Exhibit 1
$90,000,000 Series E 5 5/8% Senior Notes
due May 1, 2033
MISSISSIPPI POWER COMPANY
UNDERWRITING AGREEMENT
April 24, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
As Representative of the Several Underwriters
0000 Xxxxxxxx
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 $90,000,000 aggregate principal amount of
the Series E 5 5/8% Senior Notes due May 1, 2033 (the "Senior Notes") as set
forth in Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Representative deems
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 Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company), as trustee (the "Trustee"), as
heretofore supplemented and amended and as to be further supplemented and
amended by a fifth supplemental indenture, dated as of April 29, 2003, 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.
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(g) 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 through the Representative expressly for use in the Final
Supplemented Prospectus; or (B) any information set forth in the Final
Supplemented Prospectus under the captions "Description of the Series
E Senior Notes - Book-Entry Only Issuance - The Depository Trust
Company" and "The Policy and the Insurer" or in Appendix A thereto.
(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 of 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 not misleading in the case of the Registration Statement and
any amendment thereto, and, in the light of the circumstances under
which they were made, not misleading in the case of the Final
Supplemented Prospectus and any Prospectus as further amended or
supplemented; 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) under the Trust Indenture Act of 1939, as amended (the "1939
Act"); (B) statements or omissions made in the Registration Statement,
the Final Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters through the Representative expressly for use therein; or
(C) any information set forth in the Final Supplemented Prospectus
under the captions "Description of the Series E Senior Notes -
Book-Entry Only Issuance - The Depository Trust Company" and "The
Policy and the Insurer" or in Appendix A thereto.
(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 execution, delivery and performance by the Company of this
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.
(k) 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.
(l) The financial statements incorporated by reference in the Registration
Statement and the Final Supplemented Prospectus, together with the
related schedules and notes, present fairly, in all material respects,
the financial position, results of operations and cash flows of the
Company as of and for the dates indicated; said financial statements
have been prepared in conformity with accounting principles generally
accepted in the United States ("GAAP") applied on a consistent basis
(except that the unaudited financial statements may be subject to
normal year-end adjustments) throughout the periods involved and
necessarily include amounts that are based on the best estimates and
judgments of management. The selected financial data and the summary
financial information included in the Registration Statement and the
Final Supplemented Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited and unaudited financial statements incorporated by reference
in the Registration Statement.
(m) The Company has duly authorized all necessary action to be taken by it
for the procurement of an irrevocable financial guaranty insurance
policy (the "Insurance Policy") issued by XL Capital Assurance Inc.
(the "Insurer"), insuring the payment of principal and interest on the
Senior Notes, when due.
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
96.85% of the principal amount thereof.
(b) Payment of the purchase price 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 April 29, 2003 (unless postponed in accordance with the
provisions of Section 10 hereof) 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 each Underwriter's account,
to accept delivery of, receipt for, and make payment of the principal amount of
the Senior Notes which each Underwriter has agreed to purchase. The
Representative, individually and not as a 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 0000 Xxx.
(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 the
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 0000 Xxx) 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) The Company will use its best efforts to effect the listing of the
Senior Notes on the New York Stock Exchange.
(f) During a period of 15 days from the date of this Agreement, the
Company will not, without the Representative's 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). The
Representative agrees that commercial paper or other debt securities
with scheduled maturities of less than one year are not subject to
this Section 3(f).
(g) 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, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Senior Notes,
(ix) any fees payable in connection with the rating of the Senior Notes, (x) the
fees and expenses incurred in connection with the listing of the Senior Notes on
the New York Stock Exchange, (xi) the premium payable to the Insurer in
connection with the issuance of the Insurance Policy, (xii) the cost and charges
of any transfer agent or registrar and (xiii) 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 White & Case, counsel to
the Trustee, substantially in the form attached hereto as
Schedule III.
(4) The opinion, dated the Closing Date, of Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, substantially in the form attached
hereto as Schedule IV.
(5) The opinion, dated the Closing Date, of counsel for the Insurer,
substantially in the form attached hereto as Schedule V.
(6) 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.
(7) On the Closing Date, the Representative shall have received from
Deloitte & Touche 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 by reference in
the 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 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
Deloitte & Touche 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 by reference
in the Prospectus, for them to be in conformity with GAAP; (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 Income
Taxes and Net Income After Dividends on Preferred Stock and the
unaudited Ratio of Earnings to Fixed Charges, set forth in the
Prospectus do not agree with the amounts set forth in or derived
from the unaudited financial statements for the same period; (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 by reference in the
Prospectus, except in each case for changes or decreases which
(i) the Prospectus discloses have occurred or may occur, (ii) are
occasioned by the declaration of dividends, (iii) are occasioned
by draw-downs and regularly scheduled payments of capitalized
lease obligations, (iv) are occasioned by the purchase or
redemption of bonds or stock to satisfy mandatory or optional
redemption provisions relating thereto, (v) are occasioned by
reclassification of current maturities of long-term debt or (vi)
are disclosed in such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings Before Income Taxes and Net Income
After Dividends on Preferred Stock and the unaudited Ratio of
Earnings to Fixed Charges 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 Prospectus.
(8) 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.
(9) On the Closing Date, the Senior Notes shall have been approved
for listing on the New York Stock Exchange upon notice of
issuance.
(10) 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 0000 Xxx) 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.
(11) The Company shall have performed its obligations when and as
provided under this Agreement.
(12) Evidence that the Insurance Policy has been issued by the Insurer
and confirmation that the Senior Notes have been rated at least
"Aaa" by Xxxxx'x Investors Service, Inc. and at least "AAA" by
Standard & Poor's, a division of The XxXxxx-Xxxx Companies.
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
Representative 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.
--------------------------------------------
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.
---------------
(a) The Company agrees to indemnify and hold harmless each of 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 by reference therein, 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 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, any Underwriter 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 or there shall have
been a material disruption in settlement of securities generally, (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, crisis or emergency (including, without limitation, acts of terrorism)
affecting the United States, in any such case provided for in clauses (i)
through (iv) with the result that, in the reasonable judgment 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 in the proportion that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, 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 the Representative at Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxxxx, III;
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:
Xxxx X. Xxxx.
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 XXXXXXX & CO. INCORPORATED
As Representative of the Several Underwriters
named in Schedule I hereto
By: ___________________________
Title:
SCHEDULE I
NAME OF UNDERWRITER Principal Amount
of Senior Notes
Xxxxxx Xxxxxxx & Co. Incorporated $53,250,000
Banc of America Securities LLC $11,250,000
SunTrust Capital Markets, Inc. $11,250,000
Advest, Inc. $750,000
X.X. Xxxxxxx & Sons, Inc. $750,000
Xxxxxxxx & Partners, L.P. $750,000
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc. $750,000
Xxxxxxxxxx & Co. Inc. $750,000
H&R Block Financial Advisors, Inc. $750,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC $750,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated $750,000
McDonald Investments Inc., A KeyCorp Company $750,000
XxXxxx, Xxxxx & Co. Inc $750,000
Prudential Securities Incorporated $750,000
Quick and Xxxxxx, Inc. $750,000
Xxxxxxx Xxxxx & Associates, Inc. $750,000
RBC Xxxx Xxxxxxxx Inc. $750,000
Xxxx, Xxxx & Co. LLC $750,000
Xxxxxxx Xxxxxx & Co., Inc. $750,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. $750,000
Wachovia Securities, Inc. $750,000
Xxxxx Fargo Investment Services, LLC $750,000
Total $90,000,000
Schedule II-A
[Letterhead of Xxxxx & Xxxxxxx LLP]
April ___, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
MISSISSIPPI POWER COMPANY
Series E 5 5/8% Senior Notes
due May 1, 2033
Ladies and Gentlemen:
We have acted as general counsel to Mississippi Power Company
(the "Company") in connection with (i) the Company's issuance of $90,000,000
aggregate principal amount of its Series E 5 5/8% Senior Notes due May 1, 2033
(the "Notes") pursuant to a Senior Note Indenture dated as of May 1, 1998, by
and between the Company and Deutsche Bank Trust Company Americas (formerly known
as Bankers Trust Company), as trustee (the "Trustee"), as heretofore
supplemented and as further supplemented by the Fifth Supplemental Indenture
dated as of April 29, 2003 (collectively, the "Indenture"); and (ii) the
purchase by you of the Notes pursuant to the terms of an Underwriting Agreement
dated April 24, 2003 (the "Underwriting Agreement"), among the Company and the
underwriters named in Schedule I thereto (the "Underwriters") for whom you are
acting as Representative. 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 and certain other securities (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act"), and the prospectus of the Company dated February 9, 1998 as
supplemented by a final prospectus supplement dated April 24, 2003 (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 December
31, 2002 (the "Form 10-K") and the Current Reports on Form 8-K of the Company
dated April 21, 2003 and April 24, 2003 (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
certificate 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, other than those of the Company, 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 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 (the "Trust Indenture Act"), 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, 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. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, 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 (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.
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 your counsel and with representatives
of Deloitte & Touche 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 April 24, 2003, 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 Form 10-K), 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) contained,
as of its date, or contains, on the date hereof, any untrue statement therein of
a material fact or omitted, as of its date, or omits, on the date hereof, 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 captions "Description of the Series E
Senior Notes - Book-Entry Only Issuance - The Depository Trust Company" and "The
Policy and the Insurer" or in Appendix A thereto.
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 opinions relate to matters of Mississippi and Alabama
law.
Yours very truly,
XXXXX & XXXXXXX LLP
Schedule II-B
[Letterhead of XXXXXXXX XXXXXXX LLP]
April __, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
MISSISSIPPI POWER COMPANY
Series E 5 5/8% Senior Notes
due May 1, 2033
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the
"Company") in connection with (i) the Company's issuance of $90,000,000
aggregate principal amount of its Series E 5 5/8% Senior Notes due May 1, 2033
(the "Notes") pursuant to a Senior Note Indenture dated as of May 1, 1998, by
and between the Company and Deutsche Bank Trust Company Americas (formerly known
as Bankers Trust Company), as trustee (the "Trustee"), as heretofore
supplemented and as further supplemented by the Fifth Supplemental Indenture
dated as of April 29, 2003 (collectively, the "Indenture"); and (ii) the
purchase by you of the Notes pursuant to the terms of an Underwriting Agreement
dated April 24, 2003 (the "Underwriting Agreement"), among the Company and the
underwriters named in Schedule I thereto (the "Underwriters") for whom you are
acting as Representative. 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 and certain other securities (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act"), and the prospectus of the Company dated February 9, 1998 as
supplemented by a final prospectus supplement dated April 24, 2003 (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 December
31, 2002 (the "Form 10-K") and the Current Reports on Form 8-K of the Company
dated April 21, 2003 and April 24, 2003 (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
certificate 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, other than those of the Company, 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 and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based on 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. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, 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 (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 Deloitte & Touche
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 April 24, 2003, complied as to form in all
material respects with the relevant 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 Form 10-K), 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)
contained, as of its date, or contains, on the date hereof, any untrue statement
of a material fact or omitted, as of its date, or omits, on the date hereof, 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 captions "Description of the Series E
Senior Notes - Book-Entry Only Issuance - The Depository Trust Company" and "The
Policy and the Insurer" or in Appendix A thereto.
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]
April __, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
Mississippi Power Company
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Mississippi Power Company
Series E 5 5/8% Senior Notes due May 1, 2033
Ladies and Gentlemen:
We have acted as counsel to Deutsche Bank Trust Company
Americas (formerly known as 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 Fifth Supplemental Indenture dated as of April 29, 2003
(together with the Original Indenture, herein called the "Indenture"), between
the Company and the Bank, as Trustee.
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, has duly executed
and delivered the Indenture, 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, the Indenture 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 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
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]
April __, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
MISSISSIPPI POWER COMPANY
Series E 5 5/8% Senior Notes
due May 1, 2033
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Mississippi Power Company (the "Company") of $90,000,000 of its Series E 5 5/8%
Senior Notes (the "Notes") pursuant to a Senior Note Indenture dated as of May
1, 1998, by and between the Company and Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company), as trustee (the "Trustee"), as
heretofore supplemented and as further supplemented by the Fifth Supplemental
Indenture dated as of April 29, 2003 (collectively, the "Indenture"); and (ii)
the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated April 24, 2003 (the "Underwriting Agreement"), among the Company
and the underwriters named in Schedule I thereto (the "Underwriters") for whom
you are acting as Representative. 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 and certain other securities (the
"Registration Statement"), filed under the Securities Act of 1933, as amended
(the "Act"), and the prospectus of the Company dated February 9, 1998, as
supplemented by a final prospectus supplement dated April 24, 2003 (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 December
31, 2002 (the "Form 10-K") and the Current Reports on Form 8-K of the Company,
dated April 21, 2003 and April 24, 2003 (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
certificate 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 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. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee 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 representatives of Deloitte & Touche 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 April 24, 2003, 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 Form 10-K), 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)
contained, as of its date, or contains, on the date hereof, any untrue statement
of a material fact or omitted, as of its date, or omits, on the date hereof, 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 captions "Description of the Series E
Senior Notes - Book-Entry Only Issuance - The Depository Trust Company" and "The
Policy and the Insurer" or in Appendix A thereto.
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 (i) Xxxxx & Xxxxxxx LLP and Xxxxxxxx Xxxxxxx LLP may rely on
this opinion in giving their opinions pursuant to Section 5(c) of the
Underwriting Agreement, (ii) Xxxxxxxx Xxxxxxx LLP may rely on this opinion in
giving its opinion pursuant to Sections 102, 302 and 904 of the Indenture and
(iii) Xxxxx & Xxxxxxx LLP may rely on this opinion in giving its opinion in
connection with the Company's listing application with respect to the Notes to
the New York Stock Exchange, Inc., insofar as such opinions relate to matters of
New York law.
Very truly yours,
XXXXX XXXXXXXXXX LLP
Schedule V
[Letterhead of XL CAPITAL ASSURANCE INC.]
April __, 2003
To Each of the Addressees Listed
on the Attached Schedule A
MISSISSIPPI POWER COMPANY
Series E 5 5/8% Senior Notes
due May 1, 2033
Ladies and Gentlemen:
I am [Associate] General Counsel of XL Capital Assurance Inc.,
a New York stock insurance corporation (the "Corporation"), and have acted as
counsel to the Corporation in connection with the issuance of Financial Guaranty
Insurance Policy No. [ ] (the "Policy") relating to the above-captioned notes
(the "Notes").
In so acting, I have examined a copy of (a) the Policy, (b)
the Insurance and Indemnity Agreement, dated as of [ ] (the "Insurance
Agreement"), among [ ], (c) the Indemnification Agreement, dated as of [ ] (the
"Indemnification Agreement"), among [ ], (d) information under the heading "The
Policy and The Insurer" contained in the Prospectus of Mississippi Power Company
dated February 9, 1998, as supplemented by a Prospectus Supplement dated April
__, 2003 relating to the Notes (the "Final Supplemented Prospectus") and (e)
such other relevant documents as I have deemed necessary.
Based upon the foregoing, I am of the following opinion:
1. The Corporation is a stock insurance corporation, duly
incorporated and validly existing under the laws of the State of New York and is
licensed and authorized to issue the Policy and to perform its obligations under
the Policy under the laws of the State of New York.
2. The Policy, the Insurance Agreement and the Indemnification
Agreement (collectively, the "Insurance Documents") have been duly executed, and
the Policy, and assuming due authorization, execution and delivery of the
Insurance Agreement and the Indemnification Agreement by the parties thereto
(other than the Corporation), the Insurance Agreement and the Indemnification
Agreement are valid and binding obligations of the Corporation enforceable in
accordance with their terms except that the enforcement of the Insurance
Documents may be limited by laws relating to bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar laws 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 enforceability of rights to indemnification under the Insurance
Agreement and the Indemnification Agreement may be subject to limitations of
public policy under applicable securities laws.
3. The execution, delivery and performance by the Corporation
of its obligations under the Insurance Documents do not contravene any provision
of the charter or by-laws of the Corporation. The execution, delivery and
performance by the Corporation of its obligations under the Insurance Documents
do not, to the extent that either of the following would affect the validity or
enforceability of any of the Insurance Documents, (a) contravene any law or
government regulation or order presently binding on the Corporation or (b)
contravene any provision of or constitute a default under any indenture,
contract or other instrument to which the Corporation is a party or by which the
Corporation is bound.
4. The Policy is exempt from the registration requirements of
the Securities Act of 1933, as amended.
5. The information in the Final Supplemented Prospectus under
the heading "The Policy and the Insurer" is limited and does not purport to
provide the scope of disclosure required to be included in a prospectus with
respect to a registrant under the Act in connection with a public offering and
sale of securities of such registrant. Within such limited scope of disclosure,
however, there has not come to my attention any information that would cause me
to believe that the description of the Corporation referred to above, as of the
date of the Final Supplemented Prospectus and as of the date hereof, contained
or contains any untrue statement of a material fact or omitted, as of its date,
or omits, on the date hereof, to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that no opinion is rendered with respect to any
financial statements or other financial information contained or referred to
therein).
I am qualified to practice law in the State of New York and do
not purport to be an expert on, or to express any opinion concerning, any law
other than the laws of the State of New York and the federal laws of the United
States of America.
This opinion is being delivered to you in connection with the
issuance of the Policy and the execution of the other Insurance Documents and
may not be relied upon for any other purposes or by any other person without my
express written consent.
Very truly yours,
[Xxxx Xxxx]
[Xxxxx Xxxxxxxxx]
[Xxxx Xxxx Constant]
[Associate] General Counsel
