Exhibit 1
$40,000,000 Series F Floating Rate Senior Notes
due March 9, 2009
MISSISSIPPI POWER COMPANY
UNDERWRITING AGREEMENT
March 3, 2004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Mississippi Power Company, a Mississippi corporation (the
"Company"), confirms its agreement (the "Agreement") with you (the
"Underwriter"), with respect to the sale by the Company and the purchase by the
Underwriter of $40,000,000 aggregate principal amount of the Series F Floating
Rate Senior Notes due March 9, 2009 (the "Senior Notes").
The Company understands that the Underwriter proposes to make
a public offering of the Senior Notes as soon as the Underwriter deems advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of May 1, 1998 (the "Base Indenture"),
between the Company and Deutsche Bank Trust Company Americas (formerly known as
Bankers Trust Company), as trustee (the "Trustee"), as heretofore supplemented
and amended and as to be further supplemented and amended by a sixth
supplemental indenture, dated as of March 9, 2004, to the Base Indenture
relating to the Senior Notes (the "Supplemental Indenture" and, together with
the Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Trustee.
Pursuant to a Calculation Agent Agreement, dated as of March
9, 2004 (the "Calculation Agent Agreement"), between the Company and Deutsche
Bank Trust Company Americas, as calculation agent thereunder (the "Calculation
Agent"), the Company has engaged the Calculation Agent to perform certain
services with respect to the floating interest rate on the Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos. 333-108156,
333-108156-01 and 333-108156-02) in respect of the Senior
Notes and certain other securities has been prepared and filed
in accordance with the provisions of the Securities Act of
1933, as amended (the "1933 Act"), with the Securities and
Exchange Commission (the "Commission"); such registration
statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the
Underwriter, has been declared effective by the Commission in
such form (except that copies of the registration statement
and any post-effective amendment delivered to the Underwriter
need not include exhibits but shall include all documents
incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been
initiated or, to the best knowledge of the Company, threatened
by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission
under the 1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became
effective, including the exhibits thereto and all documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 at the time such registration statement became effective,
being hereinafter called the "Registration Statement"; the
prospectus relating to the Senior Notes, in the form in which
it was included in the Registration Statement at the time it
became effective, being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "1934 Act"),
and incorporated by reference in such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and
the Prospectus as amended or supplemented in final form by a
prospectus supplement relating to the Senior Notes in the form
in which it is filed with the Commission, pursuant to Rule
424(b) under the 1933 Act in accordance with Section 3(f)
hereof, including any documents incorporated by reference
therein as of the date of such filing, being hereinafter
called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the
Commission, complied in all material respects with the
applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder, and as of such time
of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents are filed
with the Commission, will comply in all material respects with
the applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriter with respect to: (A) any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by the Underwriter expressly for use in the Final
Supplemented Prospectus; or (B) any information set forth in
the Final Supplemented Prospectus under the caption
"Description of the Series F Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company".
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus comply, and any further amendments or
supplements to the Registration Statement or the Prospectus,
when any such post-effective amendments are declared effective
or supplements are filed with the Commission, as the case may
be, will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 1939 Act (as
hereinafter defined) and the General Rules and Regulations of
the Commission thereunder and do not and will not, (i) as of
the applicable effective date as to the Registration Statement
and any amendment thereto, and (ii) as of the applicable
filing date as to the Final Supplemented Prospectus and any
Prospectus as further amended or supplemented, contain an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; except that the Company makes no
warranties or representations with respect to (A) that part of
the Registration Statement which shall constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), (B) statements or
omissions made in the Registration Statement or the Final
Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriter expressly for use therein or (C) any information
set forth in the Final Supplemented Prospectus under the
caption "Description of the Series F Senior Notes - Book-Entry
Only Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for
use of Form S-3, as set forth in the General Instructions
thereof, have been satisfied.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented
Prospectus, except as otherwise stated therein, there has been
no material adverse change in the business, properties or
financial condition of the Company.
(f) The Company is a corporation duly organized and existing under
the laws of the State of Mississippi, is duly qualified to
carry on its business as a foreign corporation under the laws
of the State of Alabama and has due corporate authority to
carry on the public utility business in which it is engaged
and to own and operate the properties used by it in such
business, to enter into and perform its obligations under this
Agreement and the Indenture and to issue and sell the Senior
Notes to the Underwriter.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The Indenture has been duly authorized by the Company and, on
the Closing Date (as hereinafter defined), will have been duly
executed and delivered by the Company, and, assuming due
authorization, execution and delivery of the Indenture by the
Trustee, the Indenture will, on the Closing Date, constitute a
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the
extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other
similar laws affecting creditors' rights generally or (2)
general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity)
(the "Enforceability Exceptions"); the Indenture will conform
in all material respects to all statements relating thereto
contained in the Final Supplemented Prospectus; and, on the
Closing Date, the Indenture will have been duly qualified
under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior
Notes will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Final
Supplemented Prospectus, will constitute valid and legally
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions, will be in the form contemplated by, and entitled
to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the
Final Supplemented Prospectus.
(j) The Calculation Agent Agreement has been duly authorized by
the Company and, on the Closing Date, will have been duly
executed and delivered by the Company, and, assuming due
authorization, execution and delivery of the Calculation Agent
Agreement by the Calculation Agent, the Calculation Agent
Agreement will, on the Closing Date, constitute a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions.
(k) The execution, delivery and performance by the Company of this
Agreement, the Calculation Agent Agreement, the Indenture and
the Senior Notes and the consummation by the Company of the
transactions contemplated herein and therein and compliance by
the Company with its obligations hereunder and thereunder
shall have been duly authorized by all necessary corporate
action on the part of the Company and do not and will not
result in any violation of the charter or bylaws of the
Company, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for
conflicts, breaches or defaults which would not, individually
or in the aggregate, be materially adverse to the Company or
materially adverse to the transactions contemplated by this
Agreement), or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or
any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or any
of its properties.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection
with the issuance and sale by the Company of the Senior Notes
or the transactions by the Company contemplated in this
Agreement, except (A) such as may be required under the 1933
Act or the rules and regulations thereunder; (B) such as may
be required under the Public Utility Holding Company Act of
1935, as amended; (C) the qualification of the Indenture under
the 1939 Act; and (D) such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws.
(m) The financial statements incorporated by reference in the
Registration Statement and the Final Supplemented Prospectus,
together with the related schedules and notes, present fairly,
in all material respects, the financial position, results of
operations and cash flows of the Company as of and for the
dates indicated; said financial statements have been prepared
in conformity with accounting principles generally accepted in
the United States ("GAAP") applied on a consistent basis
(except that the unaudited financial statements may be subject
to normal year-end adjustments) throughout the periods
involved and necessarily include amounts that are based on the
best estimates and judgments of management. The selected
financial data and the summary financial information included
in the Final Supplemented Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited and unaudited financial
statements incorporated by reference in the Registration
Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITER; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, the Senior
Notes at a price equal to 99.50% of the principal amount
thereof.
(b) Payment of the purchase price and delivery of certificates for
the Senior Notes shall be made at the offices of Troutman
Sanders LLP, 600 Peachtree Street, N.E., Suite 5200, Atlanta,
Georgia 30308 at 10:00 A.M., Eastern Standard Time, on March
9, 2004 or such other time, place or date as shall be agreed
upon by the Underwriter and the Company (such time and date of
payment and delivery being herein called the "Closing Date").
Payment shall be made to the Company by wire transfer in
federal funds at the Closing Date against delivery of the
Senior Notes to the Underwriter. It is understood that the
Underwriter will accept delivery of, receipt for, and make
payment of the principal amount of the Senior Notes which it
has agreed to purchase.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriter shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Underwriter not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the Underwriter
as follows:
(a) The Company, on or prior to the Closing Date, will deliver to
the Underwriter conformed copies of the Registration Statement
as originally filed and of all amendments thereto, heretofore
or hereafter made, including any post-effective amendment (in
each case including all exhibits filed therewith, and
including unsigned copies of each consent and certificate
included therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will
advise the Underwriter orally of the issuance of any stop
order under the 1933 Act with respect to the Registration
Statement, or the institution of any proceedings therefor, of
which the Company shall have received notice, and will use its
best efforts to prevent the issuance of any such stop order
and to secure the prompt removal thereof, if issued. The
Company will deliver to the Underwriter sufficient conformed
copies of the Registration Statement, the Prospectus and the
Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) and, from
time to time, as many copies of the Prospectus and the Final
Supplemented Prospectus as the Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the
1934 Act.
(b) The Company will furnish the Underwriter with copies of each
amendment and supplement to the Final Supplemented Prospectus
relating to the offering of the Senior Notes in such
quantities as the Underwriter may from time to time reasonably
request. If, during the period (not exceeding nine months)
when the delivery of a prospectus shall be required by law in
connection with the sale of any Senior Notes by an
Underwriter, any event relating to or affecting the Company,
or of which the Company shall be advised in writing by the
Underwriter, shall occur, which in the opinion of the Company
or of Underwriter's counsel should be set forth in a
supplement to or an amendment of the Final Supplemented
Prospectus in order to make the Final Supplemented Prospectus
not misleading in the light of the circumstances when it is
delivered, or if for any other reason it shall be necessary
during such period to amend or supplement the Final
Supplemented Prospectus or to file under the 1934 Act any
document incorporated by reference in the Preliminary
Prospectus or Prospectus in order to comply with the 1933 Act
or the 1934 Act, the Company forthwith will (i) notify the
Underwriter to suspend solicitation of purchases of the Senior
Notes and (ii) at its expense, make any such filing or prepare
and furnish to the Underwriter a reasonable number of copies
of a supplement or supplements or an amendment or amendments
to the Final Supplemented Prospectus which will supplement or
amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances when the Final Supplemented
Prospectus is delivered, not misleading or which will effect
any other necessary compliance. In case the Underwriter is
required to deliver a prospectus in connection with the sale
of any Senior Notes after the expiration of the period
specified in the preceding sentence, the Company, upon the
request of the Underwriter, will furnish to at the expense of
the Underwriter, a reasonable quantity of a supplemented or
amended prospectus, or supplements or amendments to the Final
Supplemented Prospectus, complying with Section 10(a) of the
1933 Act. During the period specified in the second sentence
of this subsection, the Company will continue to prepare and
file with the Commission on a timely basis all documents or
amendments required under the 1934 Act and the rules and
regulations thereunder; provided, that the Company shall not
file such documents or amendments without also furnishing
copies thereof prior to such filing to the Underwriter and
Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the
Underwriter, to qualify the Senior Notes for offering and sale
under the applicable securities laws of such states and the
other jurisdictions of the United States as the Underwriter
may designate; provided, however, that the Company shall not
be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a
consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security
holders as soon as practicable but not later than 45 days
after the close of the period covered thereby, an earnings
statement of the Company (in form complying with the
provisions of Rule 158 of the rules and regulations under the
1933 Act) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158) of the
Registration Statement.
(e) During a period of 15 days from the date of this Agreement,
the Company will not, without the Underwriter's prior written
consent, directly or indirectly, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, any
Senior Notes or any security convertible into or exchangeable
into or exercisable for the Senior Notes or any debt
securities substantially similar to the Senior Notes (except
for the Senior Notes issued pursuant to this Agreement). The
Underwriter agrees that commercial paper or other debt
securities with scheduled maturities of less than one year are
not subject to this Section 3(e).
(f) As soon as practicable after the date of this Agreement, and
in any event within the time prescribed by Rule 424 under the
1933 Act, to file the Final Supplemented Prospectus with the
Commission and to advise the Underwriter of such filing and to
confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but not
limited to, the expenses of (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificate(s) for the Senior Notes,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Senior Notes under securities laws in accordance with
the provisions of Section 3(c) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriter in connection therewith
and in connection with the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the printing and delivery
to the Underwriter of copies of the Registration Statement as originally filed
and of each amendment thereto and of the Prospectus, the Final Supplemented
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriter of copies of any blue sky survey, (vii) the fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable, (viii) the
fees and expenses of the Trustee and the Calculation Agent, including the fees
and disbursements of counsel for the Trustee and the Calculation Agent in
connection with the Calculation Agent Agreement, the Indenture and the Senior
Notes, (ix) any fees payable in connection with the rating of the Senior Notes,
(x) the cost and charges of any transfer agent or registrar and (xi) the cost of
qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriter shall pay all other expenses incurred by it in connection with its
offering of the Senior Notes including fees and disbursements of its counsel,
Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase and pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to
the knowledge of the Company threatened by, the Commission on
such date. If filing of the Final Supplemented Prospectus, or
any supplement thereto, is required pursuant to Rule 424, the
Final Supplemented Prospectus, and any such supplement, shall
have been filed in the manner and within the time period
required by Rule 424.
(b) Any required orders of the Commission permitting the
transactions contemplated hereby substantially in accordance
with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriter or the Company (but all provisions of such order
or orders heretofore entered are deemed acceptable to the
Underwriter and the Company and all provisions of such order
or orders hereafter entered shall be deemed acceptable to the
Underwriter and the Company unless within 24 hours after
receiving a copy of any such order any party to this Agreement
shall give notice to the other party to the effect that such
order contains an unacceptable provision).
(c) On the Closing Date, the Underwriter 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
I-A.
(2) The opinion, dated the Closing Date, of Troutman
Sanders LLP, counsel for the Company, substantially
in the form attached hereto as Schedule I-B.
(3) The opinion, dated the Closing Date, of White & Case
LLP, counsel to the Trustee and the Calculation
Agent, substantially in the form attached hereto as
Schedule II.
(4) The opinion, dated the Closing Date, of Dewey
Ballantine LLP, counsel for the Underwriter,
substantially in the form attached hereto as Schedule
III.
(d) At the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information
is given in the Registration Statement and the Final
Supplemented Prospectus, any material adverse change in the
business, properties or financial condition of the Company,
whether or not arising in the ordinary course of business, and
the Underwriter shall have received a certificate of the
President or any Vice President of the Company, and dated as
of the Closing Date, to the effect that (i) there has been no
such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of
the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied on or prior to the Closing Date, and
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(e) On the Closing Date, the Underwriter shall have received from
Deloitte & Touche LLP a letter dated the Closing Date to the
effect that: (A) they are independent certified 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 for a
review of interim financial information as described in
Statement on Auditing Standards No. 71, "Interim Financial
Information" and in Statement on Auditing Standards No. 100,
"Interim Financial Information", as applicable, on the
unaudited financial statements, if any, of the Company
incorporated by reference 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 by reference 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 Deloitte &
Touche LLP make no representations as to the sufficiency of
such procedures for the Underwriter's purposes), nothing came
to their attention that caused them to believe that: (1) any
material modifications should be made to the unaudited
condensed financial statements, if any, incorporated by
reference in the 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, if any, for Operating
Revenues, Earnings Before Income Taxes and Net Income After
Dividends on Preferred Stock and the unaudited Ratio of
Earnings to Fixed Charges, if any, 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 included or incorporated by reference in
the 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 balance sheet
incorporated by reference 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 and regularly
scheduled payments of capitalized lease obligations, (iv) are
occasioned by the purchase or redemption of bonds or stock to
satisfy mandatory or optional redemption provisions relating
thereto, (v) are occasioned by reclassification of current
maturities of long-term debt or (vi) are disclosed in such
letter; and (5) the unaudited amounts for Operating Revenues,
Earnings Before Income Taxes and Net Income After Dividends on
Preferred Stock and the unaudited Ratio of Earnings to Fixed
Charges as of the end of 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.
(f) On the Closing Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as it may
reasonably require for the purpose of enabling it to pass upon
the issuance and sale of the Senior Notes as herein
contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with
the issuance and sale of the Senior Notes as herein
contemplated shall be satisfactory in form and substance to
the Underwriter and Dewey Ballantine LLP, counsel for the
Underwriter.
(g) No amendment or supplement to the Registration Statement or
the Final Supplemented Prospectus filed subsequent to the date
of this Agreement (including any filing made by the Company
pursuant to Section 13 or 14 of the 1934 Act) shall be
unsatisfactory in form to Dewey Ballantine LLP or shall
contain information (other than with respect to an amendment
or supplement relating solely to the activity of the
Underwriter) which, in the reasonable judgment of the
Underwriter, shall materially impair the marketability of the
Senior Notes.
(h) The Company shall have performed its obligations when and as
provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriter. Any such termination shall be without liability of any party to any
other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20(a) of the 1934 Act, against any and all losses,
claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act,
1934 Act or otherwise, and to reimburse the Underwriter and
such controlling person or persons, if any, for any legal or
other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Final Supplemented Prospectus
or, if the Company shall furnish to the Underwriter any
amendments or any supplements thereto, or shall make any
filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the
Final Supplemented Prospectus as so amended or supplemented,
or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such
untrue statement or alleged untrue statement or omission or
alleged omission which was made in such Registration
Statement, Preliminary Prospectus, Prospectus or the Final
Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriter for use therein and except that this indemnity
with respect to the Preliminary Prospectus, the Prospectus or
the Final Supplemented Prospectus, if the Company shall have
furnished any amendment or supplement thereto, shall not inure
to the benefit of the Underwriter (or of any person
controlling the Underwriter) on account of any losses, claims,
damages, liabilities or actions arising from the sale of the
Senior Notes to any person if a copy of the Preliminary
Prospectus, the Prospectus or the Final Supplemented
Prospectus (exclusive of documents incorporated therein by
reference pursuant to Item 12 of Form S-3), as the same may
then be amended or supplemented, shall not have been sent or
given by or on behalf of the Underwriter to such person with
or prior to the written confirmation of the sale involved and
the untrue statement or alleged untrue statement or omission
or alleged omission was corrected in the Preliminary
Prospectus, the Prospectus or the Final Supplemented
Prospectus as supplemented or amended at the time of such
confirmation. The Underwriter agrees, within ten days after
the receipt by it of notice of the commencement of any action
in respect of which indemnity may be sought by it, or by any
person controlling it, from the Company on account of its
agreement contained in this Section 7, to notify the Company
in writing of the commencement thereof but the omission of the
Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have
to the Underwriter or to such controlling person otherwise
than on account of the indemnity agreement contained in this
Section 7. In case any such action shall be brought against
the Underwriter or any such person controlling the Underwriter
and the Underwriter shall notify the Company of the
commencement thereof as above provided, the Company shall be
entitled to participate in (and, to the extent that it shall
wish, including the selection of counsel, to direct) the
defense thereof, at its own expense. In case the Company
elects to direct such defense and select such counsel, the
Underwriter or controlling person shall have the right to
employ its own counsel, but, in any such case, the fees and
expenses of such counsel shall be at the expense of the
Underwriter or such controlling person unless the employment
of such counsel has been authorized in writing by the Company
in connection with defending such action. No indemnifying
party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification
may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does
not include any statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party
have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or
claim effected without its prior written consent.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, its directors and such of its officers who have
signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the
1933 Act or Section 20(a) of the 1934 Act to the same extent
and upon the same terms as the indemnity agreement of the
Company set forth in Section 7(a) hereof, but only with
respect to alleged untrue statements or omissions made in the
Registration Statement, the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus, or such
documents as amended or supplemented, in reliance upon and in
conformity with information furnished in writing to the
Company by the Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Underwriter may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i)
trading in securities on the New York Stock Exchange shall
have been generally suspended or there shall have been a
material disruption in settlement of securities generally,
(ii) minimum or maximum ranges for prices shall have been
generally established on the New York Stock Exchange by the
Commission or by the New York Stock Exchange, (iii) a general
banking moratorium shall have been declared by federal or New
York State authorities, or (iv) there shall have occurred any
outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by the
United States Congress or any other substantial national or
international calamity, crisis or emergency (including,
without limitation, acts of terrorism) affecting the United
States, in any such case provided for in clauses (i) through
(iv) with the result that, in the reasonable judgement of the
Underwriter, the marketability of the Senior Notes shall have
been materially impaired.
(b) If this Agreement shall be terminated by the Underwriter
pursuant to subsection (a) above or because of any failure or
refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the
Company will reimburse the Underwriter for the reasonable fees
and disbursements of Dewey Ballantine LLP and for the out of
pocket expenses (in an amount not exceeding $10,000)
reasonably incurred by the Underwriter in making preparations
for the purchase, sale and delivery of the Senior Notes and,
upon such reimbursement, the Company shall be absolved from
any further liability hereunder, except as provided in
Sections 4 and 7.
SECTION 10. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriter shall be
directed to J.P. Morgan Securities Inc., 270 Park Avenue, New York, New York
10017, Attention: High Grade Syndicate Desk - 8th Floor; notices to the Company
shall be delivered to 2992 West Beach, Gulfport, Mississippi, Attention:
Corporate Secretary, with a copy to Southern Company Services, Inc., 270
Peachtree Street, N.W., Atlanta, Georgia 30303, Attention: Earl C. Long.
SECTION 11. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriter, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriter and the Company
and their respective successors and the controlling persons and officers and
directors referred to in Section 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriter and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Senior Notes from the Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 13. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Company in accordance with its terms.
Very truly yours,
MISSISSIPPI POWER COMPANY
By: /s/Wayne Boston
Title: Assistant Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written
J.P. MORGAN SECURITIES INC.
By: /s/Robert Bottamedi
Title: Robert Bottamedi
Vice President
Schedule I-A
[Letterhead of Balch & Bingham LLP]
March __, 2004
J.P. Morgan Securities Inc. 270 Park Avenue New York, New York 10017
MISSISSIPPI POWER COMPANY
Series F Floating Rate Senior Notes
due March 9, 2009
Ladies and Gentlemen:
We have acted as general counsel to Mississippi Power Company
(the "Company") in connection with (i) the Company's issuance of $40,000,000
aggregate principal amount of its Series F Floating Rate Senior Notes due March
9, 2009 (the "Notes") pursuant to a Senior Note Indenture dated as of May 1,
1998, by and between the Company and Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company), as trustee (the "Trustee"), as
supplemented by the Sixth Supplemental Indenture dated as of March 9, 2004
(collectively, the "Indenture"); and (ii) the purchase by you (the
"Underwriter") of the Notes pursuant to the terms of an Underwriting Agreement
dated March 3, 2004 (the "Underwriting Agreement"), between the Company and the
Underwriter. Pursuant to a Calculation Agent Agreement, dated as of March 9,
2004 (the "Calculation Agent Agreement"), between the Company and Deutsche Bank
Trust Company Americas, as calculation agent thereunder (the "Calculation
Agent"), the Company has engaged the Calculation Agent to perform certain
services with respect to the floating interest rate on the Notes. This opinion
is being delivered to you pursuant to Section 5(c)(1) of the Underwriting
Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-108156, 333-108156-01 and
333-108156-02) pertaining to the Notes (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated September 3, 2003, as supplemented by a final prospectus supplement dated
March 3, 2004 (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, 2003 (the "Form 10-K") and the Current Report on
Form 8-K of the Company dated __________ (the "Exchange Act Documents"), each as
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
We have also examined the opinion of Troutman Sanders LLP to
you of even date with respect to matters relating to the Securities Act of 1933,
as amended; the Securities Exchange Act of 1934, as amended; the Trust Indenture
Act of 1939, as amended, and to the applicable rules and regulations of the
Commission under said Acts and in expressing the opinions stated herein, with
respect to such matters, we are relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Mississippi, is
duly qualified to carry on its business as a foreign corporation under the laws
of the State of Alabama and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the properties used
by it in such business and to enter into and perform its obligations under the
Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Notes have been
obtained; such orders are sufficient for the issuance and the sale of the Notes;
the issuance and the sale of the Notes conform in all material respects with the
terms of such orders; and no other order, consent or other authorization or
approval of any Mississippi or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and sale of the Notes in accordance with the terms of the
Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriter pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with your counsel and with representatives
of Deloitte & Touche LLP. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of March 3, 2004, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Form 10-K), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the
Final Supplemented Prospectus (including the Exchange Act Documents) contains
any untrue statement therein of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series F Senior
Notes - Book-Entry Only Issuance - The Depository Trust Company".
We are members of the State Bar of Mississippi and we do not
express any opinion herein concerning any law other than the law of such State
and the federal law of the United States and, to the extent set forth herein,
the laws of the States of Alabama and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinion relates to matters of Mississippi and Alabama
law.
Yours very truly,
BALCH & BINGHAM LLP
Schedule I-B
[Letterhead of TROUTMAN SANDERS LLP]
March __, 2004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
MISSISSIPPI POWER COMPANY
Series F Floating Rate Senior Notes
due March 9, 2009
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the
"Company") in connection with (i) the Company's issuance of $40,000,000
aggregate principal amount of its Series F Floating Rate Senior Notes due March
9, 2009 (the "Notes") pursuant to a Senior Note Indenture dated as of May 1,
1998, by and between the Company and Deutsche Bank Trust Company Americas
(formerly known as Bankers Trust Company), as trustee (the "Trustee"), as
heretofore supplemented and as further supplemented by the Sixth Supplemental
Indenture dated as of March 9, 2004 (collectively, the "Indenture"); and (ii)
the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated March 3, 2004 (the "Underwriting Agreement"), between the
Company and you (the "Underwriter"). Pursuant to a Calculation Agent Agreement,
dated as of March 9, 2004 (the "Calculation Agent Agreement"), between the
Company and Deutsche Bank Trust Company Americas, as calculation agent
thereunder (the "Calculation Agent"), the Company has engaged the Calculation
Agent to perform certain services with respect to the floating interest rate on
the Notes. This opinion is being delivered to you pursuant to Section 5(c)(2) of
the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-108156, 333-108156-01 and
333-108156-02) pertaining to the Notes and certain other securities (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act"), and the prospectus dated September 3, 2003, as supplemented by a
final prospectus supplement dated March 3, 2004 (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, 2003
(the "Form 10-K") and the Current Report 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
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Mississippi and Alabama law upon the opinion dated the date hereof rendered to
you by Balch & Bingham LLP and relying as to matters of New York law upon the
opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Mississippi, is duly
qualified to carry on its business as a foreign corporation under the laws of
the State of Alabama and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the properties used
by it in such business and to enter into and perform its obligations under the
Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Notes have been
obtained; such orders are sufficient for the issuance and sale of the Notes; the
issuance and sale of the Notes conform in all material respects with the terms
of such orders; and no other order, consent or other authorization or approval
of any Mississippi or United States governmental body (other than in connection
or in compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction, as to which we express no opinion) is legally required for the
issuance and sale of the Notes in accordance with the terms of the Underwriting
Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Calculation Agent Agreement and the Indenture conforms as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriter pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of March 3, 2004, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Form 10-K), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the
Final Supplemented Prospectus (including the Exchange Act Documents) contained,
as of its date, or contains, on the date hereof, any untrue statement of a
material fact or omitted, as of its date, or omits, on the date hereof, to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Description of the Series F
Senior Notes - Book-Entry Only Issuance - The Depository Trust Company".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Alabama, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that Balch & Bingham LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c) of the Underwriting Agreement,
insofar as such opinion relates to matters of federal securities law.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule II
[Letterhead of White & Case LLP]
March __, 2004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Mississippi Power Company
2992 West Beach
Gulfport, Mississippi 39501
Mississippi Power Company
Series F Floating Rate Senior Notes due March 9, 2009
Ladies and Gentlemen:
We have acted as counsel to Deutsche Bank Trust Company
Americas (formerly known as Bankers Trust Company), (the "Bank") in connection
with (a) the Senior Note Indenture, dated as of May 1, 1998, as heretofore
supplemented (the "Original Indenture"), between Mississippi Power Company (the
"Company") and the Bank, as Trustee, and (b) the Sixth Supplemental Indenture to
the Original Indenture, dated as of March 9, 2004 (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Trustee
and (c) the Calculation Agent Agreement, dated as of March 9, 2004 (the
"Calculation Agent Agreement"), between the Company and the Bank, as Calculation
Agent, with respect to the issuance by the Company of $40,000,000 aggregate
principal amount of Series F Floating Rate Senior Notes due March 9, 2009.
In this connection, we have examined such certificates of public
officials, such certificates of officers of the Bank, and copies certified to
our satisfaction of such corporate documents and records of the Bank, and of
such other papers, as we have deemed relevant and necessary for our opinion
hereinafter set forth. We have relied upon such certificates of public officials
and of officers of the Bank with respect to the accuracy of material factual
matters contained therein which were not independently established. In rendering
the opinion expressed below, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity to authentic original documents of all documents submitted to us as
certified, conformed or photostatic copies.
Based upon the foregoing, it is our opinion that:
1. The Bank has been duly incorporated and is validly existing as a New
York banking corporation under the laws of the State of New York and has the
power and authority to enter into, and to take all action required of it under,
the Indenture.
2. The Indenture and the Calculation Agent Agreement have been duly
authorized, executed and delivered by the Bank and each constitutes a legal,
valid and binding obligation of the Bank, enforceable against the Bank in
accordance with its terms, except as the enforceability thereof may be limited
by (i) bankruptcy, insolvency, reorganization, or other similar laws affecting
the enforcement of creditors' rights generally, as such laws would apply in the
event of a bankruptcy, insolvency or reorganization or similar occurrence
affecting the Bank, and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
3. The execution and delivery of the Indenture and the Calculation
Agent Agreement by the Bank and the performance by the Bank of its terms do not
conflict with or result in a violation of (A) any law or regulation of the
United States of America or the State of New York governing the banking or trust
powers of the Bank, or (B) the By-laws of the Bank.
4. The Series F Notes have been duly authenticated and delivered by the
Bank.
5. 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 banking or trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Indenture or the
Calculation Agent Agreement or the performance by the Bank of the terms of the
Indenture or the Calculation Agent Agreement.
We express no opinion as to matters governed by any law other than the
law of the State of New York and the Federal law of the United States.
Very truly yours,
WHITE & CASE LLP
Schedule III
[Letterhead of DEWEY BALLANTINE LLP]
March __, 2004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
MISSISSIPPI POWER COMPANY
Series F Floating Rate Senior Notes
due March 9, 2009
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Mississippi Power Company (the "Company") of $40,000,000 aggregate principal
amount of its Series F Floating Rate Senior Notes (the "Notes") pursuant to a
Senior Note Indenture dated as of May 1, 1998, by and between the Company and
Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company),
as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Sixth Supplemental Indenture dated as of March 9, 2004
(collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated March 3, 2004 (the
"Underwriting Agreement"), between the Company and you (the "Underwriter").
Pursuant to a Calculation Agent Agreement, dated as of March 9, 2004 (the
"Calculation Agent Agreement"), between the Company and Deutsche Bank Trust
Company Americas, as calculation agent thereunder (the "Calculation Agent"), the
Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Notes. This opinion is being
delivered to you pursuant to Section 5(c)(4) of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-108156, 333-108156-01 and
333-108156-02) pertaining to the Notes and certain other securities (the
"Registration Statement"), filed under the Securities Act of 1933, as amended
(the "Act"), and the prospectus dated September 3, 2003, as supplemented by a
final prospectus supplement dated March 3, 2004, 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, 2003 (the "Form 10-K") and the Current Report 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
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Mississippi and Alabama upon the opinion of Balch &
Bingham LLP dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Mississippi, is duly qualified to carry on its business as a foreign corporation
in the State of Alabama and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the properties used
by it in such business and to enter into and perform its obligations under the
Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Notes have
been obtained; such orders are sufficient for the issuance and sale of the
Notes; the issuance and sale of the Notes conform in all material respects with
the terms of such orders; and no other order, consent or other authorization or
approval of any Mississippi or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and sale of the Notes in accordance with the terms of the
Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriter pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of March 3, 2004, complied as to form
in all material respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Form 10-K (including the Form 10-K), contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that the Final Supplemented Prospectus (including the Exchange Act Documents)
contained, as of its date, or contains, on the date hereof, any untrue statement
of a material fact or omitted, as of its date, or omits, on the date hereof, to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Description of the Series F
Senior Notes - Book-Entry Only Issuance - The Depository Trust Company".
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States and, to the extent set forth
herein, the law of the States of Mississippi and Alabama.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that 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, insofar as such opinions relate to matters of New York
law, and Troutman Sanders LLP may rely on this opinion in giving its opinion
pursuant to Sections 102, 302 and 904 of the Indenture, insofar as such opinion
relates to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP