Exhibit 1
$100,000,000 Series C Floating Rate Senior Notes
due March 28, 2002
MISSISSIPPI POWER COMPANY
UNDERWRITING AGREEMENT
March 22, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Mississippi Power Company, a Mississippi corporation (the
"Company"), confirms its agreement (the "Agreement") with you (the
"Underwriter"), with respect to the sale by the Company and the purchase by the
Underwriter, of $100,000,000 principal amount of the Series C Floating Rate
Senior Notes due March 28, 2002 (the "Senior Notes").
The Company understands that the Underwriter proposes to make
a public offering of the Senior Notes as soon as the Underwriter 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 Bankers Trust Company, as trustee (the "Trustee"), as
heretofore supplemented and amended and as to be further supplemented and
amended by a third supplemental indenture, dated March 28, 2000, to the Base
Indenture relating to the Senior Notes (the "Supplemental Indenture," and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
Pursuant to a Calculation Agent Agreement, dated as of March
28, 2000 (the "Calculation Agent Agreement"), between the Company and Bankers
Trust Company, as calculation agent thereunder (the "Calculation Agent"), the
Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos. 333-45069,
333-45069-01 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 Underwriter, 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 Underwriter need not include exhibits but shall include all
documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to
the best knowledge of the Company, threatened by the Commission (any
preliminary prospectus, as supplemented by a preliminary prospectus
supplement, included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the 1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became effective,
including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes,
in the form in which it was included in the Registration Statement at
the time it became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the 1934 Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and
the Prospectus as amended or supplemented in final form by a
prospectus supplement relating to the Senior Notes in the form in
which it is filed with the Commission, pursuant to Rule 424(b) under
the 1933 Act in accordance with Section 3(f) hereof, including any
documents incorporated by reference therein as of the date of such
filing, being hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission thereunder, and as of
such time of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will comply in all material
respects with the applicable provisions of the 1934 Act and the rules
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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 Underwriter 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 Underwriter
expressly for use in the Final Supplemented Prospectus; or (B) any
information set forth in the Final Supplemented Prospectus under the
caption "Description of the Series C Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company".
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects
with the applicable provisions of the 1933 Act, the 1934 Act, the 1939
Act (hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the
applicable effective date as to the Registration Statement and any
amendment thereto, and (ii) as of the applicable filing date as to the
Final Supplemented Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the Company makes no warranties or
representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form
T-1) (collectively, the "Form T-1") under the Trust Indenture Act of
1939, as amended (the "1939 Act"), (B) statements or omissions made in
the Registration Statement or the Final Supplemented Prospectus in
reliance upon and in conformity with information furnished in writing
to the Company by the Underwriter expressly for use therein or (C) any
information set forth in the Final Supplemented Prospectus under the
caption "Description of the Series C Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of Mississippi, is duly qualified to carry on its business
as a foreign corporation under the laws of the State of Alabama, and
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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 Underwriter.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of
the Indenture by the Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally
or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in all
material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture
will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The Calculation Agent Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered by the Company, and, assuming due authorization, execution
and delivery of the Calculation Agent Agreement by the Calculation
Agent, the Calculation Agent Agreement will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions.
(k) The execution, delivery and performance by the Company of this
Agreement, the Calculation Agent Agreement, the Indenture and the
Senior Notes and the consummation by the Company of the transactions
contemplated herein and therein and compliance by the Company with its
obligations hereunder and thereunder shall have been duly authorized
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by all necessary corporate action on the part of the Company and do
not and will not result in any violation of the charter or bylaws of
the Company, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it
may be bound or to which any of its properties may be subject (except
for conflicts, breaches or defaults which would not, individually or
in the aggregate, be materially adverse to the Company or materially
adverse to the transactions contemplated by this Agreement), or (B)
any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency
or other governmental body having jurisdiction over the Company, or
any of its properties.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"); (C)
the qualification of the Indenture under the 1939 Act; and (D) such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITER; 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 the Underwriter, and the
Underwriter agrees to purchase from the Company, $100,000,000
principal amount of Senior Notes at a price equal to 99.971% of
the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made at the offices of Troutman Sanders LLP, Bank of
America Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta,
Georgia at 10:00 A.M., Atlanta time, on March 28, 2000 or such
other time, place or date as shall be agreed upon by the
Underwriter 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
Underwriter.
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
Underwriter shall accept such delivery.
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The certificate(s) for the Senior Notes will be made available
for examination by the Underwriter 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 Underwriter as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriter 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 Underwriter 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 Underwriter 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 Underwriter and, from time to time, as many copies of
the Prospectus and the Final Supplemented Prospectus as the Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act.
(b) The Company will furnish the Underwriter 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 Underwriter 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 the Underwriter, any event relating to
or affecting the Company, or of which the Company shall be advised in writing by
the Underwriter, shall occur, which in the opinion of the Company or of
Underwriter's counsel should be set forth in a supplement to or an amendment of
the Final Supplemented Prospectus in order to make the Final Supplemented
Prospectus not misleading in the light of the circumstances when it is
delivered, or if for any other reason it shall be necessary during such period
to amend or supplement the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the Preliminary Prospectus or
Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company
forthwith will (i) notify the Underwriter to suspend solicitation of purchases
of the Senior Notes and (ii) at its expense, make any such filing or prepare
and furnish to the Underwriter 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
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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 the 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 the Underwriter, will furnish to the Underwriter, at the expense of the
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 Underwriter and Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the Underwriter, 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 Underwriter may designate; provided, however, that
the Company shall not be obligated to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified or to file a
consent to service of process or to file annual reports or to comply
with any other requirements in connection with such qualification
deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the rules and regulations under the 1933 Act)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement, the
Company will not, without the Underwriter'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).
(f) As soon as practicable after the date of this Agreement and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Underwriter of such filing and to confirm such advice in
writing.
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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 Underwriter 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 Underwriter
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 Underwriter of copies of any blue sky survey, (vii) the fee of the
National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Trustee and the Calculation Agent,
including the fees and disbursements of counsel for the Trustee and the
Calculation Agent in connection with the Calculation Agent Agreement, the
Indenture and the Senior Notes, (ix) any fees payable in connection with
the rating of the Senior Notes, (x) the cost and charges of any transfer
agent or registrar and (xi) the cost of qualifying the Senior Notes with
The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriter shall pay all other expenses incurred by it in connection with its
offering of the Senior Notes including fees and disbursements of its counsel,
Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The
obligations of the Underwriter 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 Underwriter or the
Company (but all provisions of such order or orders heretofore
entered, copies of which have heretofore been delivered to the
Underwriter, are deemed acceptable to the Underwriter and the Company
and all provisions of such order or orders hereafter entered shall be
deemed acceptable to the Underwriter 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).
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(c) On the Closing Date the Underwriter shall have received:
(1) The opinion, dated the Closing Date, of Eaton and
Cottrell, P.A. general counsel for the Company, substantially in
the form attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders
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 and the Calculation Agent, substantially
in the form attached hereto as Schedule III.
(4) The opinion, dated as of the Closing Date, of Dewey
Ballantine LLP, counsel for the Underwriter, substantially in the
form attached hereto as Schedule IV.
(5) At the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of which
information is given in the Registration Statement and the Final
Supplemented Prospectus, any material adverse change in the
business, properties or financial condition of the Company,
whether or not arising in the ordinary course of business, and
the Underwriter shall have received a certificate of the
President or any Vice President of the Company, and dated as of
the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties
in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Date,
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the
knowledge of the Company, threatened by the Commission.
(6) On the Closing Date, the Underwriter shall have received
from Arthur Andersen 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 and schedules 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 1933 Act and the 1934 Act and the
rules and regulations under the 1933 Act and the 1934 Act; (C)
they have performed certain limited procedures 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) reading the unaudited financial statements, if any,
of the Company incorporated in the Final Supplemented Prospectus
and agreeing the amounts therein with the Company's accounting
records; (iii) making inquiries of certain officials of the
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Company who have responsibility for financial and accounting
matters regarding whether the unaudited financial statements, if
any, incorporated in the Final Supplemented Prospectus (a) are in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements incorporated in the Final Supplemented
Prospectus and (b) 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; (iv) reading the
unaudited amounts for Operating Revenues, Income Before Interest
Charges and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis), which amounts shall include such amounts for the
latest calendar quarter subsequent to that covered by the
financial statements incorporated by reference in the Final
Supplemented Prospectus for which such amounts are available at
the time this agreement becomes effective; (v) reading the
unaudited financial statements from which the amounts and ratios
described in (iv) were derived and agreeing the amounts therein
to the Company's accounting records; (vi) making inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters regarding whether (a) the
unaudited amounts and ratios referred to in (iv) above and the
unaudited financial statements referred to in (v) above are
stated on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or incorporated
by reference in the Final Supplemented Prospectus and (b) as of a
specified date not more than five business days prior to the date
of delivery of such letter, there has been any change in the
capital stock or long-term debt of the Company or any decrease in
net assets as compared with amounts shown in the latest audited
balance sheet incorporated in the Prospectus, except in each case
for changes or decreases which (I) the Final Supplemented
Prospectus discloses have occurred or may occur, (II) are
occasioned by the declaration of dividends, (III) are occasioned
by draw-downs under existing pollution control financing
arrangements, (IV) are occasioned by draw-downs and regularly
scheduled payments of capitalized lease obligations, (V) are
occasioned by the purchase or redemption of bonds or stock to
satisfy mandatory or optional redemption provisions relating
thereto, or (VI) are disclosed in such letter; (vii) reading the
unaudited amounts for Operating Revenues, Income Before Interest
Charges and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) for the latest calendar quarter subsequent to those
set forth in (iv) above, which if available shall be set forth in
such letter; (viii) reading the unaudited financial statements
from which the amounts and ratios described in (vii) above were
derived and which will be attached to such letter and agreeing
the amounts therein to the Company's accounting records; and (ix)
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding
whether the unaudited amounts and ratios referred to in (vii)
above and the unaudited financial statements referred to in
(viii) above are stated on a basis substantially consistent with
that of the corresponding audited amounts or ratios included or
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incorporated by reference in the Final Supplemented Prospectus;
and (D) reporting their findings as a result of performing the
limited procedures set forth in (C) above. It is 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 Arthur
Andersen LLP make no representations as to the sufficiency of
such procedures for the Underwriter's purposes.
(7) On the Closing Date, counsel for the Underwriter 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 Underwriter and Dewey Ballantine LLP,
counsel for the Underwriter.
(8) That no amendment or supplement to the Registration
Statement or the Final Supplemented Prospectus filed subsequent
to the date of this Agreement (including any filing made by the
Company pursuant to Section 13 or 14 of the 1934 Act) shall be
unsatisfactory in form to Dewey Ballantine LLP or shall contain
information (other than with respect to an amendment or
supplement relating solely to the activity of the Underwriter)
which, in the reasonable judgment of the Underwriter, shall
materially impair the marketability of the Senior Notes.
(9) The Company shall have performed its obligations when
and as provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter 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
Underwriter. 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.
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SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the 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 the 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 Underwriter
any amendments or any supplements thereto, or shall make any
filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary Prospectus,
the Registration Statement, the Prospectus or the Final
Supplemented Prospectus as so amended or supplemented, or arise
out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any such untrue statement or
alleged untrue statement or omission or alleged omission which
was made in such Registration Statement, Preliminary Prospectus,
Prospectus or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the
Company by the 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 the Underwriter (or of any person
controlling the 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 the 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. The 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 the Underwriter so to notify the Company of any such
action shall not release the Company from any liability which it
may have to the 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
the Underwriter or any such person controlling the Underwriter
and the 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
12
and select such counsel, the 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 the 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) The Underwriter agrees 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 the 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 the Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Underwriter may terminate this Agreement, by notice
to the Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by
federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any other
substantial national or international calamity or emergency affecting
13
the United States, in any such case provided for in clauses (i) through (iv)
with the result that, in the reasonable judgement of the Underwriter, the
market ability of the Senior Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the
Underwriter 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 Underwriter for the reasonable fees and
disbursements of Dewey Ballantine LLP and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the Underwriter 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. 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 Underwriter shall be directed to Salomon Smith Barney Inc.,
390 Greenwich Street, New York, New York 10013, Attention: Howard Hiller;
notices to the Company shall be delivered to 2992 West Beach, Gulfport,
Mississippi, Attention: Corporate Secretary, with a copy to Southern Company
Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention:
Jeffrey A. Spencer.
SECTION 11. PARTIES. This Agreement shall inure to the
benefit of and be binding upon the Underwriter, 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 Underwriter 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 Underwriter 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 the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. 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 13. 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.
14
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 Underwriter 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
SALOMON SMITH BARNEY INC.
By:___________________________
Title: _________________________
Schedule II-A
[Letterhead of Eaton and Cottrell, P.A.]
___________ __, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
MISSISSIPPI POWER COMPANY
Series C Floating Rate Senior Notes
due March __, 2002
Ladies and Gentlemen:
We have acted as general counsel to Mississippi Power Company
(the "Company") in connection with (i) the Company's issuance of $______
aggregate principal amount of its Series C Floating Rate Senior Notes due March
__, 2002 (the "Notes") pursuant to a Senior Note Indenture dated as of May 1,
1998, by and between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as supplemented by the Third Supplemental Indenture dated as of
__________ __, 2000 (collectively, the "Indenture"); and (ii) the purchase by
you of the Notes pursuant to the terms of an Underwriting Agreement dated March
__, 2000, among the Company and you (the "Underwriter") (the "Underwriting
Agreement"). Pursuant to a Calculation Agent Agreement, dated as of March __,
2000 (the "Calculation Agent Agreement"), between the Company and Bankers Trust
Company, as calculation agent thereunder (the "Calculation Agent"), the Company
has engaged the Calculation Agent to perform certain services with respect to
the floating interest rate on the Senior Notes. This opinion is being delivered
to you 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, 333-45069-01 and
333-45069-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
________, 2000 as supplemented by a final prospectus supplement dated
__________, 2000 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended __________________, ___ (the "Form 10-K"), the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ____________ and the
Current Reports on Form 8-K of the Company dated __________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
We have also examined the opinion of Troutman Sanders LLP to
you of even date with respect to matters relating to the Securities Act of 1933,
as amended; the Securities Exchange Act of 1934, as amended; the Trust Indenture
Act of 1939, as amended, and to the applicable rules and regulations of the
Commission under said Acts and in expressing the opinions stated herein, with
respect to such matters, we are relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Mississippi, is
duly qualified to carry on its business as a foreign corporation under the laws
of the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business and to enter into and perform its obligations under
the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Notes have been
obtained; such orders are sufficient for the issuance and the sale of the Notes;
the issuance and the sale of the Notes conform in all material respects with the
terms of such orders; and no other order, consent or other authorization or
approval of any Mississippi or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and sale of the Notes in accordance with the terms of the
Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
2
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 Underwriter pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above and in the Final Supplemented Prospectus in the second paragraph
under the caption "Experts". In the course of the preparation by the Company of
the Registration Statement, the Final Supplemented Prospectus and the Exchange
Act Documents, we participated in conferences with certain officers and
employees of the Company, with other counsel for the Company and with
representatives of Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents and our participation in the conferences referred to above, (i) we are
of the opinion that the Registration Statement, as of its effective date, and
the Final Supplemented Prospectus, as of __________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
3
therein of a material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the caption "Description of the Series C Senior Notes - Book-Entry Only Issuance
- - The Depository Trust Company".
We are members of the State Bar of Mississippi and we do not
express any opinion herein concerning any law other than the law of such State
and the federal law of the United States and, to the extent set forth herein,
the laws of the States of Alabama and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinion relates to matters of Mississippi and Alabama
law.
Yours very truly,
EATON AND COTTRELL, P.A.
4
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
MISSISSIPPI POWER COMPANY
Series C Floating Rate Senior Notes
due March __, 2002
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the
"Company") in connection with (i) the Company's issuance of $__________
aggregate principal amount of its Series C Floating Rate Senior Notes due March
__, 2002 (the "Notes") pursuant to a Senior Note Indenture dated as of May 1,
1998, by and between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as supplemented by the Third Supplemental Indenture dated as of
__________ __, 2000 (collectively, the "Indenture"); and (ii) the purchase by
you (the "Underwriter") of the Notes pursuant to the terms of an Underwriting
Agreement dated March __, 2000, among the Company and you (the "Underwriting
Agreement"). Pursuant to a Calculation Agent Agreement, dated as of March __,
2000 (the "Calculation Agent Agreement"), between the Company and Bankers Trust
Company, as calculation agent thereunder (the "Calculation Agent"), the Company
has engaged the Calculation Agent to perform certain services with respect to
the floating interest rate on the Notes. This opinion is being delivered to you
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, 333-45069-01 and
333-45069-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
___________, 2000 as supplemented by a final prospectus supplement dated
__________, 2000 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended _____________, ___ (the "Form 10-K"), the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ____________ and the
Current Reports on Form 8-K of the Company dated _________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Mississippi and Alabama law upon the opinion dated the date hereof rendered to
you by Eaton and Cottrell, P.A. and relying as to matters of New York law upon
the opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Mississippi, is duly
qualified to carry on its business as a foreign corporation under the laws of
the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the properties used
by it in such business and to enter into and perform its obligations under the
Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Notes have been
obtained; such orders are sufficient for the issuance and sale of the Notes; the
issuance and sale of the Notes conform in all material respects with the terms
of such orders; and no other order, consent or other authorization or approval
of any Mississippi or United States governmental body (other than in connection
or in compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction, as to which we express no opinion) is legally required for the
issuance and sale of the Notes in accordance with the terms of the Underwriting
Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
2
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 Underwriter 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 Arthur Andersen LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of _______________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
3
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series C Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Alabama, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Eaton and Cottrell, P.A. 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,
TROUTMAN SANDERS LLP
4
Schedule III
[Letterhead of White & Case]
__________ __, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
Mississippi Power Company
2992 West Beach
Gulfport, Mississippi 39501
Mississippi Power Company
Series C Floating Rate Senior Notes due March __, 2002
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust Company (the "Bank")
in connection with (a) the Senior Note Indenture, dated as of May 1, 1998 (the
"Original Indenture"), between Mississippi Power Company (the "Company") and the
Bank, as Trustee, and (b) the Third Supplemental Indenture dated as of
___________ (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee and (c) the
Calculation Agent Agreement, dated as of March __, 2000 (the "Calculation Agent
Agreement"), between the Company and the Bank, as Calculation Agent.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the State
of New York;
ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Indenture and the Calculation
Agent Agreement, has duly executed and delivered the Indenture and the
Calculation Agent Agreement, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due authorization, execution and
delivery thereof by the Company, each of the Indenture and the Calculation Agent
Agreement constitutes a legal, valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its terms subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
other laws affecting creditors' rights generally from time to time in effect
and to general principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank of
the Indenture and the Calculation Agent Agreement does not conflict with or
constitute a breach of the charter or bylaws of the Bank; and
iv) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the State of
New York having jurisdiction over the trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Indenture or the
Calculation Agent Agreement or the performance by the Bank of its duties
thereunder, except such as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
WHITE & CASE
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
MISSISSIPPI POWER COMPANY
Series C Floating Rate Senior Notes
due March __, 2002
Ladies and Gentlemen:
We have represented you (the "Underwriter") in connection with
(i) the Company's issuance of $____________ of its Series C Floating Rate Senior
Notes (the "Notes") pursuant to a Senior Note Indenture dated as of May 1, 1998,
by and between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as heretofore supplemented and as further supplemented by the Third
Supplemental Indenture dated as of __________ __, 2000 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated March __, 2000, among the Company and the
Underwriter (the "Underwriting Agreement"). Pursuant to a Calculation Agent
Agreement, dated as of March __, 2000 (the "Calculation Agent Agreement"),
between the Company and Bankers Trust Company, as calculation agent thereunder
(the "Calculation Agent"), the Company has engaged the Calculation Agent to
perform certain services with respect to the floating interest rate on the
Notes. This opinion is being delivered to you pursuant to Section 5(c)(4)
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, 333-45069-01 and
333-45069-02) pertaining to the Notes (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated ________, 2000, as supplemented by a final prospectus supplement dated
_________, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended ________________,
___ (the "Form 10-K"), the Quarterly Reports on Form 10-Q of the Company for the
quarters ended _________ the Current Reports on Form 8-K of the Company, dated
__________ (the "Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Mississippi and Alabama upon the opinion of Eaton and
Cottrell, P.A. dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Mississippi, is duly qualified to carry on its business as a foreign corporation
in the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business and to enter into and perform its obligations under
the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Notes have
been obtained; such orders are sufficient for the issuance and sale of the
Notes; the issuance and sale of the Notes conform in all material respects with
the terms of such orders; and no other order, consent or other authorization or
approval of any Mississippi or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and sale of the Notes in accordance with the terms of the
Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
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its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriter 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 Arthur Andersen LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of ___________, complied as to form in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Form 10-K (including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement of a material fact
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or omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that in each case we express no
opinion or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the caption "Description of the Series C Senior Notes - Book-Entry Only Issuance
- - The Depository Trust Company".
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the States of Mississippi and Alabama.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Eaton and Cottrell, P.A. and Troutman Sanders LLP may rely
on this opinion in giving their opinions pursuant to Section 5 of the
Underwriting Agreement, insofar as such opinions relate to matters of New York
law, and Troutman Sanders LLP may rely on this opinion in giving its opinion
pursuant to Sections 102, 302 and 904 of the Indenture, insofar as such opinion
relates to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
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