notes"). It is proposed that the Junior Subordinated Notes will -2- mature not more than thirty (30) years from the first day of the month in which they are initially issued. It is also proposed that the Junior Subordinated Notes will not be convertible into any other securities or assets of Alabama or Alabama Capital Trust. The holders of the Trust Preferred Securities and the Trust Common Securities will receive as distributions on payment dates their pro rata shares of payments received by Alabama Power Capital on the Junior Subordinated Notes, except that, in the event of default or partial payment by Alabama on the Junior Subordinated Notes, the payment entitlement of Alabama as holder of the Trust Common Securities will be subordinated to the payment entitlement of the investors as holders of the Trust Preferred Securities. Similarly, if on liquidation of Alabama Power Capital, the proceeds from the sale or other liquidation of Alabama Power Capital's assets were not sufficient to fully satisfy the payment entitlements of the Trust Preferred Securities and the Trust Common Securities with respect to principal, the payment entitlement with respect to principal of Alabama as holder of the Trust Common Securities will be subordinated to the payment entitlement of the investors as holders of the Trust Preferred Securities. The Trust Agreement will provide that holders of Trust Preferred Securities will have only the rights expressly granted to them by the Trust Agreement, including the right to receive distributions and certain consensual rights expressly provided. It is proposed that Alabama Power Capital will issue and -3- sell the Trust Preferred Securities pursuant to an underwriting agreement, substantially in the form of Exhibit B-4 hereto, among Alabama Power Capital, Alabama and a group of underwriters headed by Lehman Brothers Inc. Pursuant to such underwriting agreement, such underwriters will purchase the Trust Preferred Securities from Alabama Power Capital at a purchase price of $25 per Trust Preferred Security (an aggregate of $97,000,000). In addition, in view of the fact that the proceeds of the sale of the Trust Preferred Securities will be loaned to Alabama, Alabama will agree to pay to the underwriters, as compensation for their services, a maximum of $.7875 per Trust Preferred Security; provided, that such compensation will not exceed $.50 per Trust Preferred Security sold to certain institutions. Cash distributions on the Trust Securities will be cumulative from the date of original issuance at the Interest Rate and will be payable quarterly in arrears as described in the Trust Agreement. Such distributions in arrears for more than one quarter will bear interest thereon at the Interest Rate. The Junior Subordinated Notes will similarly bear interest at the Interest Rate, payable quarterly in arrears. Alabama will have the right from time to time to defer the payment of interest on the Junior Subordinated Notes for a period not exceeding 20 consecutive quarters, at the end of each of which extension periods all accrued and unpaid interest (together with interest thereon at the Interest Rate) will be due and payable. As a consequence of any such extension of the interest payment period on the Junior Subordinated Notes, quarterly distributions on the -4- Trust Preferred Securities would be correspondingly deferred. Alabama will guarantee (the "Guarantee") the following payments with respect to the Trust Preferred Securities to the extent not paid by Alabama Power Capital: (i) any accrued and unpaid distributions that are required to be paid on the Trust Preferred Securities but if and only if and to the extent Alabama Power Capital shall have funds legally and immediately available therefor, (ii) the redemption price, including all accrued and unpaid distributions to the date of redemption, with respect to any Trust Preferred Securities called for redemption by Alabama Power Capital but if and only to the extent that Alabama Power Capital has funds legally and immediately available therefor, and (iii) upon a dissolution, winding-up or termination of Alabama Power Capital (other than in connection with the distribution of Junior Subordinated Notes to the holders of Trust Preferred Securities (as described below) or the redemption of all the Trust Preferred Securities), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on the Trust Preferred Securities to the date of payment, to the extent Alabama Power Capital has funds legally and immediately -5- available therefor, and (b) the amount of assets of Alabama Power Capital remaining available for distribution to holders of Trust Preferred Securities in liquidation of Alabama Power Capital. The Trust Securities are subject to mandatory redemption upon repayment of the Junior Subordinated Notes at maturity or upon their earlier redemption. The Junior Subordinated Notes may be redeemed, in whole or in part, at the option of Alabama at any time on or after five (5) years from the date of their issuance. In addition, upon the occurrence of certain special events arising from a change in law or a change in legal interpretation or other specified circumstances relating to tax matters and the Investment Company Act of 1940, as amended, Alabama shall elect to either (i) redeem the Junior Subordinated Notes (and thus cause the redemption of the Trust Securities), or (ii) dissolve Alabama Power Capital and, after satisfaction of creditors as required by applicable Delaware law, cause Junior Subordinated Notes to be distributed to the holders of the Trust Preferred Securities in liquidation of Alabama Power Capital. In the case of such a special event, the Trust shall have the opportunity to eliminate such special event within ninety (90) days after the occurrence thereof by taking some ministerial action, such as filing a form or making an election, or pursuing some other reasonable measure, which would have no adverse effect on Alabama Power Capital, Alabama, or the holders of the Trust Preferred Securities. -6- Unless an event of default occurs and is continuing under the Trust Agreement, (i) Alabama will have the right to replace the Trustee, subject to any Trustee eligibility requirements set forth in the Trust Agreement, and (ii) consensual rights exercised by holders of the Trust Preferred Securities generally will be exercised by Alabama, subject to certain protections for holders of the Trust Preferred Securities. If an event of default occurs and is continuing under the Trust Agreement, the holders of the Trust Preferred Securities would have the right to replace the Trustee. The Trustee would be required under the Trust Agreement to enforce Alabama Power Capital's rights under the Junior Subordinated Notes. It is contemplated that, for Federal income tax purposes, Alabama Power Capital will be treated as a passive grantor trust and not as a partnership. Accordingly, as in the case of a limited liability company or limited partnership Special Purpose Subsidiary, Alabama Power Capital will not be subject to tax and Alabama and investors holding Trust Preferred Securities will be treated as the owners of Alabama Power Capital and will be required to include in income their proportionate shares of the income of Alabama Power Capital. However, the information reporting procedure for Alabama Power Capital would differ from the procedures used when the Special Purpose Subsidiary is a limited liability company or a limited partnership. Investors would receive tax reporting information from their brokers on an IRS Form 1099, rather than the Schedule K-1. It is anticipated that Alabama Power Capital will be -7- exempt from status as an "investment company" under the Investment Company Act of 1940, as amended, in reliance on the finance subsidiary rule (Rule 3a-5). The proceeds from the sale of the Trust Preferred Securities will be loaned by Alabama Power Capital to Alabama, such loan to be evidenced by the Junior Subordinated Notes and ultimately will be used by Alabama for general corporate purposes, including repayment of outstanding short-term debt. None of such proceeds will be used by Alabama or any associate company thereof for the acquisition of an interest in an "exempt wholesale generator" or a "foreign utility company" as defined in Sections 32 and 33, respectively, of the Act. It is considered that the record is now complete with respect to the issuance by Alabama Power Capital of the Trust Preferred Securities and the related issuance by Alabama of the Junior Subordinated Notes and the Guarantee as described herein. Accordingly, an order with respect to such transactions is hereby requested. It is hereby requested that jurisdiction be reserved with respect to the other transactions proposed in these proceedings." ITEM 2. FEES, COMMISSIONS AND EXPENSES. The estimated fees and expenses to be incurred by Alabama in connection herewith are as follows: -8- Filing fees - Securities and Exchange Commission . $ 33,450 Fees and Expenses of Trustees . . . . . . . . . . . 30,000 Listing on New York Stock Exchange . . . . . . . . 44,300 Printing charges . . . . . . . . . . . . . . . . . 30,000 Rating Agency Fees . . . . . . . . . . . . . . . . 40,000 Services of Southern Company Services, Inc. . . . . 30,000 Fees and Expenses of counsel . . . . . . . . . . . 125,000 Blue sky fees and expenses . . . . . . . . . . . . 2,500 Fees of accountants, Arthur Andersen LLP . . . . . 25,000 Miscellaneous . . . . . . . . . . . . . . . . . . . 4,750 TOTAL . . . . . . . . . . . . . . . . . . . . . . $365,000 ITEM 3. APPLICABLE STATUTORY PROVISIONS. Item 3 is hereby amended by adding the following thereto: "Rule 54 Analysis. Under Rule 54, in determining whether to approve the issue or sale of a security by a registered holding company for purposes other than the acquisition of an "exempt wholesale generator" or "foreign utility company", or other transactions by such registered holding company or its subsidiaries other than with respect to "exempt wholesale generators" or "foreign utility companies," the Commission shall not consider the effect of the capitalization or earnings of any subsidiary which is an "exempt wholesale generator" or a "foreign utility company" upon the registered holding company system if the "safe harbor" conditions of Rule 53 are satisfied. Southern currently meets all of the "safe harbor" conditions of Rule 53. Southern's "aggregate investment" in "exempt wholesale generators" and "foreign utility companies" at October 31, 1995 was approximately $1.250 billion, representing approximately 38.0% of Southern's "consolidated retained earnings," as defined in Rule 53(a)(1)(ii), for the four quarters -9- ended September 30, 1995 ($3.292 billion). Furthermore, Southern has and will continue to comply with the record keeping requirements of Rule 53(a)(2) concerning affiliated "exempt wholesale generators" and "foreign utility companies." In addition, as required by Rule 53(a)(3), no more than 2% of the employees of Southern's operating utility subsidiaries will, at any one time, directly or indirectly, render services to "exempt wholesale generators" and "foreign utility companies." Finally, since none of the circumstances described in Rule 53(b) exists, the provisions of Rule 53(a) are not made inapplicable by Rule 53(b)." ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS. A. Exhibits: A-1 - Trust Agreement of Alabama Power Capital Trust I. (Designated in Form S-3 File No. 33-64125, as Exhibit 4(c).) A-2 - Form of Amended and Restated Trust Agreement. (Designated in Form S-3 File No. 33-64125, as Exhibit 4(d).) B-1 - Form of Subordinated Note Indenture between Alabama Power Company and Chemical Bank, as Trustee. (Designated in Form S-3 File No. 33- 64125, as Exhibit 4(a).) B-2 - Form of Supplemental Indenture to Subordinated Note Indenture between Alabama Power Company and Chemical Bank, as Trustee. (Designated in Form S-3 File No. 33-64125, as Exhibit 4(b).) B-3 - Form of Guarantee with respect to Preferred Securities. (Designated in Form S-3 File No. 33- 64125, as Exhibit 4(g).) B-4 - Form of Underwriting Agreement. (Designated in Form S-3 File No. 33-64125, as Exhibit 1.) -10- C-1 - Registration Statement under the Securities Act of 1933. (Filed electronically November 9, 1995, File No. 33-64125.) C-2 - Amendment No. 1 to Registration Statement under the Securities Act of 1933. (Filed electronically January 11, 1996, File No. 33-64125.) F-1 - Opinion of Balch & Bingham, counsel for Alabama. B. Financial Statements. Balance sheet of Alabama at September 30, 1995. (Designated in Alabama's Form 10-Q for the quarter ended September 30, 1995, File No. 1-3164.) Statements of Income of Georgia for the twelve months ended September 30, 1995. (Designated in Alabama's Form 10-Q for the quarter ended September 30, 1995, File No. 1-3164.) -11- SIGNATURES Pursuant to the requirements of the Public Utility Holding Company Act of 1935, the undersigned companies have duly caused this amendment to be signed on their behalf by the undersigned thereunto duly authorized. Date: January 16, 1996 ALABAMA POWER COMPANY By: /s/Wayne Boston Wayne Boston, Assistant Secretary GEORGIA POWER COMPANY By: /s/Wayne Boston Wayne Boston, Assistant Secretary GULF POWER COMPANY By: /s/Wayne Boston Wayne Boston, Assistant Secretary MISSISSIPPI POWER COMPANY By: /s/Wayne Boston Wayne Boston, Assistant Secretary SAVANNAH ELECTRIC AND POWER COMPANY By: /s/Wayne Boston Wayne Boston, Assistant Secretary -12- EX-99 2 EXHBIT F-1 Exhibit F-1 Balch & Bingham Birmingham, Alabama 205-251-8100 January 16, 1996 Securities and Exchange Commission Washington, D.C. 20549 Re: Statement on Form U-1 of Alabama Power Company (the "Company") et al. File No. 70-8461 Ladies and Gentlemen: We have read the statement on Form U-1, as amended, referred to above and are furnishing this opinion with respect to the proposed transactions described therein relating to the issuance and sale by Alabama Power Capital Trust I ("Alabama Power Capital") of its Trust Preferred Securities and the related issuance by the Company of its Guarantee and Junior Subordinated Notes (all as defined therein). We are of the opinion that (i) the Company is validly organized and duly existing as a corporation under the laws of the State of Alabama, (ii) Alabama Power Capital Trust I has been duly formed and is validly existing as a statutory business trust under the laws of the State of Delaware, and (iii) upon the issuance of your order or orders in this matter permitting such statement on Form U-1 to become effective with respect to such proposed transactions, and in the event that the proposed transactions are consummated in accordance with such statement on Form U-1 and your order or orders in respect thereof: (a) all State laws applicable to such proposed transactions will have been complied with; (b) the Company's obligations with respect to the Guarantee and the Junior Subordinated Notes will be valid and binding obligations of the Company in accordance with their terms; (c) Alabama Power Capital's obligations with respect to the Trust Preferred Securities will be valid and binding obligations of Alabama Power Capital in accordance with their terms; and Balch & Bingham Statement on Form U-1 of Alabama Power Company (the "Company") et al. File No. 70-8461 Page 2 (d) the consummation of the proposed transactions will not violate the legal rights of the holders of any securities issued by the Company, Alabama Power Capital, or any associate company of either thereof. We hereby give our written consent to the use of this opinion in connection with the above-mentioned statement on Form U-1. Very truly yours, /s/Balch & Bingham -----END PRIVACY-ENHANCED MESSAGE-----