Exhibit 1
$80,000,000 Series D Floating Rate Senior Notes
due March 12, 2004
MISSISSIPPI POWER COMPANY
UNDERWRITING AGREEMENT
March 12, 2002
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Mississippi Power Company, a Mississippi corporation (the
"Company"), confirms its agreement (the "Agreement") with you and each of the
other underwriters named in Schedule I hereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof) for whom you are acting as representative (in
such capacity you shall hereinafter be referred to as the "Representative"),
with respect to the sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of $80,000,000 principal amount of the Series
D Floating Rate Senior Notes due March 12, 2004 (the "Senior Notes").
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of May 1, 1998 (the "Base Indenture"),
between the Company and Bankers Trust Company, as trustee (the "Trustee"), as
heretofore supplemented and amended and as to be further supplemented and
amended by a fourth supplemental indenture, dated March 22, 2002, to the Base
Indenture relating to the Senior Notes (the "Supplemental Indenture," and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
Pursuant to a Calculation Agent Agreement, dated as of March
22, 2002 (the "Calculation Agent Agreement"), between the Company and Bankers
Trust Company, as calculation agent thereunder (the "Calculation Agent"), the
Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriters as follows:
(a) A registration statement on Form S-3 (File Nos. 333-45069, 000-00000-00 and
333-45069-02), in respect of the Senior Notes and certain other securities
has been prepared and filed in accordance with the provisions of the
Securities Act of 1933, as amended (the "1933 Act"), with the Securities
and Exchange Commission (the "Commission"); such registration statement and
any post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Underwriters, has been declared effective by the
Commission in such form (except that copies of the registration statement,
as amended, and any post-effective amendment delivered to the Underwriters
need not include exhibits but shall include all documents incorporated by
reference therein); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the best knowledge of the Company, threatened by
the Commission (any preliminary prospectus, as supplemented by a
preliminary prospectus supplement, included in such registration statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being hereinafter called
a "Preliminary Prospectus"); such registration statement, as it became
effective, including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes, in
the form in which it was included in the Registration Statement at the time
it became effective, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and the Prospectus
as amended or supplemented in final form by a prospectus supplement
relating to the Senior Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 3(f) hereof, including any documents incorporated by reference
therein as of the date of such filing, being hereinafter called the "Final
Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement or
Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply in
all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no warranty
or representation to the Underwriters with respect to: (A) any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly for use
in the Final Supplemented Prospectus; or (B) any information set forth in
the Final Supplemented Prospectus under the caption "Description of the
Series D Senior Notes - Book-Entry Only Issuance -- The Depository Trust
Company".
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects with
the applicable provisions of the 1933 Act, the 1934 Act, the 1939 Act
(hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the applicable
effective date as to the Registration Statement and any amendment thereto,
and (ii) as of the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or supplemented, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
Company makes no warranties or representations with respect to (A) that
part of the Registration Statement which shall constitute the Statements of
Eligibility (Form T-1) (collectively, the "Form T-1") under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), (B) statements or
omissions made in the Registration Statement or the Final Supplemented
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters expressly for use therein or (C)
any information set forth in the Final Supplemented Prospectus under the
caption "Description of the Series D Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for use of Form
S-3, as set forth in the General Instructions thereof, have been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws of
the State of Mississippi, is duly qualified to carry on its business as a
foreign corporation under the laws of the State of Alabama, and has due
corporate authority to carry on the public utility business in which it is
engaged and to own and operate the properties used by it in such business,
to enter into and perform its obligations under this Agreement and the
Indenture and to issue and sell the Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the Closing
Date, will have been duly executed and delivered by the Company, and,
assuming due authorization, execution and delivery of the Indenture by the
Trustee, the Indenture will, on the Closing Date, constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other similar laws
affecting creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or
in equity) (the "Enforceability Exceptions"); the Indenture will conform in
all material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture will
have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly authorized by
the Company and, on the Closing Date, the Senior Notes will have been duly
executed by the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described in the
Final Supplemented Prospectus, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions, will be in the form contemplated
by, and entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The Calculation Agent Agreement has been duly authorized by the Company
and, on the Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Calculation Agent Agreement by the Calculation Agent, the Calculation Agent
Agreement will, on the Closing Date, constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions.
(k) The execution, delivery and performance by the Company of this Agreement,
the Calculation Agent Agreement, the Indenture and the Senior Notes and the
consummation by the Company of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder and
thereunder shall have been duly authorized by all necessary corporate
action on the part of the Company and do not and will not result in any
violation of the charter or bylaws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
under (A) any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company is a party or by which
it may be bound or to which any of its properties may be subject (except
for conflicts, breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse to
the transactions contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or
any regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its properties.
(l) No authorization, approval, consent or order of any court or governmental
authority or agency is necessary in connection with the issuance and sale
by the Company of the Senior Notes or the transactions by the Company
contemplated in this Agreement, except (A) such as may be required under
the 1933 Act or the rules and regulations thereunder; (B) such as may be
required under the Public Utility Holding Company Act of 1935, as amended;
(C) the qualification of the Indenture under the 1939 Act; and (D) such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
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(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, the principal amount of Senior Notes set forth in
Schedule I to this Agreement opposite the name of such Underwriter (plus any
additional amount of Senior Notes that such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof) at a price equal to
99.75% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes shall be made
at the offices of Xxxxxxxx Xxxxxxx LLP, Bank of America Plaza, 000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx at 10:00 A.M., Atlanta time, on March
22, 2002 or such other time, place or date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being
herein called the "Closing Date"). Payment shall be made to the Company by wire
transfer in federal funds at the Closing Date against delivery of the Senior
Notes to the Representative. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the principal amount of the Senior Notes which it has
agreed to purchase. The Representative, individually and not as Representative
of the Underwriters, may (but shall not be obligated to) make payment of the
principal amount of the Senior Notes to be purchased by any Underwriter whose
payment has not been received by the Closing Date, but such payment shall not
relieve such Underwriter from its obligations hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Representative not later than 12:00 Noon, New York time,
on the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the Underwriters
as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made,
including any post-effective amendment (in each case including all exhibits
filed therewith, and including unsigned copies of each consent and
certificate included therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically requested). As soon
as the Company is advised thereof, it will advise the Representative orally
of the issuance of any stop order under the 1933 Act with respect to the
Registration Statement, or the institution of any proceedings therefor, of
which the Company shall have received notice, and will use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued. The Company will deliver to the Representative
sufficient conformed copies of the Registration Statement, the Prospectus
and the Final Supplemented Prospectus and of all supplements and amendments
thereto (in each case without exhibits) for distribution to the
Underwriters and, from time to time, as many copies of the Prospectus and
the Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each amendment and
supplement to the Final Supplemented Prospectus relating to the offering of
the Senior Notes in such quantities as the Underwriters may from time to
time reasonably request. If, during the period (not exceeding nine months)
when the delivery of a prospectus shall be required by law in connection
with the sale of any Senior Notes by an Underwriter, any event relating to
or affecting the Company, or of which the Company shall be advised in
writing by the Underwriters, shall occur, which in the opinion of the
Company or of Underwriters' counsel should be set forth in a supplement to
or an amendment of the Final Supplemented Prospectus in order to make the
Final Supplemented Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final Supplemented
Prospectus or to file under the 1934 Act any document incorporated by
reference in the Preliminary Prospectus or Prospectus in order to comply
with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify
the Underwriters to suspend solicitation of purchases of the Senior Notes
and (ii) at its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or supplements
or an amendment or amendments to the Final Supplemented Prospectus which
will supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances when the Final
Supplemented Prospectus is delivered, not misleading or which will effect
any other necessary compliance. In case any Underwriter is required to
deliver a prospectus in connection with the sale of any Senior Notes after
the expiration of the period specified in the preceding sentence, the
Company, upon the request of such Underwriter, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to the
Final Supplemented Prospectus, complying with Section 10(a) of the 1933
Act. During the period specified in the second sentence of this subsection,
the Company will continue to prepare and file with the Commission on a
timely basis all documents or amendments required under the 1934 Act and
the rules and regulations thereunder; provided, that the Company shall not
file such documents or amendments without also furnishing copies thereof
prior to such filing to the Representative and Xxxxx Xxxxxxxxxx LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to qualify
the Senior Notes for offering and sale under the applicable securities laws
of such states and the other jurisdictions of the United States as the
Representative may designate; provided, however, that the Company shall not
be obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a consent to service of process or
to file annual reports or to comply with any other requirements in
connection with such qualification deemed by the Company to be unduly
burdensome.
(d) The Company will make generally available to its security holders as soon
as practicable but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying
with the provisions of Rule 158 of the rules and regulations under the 1933
Act) covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in Rule 158) of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement, the Company
will not, without the Underwriters' prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Senior Notes or any security convertible into
or exchangeable into or exercisable for the Senior Notes or any debt
securities substantially similar to the Senior Notes (except for the
Senior Notes issued pursuant to this Agreement).
(f) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Representative of such filing and to confirm such advice in
writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but not
limited to, the expenses of (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificate(s) for the Senior Notes,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Senior Notes under securities laws in accordance with
the provisions of Section 3(c) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the printing and delivery
to the Underwriters of copies of the Registration Statement as originally filed
and of each amendment thereto and of the Prospectus, the Final Supplemented
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable, (viii) the
fees and expenses of the Trustee and the Calculation Agent, including the fees
and disbursements of counsel for the Trustee and the Calculation Agent in
connection with the Calculation Agent Agreement, the Indenture and the Senior
Notes, (ix) any fees payable in connection with the rating of the Senior Notes,
(x) the cost and charges of any transfer agent or registrar and (xi) the cost of
qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes including fees and disbursements of their
counsel, Xxxxx Xxxxxxxxxx LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Senior
Notes are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall contain
no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which
have heretofore been delivered to the Representative, are deemed
acceptable to the Underwriters and the Company and all provisions of
such order or orders hereafter entered shall be deemed acceptable to
the Underwriters and the Company unless within 24 hours after receiving
a copy of any such order any party to this Agreement shall give notice
to the other parties to the effect that such order contains an
unacceptable provision).
(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated the Closing Date, of Xxxxx & Xxxxxxx LLP,
general counsel for the Company, substantially in the form
attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Xxxxxxxx Xxxxxxx LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule II-B.
(3) The opinion, dated the Closing Date, of Xxxxx & Case, counsel to the
Trustee and the Calculation Agent, substantially in the
form attached hereto as Schedule III.
(4) The opinion, dated as of the Closing Date, of Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, substantially in the form attached hereto
as Schedule IV.
(5) At the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, any
material adverse change in the business, properties or financial
condition of the Company, whether or not arising in the ordinary course
of business, and the Representative shall have received a certificate
of the President or any Vice President of the Company, and dated as of
the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iii) the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied on or prior to the Closing Date, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or, to the knowledge of the Company, threatened by the
Commission.
(6) On the Closing Date, the Representative shall have received from Xxxxxx
Xxxxxxxx LLP a letter dated the Closing Date to the effect that: (A)
they are independent public accountants with respect to the Company
within the meaning of the 1933 Act and the rules and regulations under
the 1933 Act; (B) in their opinion, the financial statements audited by
them and incorporated by reference in the Final Supplemented Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the rules and regulations
under the 1934 Act; and (C) on the basis of certain limited procedures
performed through a specified date not more than five business days
prior to the date of such letter, namely (i) reading the minute books
of the Company; (ii) performing the procedures specified by the
American Institute of Certified Public Accountants ("AICPA") for a
review of interim financial information as described in Statement on
Auditing Standards No. 71, "Interim Financial Information", on the
unaudited financial statements, if any, of the Company incorporated in
the Final Supplemented Prospectus and of the latest available unaudited
financial statements of the Company, if any, for any calendar quarter
subsequent to the date of those incorporated in the Final Supplemented
Prospectus; and (iii) making inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
regarding such unaudited financial statements or any specified
unaudited amounts derived therefrom (it being understood that the
foregoing procedures do not constitute an audit performed in accordance
with generally accepted auditing standards and they would not
necessarily reveal matters of significance with respect to the comments
made in such letter, and accordingly that Xxxxxx Xxxxxxxx LLP make no
representations as to the sufficiency of such procedures for the
Underwriters' purposes), nothing came to their attention that caused
them to believe that: (1) any material modifications should be made to
the unaudited condensed financial statements, if any, incorporated in
the Final Supplemented Prospectus, for them to be in conformity with
generally accepted accounting principles; (2) such unaudited condensed
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts for Operating Revenues, Earnings
Before Interest and Income Taxes and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to Fixed Charges
and Earnings to Fixed Charges Plus Preferred Dividend Requirements
(Pre-Income Tax Basis), set forth in the Final Supplemented Prospectus
do not agree with the amounts set forth in or derived from the
unaudited financial statements for the same period or were not
determined on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or incorporated by
reference in Registration Statement; (4) as of a specified date not
more than five business days prior to the date of delivery of such
letter, there has been any change in the capital stock or long-term
debt of the Company or any decrease in net assets as compared with
amounts shown in the latest audited balance sheet incorporated in the
Final Supplemented Prospectus, except in each case for changes or
decreases which (i) the Final Supplemented Prospectus discloses have
occurred or may occur, (ii) are occasioned by the declaration of
dividends, (iii) are occasioned by draw-downs under existing pollution
control financing arrangements, (iv) are occasioned by draw-downs and
regularly scheduled payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or stock to satisfy
mandatory or optional redemption provisions relating thereto, or (vi)
are disclosed in such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings Before Interest and Income Taxes and Net
Income After Dividends on Preferred Stock and the unaudited Ratios of
Earnings to Fixed Charges and Earnings to Fixed Charges Plus Preferred
Dividend Requirements (Pre Income Tax Basis) for any period for any
calendar quarter subsequent to those set forth in (3) above, which if
available shall be set forth in such letter, do not agree with the
amounts set forth in or derived from the unaudited financial statements
for the same period or were not determined on a basis substantially
consistent with that of the corresponding audited amounts or ratios
included or incorporated by reference in the Final Supplemented
Prospectus.
(7) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as it may reasonably require
for the purpose of enabling it to pass upon the issuance and sale of
the Senior Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Senior Notes as herein contemplated shall
be satisfactory in form and substance to the Representative and Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters.
(8) That no amendment or supplement to the Registration Statement or the
Final Supplemented Prospectus filed subsequent to the date of this
Agreement (including any filing made by the Company pursuant to Section
13 or 14 of the 1934 Act) shall be unsatisfactory in form to Xxxxx
Xxxxxxxxxx LLP or shall contain information (other than with respect to
an amendment or supplement relating solely to the activity of the
Underwriters) which, in the reasonable judgment of the Representative,
shall materially impair the marketability of the Senior Notes.
(9) The Company shall have performed its obligations when and as provided
under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
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The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
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(a) The Company agrees to indemnify and hold harmless the Underwriters and each
person, if any, who controls any such Underwriter within the meaning of Section
15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, 1934 Act or otherwise, and to reimburse
any such Underwriter and such controlling person or persons, if any, for any
legal or other expenses incurred by them in connection with defending any
actions, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Final Supplemented Prospectus or, if the
Company shall furnish to the Underwriters any amendments or any supplements
thereto, or shall make any filings pursuant to Section 13 or 14 of the 1934 Act
which are incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus as
so amended or supplemented, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission which was made in such Registration Statement, Preliminary
Prospectus, Prospectus or the Final Supplemented Prospectus in reliance upon and
in conformity with information furnished in writing to the Company by, or
through the Representative on behalf of, the Underwriters for use therein and
except that this indemnity with respect to the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus, if the Company shall have
furnished any amendment or supplement thereto, shall not inure to the benefit of
any Underwriter (or of any person controlling such Underwriter) on account of
any losses, claims, damages, liabilities or actions arising from the sale of the
Senior Notes to any person if a copy of the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus (exclusive of documents
incorporated therein by reference pursuant to Item 12 of Form S-3), as the same
may then be amended or supplemented, shall not have been sent or given by or on
behalf of such Underwriter to such person with or prior to the written
confirmation of the sale involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in the Preliminary
Prospectus, the Prospectus or the Final Supplemented Prospectus as supplemented
or amended at the time of such confirmation. Each Underwriter agrees, within ten
days after the receipt by it of notice of the commencement of any action in
respect of which indemnity may be sought by it, or by any person controlling it,
from the Company on account of its agreement contained in this Section 7, to
notify the Company in writing of the commencement thereof but the omission of
such Underwriter so to notify the Company of any such action shall not release
the Company from any liability which it may have to such Underwriter or to such
controlling person otherwise than on account of the indemnity agreement
contained in this Section 7. In case any such action shall be brought against an
Underwriter or any such person controlling such Underwriter and such Underwriter
shall notify the Company of the commencement thereof as above provided, the
Company shall be entitled to participate in (and, to the extent that it shall
wish, including the selection of counsel, to direct) the defense thereof, at its
own expense. In case the Company elects to direct such defense and select such
counsel, any Underwriter or controlling person shall have the right to employ
its own counsel, but, in any such case, the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
the employment of such counsel has been authorized in writing by the Company in
connection with defending such action. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include any statement as
to, or an admission of, fault, culpability or a failure to act, by or on behalf
of any indemnified party. In no event shall any indemnifying party have any
liability or responsibility in respect of the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors and such of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
the same extent and upon the same terms as the indemnity agreement of the
Company set forth in Section 7(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by, or through the
Representative on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
-----------------------------------------------------------------------------
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------------------------
(a) The Representative may terminate this Agreement, by notice to the Company,
at any time at or prior to the Closing Date if (i) trading in securities on the
New York Stock Exchange shall have been generally suspended, (ii) minimum or
maximum ranges for prices shall have been generally established on the New York
Stock Exchange by the Commission or by the New York Stock Exchange, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities, or (iv) there shall have occurred any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by the United States Congress or any other substantial national or international
calamity or emergency affecting the United States, in any such case provided for
in clauses (i) through (iv) with the result that, in the reasonable judgement of
the Representative, the marketability of the Senior Notes shall have been
materially impaired.
(b) If this Agreement shall be terminated by the Representative pursuant to
subsection (a) above or because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters for the reasonable fees and disbursements of Xxxxx
Xxxxxxxxxx LLP and for the out of pocket expenses (in an amount not exceeding
$10,000) reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Senior Notes and, upon such reimbursement,
the Company shall be absolved from any further liability hereunder, except as
provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If an Underwriter shall fail on the Closing Date to purchase
the Senior Notes that it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for the non-defaulting Underwriters, or
any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of the
Senior Notes, the non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the Senior
Notes, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to Xxxxxx Brothers Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Debt Capital Markets,
Power Group; notices to the Company shall be delivered to 0000 Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx, Attention: Corporate Secretary, with a copy to
Southern Company Services, Inc., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx
00000, Attention: Xxxxx X. Xxxxxx.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
MISSISSIPPI POWER COMPANY
By: ______________________________
Title: _____________________________
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX BROTHERS INC.
As Representative of the Several Underwriters
named in Schedule I hereto
By: XXXXXX BROTHERS INC.
By: ___________________________
Title:
SCHEDULE I
NAME OF UNDERWRITER Principal Xxxxxx
of Senior Notes
Xxxxxx Brothers Inc. $48,000,000
Banc One Capital Markets, Inc. $32,000,000
Total $80,000,000
Schedule II-A
[Letterhead of Xxxxx & Xxxxxxx LLP]
___________ __, 2002
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MISSISSIPPI POWER COMPANY
Series D Floating Rate Senior Notes
due _______, 20__
Ladies and Gentlemen:
We have acted as general counsel to Mississippi Power Company
(the "Company") in connection with (i) the Company's issuance of $______
aggregate principal amount of its Series D Floating Rate Senior Notes due
_______, 20__ (the "Notes") pursuant to a Senior Note Indenture dated as of May
1, 1998, by and between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as supplemented by the Fourth Supplemental Indenture dated as of
__________ __, 2002 (collectively, the "Indenture"); and (ii) the purchase by
you of the Notes pursuant to the terms of an Underwriting Agreement dated March
__, 2002 (the "Underwriting Agreement"), among the Company and the underwriters
named in Schedule I thereto (the "Underwriters") for whom you are acting as
Representative. Pursuant to a Calculation Agent Agreement, dated as of March __,
2002 (the "Calculation Agent Agreement"), between the Company and Bankers Trust
Company, as calculation agent thereunder (the "Calculation Agent"), the Company
has engaged the Calculation Agent to perform certain services with respect to
the floating interest rate on the Notes. This opinion is being delivered to you
as Representative pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-45069, 000-00000-00 and
333-45069-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
February 9, 1998 as supplemented by a final prospectus supplement dated
__________, 2002 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended __________________, ___ (the "Form 10-K"), the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ____________ and the
Current Reports on Form 8-K of the Company dated __________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
We have also examined the opinion of Xxxxxxxx Xxxxxxx LLP to
you of even date with respect to matters relating to the Securities Act of 1933,
as amended; the Securities Exchange Act of 1934, as amended; the Trust Indenture
Act of 1939, as amended, and to the applicable rules and regulations of the
Commission under said Acts and in expressing the opinions stated herein, with
respect to such matters, we are relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Xxxxx
Xxxxxxxxxx LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Mississippi, is
duly qualified to carry on its business as a foreign corporation under the laws
of the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business and to enter into and perform its obligations under
the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Notes have been
obtained; such orders are sufficient for the issuance and the sale of the Notes;
the issuance and the sale of the Notes conform in all material respects with the
terms of such orders; and no other order, consent or other authorization or
approval of any Mississippi or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and sale of the Notes in accordance with the terms of the
Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company and with representatives of Xxxxxx Xxxxxxxx
LLP. Based upon our examination of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents, our investigations made
in connection with the preparation of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents and our participation in
the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Final Supplemented
Prospectus, as of __________, complied as to form in all material respects with
the requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
therein of a material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the caption "Description of the Series D Senior Notes - Book-Entry Only Issuance
- The Depository Trust Company".
We are members of the State Bar of Mississippi and we do not
express any opinion herein concerning any law other than the law of such State
and the federal law of the United States and, to the extent set forth herein,
the laws of the States of Alabama and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Xxxxxxxx Xxxxxxx LLP and Xxxxx Xxxxxxxxxx LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinion relates to matters of Mississippi and Alabama
law.
Yours very truly,
XXXXX & XXXXXXX LLP
Schedule II-B
[Letterhead of XXXXXXXX XXXXXXX LLP]
__________ __, 2002
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MISSISSIPPI POWER COMPANY
Series D Floating Rate Senior Notes
due _______, 20__
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the
"Company") in connection with (i) the Company's issuance of $__________
aggregate principal amount of its Series D Floating Rate Senior Notes due
________, 20__ (the "Notes") pursuant to a Senior Note Indenture dated as of May
1, 1998, by and between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as supplemented by the Fourth Supplemental Indenture dated as of
__________ __, 2002 (collectively, the "Indenture"); and (ii) the purchase by
you of the Notes pursuant to the terms of an Underwriting Agreement dated March
__, 2002 (the "Underwriting Agreement"), among the Company and the underwriters
named in Schedule I thereto (the "Underwriters") for whom you are acting as
Representative. Pursuant to a Calculation Agent Agreement, dated as of March __,
2002 (the "Calculation Agent Agreement"), between the Company and Bankers Trust
Company, as calculation agent thereunder (the "Calculation Agent"), the Company
has engaged the Calculation Agent to perform certain services with respect to
the floating interest rate on the Notes. This opinion is being delivered to you
as Representative pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-45069, 000-00000-00 and
333-45069-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
February 9, 1998 as supplemented by a final prospectus supplement dated
__________, 2002 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended _____________, ___ (the "Form 10-K"), the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ____________ and the
Current Reports on Form 8-K of the Company dated _________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Mississippi and Alabama law upon the opinion dated the date hereof rendered to
you by Xxxxx & Xxxxxxx LLP and relying as to matters of New York law upon the
opinion dated the date hereof rendered to you by Xxxxx Xxxxxxxxxx LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Mississippi, is duly
qualified to carry on its business as a foreign corporation under the laws of
the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the properties used
by it in such business and to enter into and perform its obligations under the
Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Notes have been
obtained; such orders are sufficient for the issuance and sale of the Notes; the
issuance and sale of the Notes conform in all material respects with the terms
of such orders; and no other order, consent or other authorization or approval
of any Mississippi or United States governmental body (other than in connection
or in compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction, as to which we express no opinion) is legally required for the
issuance and sale of the Notes in accordance with the terms of the Underwriting
Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Xxxxxx Xxxxxxxx LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of _______________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series D Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Alabama, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Xxxxx & Xxxxxxx LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c) of the Underwriting Agreement,
insofar as such opinion relates to matters of federal securities law.
Yours very truly,
XXXXXXXX XXXXXXX LLP
Schedule III
[Letterhead of White & Case]
__________ __, 2002
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Mississippi Power Company
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Mississippi Power Company
Series D Floating Rate Senior Notes due ______, 20__
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust Company (the "Bank")
in connection with (a) the Senior Note Indenture, dated as of May 1, 1998 (the
"Original Indenture"), between Mississippi Power Company (the "Company") and the
Bank, as Trustee, and (b) the Fourth Supplemental Indenture dated as of
________, 2002 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee and (c) the
Calculation Agent Agreement, dated as of March __, 2002 (the "Calculation Agent
Agreement"), between the Company and the Bank, as Calculation Agent.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of
New York;
ii) the Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture and the Calculation
Agent Agreement, has duly executed and delivered the Indenture and the
Calculation Agent Agreement, and, insofar as the laws governing the
trust powers of the Bank are concerned and assuming due authorization,
execution and delivery thereof by the Company, each of the Indenture
and the Calculation Agent Agreement constitutes a legal, valid and
binding agreement of the Bank, enforceable against the Bank in
accordance with its terms subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general principles of equity (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank of the Indenture
and the Calculation Agent Agreement does not conflict with or
constitute a breach of the charter or bylaws of the Bank; and
iv) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of
New York having jurisdiction over the trust powers of the Bank is
required in connection with the execution and delivery by the Bank of
the Indenture or the Calculation Agent Agreement or the performance by
the Bank of its duties thereunder, except such as have been obtained,
taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
WHITE & CASE
Schedule IV
[Letterhead of XXXXX XXXXXXXXXX LLP]
__________ __, 2002
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MISSISSIPPI POWER COMPANY
Series D Floating Rate Senior Notes
due ________, 20__
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Mississippi Power Company (the "Company") of $____________ of its Series D
Floating Rate Senior Notes (the "Notes") pursuant to a Senior Note Indenture
dated as of May 1, 1998, by and between the Company and Bankers Trust Company,
as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Fourth Supplemental Indenture dated as of __________ __,
2002 (collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated March __, 2002 (the
"Underwriting Agreement"), among the Company and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
Representative. Pursuant to a Calculation Agent Agreement, dated as of March __,
2002 (the "Calculation Agent Agreement"), between the Company and Bankers Trust
Company, as calculation agent thereunder (the "Calculation Agent"), the Company
has engaged the Calculation Agent to perform certain services with respect to
the floating interest rate on the Notes. This opinion is being delivered to you
as Representative pursuant to Section 5(c)(4) of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-45069, 000-00000-00 and
333-45069-02) pertaining to the Notes (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated ________, as supplemented by a final prospectus supplement dated
_________, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended ________________,
___ (the "Form 10-K"), the Quarterly Reports on Form 10-Q of the Company for the
quarters ended _________ the Current Reports on Form 8-K of the Company, dated
__________ (the "Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Mississippi and Alabama upon the opinion of Xxxxx &
Xxxxxxx LLP dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Mississippi, is duly qualified to carry on its business as a foreign corporation
in the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business and to enter into and perform its obligations under
the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Notes have
been obtained; such orders are sufficient for the issuance and sale of the
Notes; the issuance and sale of the Notes conform in all material respects with
the terms of such orders; and no other order, consent or other authorization or
approval of any Mississippi or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and sale of the Notes in accordance with the terms of the
Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Xxxxxx Xxxxxxxx LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above (i) we are
of the opinion that the Registration Statement, as of its effective date, and
the Final Supplemented Prospectus, as of ___________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series D Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company".
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the States of Mississippi and Alabama.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Xxxxx & Xxxxxxx LLP and Xxxxxxxx Xxxxxxx LLP may rely on
this opinion in giving their opinions pursuant to Section 5 of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and
Xxxxxxxx Xxxxxxx LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
XXXXX XXXXXXXXXX LLP
