Exhibit A-1(b)
MISSISSIPPI POWER COMPANY
TO
--------------------------,
Trustee.
SUPPLEMENTAL INDENTURE
providing among other things for
FIRST MORTGAGE BONDS
____% Series due __________, 20__
Dated as of ____________________
SUPPLEMENTAL INDENTURE, dated as of , made and entered into by and
between MISSISSIPPI POWER COMPANY, a corporation organized and existing under
the laws of the State of Mississippi (hereinafter commonly referred to as the
"Company"), and , a corporation organized
and existing under the laws of the State of , with its principal office in ,
(hereinafter commonly referred to as the "Trustee"), as Trustee under the
Indenture dated as of September 1, 1941 between Mississippi Power Company, a
Maine corporation (hereinafter sometimes referred to as the "Maine
Corporation"), and Xxxxxx Guaranty Trust Company of New York, under its former
name of Guaranty Trust Company of New York, as Trustee (hereinafter sometimes
referred to as the "Original Trustee"), securing bonds issued and to be issued
as provided therein (hereinafter sometimes referred to as the "Indenture");
WHEREAS the Maine Corporation and the Original Trustee have executed
and delivered the Indenture for the purpose of securing an issue of bonds of the
Series due described therein and such additional bonds as may from time to time
be issued under and in accordance with the terms of the Indenture, the aggregate
principal amount of bonds to be secured thereby being not limited, and the
Indenture fully describes and sets forth the property conveyed thereby and is of
record in the Office of the Clerk of the Chancery Court of each county in the
State of Mississippi and in the Office of the Judge of Probate of each county in
the State of Alabama in which this Supplemental Indenture is to be recorded and
is on file at the principal office of the Trustee, above referred to; and
WHEREAS the Maine Corporation or the Company, as the case may be, and
the Original Trustee or the Trustee, as the case may be, have executed and
delivered various supplemental indentures for the purpose, among others, of
further securing said bonds, which supplemental indentures describe and set
forth additional property conveyed thereby and are also of record in the Offices
of the Clerks of the Chancery Courts of some or all of the counties in the State
of Mississippi and in the Offices of the Judges of Probate of some or all of the
counties in the State of Alabama in which this Supplemental Indenture is to be
recorded and are on file at the corporate trust office of the Trustee, above
referred to; and
WHEREAS the Maine Corporation by Articles of Merger dated October 11,
1972, effective December 21, 1972, was merged into the Company which continued
under the name and style of "Mississippi Power Company"; and
WHEREAS the Company and the Original Trustee entered into a
Supplemental Indenture dated as of December 1, 1972, which provided, among other
things, for the assumption of the Indenture by the Company; and
WHEREAS said Supplemental Indenture dated as of December 1, 1972
became effective on the effective date of such Articles of Merger; and
WHEREAS the Company has succeeded to and has been substituted for the
Maine Corporation under the Indenture with the same effect as if it had been
named therein as the mortgagor corporation; and
WHEREAS pursuant to that certain Agreement of Resignation, Appointment
and Acceptance dated as of August 31, 1994, among the Company, the Original
Trustee and the Trustee, and Section 16.16 of the Indenture, the Original
Trustee gave written notice to the Company of its resignation as trustee under
the Indenture effective at the close of business on August 31, 1994; and
pursuant to said Agreement and Section 16.18 of the Indenture, the Company
appointed the Trustee as successor trustee under the Indenture effective at the
close of business on , and the Trustee accepted such appointment thereupon, as
provided in Section 16.23 of the Indenture, becoming fully vested with all the
estates, properties, rights, powers, trusts, duties and obligations of its
predecessor in trust under the Indenture, with like effect as if originally
named as trustee therein; and
WHEREAS the Indenture provides for the issuance of bonds thereunder in
one or more series and the Company, by appropriate corporate action in
conformity with the terms of the Indenture, has duly determined to create a
series of bonds under the Indenture to be designated as " % Series due "
(hereinafter sometimes referred to as the " "), each of which bonds shall also
bear the descriptive title "First Mortgage Bond", the bonds of such series to
bear interest at the annual rate designated in the title thereof and to mature ;
and
WHEREAS each of the bonds of the Series is to be substantially in the
following form, to-wit:
[FORM OF BOND OF THE SERIES]
[FACE]
MISSISSIPPI POWER COMPANY
First Mortgage Bond, % Series Due
No. . . . . . . . $........
Mississippi Power Company, a Mississippi corporation (hereinafter
called the "Company"), for value received, hereby promises to pay to or
registered assigns, the principal sum of
Dollars on , and to pay to the registered holder hereof interest on said sum
from the latest semi-annual interest payment date to which interest has been
paid on the bonds of this series preceding the date hereof, unless the date
hereof be an interest payment date to which interest is being paid, in which
case from the date hereof, or unless the date hereof is prior to , in which case
from
(or, if this bond is dated between the record date for any interest payment
date and such interest payment date, then from such interest payment date,
provided, however, that if the Company shall default in payment of the interest
due on such interest payment date, then from the next preceding semi-annual
interest payment date to which interest has been paid on the bonds of this
series, or if such interest payment date is , from ), at the rate per annum,
until the principal hereof shall have become due and payable, specified in the
title of this bond, payable on and in each year.
The provisions of this bond are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
This bond shall not be valid or become obligatory for any purpose
unless and until it shall have been authenticated by the execution by the
Trustee or its successor in trust under the Indenture of the certificate
endorsed hereon.
IN WITNESS WHEREOF, MISSISSIPPI POWER COMPANY has caused this bond to
be executed in its name by its President or one of its Vice Presidents by his
signature or a facsimile thereof, and its corporate seal or a facsimile thereof
to be hereto affixed or imprinted hereon and attested by its Secretary or one of
its Assistant Secretaries by his signature or a facsimile thereof.
Dated,
MISSISSIPPI POWER COMPANY,
By:
-----------------------------------------
Title:
Attest:
Title:
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series designated therein,
described in the within-mentioned Indenture.
----------------------------,
as Trustee,
By:
---------------------------------------
Authorized Officer
[REVERSE]
MISSISSIPPI POWER COMPANY
First Mortgage Bond, % Series Due
The interest payable on any June 1 or December 1 will, subject to
certain exceptions provided in the Indenture hereinafter mentioned, be paid to
the person in whose name this bond is registered at the close of business on the
record date, which shall be the May 15 or November 15, as the case may be, next
preceding such interest payment date, or, if such May 15 or November 15 shall be
a legal holiday or a day on which banking institutions in the Borough of
Manhattan, The City of New York, are authorized to close, the next preceding day
which shall not be a legal holiday or a day on which such institutions are so
authorized to close. The principal of and the premium, if any, and interest on
this bond shall be payable at the office or agency of the Company in the Borough
of Manhattan, The City of New York, designated for that purpose, in any coin or
currency of the United States of America which at the time of payment is legal
tender for public and private debts.
This bond is one of the bonds issued and to be issued from time to
time under and in accordance with and all secured by an indenture of mortgage or
deed of trust dated as of September 1, 1941, given by Mississippi Power Company,
a Maine corporation (to which the Company is successor by merger), to Xxxxxx
Guaranty Trust Company of New York under its former name of Guaranty Trust
Company of New York, to which Bankers Trust Company is successor (hereinafter
sometimes referred to as the "Trustee"), as Trustee, and indentures supplemental
thereto, to which indenture and indentures supplemental thereto (hereinafter
referred to collectively as the "Indenture") reference is hereby made for a
description of the property mortgaged and pledged, the nature and extent of the
security and the rights, duties and immunities thereunder of the Trustee and the
rights of the holders of said bonds and of the Trustee and of the Company in
respect of such security, and the limitations on such rights. By the terms of
the Indenture the bonds to be secured thereby are issuable in series which may
vary as to date, amount, date of maturity, rate of interest and in other
respects as in the Indenture provided.
Prior to , the bonds of this series may not be redeemed by the Company
at its option or by the operation of the improvement fund or the replacement
provisions of the Indenture or by the use of proceeds of released property.
On or after , upon notice given by mailing the same, by first class
mail postage prepaid, not less than thirty nor more than forty-five days prior
to the date fixed for redemption to each registered holder of a bond to be
redeemed (in whole or in part) at the last address of such holder appearing on
the registry books, any or all of the bonds of this series may be redeemed by
the Company, at its option, or by operation of various provisions of the
Indenture, at any time and from time to time by the payment of the principal
amount thereof and accrued interest thereon to the date fixed for redemption,
together (a), if redeemed otherwise than by the operation of the improvement
fund or the replacement provisions of the Indenture and otherwise than by the
use of proceeds of released property, as more fully set forth in the Indenture,
with a premium equal to a percentage of the principal amount thereof determined
as set forth in the tabulation below under the heading "Regular Redemption
Premium", and (b), if redeemed by the operation of the improvement fund or the
replacement provisions of the Indenture or by the use of proceeds of released
property, as more fully set forth in the Indenture, without premium:
If Redeemed During the Twelve Months' Period Ending the Last Day of November,
Year Regular Redemption
Premium
%
%
%
%
%
%
%
%
%
and without premium if redeemed on or after .
------------------
In case of certain defaults as specified in the Indenture, the
principal of this bond may be declared or may become due and payable on the
conditions, at the time, in the manner and with the effect provided in the
Indenture.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this bond, or for any claim based hereon, or
otherwise in respect hereof or of the Indenture, to or against any incorporator,
stockholder, director or officer, past, present or future, as such, of the
Company, or of any predecessor or successor company, either directly or through
the Company, or such predecessor or successor company, under any constitution or
statute or rule of law, or by the enforcement of any assessment or penalty, or
otherwise, all such liability of incorporators, stockholders, directors and
officers being waived and released by the holder and owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Indenture.
This bond is transferable by the registered holder hereof, in person
or by attorney duly authorized, at the corporate trust office of the Trustee, in
the Borough of Manhattan, The City of New York, but only in the manner
prescribed in the Indenture, upon the surrender and cancellation of this bond
and the payment of charges for transfer, and upon any such transfer a new
registered bond or bonds of the same series and maturity date and for the same
aggregate principal amount, in authorized denominations, will be issued to the
transferee in exchange herefor. The Company and the Trustee may deem and treat
the person in whose name this bond is registered as the absolute owner for the
purpose of receiving payment of or on account of the principal, premium, if any,
and interest due hereon and for all other purposes. Bonds of this series are
issuable only in fully registered form without coupons in denominations of
$1,000 and any integral multiple thereof. Registered bonds of this series shall
be exchangeable for registered bonds of other authorized denominations having
the same aggregate principal amount, in the manner and upon the conditions
prescribed in the Indenture. However, notwithstanding the provisions of the
Indenture, no charge shall be made upon any transfer or exchange of bonds of
this series other than for any tax or taxes or other governmental charge
required to be paid by the Company.
AND WHEREAS all acts and things necessary to make the bonds, when
authenticated by the Trustee and issued as in the Indenture, as heretofore
supplemented and amended, and this Supplemental Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute the Indenture,
as heretofore supplemented and amended, and this Supplemental Indenture valid,
binding and legal instruments for the security thereof, have been done and
performed, and the creation, execution and delivery of the Indenture, as
heretofore supplemented and amended, and this Supplemental Indenture and the
creation, execution and issue of bonds subject to the terms hereof and of the
Indenture, have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, and of the
acceptance and purchase by the holders thereof of the bonds issued and to be
issued under the Indenture, and of the sum of One Dollar duly paid by the
Trustee to the Company, and of other good and valuable considerations, the
receipt of which is hereby acknowledged, and for the purpose of securing the due
and punctual payment of the principal of and premium, if any, and interest on
the bonds now outstanding under the Indenture, or the Indenture as supplemented
and amended, and the $ principal amount of bonds of the Series proposed to be
initially issued and all other bonds which shall be issued under the Indenture,
or the Indenture as supplemented and amended, and for the purpose of securing
the faithful performance and observance of all covenants and conditions therein
and in any indenture supplemental thereto set forth, the Company has given,
granted, bargained, sold, transferred, assigned, hypothecated, pledged,
mortgaged, warranted, aliened and conveyed and by these presents does give,
grant, bargain, sell, transfer, assign, hypothecate, pledge, mortgage, warrant,
alien and convey unto Bankers Trust Company, as Trustee, as provided in the
Indenture, and its successor or successors in the trust thereby and hereby
created and to its or their assigns forever, all the right, title and interest
of the Company in and to the property located in the States of Mississippi and
Alabama described in Exhibit A attached hereto and made a part hereof, together
(subject to the provisions of Article X of the Indenture) with the tolls, rents,
revenues, issues, earnings, income, products and profits thereof, and does
hereby confirm that the Company will not cause or consent to a partition, either
voluntary or through legal proceedings, of property, whether herein described or
heretofore or hereafter acquired, in which its ownership shall be as a tenant in
common except as permitted by and in conformity with the provisions of the
Indenture and particularly of said Article X thereof.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the premises, property,
franchises and rights, or any thereof, referred to in the foregoing granting
clauses, with the reversion and reversions, remainder and remainders and
(subject to the provisions of Article X of the Indenture) the tolls, rents,
revenues, issues, earnings, income, products and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to the
aforesaid premises, property, franchises and rights and every part and parcel
thereof.
TO HAVE AND TO HOLD all said premises, property, franchises and rights
hereby conveyed, assigned, pledged or mortgaged, or intended so to be, unto the
Trustee, its successors in trust, and their assigns forever;
BUT IN TRUST, NEVERTHELESS, with power of sale, for the equal and
proportionate benefit and security of the holders of all bonds and interest
coupons now or hereafter issued under the Indenture, pursuant to the provisions
thereof, and for the enforcement of the payment of said bonds and coupons when
payable and the performance of and compliance with the covenants and conditions
of the Indenture, without any preference, distinction or priority as to lien or
otherwise of any bond or bonds over others by reason of the difference in time
of the actual issue, sale or negotiation thereof or for any other reason
whatsoever, except as otherwise expressly provided in the Indenture, or the
Indenture as supplemented and amended; and so that each and every bond now or
hereafter issued thereunder shall have the same lien, and so that the principal
of and premium, if any, and interest on every such bond shall, subject to the
terms of the Indenture, or the Indenture as supplemented and amended, be equally
and proportionately secured thereby and hereby, as if it had been made,
executed, delivered, sold and negotiated simultaneously with the execution and
delivery of the Indenture.
AND IT IS EXPRESSLY DECLARED that all bonds issued and secured
thereunder and hereunder are to be issued, authenticated and delivered, and all
said premises, property, franchises and rights hereby and by the Indenture, or
the Indenture as supplemented and amended, conveyed, assigned, pledged or
mortgaged, or intended so to be (including the right, title and interest of the
Company in and to any and all premises, property, franchises and rights of every
kind and description, real, personal and mixed, tangible and intangible,
thereafter acquired by the Company and whether or not specifically described in
the Indenture or in an indenture supplemental thereto, except any therein
expressly excepted), are to be dealt with and disposed of, under and subject to
the terms, conditions, stipulations, covenants, agreements, trusts, uses and
purposes expressed in the Indenture, or the Indenture as supplemented and
amended.
SECTION 1. There is hereby created a series of bonds designated as
hereinbefore set forth (said bonds being sometimes herein referred to as the
"bonds of the Series"), and the form thereof shall be substantially as
hereinbefore set forth. Bonds of the Series shall mature on the date specified
in the form thereof hereinbefore set forth. The definitive bonds of the
Series shall be issued only in fully registered form without coupons in
denominations of $1,000 and any integral multiple thereof. The serial numbers of
bonds of the Series shall be such as may be approved by any officer of the
Company, the execution thereof by any such officer to be conclusive evidence of
such approval.
Bonds of the Series, until the principal thereof shall have become due
and payable, shall bear interest at the annual rate designated in the title
thereof, payable semi-annually on June 1 and December 1 in each year.
The principal of, the premium, if any, and the interest on the bonds
of the Series shall be payable in any coin or currency of the United States of
America which at the time of payment is legal tender for public and private
debts, at the office or agency of the Company in the Borough of Manhattan, The
City of New York, designated for that purpose.
Bonds of the Series may be transferred at the corporate trust office
of the Trustee, in . Bonds of the Series shall be exchangeable for other bonds
of the same series, in the manner and upon the conditions prescribed in the
Indenture, upon the surrender of such bonds at said corporate trust office of
the Trustee. However, notwithstanding the provisions of Section 2.05 of the
Indenture, no charge shall be made upon any transfer or exchange of bonds of the
Series other than for any tax or taxes or other governmental charge required to
be paid by the Company.
The person in whose name any bond of the Series is registered at the
close of business on any record date (as hereinbelow defined) with respect to
any interest payment date shall be entitled to receive the interest payable on
such interest payment date notwithstanding the cancellation of such bond upon
any transfer or exchange thereof subsequent to the record date and prior to such
interest payment date, except if and to the extent the Company shall default in
the payment of the interest due on such interest payment date, in which case
such defaulted interest shall be paid to the person in whose name such bond (or
any bond or bonds issued, directly or after intermediate transactions, upon
transfer or exchange or in substitution thereof) is registered on a subsequent
record date for such payment established as hereinafter provided. A subsequent
record date may be established by the Company by notice mailed to the holders of
bonds not less than ten days preceding such record date, which record date shall
be not less than five nor more than thirty days prior to the subsequent interest
payment date. The term "record date" as used in this Section with respect to any
regular interest payment date shall mean the May 15 or November 15, as the case
may be, next preceding such interest payment date, or, if such May 15 or
November 15 shall be a legal holiday or a day on which banking institutions in
the Borough of Manhattan, The City of New York, are authorized by law to close,
the next preceding day which shall not be a legal holiday or a day on which such
institutions are so authorized to close.
Bonds of the Series shall be dated and, except as provided in this
Section, shall bear interest as provided in Section 2.03 of the Indenture;
provided, however, that, so long as there is no existing default in the payment
of interest on such bonds, the holder of any such bond authenticated by the
Trustee between the record date for any interest payment date and such interest
payment date shall not be entitled to the payment of the interest due on such
interest payment date and shall have no claim against the Company with respect
thereto; provided, further, that, if and to the extent the Company shall default
in the payment of the interest due on such interest payment date, then any such
bond shall bear interest from the June 1 or December 1, as the case may be, next
preceding the date of such bond, to which interest has been paid or, if the
Company shall be in default with respect to the interest due on , then from .
Prior to , the bonds of the Series shall not be redeemable at the
option of the Company, or by the operation of Section 4 of the Supplemental
Indenture dated as of June 1, 1964 or of Section 2 of this Supplemental
Indenture or of the improvement fund provisions of any Supplemental Indenture
other than this Supplemental Indenture or by the use of proceeds of released
property.
On or after , any or all of the bonds of the Series shall be
redeemable at the option of the Company, or by operation of various provisions
of the Indenture, at any time and from time to time, prior to maturity, upon
notice given by mailing the same, by first class mail postage prepaid, not less
than thirty nor more than forty-five days prior to the date fixed for redemption
to each registered holder of a bond to be redeemed (in whole or in part) at the
last address of such holder appearing on the registry books, at the principal
amount thereof and accrued interest thereon to the date fixed for redemption,
together (a), if redeemed otherwise than by the operation of Section 4 of the
Supplemental Indenture dated as of June 1, 1964 or of Section 2 of this
Supplemental Indenture or of the improvement fund provisions of any Supplemental
Indenture other than this Supplemental Indenture and otherwise than by the use
of proceeds of released property, with a regular redemption premium equal to a
percentage of the principal amount thereof determined as set forth in the
tabulation appearing in the form of bond hereinbefore set forth, and (b), if
redeemed by the operation of Section 4 of the Supplemental Indenture dated as of
June 1, 1964 or of Section 2 of this Supplemental Indenture or of the
improvement fund provisions of any Supplemental Indenture other than this
Supplemental Indenture or by the use of proceeds of released property, either
(i) with a special redemption premium, if any, equal to a percentage of the
principal amount thereof determined as set forth in the tabulation appearing in
the form of bond hereinbefore set forth or (ii), if no special redemption
premium is so set forth, then without premium.
SECTION 2. The Company covenants that, so long as any bonds of the
Series shall be outstanding under the Indenture, it will, on or before June 1 in
each year commencing with :
(a) deposit with the Trustee subject to the
provisions of this Section cash and/or bonds of any series
authenticated under the Indenture then outstanding (taken at
their principal amount) in an amount equal to the "improvement
fund requirement" (which term, as used in this Section, shall
mean for any year an amount equal to one per centum (1%) of
the aggregate principal amount of bonds of the Series
authenticated and delivered by the Trustee pursuant to the
provisions of Articles IV, V and VI of the Indenture, prior to
January 1 of that year, after deducting from such aggregate
principal amount the principal amount of bonds of the Series
which, prior to January 1 of that year, have been deposited
with the Trustee for cancellation as the basis for the release
of property or for the withdrawal of cash representing
proceeds of released property or have been purchased or
redeemed by the use of proceeds of released property); or,
(b) to the extent that it does not so deposit cash
and/or bonds, certify to the Trustee unfunded net property
additions in an amount equal to one hundred sixty-six and
two-thirds per centum (166 2/3%) of the portion of the
improvement fund requirement not so satisfied.
The term "improvement fund certificate", as used in this Section,
shall mean an accountant's certificate filed by the Company with the Trustee
pursuant to this Section. Such certificate may be a separate certificate or it
may be combined with an improvement fund certificate or certificates filed
pursuant to the improvement fund provisions of the Indenture or of any other
indenture or indentures supplemental thereto.
On or before the first day of June in each year, beginning , so long
as any bonds of the Series are outstanding under the Indenture, the Company
shall deliver to the Trustee an improvement fund
certificate showing the improvement fund requirement for that year, the amount
of cash, if any, and the principal amount of bonds authenticated under the
Indenture then outstanding, if any, then to be deposited by the Company with the
Trustee and, if the Company elects to satisfy the improvement fund requirement
for that year in whole or in part by the certification of unfunded net property
additions, the amount, if any, of unfunded net property additions to be
certified. The Company shall, concurrently with the delivery to the Trustee of
such certificate, deposit with the Trustee the amount of cash, if any, and the
principal amount of bonds, if any, shown in such certificate.
No property additions shall be certified in any improvement fund
certificate pursuant to the provisions of this Section unless there shall be
delivered to the Trustee with such certificate the applicable certificates,
opinion of counsel, instruments and cash, if any, required by paragraphs (3),
(4), (5), (7), (9) and (10) of Section 4.05 of the Indenture, showing that the
Company has unfunded net property additions equal to the amount so certified.
The Trustee shall hold any cash deposited with it under the provisions
of this Section as a part of the mortgaged and pledged property until paid out
as hereinafter provided. Any cash deposited with the Trustee under the
provisions of this Section may, upon receipt by the Trustee of the written order
of the Company signed by its President or a Vice President, of a treasurer's
certificate such as is described in paragraph (2) of Section 4.05 of the
Indenture and of an opinion of counsel,
(1) be withdrawn, used or applied by the Company in accordance
with the provisions of paragraph (2), (3) or (4) of Section 10.05 of
the Indenture, except that any premium required to be paid to purchase
or redeem bonds shall be paid out of funds held by the Trustee under
this Section and the Company shall not be required to furnish the
Trustee with additional funds for such purpose or to reimburse the
Trustee or the improvement fund for moneys so paid out. Interest and
expenses in connection with the purchases or redemptions pursuant to
this Section shall be dealt with as provided in Section 9.05 of the
Indenture; or
(2) be withdrawn by the Company to the extent of sixty per
centum (60%) of the amount of unfunded net property additions
certified to the Trustee for such purpose, but only upon receipt by
the Trustee of the applicable certificates, opinion of counsel,
instruments and cash, if any, required by paragraphs (3), (4), (5),
(7), (9) and (10) of Section 4.05 of the Indenture, showing that the
Company has unfunded net property additions equal to the amount so
certified.
Bonds deposited with the Trustee pursuant to this Section, or
purchased or redeemed by the use of cash deposited pursuant to this Section,
shall be cancelled and shall not be thereafter made the basis for the
authentication of bonds, the withdrawal, use or application of cash, or the
release of property, under any of the provisions of the Indenture, or thereafter
used to satisfy the requirements of this Section or of any other improvement
fund provided for in the Indenture or in any indenture supplemental thereto or
to satisfy any replacement deficit pursuant to Section 4 of the Supplemental
Indenture dated as of June 1, 1964.
To the extent that unfunded net property additions are certified to
the Trustee to satisfy the improvement fund requirement for any year in whole or
in part or as a basis for the withdrawal of cash deposited with the Trustee
under the provisions of this Section, the amount of such unfunded net property
additions shall thereafter be deducted in computing the amount of unfunded net
property additions under Section 1.11 of the Indenture and in computing gross
property additions under Section 7.07 of the Indenture.
SECTION 3. The Company covenants that the provisions of Section 4 of
the Supplemental Indenture dated as of June 1, 1964, which are to remain in
effect so long as any bonds of the Thirteenth Series shall be outstanding under
the Indenture, shall remain in full force and effect so long as any bonds of the
Series shall be outstanding under the Indenture.
The Company covenants that it will not, in any calendar year
subsequent to , redeem any bonds of the Series through the operation of Section
4 of the Supplemental Indenture dated as of June 1, 1964 or this Section in a
principal amount that would exceed one per centum (1%) of the aggregate
principal amount of bonds of the Series initially authenticated and delivered
under this Supplemental Indenture.
SECTION 4. The Company covenants that, so long as any bonds of the
Series shall be outstanding under the Indenture, it will not, after , declare or
pay any dividends, or make any other distributions (except (a) dividends payable
or distributions made in shares of common stock of the Company and (b) dividends
payable in cash in cases where, concurrently with the payment of the dividend,
an amount in cash equal to the dividend is received by the Company as a capital
contribution or as the proceeds of the issue and sale of shares of its common
stock), on or in respect of its common stock, or purchase or otherwise acquire
for a consideration any shares of its common stock, if the aggregate of such
dividends, distributions and such consideration for purchase or other
acquisition of shares of its common stock after , shall exceed
(i) the earned surplus of the Company accumulated
after (determined in accordance with generally accepted accounting
principles and without giving effect to charges to earned surplus on
account of such dividends, distributions or acquisitions or on account
of the disposition of any amounts which may then be classified by the
Company on its books as amounts in excess of the original cost of
utility plant or to charges or credits to earned surplus on account of
items inherent in the balance sheet at ), plus
(ii) the earned surplus of the Company accumulated
prior to in an amount not exceeding $ , plus -----------
(iii) such additional amount as shall be authorized
or approved, upon application by the Company, by the Securities and
Exchange Commission, or by any successor commission thereto, under the
Public Utility Holding Company Act of 1935, as amended.
For the purposes of this Section, in determining the earned surplus of
the Company accumulated after , there shall be deducted the dividends accruing
subsequent to on preferred stock of the Company and the total amount, if any, by
which the charges to income or earned surplus since as provision for
depreciation of the mortgaged and pledged property (other than specially
classified property) shall have been less than the sum of the amounts equal to
the product of the applicable percentage (as defined in Section 4 of the
Supplemental Indenture dated as of June 1, 1964) and the mathematical average of
the amounts of depreciable property (as defined in said Section 4) at the
opening of business on the first day and at the close of business on the last
day of each calendar year (and, proportionately, of each period of months which
is less than a calendar year) subsequent to included in the period for which
earned surplus is being determined. The term "consideration", as used in this
Section, shall mean cash or fair value if the consideration be other than cash,
and the term "provision for depreciation", as used in this Section, shall not be
deemed to include provision for the amortization of any amounts classified by
the Company on its books as amounts in excess of the original cost of utility
plant.
SECTION 5. As supplemented by this Supplemental Indenture, the
Indenture, as heretofore supplemented and amended, is in all respects ratified
and confirmed, and the Indenture, as heretofore supplemented and amended, and
this Supplemental Indenture shall be read, taken and construed as one and the
same instrument.
SECTION 6. Nothing in this Supplemental Indenture contained shall, or
shall be construed to, confer upon any person other than a holder of bonds
issued under the Indenture, the Company and the Trustee any right or interest to
avail himself of any benefit under any provision of the Indenture, as heretofore
supplemented and amended, or of this Supplemental Indenture.
SECTION 7. This Supplemental Indenture may be executed in several
counterparts and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, said Mississippi Power Company has caused this
Supplemental Indenture to be executed in its corporate name by its President or
one of its Vice Presidents and its corporate seal to be hereunto affixed and to
be attested by its Secretary or one of its Assistant Secretaries, and said
Bankers Trust Company, to evidence its acceptance hereof, has caused this
Supplemental Indenture to be executed in its corporate name by one of its Vice
Presidents, Assistant Vice Presidents or Trust Officers and its corporate seal
to be hereunto affixed and to be attested by one of its Assistant Secretaries,
in several counterparts, all as of the day and year first above written.
MISSISSIPPI POWER COMPANY
[CORPORATE SEAL]
By:___________________________
Title:
Attest:
--------------------------
Title:
Signed, sealed and delivered this day of , by Mississippi Power Company, in the
County of , State of Mississippi, in the presence of:
--------------------------
--------------------------
[CORPORATE SEAL]
By:___________________________
Title:
------------------------------------
Attest:
--------------------------
Title:
Signed, sealed and delivered this day of by in the County of New York, State of
New York, in the presence of:
--------------------------
--------------------------
STATE OF MISSISSIPPI )
)SS.:
COUNTY OF )
--------------------------
Personally appeared before me, the undersigned authority in and for the
aforesaid state and county, , as , and , as , of MISSISSIPPI POWER COMPANY, who
acknowledged that they signed, attached the corporate seal of the corporation
thereto, and delivered the foregoing instrument on the day and year therein
stated, by the authority of and as the act and deed of the corporation.
Given under my hand and official seal this day of , .
, Notary Public
-----------------------------------------------------------------------
[NOTARIAL SEAL]
My Commission Expires
STATE OF MISSISSIPPI )
) SS.:
COUNTY OF )
--------------------------
On the day of , in the year , before me personally came -----------
---------- ------------- ------------------------ , to me known, who being by me
duly sworn, did depose and say that he resides at ; that he is a
---------------- ----------- of MISSISSIPPI POWER COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation; and that he signed his name thereto by like order.
---------------------------
, Notary Public
-----------------------------------------------------------------------
[NOTARIAL SEAL]
My Commission Expires
STATE OF NEW YORK )
) SS.:
COUNTY OF )
---------------------------
Personally appeared before me, the undersigned authority in and for the
aforesaid state and county, , as , and , as , of ,who acknowledged that they
signed, attached the corporate seal of the corporation thereto, and delivered
the foregoing instrument on the day and year therein stated, by the authority of
and as the act and deed of the corporation.
Given under my hand and official seal this day of , . ----------
-----------------------------
Notary Public
State of New York
[NOTARIAL SEAL] No.
--------------
Qualified in Xxx Xxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx
XXXXX XX XXX XXXX )
) SS.:
COUNTY OF )
---------------------------
On the day of , in the year , before me personally came -----------
--------- ------------- ---------------- , to me known, who being by me duly
sworn, did depose and say that he resides at ; that he is an ----------------
---------- of , one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation; and that he signed his name
thereto by like order.
-----------------------------
Notary Public
State of New York
[NOTARIAL SEAL] No.
--------------
Qualified in New York County
Commission Expires
----------------
