-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, kFLCiFKu2frE9H96t79nv52VB40eA0aCyr8by+nOih4+aDvmZK7UYr6DiMhRqbKW FaI2oLolTYnrVTsqUn9lSQ== 0000092122-95-000097.txt : 19950905 0000092122-95-000097.hdr.sgml : 19950905 ACCESSION NUMBER: 0000092122-95-000097 CONFORMED SUBMISSION TYPE: 35-CERT PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19950831 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN CO CENTRAL INDEX KEY: 0000092122 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 580690070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 35-CERT SEC ACT: 1935 Act SEC FILE NUMBER: 070-08421 FILM NUMBER: 95569486 BUSINESS ADDRESS: STREET 1: 64 PERIMETER CTR EAST CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 4043930650 35-CERT 1 CERTIFICATE OF NOTIFICATION CERTIFICATE OF NOTIFICATION Filed by THE SOUTHERN COMPANY Pursuant to Rule 24(c)(3)(i) of the Public Utility Holding Company Act of 1935, as amended, in the matter of File No. 70- 8421. - - - - - - - - 1. Filed herewith is the following exhibit: Exhibit A - Letter of Troutman Sanders LLP dated August 30, 1995. Dated: August 31, 1995 THE SOUTHERN COMPANY By /s/Tommy Chisholm Tommy Chisholm Secretary EX-99 2 EXHIBIT A EXHIBIT A Troutman Sanders LLP 600 Peachtree Street - Suite 5200 Atlanta, GA 30308 404-885-3000 August 30, 1995 Martha C. Baker, Assistant Director Robert P. Wason, Chief Financial Analyst Division of Investment Management Office of Public Utility Regulation 450 5th Street, N.W. - 10th Floor Washington, D.C. 20549 RE: The Southern Company - Investments in Certain Non- Utility Subsidiaries (File No. 70-8421) Ladies and Gentlemen: By order dated August 3, 1994 (Holding Company Act Release No. 26096) (the "Original Order") in the above-referenced proceeding, The Southern Company ("Southern") was authorized to make investments in one or more companies (referred to therein as "Project Parents") organized exclusively for the purpose of acquiring and holding, directly or indirectly, the securities of one or more "foreign utility companies" ("FUCOs") and "exempt wholesale generators" ("EWGs"), as defined under the Public Utility Holding Company Act, as amended (the "Act"). The Original Order was amended and extended by further order dated July 25, 1995 (Holding Company Act Release No. 26338) (the "Amended Order"). Under the terms of the Commission's orders, Project Parents are also authorized to issue and sell, in one or more transactions, equity securities and debt securities (herein referred to as "Nonrecourse Debt") to persons other than Southern (and with respect to which there is no recourse to Southern) exclusively for the purpose of financing and refinancing investments in FUCOs and EWGs. Under the Amended Order, the aggregate amount of Nonrecourse Debt at any time outstanding may not exceed $1 billion. The Amended Order states that such authorization shall remain in effect until the earlier of December 31, 1997, and "the effective date of any rule of general applicability adopted by the Commission exempting such transactions from the application requirements of the Act." It is our view that new Rule 52(b), which became effective June 28, 1995, would now exempt a Project Parent from the Martha C. Baker, Assistant Director Robert P. Wason, Chief Financial Analyst August 30, 1995 Page 2 application requirements of Sections 6 and 7 of the Act with respect to the issuance and sale of Nonrecourse Debt, as well as equity securities of the type specified in the rule, to persons other than Southern or any other associate company (other than any other Project Parent). In this regard, we believe that Rule 52(b) is a "rule of general applicability" which (to the extent that the requirements thereof are met) supersedes that portion of the Commission's orders in this proceeding relating to the issuance and sale by Project Parents of Nonrecourse Debt and specified types of equity securities to nonassociate companies. Rule 52(b) provides, with certain exceptions that are not relevant here, that any non-utility subsidiary of a registered holding company may issue and sell specified types of securities without the need to seek approval under Section 7 of the Act if the issue and sale of such securities "are solely for the purpose of financing the existing business of such subsidiary company."1 A Project Parent, as defined in the Original Order, is a non- utility subsidiary company that is "engaged directly or indirectly, and exclusively, in the business of owning and holding the securities" of FUCOs, as well as EWGs, which are themselves non-utilities. (Emphasis added). As described in the Original Order, these entities may be organized prior to or at the time of making an exempt acquisition of an EWG or FUCO, or subsequent to an acquisition. In any case, it is clear that the "business" of a Project Parent is the acquisition, ownership, and holding of securities of FUCOs, as well as EWGs, and that such entities have no other "business," as such. Thus, we think it is a reasonable construction of Rule 52(b) that Nonrecourse Debt and certain types of equity securities issued by Project Parents to nonassociates, whether to finance or refinance an acquisition of a FUCO or EWG, are securities issued "solely for the purpose of financing the existing business" of such subsidiary companies. On a related matter, Rule 52(c) specifies the filing of a certificate of notification on Form U-6B-2 within 10 days after the sale of any securities under Rule 52. Southern is currently filing certificates of notification under Rule 24 in this proceeding on a quarterly basis. Such certificates combine various items of information relating to investments in and securities sales by Project Parents. Rather than report the issue and sale of securities by Project Parents to nonassociate companies separately, Southern proposes to continue to file such information as a part of the Rule 24 certificates in this proceeding. Unless I hear otherwise, I will assume that this is 1 The rule exempts the issue and sale of "any common stock, preferred stock,bond, note or other form of indebtedness . . .." Martha C. Baker, Assistant Director Robert P. Wason, Chief Financial Analyst August 30, 1995 Page 3 acceptable to you. Although no formal response to this letter is requested, if you have any questions or concerns regarding the foregoing, please feel free to call me or Andrew MacDonald at 404-885-3000. You may include this letter in the Commission's files in the above-referenced proceeding. Sincerely yours, /s/John D. McLanahan John D. McLanahan cc: Larry Westbrook - Southern Company Ray Hill - Southern Electric William Maner - Southern Electric James Ward - Southern Electric Chuck Rawlins - Southern Company Services -----END PRIVACY-ENHANCED MESSAGE-----