Exhibit 1
1,400,000 Trust Preferred Securities
Mississippi Power Capital Trust II
(a Delaware Statutory Business Trust)
7.20% Trust Originated Preferred Securities
(Liquidation Amount $25 Per Trust Preferred Security)
UNDERWRITING AGREEMENT
March 15, 2002
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Four World Financial Center
North Tower
New York, New York 10080
Ladies and Gentlemen:
Mississippi Power Capital Trust II (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
ss. 3801 et seq.),and Mississippi Power Company, a Mississippi corporation (the
"Company" and, together with the Trust, the "Offerors"),confirm their 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 Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 7.20% Trust Originated Preferred Securities (liquidation
amount $25 per preferred security) of the Trust ("Preferred Securities") set
forth in Schedule I. The Preferred Securities will be guaranteed by the Company
with respect to distributions and payments upon liquidation, redemption and
otherwise (the "Guarantee") pursuant to the Guarantee Agreement (the "Guarantee
Agreement"), dated as of March 1, 2002, between the Company and Bankers Trust
Company, as trustee (the "Guarantee Trustee"). The Preferred Securities and the
related Guarantee are referred to herein as the "Securities."
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representative
deems advisable after this Agreement has been executed and delivered. The entire
proceeds from the sale of the Preferred Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities") and will be used by the Trust to purchase
the $36,082,475 principal amount of Series B 7.20% Junior Subordinated Notes due
December 30, 2041 (the "Junior Subordinated Notes") to be issued by the Company.
The Preferred Securities and the Common Securities will be issued pursuant to
the Amended and Restated Trust Agreement, dated as of March 1, 2002 (the "Trust
Agreement"), among the Company, as Depositor, Vicki Pierce and Wayne Boston (the
"Administrative Trustees"), Bankers Trust (Delaware), (the "Delaware Trustee"),
and Bankers Trust Company, a New York banking corporation (the "Property
Trustee" and, together with the Delaware Trustee and the Administrative
Trustees, the "Trustees"), as trustees, and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Junior
Subordinated Notes will be issued pursuant to an indenture, dated as of February
1, 1997, as heretofore supplemented (the "Base Indenture"), between the Company
and Bankers Trust Company, as trustee (the "Debt Trustee"), and further
supplemented by a second supplemental indenture to the Base Indenture, dated as
of March 22, 2002 (the "Supplemental Indenture" and, together with the Base
Indenture and any other amendments or supplements thereto, the "Indenture"),
between the Company and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Offerors jointly and
severally represent and warrant to each 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 Preferred Securities,
the Guarantee and the Junior Subordinated Notes 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 you, and to you for each of the other
Underwriters, has been declared effective by the Commission in such
form (except that copies of the registration statement and any
post-effective amendment delivered to you for each of the other
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 Preferred
Securities, the Guarantee and the Junior Subordinated 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 Preferred Securities 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 neither the Trust
nor the Company makes any warranty or representation to any
Underwriter with respect to: (A) any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Trust or the Company by an Underwriter through you expressly
for use in the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus; or (B) any information set forth in the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus under the caption "Description of the Preferred
Securities-- Book-Entry-Only Issuance-- The Depository Trust Company".
(c) The Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the applicable provisions of the 1933 Act
and the rules and regulations of the Commission thereunder and did 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.
(d) The Registration Statement, the Prospectus and, to the extent not used
to confirm sales of the Preferred Securities, the Preliminary
Supplemented Prospectus, comply, and the Final Supplemented Prospectus
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, (ii) as of the filing date thereof as to the
Preliminary Supplemented Prospectus and (iii) 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 neither the Company
nor the Trust makes any 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, the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus in reliance upon and in conformity with information
furnished in writing to the Trust or the Company by an Underwriter
expressly for use therein or (C) any information set forth in the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus under the caption "Description of the Preferred
Securities-- Book-Entry Only Issuance-- The Depository Trust Company".
(e) 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.
(f) 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.
(g) 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 not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of the Trust.
(h) 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, the Trust Agreement, the Indenture and the Guarantee
Agreement and to purchase, own and hold the Common Securities issued by
the Trust and to issue and deliver the Junior Subordinated Notes and
the Guarantee.
(i) The Trust has been duly created and is validly existing and in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in
the Registration Statement and the Final Supplemented Prospectus and
to enter into and perform its obligations under this Agreement and the
Trust Agreement; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Supplemented Prospectus; the Trust is and will be classified for
United States federal income tax purposes as a grantor trust and not
as an association taxable as a corporation; and the Trust is and will
be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Common Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and the
Final Supplemented Prospectus, will be validly issued and (subject to
the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will
conform in all material respects to all statements relating thereto
contained in the Final Supplemented Prospectus; the issuance of the
Common Securities is not subject to preemptive or other similar
rights; and, on the Closing Date (as defined herein), all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
(k) This Agreement has been duly authorized, executed and delivered by
each of the Offerors.
(l) The Trust Agreement has been duly authorized by the Company and, on
the Closing Date, will have been duly executed and delivered by the
Company and the Administrative Trustees, and assuming due
authorization, execution and delivery of the Trust Agreement by the
Delaware Trustee and the Property Trustee, the Trust Agreement will,
on the Closing Date, be a valid and binding obligation of the Company
and the Administrative Trustees, enforceable against the Company and
the Administrative Trustees 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") and will conform in all material
respects to all statements relating thereto in the Final Supplemented
Prospectus; and, on the Closing Date, the Trust Agreement will have
been duly qualified under the 1939 Act.
(m) The Guarantee 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 Guarantee Agreement by the Guarantee Trustee, the Guarantee
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, and each of
the Guarantee and the Guarantee Agreement will conform in all material
respects to all statements relating thereto contained in the Final
Supplemented Prospectus; and, on the Closing Date, the Guarantee
Agreement will have been duly qualified under the 1939 Act.
(n) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and (subject to the terms of the Trust Agreement)
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the Trust
Agreement and will conform in all material respects to all statements
relating thereto contained in the Final Supplemented Prospectus; the
issuance of the Preferred Securities is not subject to preemptive or
other similar rights; (subject to the terms of the Trust Agreement)
holders of Preferred Securities will be entitled to the same
limitation of personal liability under Delaware law as extended to
stockholders of private corporations for profit.
(o) 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 Debt 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 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.
(p) The issuance and delivery of the Junior Subordinated Notes have been
duly authorized by the Company and, on the Closing Date, the Junior
Subordinated 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.
(q) The Company's obligations under the Guarantee (i) are subordinate and
junior in right of payment to all liabilities of the Company, except
those obligations or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred stock issued by the
Company and (iii) are senior to all common stock of the Company.
(r) The Junior Subordinated Notes are subordinated and junior in right of
payment to all Senior Indebtedness (as defined in the Indenture) of the
Company.
(s) Each of the Administrative Trustees of the Trust is an officer of the
Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(t) Neither the Trust nor the Company nor any of the Company's other
subsidiaries is and, after giving effect to the offering and sale of
the Preferred Securities, will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(u) The execution, delivery and performance by the Offerors of this
Agreement, the Trust Agreement, the Preferred Securities, the Common
Securities, the Indenture, the Junior Subordinated Notes, the
Guarantee Agreement and the Guarantee and the consummation by the
Offerors of the transactions contemplated herein and therein and
compliance by the Offerors with their respective obligations hereunder
and thereunder shall have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Offerors and do not and
will not result in any violation of the charter or bylaws of the
Company or the Trust Agreement or related Certificate of Trust 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 Trust or the Company under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Trust or the Company is a party or by which
either of them may be bound or to which any of their properties may be
subject (except for conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially adverse to the Trust
or 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 Trust or the Company, or any of their respective
properties.
(v) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes or the Guarantee
or the transactions 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
Trust Agreement, the Guarantee Agreement and the Indenture under the
1939 Act; and (D) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
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(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees
to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the price per security set forth in Schedule II hereto, the
number of Preferred Securities set forth in Schedule I opposite the
name of such Underwriter, plus any additional number of Preferred
Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the
several Underwriters for the Preferred Securities shall be an amount
equal to the initial public offering price set forth on Schedule II,
which is a fixed price determined by agreement between the
Representative and the Offerors. As compensation to the Underwriters
for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Preferred Securities will be used to
purchase the Junior Subordinated Notes of the Company, the Company
hereby agrees to pay on the Closing Date (as defined below) to the
Representative, for the accounts of the several Underwriters, a
commission per Preferred Security as set forth on Schedule II for the
Preferred Securities to be delivered by the Trust hereunder on the
Closing Date.
(b) Payment of the purchase price for, and delivery of certificates for,
the Preferred Securities shall be made at the offices of Troutman
Sanders LLP, Bank of America Plaza, 600 Peachtree Street, N.E.,
Atlanta, Georgia at 10:00 A.M., New York time, on March 22, 2002
(unless postponed in accordance with the provisions of Section 10) or
such other time, place or date as shall be agreed upon by the
Representative, the Trust and the Company (such time and date of
payment and delivery being herein called the "Closing Date"). Payment
shall be made to the Trust by wire transfer in federal funds at the
Closing Date, against delivery to the Representative for the
respective accounts of the Underwriters of certificates for the
Preferred Securities to be purchased by them. A single global
certificate for the Preferred Securities shall be registered in the
name of Cede & Co. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Preferred
Securities which it has agreed to purchase. The Representative,
individually and not as Representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Preferred Securities 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.
A single global certificate for the Preferred
Securities shall be registered in the name of Cede & Co. The delivery
of the Preferred Securities shall be made 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 for the Preferred Securities 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.
On the Closing Date, the Company will pay, or cause
to be paid, the commission payable at such time to the Underwriters
under Section 2(a) hereof by wire transfer payable to the
Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly and
severally covenants with each Underwriter as follows:
(a) The Offerors, 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 Offerors will deliver to the Representative
sufficient conformed copies of the Registration Statement, the
Prospectus, the Preliminary Supplemented Prospectus and the Final
Supplemented Prospectus and of all supplements and amendments thereto
(in each case without exhibits) for distribution to each Underwriter
and, from time to time, as many copies of the Prospectus, the
Preliminary Supplemented Prospectus and the Final Supplemented
Prospectus as the Underwriters may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act.
(b) The Offerors will furnish the Underwriters with copies of each
amendment and supplement to the Preliminary Supplemented Prospectus
and the Final Supplemented Prospectus relating to the offering of the
Preferred Securities 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 Preferred Securities by an
Underwriter or dealer, 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 Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus, as the case may be, in order to make the
Preliminary Supplemented Prospectus or 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 Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the Preliminary
Prospectus or Prospectus in order to comply with the 1933 Act or the
1934 Act, the Company forthwith will (i) notify the Underwriters to
suspend solicitation of purchases of the Preferred Securities 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 Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus which
will supplement or amend the Preliminary Supplemented Prospectus or
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 Preliminary
Supplemented Prospectus or 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 Preferred Securities
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 Dewey Ballantine LLP.
(c) The Offerors will endeavor, in cooperation with the Underwriters, to
qualify the Preferred Securities and, to the extent required or
advisable, the Guarantee and the Junior Subordinated 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 neither of the Offerors shall
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) The Offerors will use best efforts to effect the listing of the
Preferred Securities on the New York Stock Exchange; if the Preferred
Securities are exchanged for Junior Subordinated Notes, the Company
will use its best efforts to effect the listing of the Junior
Subordinated Notes on any exchange on which the Preferred Securities
are then listed.
(f) During a period of 15 days from the date of this Agreement, neither the
Trust nor the Company will, 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 Preferred Securities, any
security convertible into or exchangeable into or exercisable for
Preferred Securities or the Junior Subordinated Notes or any debt
securities substantially similar to the Junior Subordinated Notes or
equity securities substantially similar to the Preferred Securities
(except for the Junior Subordinated Notes and the Preferred Securities
issued pursuant to this Agreement).
(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. Except as otherwise may be agreed in writing by
the Offerors and the Representative, the Company will pay all expenses
incidental to the performance of each Offeror's 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 Preferred Securities to the Underwriters, (iii) the fees and disbursements
of the Company's and the Trust's counsel and accountants, (iv) the qualification
of the Preferred Securities and, to the extent required or advisable, the
Guarantee and the Junior Subordinated 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
Preliminary Supplemented 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 Debt Trustee, including the fees and disbursements of counsel
for the Debt Trustee in connection with the Indenture and the Junior
Subordinated Notes, (ix) the fees and expenses of the Delaware Trustee, the
Property Trustee and the Guarantee Trustee, including the fees and disbursements
of counsel for the Delaware Trustee in connection with the Trust Agreement and
the related Certificate of Trust, (x) the fees and disbursements of Delaware
counsel to the Trust, (xi) any fees payable in connection with the rating of the
Preferred Securities and Junior Subordinated Notes, (xii) the fees and expenses
incurred in connection with the listing of the Preferred Securities and, if
applicable, the Junior Subordinated Notes, on the New York Stock Exchange,
(xiii) the cost and charges of any transfer agent or registrar and (xiv) the
cost of qualifying the Preferred Securities 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 Preferred Securities, including fees and disbursements of
their counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Preferred Securities 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
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus, or any supplement thereto, is required pursuant to Rule
424, the Preliminary Supplemented Prospectus or 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 Balch & Bingham LLP,
general counsel for the Company, substantially in the form
attached hereto as Schedule III-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule III-B.
(3) The opinion, dated the Closing Date, of Richards, Layton &
Finger, P.A., Delaware counsel to the Trust, substantially in the
form attached hereto as Schedule IV.
(4) The opinion, dated the Closing Date, of Richards, Layton &
Finger, P.A., counsel to Bankers Trust (Delaware), as Delaware
Trustee under the Trust Agreement, substantially in the form
attached hereto as Schedule V.
(5) The opinion, dated the Closing Date, of White & Case, counsel to
the Property Trustee, the Guarantee Trustee and the Debt Trustee,
substantially in the form attached hereto as Schedule VI.
(6) The opinion, dated as of the Closing Date, of Dewey Ballantine
LLP, counsel for the Underwriters, substantially in the form
attached hereto as Schedule VII.
(7) 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 Trust or 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 a certificate
of the Administrative Trustees of the Trust, 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 Trust and the Company have complied with all agreements
and satisfied all conditions on their respective parts to be
performed or satisfied under the Agreement 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.
(8) On the Closing Date, the Representative 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 audited by them and incorporated by
reference in the Final Supplemented Prospectus comply as to form
in all material respects with the applicable accounting
requirements of the 1934 Act and the rules and regulations under
the 1934 Act; and (C) on the basis of certain limited procedures
performed through a specified date not more than five business
days prior to the date of such letter, namely (i) reading the
minute books of the Company; (ii) performing the procedures
specified by the American Institute of Certified Public
Accountants ("AICPA") for a review of interim financial
information as described in Statement on Auditing Standards No.
71, "Interim Financial Information", on the unaudited financial
statements, if any, of the Company incorporated in the Final
Supplemented Prospectus and of the latest available unaudited
financial statements of the Company, if any, for any calendar
quarter subsequent to the date of those incorporated in the Final
Supplemented Prospectus; and (iii) making inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters regarding such unaudited financial
statements or any specified unaudited amounts derived therefrom
(it being understood that the foregoing procedures do not
constitute an audit performed in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter, and accordingly that Arthur Andersen LLP make no
representations as to the sufficiency of such procedures for the
Underwriters' purposes), nothing came to their attention that
caused them to believe that: (1) any material modifications
should be made to the unaudited condensed financial statements,
if any, incorporated in the Final Supplemented Prospectus, for
them to be in conformity with generally accepted accounting
principles; (2) such unaudited condensed financial statements do
not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies
to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts for Operating Revenues,
Earnings Before Interest and Income Taxes and Net Income After
Dividends on Preferred Stock and the unaudited Ratios of Earnings
to Fixed Charges and Earnings to Fixed Charges Plus Preferred
Dividend Requirements (Pre Income Tax Basis), set forth in the
Final Supplemented Prospectus do not agree with the amounts set
forth in or derived from the unaudited financial statements for
the same period or were not determined on a basis substantially
consistent with that of the corresponding audited amounts or
ratios included or incorporated by reference in Registration
Statement; (4) as of a specified date not more than five business
days prior to the date of delivery of such letter, there has been
any change in the capital stock or long-term debt of the Company
or any decrease in net assets as compared with amounts shown in
the latest audited balance sheet incorporated in the Final
Supplemented Prospectus, except in each case for changes or
decreases which (i) the Final Supplemented Prospectus discloses
have occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-downs
under existing pollution control financing arrangements, (iv) are
occasioned by draw-downs and regularly scheduled payments of
capitalized lease obligations, (v) are occasioned by the purchase
or redemption of bonds or stock to satisfy mandatory or optional
redemption provisions relating thereto, or (vi) are disclosed in
such letter; and (5) the unaudited amounts for Operating
Revenues, Earnings Before Interest and Income Taxes and Net
Income After Dividends on Preferred Stock and the unaudited
Ratios of Earnings to Fixed Charges and Earnings to Fixed Charges
Plus Preferred Dividend Requirements (Pre Income Tax Basis) for
any period for any calendar quarter subsequent to those set forth
in (3) above, which if available shall be set forth in such
letter, do not agree with the amounts set forth in or derived
from the unaudited financial statements for the same period or
were not determined on a basis substantially consistent with that
of the corresponding audited amounts or ratios included or
incorporated by reference in the Final Supplemented Prospectus.
(9) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the
issuance and sale of the Preferred Securities 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 Offerors in connection with the issuance
and sale of the Preferred Securities as herein contemplated shall
be satisfactory in form and substance to the Representative and
Dewey Ballantine LLP, counsel for the Underwriters.
(10) On the Closing Date, the Preferred Securities shall have been
approved for listing on the New York Stock Exchange upon notice
of issuance.
(11) On the Closing Date, the Representative shall have received a
certificate of a Vice President of the Company certifying that a
Special Event (as defined in the Final Supplemented Prospectus)
shall not have occurred and be continuing.
(12) That no amendment or supplement to the Registration Statement,
the Preliminary Supplemented Prospectus 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 Exchange 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 any Underwriter or Underwriters) which, in the
reasonable judgment of the Representative, shall materially
impair the marketability of the Preferred Securities.
(13) The Company and the Trust shall have performed their respective
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 Representative by notice to the Offerors 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 OFFERORS.
---------------------------------------------
The obligations of the Offerors 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
Underwriters. 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 Offerors jointly and severally agree 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 the Underwriters 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, the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus or, if the Offerors shall furnish to the
Underwriters any amendments or any supplements thereto, or shall
make any filings pursuant to Section 13 or 14 of the 1934 Act
which are incorporated therein by reference, in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the
Preliminary Supplemented 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 the
Registration Statement, Preliminary Prospectus, Prospectus, the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by, or through the
Representative on behalf of, any Underwriter for use therein and
except that this indemnity with respect to the Preliminary
Prospectus, the Prospectus, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus, if the Offerors
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
Preferred Securities to any person if a copy of the Preliminary
Prospectus, the Prospectus, the Preliminary Supplemented
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, the
Preliminary Supplemented 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 Offerors on account of their agreement
contained in this Section 7, to notify the Offerors in writing of
the commencement thereof but the omission of such Underwriter so
to notify the Offerors of any such action shall not release the
Offerors from any liability which they 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 the Underwriters
or any such person controlling such Underwriters and such
Underwriter shall notify the Offerors of the commencement thereof
as above provided, the Offerors shall be entitled to participate
in (and, to the extent that they shall wish, including the
selection of counsel, to direct) the defense thereof, at their
own expense. In case the Offerors elect 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 controlling person unless the
employment of such counsel has been authorized in writing by the
Offerors 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 Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the
Trust under Section 7(a) hereunder.
(c) 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, the Trust
and each other Underwriter and each person, if any, who controls
the Offerors or any such other Underwriter 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 Offerors 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, the Preliminary Supplemented 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 Offerors 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 or Trustees of the
Offerors 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 Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Representative may terminate this Agreement, by notice
to the Offerors, 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, (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States
is involved, any declaration of war by the United States
Congress or any other substantial national or international
calamity or emergency affecting the United States, in any
such case provided for in clauses (i) through (iv) with the
result that, in the reasonable judgement of the
Representative, the marketability of the Preferred
Securities 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 Offerors to comply with the
terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Offerors shall be unable to perform
their obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters,
severally, 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
Underwriters in making preparations for the purchase, sale
and delivery of the Preferred Securities and, upon such
reimbursement, the Offerors 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 one or more of the
Underwriters shall fail on the Closing Date to purchase the Preferred Securities
that it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of 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 number of Defaulted Securities does not exceed 10% of the
Preferred Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Preferred
Securities, 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 Offerors 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 Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Four World Financial Center, North
Tower, New York, New York 10080, Attention: Brant Meleski; notices to the
Offerors shall be directed to the Company at 2992 West Beach, Gulfport,
Mississippi 39501, Attention: Corporate Secretary with a copy to Southern
Company Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303,
Attention: David B. Brooks.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Trust, 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 Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees 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 Trust and
the Company and their respective successors, and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Preferred Securities from any Underwriter 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 Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Trust and the Company in
accordance with its terms.
Very truly yours,
MISSISSIPPI POWER COMPANY
By:_______________________________________
Title:_____________________________________
MISSISSIPPI POWER CAPITAL TRUST II
By:_______________________________________
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
as Representative of the Underwriters
named in Schedule I hereto
By:
-----------------------------------
Name:
--------------------------
Title:
--------------------------
SCHEDULE I
NUMBER OF
UNDERWRITERS PREFERRED SECURITIES
Merrill Lynch, Pierce, Fenner & Smith Incorporated 1,190,000
SunTrust Capital Markets, Inc. 210,000
Total 1,400,000
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $.7875
6
Schedule III-A
[Letterhead of BALCH & BINGHAM LLP]
___________ __, 2002
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Four World Financial Center
North Tower
New York, New York 10080
MISSISSIPPI POWER CAPITAL TRUST II
_.__% TRUST ORIGINATED PREFERRED SECURITIES
Ladies and Gentlemen:
We have acted as general counsel to Mississippi Power Company
(the "Company") in connection with (i) its formation of Mississippi Power
Capital Trust II (the "Trust"), a Delaware statutory business trust, pursuant to
the amended and restated trust agreement dated as of __________ __, 2002 among
the Company and the trustees named therein (the "Trust Agreement"); (ii) the
Trust's issuance and sale of __% Trust Originated Preferred Securities
evidencing approximately 97% undivided interest in the assets of the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale of Common
Securities evidencing approximately 3% undivided interest in the assets of the
Trust; (iv) the Company's issuance and sale to the Trust of $___,___,___
aggregate principal amount of its Series B _.__% Junior Subordinated Notes due
______, 20__ (the "Notes") pursuant to a Subordinated Note Indenture dated as of
February 1, 1997, by and between the Company and Bankers Trust Company, as
trustee, as heretofore supplemented and as further supplemented by the Second
Supplemental Indenture dated as of ________ __, 2002 (collectively, the
"Indenture"); and (v) its issuance of a guarantee (the "Guarantee") of the
Preferred Securities pursuant to a Guarantee Agreement dated as of _________ __,
2002 (the "Guarantee Agreement") between the Company and Bankers Trust Company,
as trustee. The Preferred Securities are being sold to you today pursuant to the
terms of an Underwriting Agreement dated _______, 2002 (the "Underwriting
Agreement"), among the Company, the Trust 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, 333-45069-01 and
333-45069-02) pertaining to the Preferred Securities (the "Registration
Statement") filed by the Company and the Trust under the Securities Act of 1933,
as amended (the "Act"), as it became effective under the Act, and the prospectus
of the Company and the Trust dated February 9, 1998 as supplemented by a final
prospectus supplement dated __________, 2002 filed with the Securities and
Exchange Commission pursuant to Rule 424(b) under the Act (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, 2001 (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 Preferred Securities and the Notes, of which we
have examined specimens), 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 Trust Agreement, Indenture, Guarantee 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 to matters of
New York law upon the opinion dated hereof rendered to you by Dewey Ballantine
LLP, as to matters of Delaware law upon the opinion dated hereof rendered to you
by Richards, Layton & Finger, P.A., and as to matters of Georgia law and the
federal law of the United States upon the opinion dated the date hereof rendered
to you by Troutman Sanders LLP, that:
1. The Company has been duly organized and is validly existing
as a corporation 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 delivery of the Notes
and the Guarantee by the Company and the issuance and sale of the Preferred
Securities by the Trust have been obtained; such orders are sufficient for the
issuance and the delivery of the Notes by the Company and the issuance and sale
of the Preferred Securities by the Trust; the issuance and delivery of the Notes
and the Guarantee by the Company and the issuance and sale of the Preferred
Securities by the Trust 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 delivery of the Notes and the Guarantee by the Company and the
issuance and sale of the Preferred Securities by the Trust 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 Debt 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 Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, 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 Guarantee Agreement has been duly authorized, executed
and delivered by the Company and 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 Guarantee 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 Guarantee Agreement conforms as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
7. The Trust Agreement has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution and
delivery thereof by the trustees named therein, the Trust Agreement constitutes
a valid and binding obligation 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 Trust Agreement may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
8. Each of the Indenture, the Guarantee Agreement and the
Trust Agreement has been duly qualified under the Trust Indenture Act of 1939,
as amended.
9. Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Preferred Securities, will be an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
10. To the best of our knowledge, all of the issued and
outstanding Common Securities of the Trust are directly owned by the Company,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
11. The execution, delivery and performance by the Trust of
the Underwriting Agreement and the Trust Agreement; the issuance by the Trust of
the Preferred Securities and the Common Securities; the consummation by the
Trust of the transactions contemplated thereby; and the compliance by the Trust
with its obligations thereunder do not and will not result in any violation of
the Trust Agreement or related Certificate of Trust, 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 Trust under (A) any
contract, indenture, mortgage, loan agreement, note, lease or any other
agreement or instrument known to us to which the Trust is a party or by which it
may be bound or to which any of its properties may be subject, except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or otherwise) of the
Trust, (B) any existing applicable law, rule or regulation applicable to the
Trust (other than the securities or "blue sky" laws of any jurisdiction, as to
which we express no opinion) or (C) any judgment, order or decree known to us 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 Trust or any of its properties; and the Trust is not a
party to or otherwise bound by any agreement other than those which, or the
forms of which, are exhibits (or included in exhibits) to the Registration
Statement.
12. The Common Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when issued
and delivered by the Trust to the Company against payment therefor as described
in the Final Supplemented Prospectus, will be validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the Trust; and
the issuance of the Common Securities is not subject to preemptive or other
similar rights.
13. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; the holders of the Preferred Securities
will (subject to the terms of the Trust Agreement) be entitled to the same
limitation of personal liability under Delaware law as is extended to
stockholders of private corporations for profit organized under the general
corporation law of the State of Delaware; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; and the
Preferred Securities conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
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,
5, 6 and 13 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
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 or
with respect to the information contained in the Final Supplemented Prospectus
under the caption "Description of the Preferred Securities -- 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 the States
of Mississippi and Alabama and, to the extent set forth herein, the laws of the
States of Delaware and New York and the federal law of the United States.
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 Section 5(c) of
the Underwriting Agreement insofar as such opinions relate to matters of
Mississippi and Alabama law.
Yours very truly,
BALCH & BINGHAM LLP
6
Schedule III-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 2002
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Four World Financial Center
North Tower
New York, New York 10080
MISSISSIPPI POWER CAPITAL TRUST II
_.__% TRUST ORIGINATED PREFERRED SECURITIES
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the
"Company") in connection with (i) its formation of Mississippi Power Capital
Trust II, a Delaware statutory business trust (the "Trust"), pursuant to the
amended and restated trust agreement dated __________, 2002 among the Company
and the trustees named therein (the "Trust Agreement"); (ii) the Trust's
issuance and sale of ____% Trust Originated Preferred Securities evidencing
approximately a 97% undivided interest in the Trust (the "Preferred
Securities"); (iii) the Trust's issuance and sale of Common Securities
evidencing approximately a 3% undivided interest in the Trust; (iv) the
Company's issuance and sale to the Trust of $___________ of its Series B ___%
Junior Subordinated Notes due ___________ (the "Notes") pursuant to a
Subordinated Note Indenture dated as of February 1, 1997, by and between the
Company and Bankers Trust Company, as trustee, as heretofore supplemented and as
further supplemented by the Second Supplemental Indenture dated as of __________
__, 2002 (collectively, the "Indenture"); and (v) its issuance of a guarantee
(the "Guarantee") of the Preferred Securities pursuant to a Guarantee Agreement
dated as of __________, 2002 (the "Guarantee Agreement") between the Company and
Bankers Trust Company, as trustee. The Preferred Securities are being sold to
you today pursuant to the terms of an Underwriting Agreement dated __________,
2002 (the "Underwriting Agreement"), among the Company, the Trust 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, 333-45069-01, and
333-45069-02) pertaining to the Preferred Securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated February 9, 1998 as supplemented by a final prospectus
supplement dated __________, 2002 (the "Final Supplemented Prospectus"), which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 2001 (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 Preferred Securities and the Notes, of which we
have examined specimens), 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 Trust Agreement, Indenture, Guarantee 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 Balch & Bingham LLP, relying as to matters of New York law upon the
opinion dated the date hereof rendered to you by Dewey Ballantine LLP and
relying as to matters of Delaware law upon the opinion dated the date hereof
rendered to you by Richards, Layton & Finger, P.A., 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, 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 delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred Securities have
been obtained; such orders are sufficient for the issuance and delivery of the
Notes and the Guarantee and the issuance and sale of the Preferred Securities;
the issuance and delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities 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 delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities 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 Debt 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 Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, 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 Guarantee Agreement has been duly authorized, executed
and delivered by the Company and 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 Guarantee 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 Guarantee Agreement conforms as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
7. The Trust Agreement has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution and
delivery thereof by the trustees named therein, the Trust Agreement constitutes
a valid and binding obligation 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 Trust Agreement may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
8. Each of the Indenture, the Guarantee Agreement and the
Trust Agreement has been duly qualified under the Trust Indenture Act of 1939,
as amended.
9. Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Preferred Securities, will be an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
10. To the best of our knowledge, all of the issued and
outstanding Common Securities of the Trust are directly owned by the Company,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
11. The execution, delivery and performance by the Trust of
the Underwriting Agreement and the Trust Agreement; the issuance by the Trust of
the Preferred Securities and the Common Securities; the consummation by the
Trust of the transactions contemplated thereby; and the compliance by the Trust
with its obligations thereunder do not and will not result in any violation of
the Trust Agreement or related Certificate of Trust, 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 Trust under (A) any
contract, indenture, mortgage, loan agreement, note, lease or any other
agreement or instrument known to us to which the Trust is a party or by which it
may be bound or to which any of its properties may be subject, except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or otherwise) of the
Trust, (B) any existing applicable law, rule or regulation applicable to the
Trust (other than the securities or "blue sky" laws of any jurisdiction, as to
which we express no opinion) or (C) any judgment, order or decree known to us 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 Trust or any of its properties; and the Trust is not a
party to or otherwise bound by any agreement other than those which, or the
forms of which, are exhibits (or included in exhibits) to the Registration
Statement.
12. The Common Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when issued
and delivered by the Trust to the Company against payment therefor as described
in the Final Supplemented Prospectus, will be validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the Trust; and
the issuance of the Common Securities is not subject to preemptive or other
similar rights.
13. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; the holders of the Preferred
Securities will (subject to the terms of the Trust Agreement) be entitled to the
same limitation of personal liability under Delaware law as is extended to
stockholders of private corporations for profit organized under the general
corporation law of the State of Delaware; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; and the
Preferred Securities conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
14. The statements and legal conclusions contained in the
Final Supplemented Prospectus under the caption "Certain Federal Income Tax
Considerations" are correct in all material respects.
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,
5, 6, 13 and 14 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 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 or
with respect to the information contained in the Final Supplemented Prospectus
under the caption "Description of the Preferred Securities -- 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 Mississippi, Alabama, Delaware 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 Balch & Bingham LLP may rely on this opinion
in giving its opinion pursuant to the Underwriting Agreement insofar as such
opinion relates to matters of Georgia law and the federal law of the United
States and Dewey Ballantine LLP may rely on this opinion in giving its opinion
pursuant to the Underwriting Agreement insofar as such opinion relates to
matters of Georgia law.
Yours very truly,
TROUTMAN SANDERS LLP
4
Schedule IV
[Letterhead of RICHARDS, LAYTON & FINGER, P.A.]
__________ __, 2002
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Four World Financial Center
North Tower
New York, New York 10080
Re: Mississippi Power Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Mississippi
Power Company, a Mississippi corporation (the "Company"), and Mississippi Power
Capital Trust II, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. This opinion is being furnished to you pursuant to
Section 5(c)(3) of the Underwriting Agreement, dated __________, 2002 (the
"Underwriting Agreement"), among the Company, the Trust, _____________ and the
other Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated January 24,
1997 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on January 24, 1997;
(b) The Trust Agreement of the Trust, dated as of January 24,
1997, among the Company and the trustee of the Trust named therein;
(c) The Amended and Restated Trust Agreement, dated as of
_________, 2002 (including Exhibits A and C), among the Company, the trustees of
the Trust named therein, and the holders, from time to time, of the undivided
beneficial interests in the assets of the Trust (the "Trust Agreement");
(d) The Underwriting Agreement;
(e) The Prospectus, dated February 9, 1998 (the "Prospectus"),
as supplemented by the Prospectus Supplement dated __________, 2002 (the
"Prospectus Supplement"), relating to the __% Trust Originated Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust, dated
___________ __, 2002, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due organization or due
formation or due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation or creation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) except to the extent provided in paragraph 2 below, the power and
authority of each of the parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such documents, (v) except to the
extent provided in paragraph 4 below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be issued by the Trust
(collectively, the "Trust Security Holders") of a Trust Securities Certificate
for such Trust Security and the payment for the Trust Security acquired by it,
in accordance with the Trust Agreement, the Prospectus and the Prospectus
Supplement, and (vii) the issuance and sale of the Trust Securities to the Trust
Security Holders in accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement. We have not participated in the preparation of the
Prospectus or the Prospectus Supplement.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good standing as
a business trust under the Delaware Business Trust Act, 12 Del. C.ss.3801,
et seq. (the "Business Trust Act"), and all filings required under the laws
of the State of Delaware with respect to the creation and valid existence
of the Trust as a business trust have been made.
2. Under the Business Trust Act and the Trust Agreement, the Trust has the
trust power and authority to (i) own property and conduct its business, all
as described in the Prospectus and the Prospectus Supplement, (ii) execute
and deliver, and to perform its obligations under, the Underwriting
Agreement, (iii) issue and perform its obligations under the Trust
Securities, and (iv) perform its obligations under the Trust Agreement.
3. The Trust Securities have been duly authorized by the Trust Agreement and
will be duly and validly issued undivided beneficial interests in the
assets of the Trust. Subject to the qualifications set forth in paragraph 6
below, the Preferred Securities are fully paid and nonassessable undivided
beneficial interests in the assets of the Trust. Under the Business Trust
Act and the Trust Agreement, the Trust Securities are not subject to any
preemptive or other similar rights.
4. Under the Business Trust Act and the Trust Agreement, the Underwriting
Agreement has been duly authorized by all necessary trust action on the
part of the Trust.
5. No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be
obtained by the Trust solely as a result of the issuance and sale of the
Preferred Securities.
6. The Persons to whom Preferred Securities are to be issued by the Trust
(collectively, the "Preferred Security Holders"), as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated, pursuant to the Trust
Agreement, to (i) provide indemnity and/or security in connection with and
pay taxes or governmental charges arising from transfers or exchanges of
Preferred Securities Certificates and the issuance of replacement Preferred
Securities Certificates and (ii) provide security or indemnity in
connection with requests of or directions to the Property Trustee to
exercise its rights and powers under the Trust Agreement.
7. The Trust Agreement constitutes a valid and binding
obligation of the Company, and is enforceable against the Company, in accordance
with its terms.
8. The issuance and sale by the Trust of the Trust Securities,
the execution, delivery and performance by the Trust of the Underwriting
Agreement, the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the Trust Agreement and compliance by the Trust with
its obligations thereunder do not violate (i) any of the provisions of the
Certificate or the Trust Agreement or (ii) any applicable Delaware law or
Delaware administrative regulation.
9. We have reviewed the statements in the Prospectus under the
caption "The Trusts" and the statements in the Prospectus Supplement under the
caption "Mississippi Power Capital Trust II" and, insofar as they contain
statements of Delaware law, such statements are fairly presented.
The opinion expressed in paragraph 7 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification. In
addition, in connection with the opinion expressed in paragraph 7 above, to the
extent that Section 10.05 of the Trust Agreement provides that the Trust
Agreement is governed by New York law, we express no opinion concerning Section
10.05 of the Trust Agreement or the effect of Section 10.05 of the Trust
Agreement on the Trust Agreement.
We consent to your relying as to matters of Delaware law upon
this opinion in connection with the Underwriting Agreement. We consent to the
law firms of Balch & Bingham LLP, Troutman Sanders LLP and Dewey Ballantine LLP
relying as to matters of Delaware law upon this opinion in connection with
opinions to be rendered by them pursuant to the Underwriting Agreement. Except
as stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER, P.A.
5
Schedule V
[Letterhead of Richards, Layton & Finger, P.A.]
__________ __, 2002
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Four World Financial Center
North Tower
New York, New York 10080
Mississippi Power Company
2992 West Beach
Gulfport, Mississippi 39501
Mississippi Power Capital Trust II
c/o Mississippi Power Company
2992 West Beach
Gulfport, Mississippi 39501
Mississippi Power Capital Trust II
___% Trust Originated Preferred Securities
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust (Delaware),
("Bankers Trust"), in connection with the formation of Mississippi Power Capital
Trust II, a business trust existing under the laws of the State of Delaware (the
"Trust") pursuant to the Trust Agreement, dated January 24, 1997, by and between
Bankers Trust, not in its individual capacity but solely as trustee (the
"Trustee"), Bankers Trust Company and Mississippi Power Company (the "Company"),
as amended and restated pursuant to an Amended and Restated Trust Agreement
dated as of __________ __, 2002, among the Company, the Trustee, the other
trustees named therein and the holders from time to time of the undivided
beneficial interests in the assets of the Trust (collectively, the "Trust
Agreement"). This opinion is being delivered to you pursuant to Section 5(c)(4)
of the Underwriting Agreement, dated ___________ __, 2002 (the "Underwriting
Agreement"), among Merrill Lynch & Co., Inc., the several Underwriters named in
Schedule I thereto, Mississippi Power Company and the Trust, pursuant to which
the $___,___,___ ___% Trust Originated Preferred Securities of the Trust will be
sold. All capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement.
We have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of the corporations or entities
referred to herein as we have deemed necessary or appropriate for the purposes
of the opinions expressed herein. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon the representations and
warranties contained in the documents referred to in this paragraph.
Based upon the foregoing and upon an examination of such
questions of law as we have deemed necessary or appropriate, and subject to the
assumptions, exceptions and qualifications set forth below, we advise you that,
in our opinion:
1. Bankers Trust is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the State of Delaware
and has the power and authority to execute, deliver and perform its obligations
under the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and
delivered by Bankers Trust and constitutes a legal, valid and binding obligation
of Bankers Trust, enforceable against Bankers Trust, in accordance with its
terms.
3. The execution and delivery of, and performance of the terms
of, the Trust Agreement by Bankers Trust, does not conflict with or constitute a
breach of, or default under, the charter or by-laws of Bankers Trust.
4. No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body having
jurisdiction in the premises is required under Delaware law for the execution,
delivery or performance by Bankers Trust of the Trust Agreement.
The foregoing opinions are subject to the following
exceptions, qualifications and assumptions:
A. We are admitted to practice in the State of Delaware and we
do not hold ourselves out as being experts on the law of any other jurisdiction.
The foregoing opinions are limited to the laws of the State of Delaware and the
federal laws of the United States of America governing the banking and trust
powers of Bankers Trust (except that we express no opinion with respect to (i)
state securities or blue sky laws and (ii) federal securities laws, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as amended,
and the Investment Company Act of 1940, as amended), and we have not considered
and express no opinion on the laws, rules and regulations of any other
jurisdiction.
B. The foregoing opinions regarding enforceability are subject
to (i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent transfer or conveyance and similar laws relating to
and affecting the rights and remedies of creditors generally, (ii) principles of
equity (regardless of whether considered and applied in a proceeding in equity
or at law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
C. We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than Bankers Trust, of the Trust
Agreement, and that each of such parties has the full power, authority and legal
right to execute, deliver and perform such document.
D. We have assumed that all signatures (other than those of
Bankers Trust) on documents examined by us are genuine, that all documents
submitted to us as originals are authentic, and that all documents submitted to
us as copies or specimens conform with the originals, which facts we have not
independently verified.
This opinion may be relied upon by you in connection with the
matters set forth herein, and without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER, P.A.
Schedule VI
[Letterhead of White & Case]
__________ __, 2002
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Four World Financial Center
North Tower
New York, New York 10080
Mississippi Power Company
2992 West Beach
Gulfport, Mississippi 39501
Mississippi Power Capital Trust II
c/o Mississippi Power Company
2992 West Beach
Gulfport, Mississippi 39501
Mississippi Power Capital Trust II
_.__% Trust Originated Preferred Securities
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust Company (the "Bank")
in connection with (a) the Subordinated Note Indenture, dated as of February 1,
1997, as heretofore supplemented (the "Original Indenture"), between Mississippi
Power Company (the "Company") and the Bank, as Trustee, (b) the Second
Supplemental Indenture dated as of ___________, 2002 (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Bank, as
Trustee, (c) the Guarantee Agreement dated as of __________ ______, 2002 (the
"Guarantee Agreement"), between the Company, as Guarantor, and the Bank, as
Trustee, and (d) the Amended and Restated Trust Agreement, dated as of ________
______, 2002 (the "Trust Agreement") among the Company, the Bank, as Property
Trustee, Bankers Trust (Delaware), as Delaware Trustee, and Vicki Pierce and
Wayne Boston, as Administrative Trustees.
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, the Trust Agreement,
the Guarantee Agreement 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, the Trust Agreement
and the Guarantee Agreement, has duly executed and delivered the Indenture, the
Trust Agreement and the Guarantee 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 other parties thereto, each of the
Indenture, the Trust Agreement and the Guarantee 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 such
enforceability is considered in a proceeding in equity or at law.
iii) the execution, delivery and performance by the Bank of
the Indenture, the Trust Agreement and the Guarantee Agreement do not conflict
with or constitute a breach of the charter or bylaws of the Bank.
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, the
Trust Agreement or the Guarantee 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 VII
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 2002
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Four World Financial Center
North Tower
New York, New York 10080
MISSISSIPPI POWER CAPITAL TRUST II
_.__% Trust Originated Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Mississippi Power
Company (the "Company") of Mississippi Power Capital Trust II (the "Trust"), a
Delaware statutory business trust, pursuant to the amended and restated trust
agreement dated __________, 2002 among the Company and the trustees named
therein (the "Trust Agreement"); (ii) the Trust's issuance and sale of ___%
Trust Originated Preferred Securities evidencing approximately a 97% undivided
interest in the Trust (the "Preferred Securities"); (iii) the Trust's issuance
and sale of Common Securities evidencing approximately a 3% undivided interest
in the Trust; (iv) the Company's issuance and sale to the Trust of $___________
of its Series B ___% Junior Subordinated Notes due ________ (the "Notes")
pursuant to a Subordinated Note Indenture dated as of February 1, 1997, by and
between the Company and Bankers Trust Company, as trustee, as heretofore
supplemented and as further supplemented by the Second Supplemental Indenture
dated as of __________ __, 2002 (collectively, the "Indenture"); and (v) the
Company's issuance of a guarantee (the "Guarantee") of the Preferred Securities
pursuant to a Guarantee Agreement dated as of __________, 2002 (the "Guarantee
Agreement") between the Company and Bankers Trust Company, as trustee, we have
acted as counsel to you and the other underwriters named in the Schedule I (the
"Underwriters") of the Underwriting Agreement dated __________ __, 2002, among
the Company, the Trust and the Underwriters for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(6) 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 Preferred Securities (the "Registration
Statement"), filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated February 9, 1998, as supplemented by a final supplemental
prospectus 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 December 31,
2001 (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 Preferred Securities and the Notes, of which we
have examined specimens), 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 Trust Agreement, Indenture, Guarantee 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 Balch &
Bingham LLP dated the date hereof and addressed to you, as to all matters
covered hereby which are governed by or dependent upon the laws of the State of
Georgia upon the opinion of Troutman Sanders LLP dated the date hereof and
addressed to you, and as to all matters covered hereby which are governed by or
dependent upon the laws of the State of Delaware upon the opinion of Richards,
Layton & Finger, P.A., dated the date hereof and addressed to you and a form of
which is attached as Schedule IV to the Underwriting Agreement, 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 delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred Securities have
been obtained; such orders are sufficient for the issuance and delivery of the
Notes and the Guarantee and the issuance and sale of the Preferred Securities;
the issuance and delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities 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 delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities 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 Debt 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 Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, 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 Guarantee Agreement has been duly authorized, executed
and delivered by the Company and 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 Guarantee Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally or general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law); and the Guarantee Agreement conforms as to legal matters
in all material respects to the description thereof in the Final Supplemented
Prospectus.
7. Each of the Indenture, the Guarantee Agreement and
the Trust Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended.
8. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred Securities conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
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,
5, 6 and 8 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 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 or with respect to the information contained in the Final
Supplemented Prospectus under the caption "Description of the Preferred
Securities -- 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 laws of the States of Delaware, Mississippi, Alabama and Georgia.
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 Balch & Bingham LLP and Troutman Sanders LLP may rely on
this opinion in giving their opinions pursuant to Section 5(c) of the
Underwriting Agreement, and Troutman Sanders LLP may rely on this opinion in
giving their opinion pursuant to Sections 102, 302 and 904 of the Indenture,
insofar as such opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP