$30,000,000 Series G 5.40% Senior Notes
due July 1, 2035
MISSISSIPPI POWER COMPANY
UNDERWRITING AGREEMENT
June 24, 2005
Banc of America Securities LLC
214 N. Tryon Street
Charlotte, North Carolina 28255
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 $30,000,000 aggregate principal amount of the Series G 5.40%
Senior Notes due July 1, 2035 (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 seventh
supplemental indenture, dated as of June 30, 2005, to the Base Indenture
relating to the Senior Notes (the "Supplemental Indenture" and, together with
the Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the 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 G
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 date of the Final Supplemented
Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make
the statements therein not misleading in the case of the
Registration Statement and any amendment thereto, and, in
the light of the circumstances under which they were made,
not misleading in the case of the Final Supplemented
Prospectus and any Prospectus as further amended or
supplemented; except that the Company makes no warranties or
representations with respect to (A) that part of the
Registration Statement which shall constitute the Statements
of Eligibility (Form T-1) under the Trust Indenture Act of
1939, as amended (the "1939 Act"), (B) statements or
omissions made in the Registration Statement 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 G 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 execution, delivery and performance by the Company
of this Agreement, the Indenture and the Senior Notes and
the consummation by the Company of the transactions
contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder shall
have been duly authorized by all necessary corporate action
on the part of the Company and do not and will not result in
any violation of the charter or bylaws of the Company, and
do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or
to which any of its properties may be subject (except for
conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially adverse to
the Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or decree
of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or
administrative agency or other governmental body having
jurisdiction over the Company, or any of its properties.
(k) No authorization, approval, consent or order of any
court or governmental authority or agency is necessary in
connection with the issuance and sale by the Company of the
Senior Notes or the transactions by the Company contemplated
in this Agreement, except (A) such as may be required under
the 1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility Holding
Company Act of 1935, as amended; (C) the qualification of
the Indenture under the 1939 Act; and (D) such consents,
approvals, authorizations, registrations or qualifications
as may be required under state securities or "blue sky"
laws.
(l) The financial statements incorporated by reference in
the Registration Statement and the Final Supplemented
Prospectus, together with the related schedules and notes,
present fairly, in all material respects, the financial
position, results of operations and cash flows of the
Company as of and for the dates indicated; said financial
statements have been prepared in conformity with accounting
principles generally accepted in the United States 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.
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(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the
Company, the Senior Notes at a price equal to 98.624% 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, 405 Lexington Avenue, New
York, New York at 10:00 A.M., New York time, on June 30,
2005 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 the 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 the Underwriter
at the expense of the Underwriter, a reasonable quantity of
a supplemented or amended prospectus, or supplements or
amendments to the Final Supplemented Prospectus, complying
with Section 10(a) of the 1933 Act. During the period
specified in the second sentence of this subsection, the
Company will continue to prepare and file with the
Commission on a timely basis all documents or amendments
required under the 1934 Act and the rules and regulations
thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies
thereof prior to such filing to the Underwriter and Dewey
Ballantine LLP.
(c) The Company will endeavor, in cooperation with the
Underwriter, to qualify the Senior Notes for offering and
sale under the applicable securities laws of such states and
the other jurisdictions of the United States as the
Underwriter may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so
qualified or to file a consent to service of process or to
file annual reports or to comply with any other requirements
in connection with such qualification deemed by the Company
to be unduly burdensome.
(d) The Company will make generally available to its
security holders as soon as practicable but not later than
45 days after the close of the period covered thereby, an
earnings statement of the Company (in form complying with
the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning
not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in Rule 158)
of the Registration Statement.
(e) During a period of 15 days from the date of this
Agreement, the Company will not, without the Underwriter's
prior written consent, directly or indirectly, sell, offer
to sell, grant any option for the sale of, or otherwise
dispose of, any Senior Notes or any security convertible
into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the
Senior Notes (except for the Senior Notes issued pursuant to
this Agreement). 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, the Company will file the Final
Supplemented Prospectus with the Commission and will advise
the Underwriter of such filing and will 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,
including the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Senior Notes, (ix) any fees payable in connection
with the rating of the Senior Notes, (x) the cost and charges of any transfer
agent or registrar and (xi) the cost of qualifying the Senior Notes with The
Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriter shall pay all other expenses incurred by it in connection with its
offering of the Senior Notes including fees and disbursements of its counsel,
Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations
of the Underwriter to purchase and pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall contain
no provision unacceptable to the Underwriter or the Company (but all
provisions of such order or orders heretofore entered, copies of which
shall be delivered to the Underwriter prior to the Closing Date, 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, 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 notarising 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 an independent registered public accounting firm 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 standards of the Public Company Accounting
Oversight Board (United States) ("PCAOB") for a review of interim
financial statement information as described in SAS 100, "Interim
Financial Information", on the unaudited financial statements, if any,
of the Company incorporated by reference in the Final Supplemented
Prospectus and on 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 for Operating Revenues, Earnings Before Income Taxes
and Net Income After Dividends on Preferred Stock and the unaudited
Ratio of Earnings to Fixed Charges set forth in the 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 unaudited 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 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.
(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.
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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.
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(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 by
reference therein, in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Final Supplemented Prospectus as so amended or
supplemented, or arise out of or are based upon any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
which was made in such Registration Statement, Preliminary Prospectus,
Prospectus or Final Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by 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 judgment 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 Banc of America Securities LLC, 40 West 57th Street, NY1-040-27-01,
New York, New York 10019, Attention: High Grade Transaction Management/Legal;
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. The Company acknowledges and agrees that in
connection with all aspects of each transaction contemplated by this Agreement,
the Company and the Underwriter have an arms length business relationship that
creates no fiduciary duty on the part of either party and each expressly
disclaims any fiduciary relationship.
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.
NY1 940570v4
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: ______________________________
Name: ____________________________
Title: _____________________________
CONFIRMED AND ACCEPTED,
as of the date first above written
BANC OF AMERICA SECURITIES LLC
By: ___________________________
Name: _________________________
Title: __________________________
Schedule I-A
[Letterhead of Balch & Bingham LLP]
June [ ], 2005
Banc of America Securities LLC
214 N. Tryon Street
Charlotte, North Carolina 28255
MISSISSIPPI POWER COMPANY
Series G ___% Senior Notes
due July 1, 2035
Ladies and Gentlemen:
We have acted as general counsel to Mississippi Power Company
(the "Company") in connection with (i) the Company's issuance of $30,000,000
aggregate principal amount of its Series G ___% Senior Notes due July 1, 2035
(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
Seventh Supplemental Indenture dated as of June 30, 2005 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated June 24, 2005 (the "Underwriting Agreement"),
between the Company and you (the "Underwriter"). This opinion is being delivered
to you pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-108156, 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 of the Company dated September 3, 2003 as
supplemented by a final prospectus supplement dated June __, 2005 (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, 2004 (the "Form 10-K"), the Quarterly Report on Form 10-Q of the Company for
the quarter ended March 31, 2005 and the Current Reports on Form 8-K of the
Company dated January 3, 2005, February 21, 2005, May 5, 2005 and June __, 2005
(the "Exchange Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements."
We have also examined the opinion of 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 (the "Trust Indenture Act"), and to the applicable rules
and regulations of the Commission under said Acts and in expressing the opinions
stated herein, with respect to such matters, we are relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by 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. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the 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.
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 June __, 2005, 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) contained, as of its date, or
contains, on the date hereof, any untrue statement therein of a material fact or
omitted, as of its date, or omits, on the date hereof, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series G 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]
June [ ], 2005
Banc of America Securities LLC
214 N. Tryon Street
Charlotte, North Carolina 28255
MISSISSIPPI POWER COMPANY
Series G ____% Senior Notes
due July 1, 2035
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the
"Company") in connection with (i) the Company's issuance of $30,000,000
aggregate principal amount of its Series G ___% Senior Notes due July 1, 2035
(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 Seventh Supplemental Indenture
dated as of June 30, 2005 (collectively, the "Indenture"); and (ii) the purchase
by you of the Notes pursuant to the terms of an Underwriting Agreement dated
June 24, 2005 (the "Underwriting Agreement"), between the Company and you (the
"Underwriter"). This opinion is being delivered to you pursuant to Section
5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-108156, 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 of the Company dated September 3, 2003 as
supplemented by a final prospectus supplement dated June __, 2005 (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, 2004 (the "Form 10-K"), the Quarterly Report on Form 10-Q of the Company for
the quarter ended March 31, 2005 and the Current Reports on Form 8-K of the
Company dated January 3, 2005, February 21, 2005, May 5, 2005 and June __, 2005
(the "Exchange Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based 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. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the 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 June __, 2005, 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) 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 G 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]
June [ ], 2005
Banc of America Securities LLC
214 N. Tryon Street
Charlotte, North Carolina 28255
Mississippi Power Company
2992 West Beach
Gulfport, Mississippi 39501
Mississippi Power Company
Series G ___% Senior Notes due July 1, 2035
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 Seventh Supplemental Indenture
to the Original Indenture, dated as of June 30, 2005 (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Trustee
with respect to the issuance by the Company of $30,000,000 aggregate principal
amount of Series G ___% Senior Notes due July 1, 2035 (the "Series G Senior
Notes").
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 has been duly authorized, executed and delivered by
the Bank and 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 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 G Senior 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
performance by the Bank of the terms of the Indenture.
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]
June [ ], 2005
Banc of America Securities LLC
214 N. Tryon Street
Charlotte, North Carolina 28255
MISSISSIPPI POWER COMPANY
Series G ___% Senior Notes
due July 1, 2035
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Mississippi Power Company (the "Company") of $30,000,000 aggregate principal
amount of its Series G ___% 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
Seventh Supplemental Indenture dated as of June 30, 2005 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated June 24, 2005 (the "Underwriting Agreement"),
between the Company and you (the "Underwriter"). 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 June __, 2005 (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, 2004
(the "Form 10-K"), the Quarterly Report on Form 10-Q of the Company for the
quarter ended March 31, 2005 and the Current Reports on Form 8-K of the Company,
dated January 3, 2005, February 21, 2005, May 5, 2005 and June __, 2005 (the
"Exchange Act Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Mississippi and Alabama upon the opinion of 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 New York, Mississippi or United States governmental body (other
than in connection or in compliance with the provisions of the securities or
"blue sky" laws of any jurisdiction, as to which we express no opinion) is
legally required for the issuance and sale of the Notes in accordance with the
terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the 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 June __, 2005, 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) 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 G
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 opinion relates 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