File No. 70-9701
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 7
(Post-Effective Amendment No. 2)
to
FORM U-1
APPLICATION OR DECLARATION
under
The Public Utility Holding Company Act of 1935
THE SOUTHERN COMPANY
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
SOUTHERN POWER COMPANY
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
(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)
Tommy Chisholm, Corporate Secretary and Assistant Treasurer
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
(Names and address of agents for service)
This Commission is requested to mail signed copies of all orders,
notices and communications to:
Thomas A. Fanning Cliff S. Thrasher
Executive Vice President, Chief Senior Vice President and
Financial Officer and Treasurer Chief Financial Officer
The Southern Company Southern Power Company
270 Peachtree Street, N.W. 270 Peachtree Street, N.W.
Atlanta, Georgia 30303 Atlanta, Georgia 30303
Walter M. Beale, Esq. John D. McLanahan, Esq.
Balch & Bingham LLP Troutman Sanders LLP
1901 Sixth Avenue North 600 Peachtree Street, N.E.
Suite 2600 Suite 5200
Birmingham, Alabama 35203-2628 Atlanta, Georgia 30308-2216
INFORMATION REQUIRED
Item 1. Description of Proposed Transactions.
The Southern Company ("Southern") is a registered holding company
under the Public Utility Holding Company Act of 1935, as amended (the "Act").
Southern Power Company ("Southern Power") is a public utility company subsidiary
of Southern.
By order dated December 27, 2000 (the "2000 Order"), the
Securities and Exchange Commission (the "Commission") authorized Southern to
form NewCo,1 a new subsidiary, and approved certain financing authority for
NewCo. In the application/declaration, as amended, NewCo requested the authority
for it and its subsidiaries to pay dividends to Southern out of capital or
unearned surplus to the extent permitted by the applicable law and without
impairing the rights of the holders of existing securities. Under the 2000
Order, the Commission reserved jurisdiction over the payment by NewCo of
dividends out of capital or unearned surplus pending completion of the record.
The Commission also reserved jurisdiction over transactions that would cause the
common equity component of NewCo's consolidated capitalization to fall below
30%.
Since December 27, 2000, Southern Power has commenced operations
as contemplated by the 2000 Order, has acquired and/or constructed several
generating plants in the Southeastern United States, and is currently selling
power from a number of these plants, predominantly under long-term power
purchase agreements ("PPAs") with creditworthy counterparties. Under the terms
of Southern Power's credit facility with a number of banks, borrowed funds for
the construction of generating plants are unavailable until such time as all
regulatory approval of the PPAs applicable to such plants have been obtained.
Accordingly, during the period between commencement of construction and the
obtaining of all requisite regulatory approval of a PPA under which power from a
plant will be sold, the generating plant
--------
1 NewCo is presently known as Southern Power Company, a Delaware corporation.
1
must be financed totally with equity from Southern. This has resulted in
Southern Power having $921.4 million of capital surplus at March 31, 2003, and a
ratio of common equity to total capitalization of 47.4%.
Since June, 2002, Southern Power has issued two series of senior
notes in the aggregate amount of $1.15 billion, thus providing funds to repay
indebtedness under the bank credit facility and permitting return of capital to
Southern. However, the most practical manner of returning this capital to
Southern, while at the same time maintaining an appropriate level of retained
earnings and an otherwise strong balance sheet, is to declare dividends out of
capital or unearned surplus.
Under its bank credit facility, Southern Power's ratio of common
equity to total capitalization must be maintained at a level of 35% or higher.
Moreover, certain of the offering documents for Southern Power's senior notes
contemplate an equity ratio at such level. The senior notes, the bank facility
and Southern Power, as issuer, are all rated BBB+ by Standard & Poors Ratings
Service and Baa1 by Moody's Investors Services. These ratings reflect the
recognition that a common equity ratio of 35% is both acceptable and traditional
for a credit worthy utility, and is the appropriate ratio for Southern Power.
Therefore, Southern Power now requests that the Commission release
jurisdiction over the payment of dividends by Southern Power out of capital or
unearned surplus so long as the payment of such dividends would not cause the
common equity component of Southern Power's consolidated capitalization to fall
below 35%.
Item 2. Fees, Commissions and Expenses.
The fees, commissions and expenses to be incurred in connection
herewith are estimated to be
approximately $20,000.
Item 3. Applicable Statutory Provisions.
Southern Power considers that Section 12 of the Act and Rule 46
under the Act may be applicable to the proposed transactions.
2
To the extent that other sections of the Act or the rules
thereunder are deemed to be applicable to the transactions described herein,
such sections and rules should be considered to be set forth in this Item 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
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
March 31, 2003, Southern's "aggregate investment," as defined in Rule 53(a)(1),
in EWGs and FUCOs was approximately $275.9 million, or 5.71% of Southern's
"consolidated retained earnings," also as defined in Rule 53(a)(1), as of March
31, 2003 ($4.835 billion).2
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.
---------
2 As discussed in Southern's Application on Form U-1 (File No. 70-9727) relating
to the spin-off of Mirant Corporation ("Mirant"), Southern and Mirant
reorganized certain energy-related and FUCO activities and Mirant completed a
tax-free distribution to Southern of these activities on March 5, 2001 (the
"Mini-Spin"). On April 2, 2001, Southern completed the spin-off of its remaining
ownership interest in Mirant to Southern's shareholders. Therefore, the four
indirect subsidiaries (EPZ Lease, Inc., Dutch Gas Lease, Inc., GAMOG Lease, Inc.
and NUON Lease, Inc.) obtained through the Mini-Spin are the only remaining FUCO
investments held by Southern. Although Southern now owns all of the equity in
these companies as a result of the Mini-Spin, Southern has no direct or indirect
investment or any aggregate investment within the meaning of Rule 53 in these
FUCOs, including any direct or indirect guarantees or credit positions related
to any capital or financing leases. Southern has executed limited keep-well
commitments whereby Southern would be required to make capital contributions to
Southern Energy Finance Capital Corp. II, Southern Energy Finance Capital Corp.
or to Southern Energy Finance Company, Inc. in the event of a shortfall in the
scheduled debt service resulting from certain changes in the payments due from
Southern under the Southern Company Income Tax Allocation Agreement. The maximum
potential capital contribution required under these commitments is the
unamortized balance of the related loans, which totaled approximately $422
million as of March 31, 2003.
3
Item 4. Regulatory Approval.
No state or federal regulatory agency, other than the Commission,
has jurisdiction over the proposed transactions.
Item 5. Procedure.
Southern Power hereby requests that the Commission's order be
issued as soon as the rules allow. Southern Power hereby waives a recommended
decision by a hearing officer or other responsible officer of the Commission,
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 transactions proposed herein, 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.
Item 7. Information as to Environmental Effects.
(a) The issuance of an order by the Commission with respect to the
proposed transactions will not constitute a 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.
4
SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company
Act of 1935, the undersigned company has duly caused this amendment to be signed
on its behalf by the undersigned hereunto duly authorized.
Date: July 24, 2003
THE SOUTHERN COMPANY
By: /s/Tommy Chisholm
-----------------------------------------
Tommy Chisholm
Corporate Secretary and
Assistant Treasurer
SOUTHERN POWER COMPANY
By: /s/Tommy Chisholm
-----------------------------------------
Tommy Chisholm
Secretary