Exhibit 4
MISSISSIPPI POWER COMPANY
TO
BANKERS TRUST COMPANY,
Trustee.
SUPPLEMENTAL INDENTURE
providing among other things for
FIRST MORTGAGE BONDS
6 7/8% Series due December 1, 2025
Dated as of December 1, 1995
SUPPLEMENTAL INDENTURE, dated as of December 1, 1995, made
and entered into by and between MISSISSIPPI POWER COMPANY, a
corporation organized and existing under the laws of the State of
Mississippi (hereinafter commonly referred to as the "Company"),
and BANKERS TRUST COMPANY, a corporation organized and existing
under the laws of the State of New York, with its principal
office in the Borough of Manhattan, The City of New York
(hereinafter commonly referred to as the "Trustee"), as Trustee
under the Indenture dated as of September 1, 1941 between
Mississippi Power Company, a Maine corporation (hereinafter
sometimes referred to as the "Maine Corporation"), and Morgan
Guaranty Trust Company of New York, under its former name of
Guaranty Trust Company of New York, as Trustee (hereinafter
sometimes referred to as the "Original Trustee"), securing bonds
issued and to be issued as provided therein (hereinafter
sometimes referred to as the "Indenture");
WHEREAS the Maine Corporation and the Original Trustee have
executed and delivered the Indenture for the purpose of securing
an issue of bonds of the Series due 1971 described therein and
such additional bonds as may from time to time be issued under
and in accordance with the terms of the Indenture, the aggregate
principal amount of bonds to be secured thereby being not
limited, and the Indenture fully describes and sets forth the
property conveyed thereby and is of record in the Office of the
Clerk of the Chancery Court of each county in the State of
Mississippi and in the Office of the Judge of Probate of each
county in the State of Alabama in which this Supplemental
Indenture is to be recorded and is on file at the principal
office of the Trustee, above referred to; and
WHEREAS the Maine Corporation or the Company, as the case
may be, and the Original Trustee or the Trustee, as the case may
be, have executed and delivered various supplemental indentures
for the purpose, among others, of further securing said bonds,
which supplemental indentures describe and set forth additional
property conveyed thereby and are also of record in the Offices
of the Clerks of the Chancery Courts of some or all of the
counties in the State of Mississippi and in the Offices of the
Judges of Probate of some or all of the counties in the State of
Alabama in which this Supplemental Indenture is to be recorded
and are on file at the corporate trust office of the Trustee,
above referred to; and
WHEREAS the Maine Corporation by Articles of Merger dated
October 11, 1972, effective December 21, 1972, was merged into
the Company which continued under the name and style of
"Mississippi Power Company"; and
WHEREAS the Company and the Original Trustee entered into a
Supplemental Indenture dated as of December 1, 1972, which
provided, among other things, for the assumption of the Indenture
by the Company; and
WHEREAS said Supplemental Indenture dated as of December 1,
1972 became effective on the effective date of such Articles of
Merger; and
WHEREAS the Company has succeeded to and has been
substituted for the Maine Corporation under the Indenture with
the same effect as if it had been named therein as the mortgagor
corporation; and
WHEREAS pursuant to that certain Agreement of Resignation,
Appointment and Acceptance dated as of August 31, 1994, among the
Company, the Original Trustee and the Trustee, and Section 16.16
of the Indenture, the Original Trustee gave written notice to the
Company of its resignation as trustee under the Indenture
effective at the close of business on August 31, 1994; and
pursuant to said Agreement and Section 16.18 of the Indenture,
the Company appointed the Trustee as successor trustee under the
Indenture effective at the close of business on August 31, 1994,
and the Trustee accepted such appointment thereupon, as provided
in Section 16.23 of the Indenture, becoming fully vested with all
the estates, properties, rights, powers, trusts, duties and
obligations of its predecessor in trust under the Indenture, with
like effect as if originally named as trustee therein; and
WHEREAS the Indenture provides for the issuance of bonds
thereunder in one or more series and the Company, by appropriate
corporate action in conformity with the terms of the Indenture,
has duly determined to create a series of bonds under the
Indenture to be designated as "6 7/8% Series due December 1,
2025" (hereinafter sometimes referred to as the "Forty-second
Series"), each of which bonds shall also bear the descriptive
title "First Mortgage Bond", the bonds of such series to bear
interest at the annual rate designated in the title thereof and
to mature December 1, 2025; and
WHEREAS each of the bonds of the Forty-second Series is to
be substantially in the following form, to-wit:
[FORM OF BOND OF THE FORTY-SECOND SERIES]
[FACE]
MISSISSIPPI POWER COMPANY
First Mortgage Bond, 6 7/8% Series Due December 1, 2025
No. . . . . . . . $........
-2-
Mississippi Power Company, a Mississippi corporation
(hereinafter called the "Company"), for value received, hereby
promises to pay to or registered assigns, the
principal sum of Dollars on December 1, 2025, and to pay to
the registered holder hereof interest on said sum from the latest
semi-annual interest payment date to which interest has been paid
on the bonds of this series preceding the date hereof, unless the
date hereof be an interest payment date to which interest is
being paid, in which case from the date hereof, or unless the
date hereof is prior to June 1, 1996, in which case from December
1, 1995 (or, if this bond is dated between the record date for
any interest payment date and such interest payment date, then
from such interest payment date, provided, however, that if the
Company shall default in payment of the interest due on such
interest payment date, then from the next preceding semi-annual
interest payment date to which interest has been paid on the
bonds of this series, or if such interest payment date is June 1,
1996, from December 1, 1995), at the rate per annum, until the
principal hereof shall have become due and payable, specified in
the title of this bond, payable on June 1 and December 1 in each
year.
The provisions of this bond are continued on the reverse
hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth at this place.
This bond shall not be valid or become obligatory for any
purpose unless and until it shall have been authenticated by the
execution by the Trustee or its successor in trust under the
Indenture of the certificate endorsed hereon.
IN WITNESS WHEREOF, MISSISSIPPI POWER COMPANY has caused
this bond to be executed in its name by its President or one of
its Vice Presidents by his signature or a facsimile thereof, and
its corporate seal or a facsimile thereof to be hereto affixed or
imprinted hereon and attested by its Secretary or one of its
Assistant Secretaries by his signature or a facsimile thereof.
Dated,
MISSISSIPPI POWER COMPANY,
By
President
Attest:
Secretary
-3-
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee,
By
Authorized Officer
[REVERSE]
MISSISSIPPI POWER COMPANY
First Mortgage Bond, 6 7/8% Series Due December 1, 2025
The interest payable on any June 1 or December 1 will,
subject to certain exceptions provided in the Indenture
hereinafter mentioned, be paid to the person in whose name this
bond is registered at the close of business on the record date,
which shall be the May 15 or November 15, as the case may be,
next preceding such interest payment date, or, if such May 15 or
November 15 shall be a legal holiday or a day on which banking
institutions in the Borough of Manhattan, The City of New York,
are authorized to close, the next preceding day which shall not
be a legal holiday or a day on which such institutions are so
authorized to close. The principal of and the premium, if any,
and interest on this bond shall be payable at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, designated for that purpose, in any coin or currency of
the United States of America which at the time of payment is
legal tender for public and private debts.
This bond is one of the bonds issued and to be issued from
time to time under and in accordance with and all secured by an
indenture of mortgage or deed of trust dated as of September 1,
1941, given by Mississippi Power Company, a Maine corporation (to
which the Company is successor by merger), to Morgan Guaranty
Trust Company of New York under its former name of Guaranty Trust
Company of New York, to which Bankers Trust Company is successor
(hereinafter sometimes referred to as the "Trustee"), as Trustee,
and indentures supplemental thereto, to which indenture and
-4-
indentures supplemental thereto (hereinafter referred to
collectively as the "Indenture") reference is hereby made for a
description of the property mortgaged and pledged, the nature and
extent of the security and the rights, duties and immunities
thereunder of the Trustee and the rights of the holders of said
bonds and of the Trustee and of the Company in respect of such
security, and the limitations on such rights. By the terms of
the Indenture the bonds to be secured thereby are issuable in
series which may vary as to date, amount, date of maturity, rate
of interest and in other respects as in the Indenture provided.
Prior to December 1, 2005, the bonds of this series may not
be redeemed by the Company at its option or by the operation of
the improvement fund or the replacement provisions of the
Indenture or by the use of proceeds of released property.
On or after December 1, 2005, upon notice given by mailing
the same, by first class mail postage prepaid, not less than
thirty nor more than forty-five days prior to the date fixed for
redemption to each registered holder of a bond to be redeemed (in
whole or in part) at the last address of such holder appearing on
the registry books, any or all of the bonds of this series may be
redeemed by the Company, at its option, or by operation of
various provisions of the Indenture, at any time and from time to
time by the payment of the principal amount thereof and accrued
interest thereon to the date fixed for redemption, together (a),
if redeemed otherwise than by the operation of the improvement
fund or the replacement provisions of the Indenture and otherwise
than by the use of proceeds of released property, as more fully
set forth in the Indenture, with a premium equal to a percentage
of the principal amount thereof determined as set forth in the
tabulation below under the heading "Regular Redemption Premium",
and (b), if redeemed by the operation of the improvement fund or
the replacement provisions of the Indenture or by the use of
proceeds of released property, as more fully set forth in the
Indenture, without premium:
-5-
If Redeemed During the Twelve Months' Period
Ending the Last Day of November,
Regular Redemption
Year Premium
2006 2.97%
2007 2.67%
2008 2.38%
2009 2.08%
2010 1.78%
2011 1.49%
2012 1.19%
2013 0.89%
2014 0.60%
2015 0.30%
and without premium if redeemed on or after December 1, 2015.
In case of certain defaults as specified in the Indenture,
the principal of this bond may be declared or may become due and
payable on the conditions, at the time, in the manner and with
the effect provided in the Indenture.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest on this bond, or for any claim
based hereon, or otherwise in respect hereof or of the Indenture,
to or against any incorporator, stockholder, director or officer,
past, present or future, as such, of the Company, or of any
predecessor or successor company, either directly or through the
Company, or such predecessor or successor company, under any
constitution or statute or rule of law, or by the enforcement of
any assessment or penalty, or otherwise, all such liability of
incorporators, stockholders, directors and officers being waived
and released by the holder and owner hereof by the acceptance of
this bond and being likewise waived and released by the terms of
the Indenture.
This bond is transferable by the registered holder hereof,
in person or by attorney duly authorized, at the corporate trust
office of the Trustee, in the Borough of Manhattan, The City of
New York, but only in the manner prescribed in the Indenture,
upon the surrender and cancellation of this bond and the payment
of charges for transfer, and upon any such transfer a new
registered bond or bonds of the same series and maturity date and
for the same aggregate principal amount, in authorized
denominations, will be issued to the transferee in exchange
herefor. The Company and the Trustee may deem and treat the
-6-
person in whose name this bond is registered as the absolute
owner for the purpose of receiving payment of or on account of
the principal, premium, if any, and interest due hereon and for
all other purposes. Bonds of this series are issuable only in
fully registered form without coupons in denominations of $1,000
and any integral multiple thereof. Registered bonds of this
series shall be exchangeable for registered bonds of other
authorized denominations having the same aggregate principal
amount, in the manner and upon the conditions prescribed in the
Indenture. However, notwithstanding the provisions of the
Indenture, no charge shall be made upon any transfer or exchange
of bonds of this series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
AND WHEREAS all acts and things necessary to make the bonds,
when authenticated by the Trustee and issued as in the Indenture,
as heretofore supplemented and amended, and this Supplemental
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute the Indenture, as heretofore
supplemented and amended, and this Supplemental Indenture valid,
binding and legal instruments for the security thereof, have been
done and performed, and the creation, execution and delivery of
the Indenture, as heretofore supplemented and amended, and this
Supplemental Indenture and the creation, execution and issue of
bonds subject to the terms hereof and of the Indenture, have in
all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, and of the
acceptance and purchase by the holders thereof of the bonds
issued and to be issued under the Indenture, and of the sum of
One Dollar duly paid by the Trustee to the Company, and of other
good and valuable considerations, the receipt of which is hereby
acknowledged, and for the purpose of securing the due and
punctual payment of the principal of and premium, if any, and
interest on the bonds now outstanding under the Indenture, or the
Indenture as supplemented and amended, and the $30,000,000
principal amount of bonds of the Forty-second Series proposed to
be initially issued and all other bonds which shall be issued
under the Indenture, or the Indenture as supplemented and
amended, and for the purpose of securing the faithful performance
and observance of all covenants and conditions therein and in any
indenture supplemental thereto set forth, the Company has given,
granted, bargained, sold, transferred, assigned, hypothecated,
pledged, mortgaged, warranted, aliened and conveyed and by these
presents does give, grant, bargain, sell, transfer, assign,
hypothecate, pledge, mortgage, warrant, alien and convey unto
Bankers Trust Company, as Trustee, as provided in the Indenture,
and its successor or successors in the trust thereby and hereby
created and to its or their assigns forever, all the right, title
-7-
and interest of the Company in and to the property located in the
States of Mississippi and Alabama described in Exhibit A attached
hereto and made a part hereof, together (subject to the
provisions of Article X of the Indenture) with the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and does hereby confirm that the Company will not cause or
consent to a partition, either voluntary or through legal
proceedings, of property, whether herein described or heretofore
or hereafter acquired, in which its ownership shall be as a
tenant in common except as permitted by and in conformity with
the provisions of the Indenture and particularly of said Article
X thereof.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in any wise appertaining to the
premises, property, franchises and rights, or any thereof,
referred to in the foregoing granting clauses, with the reversion
and reversions, remainder and remainders and (subject to the
provisions of Article X of the Indenture) the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now
has or may hereafter acquire in and to the aforesaid premises,
property, franchises and rights and every part and parcel
thereof.
TO HAVE AND TO HOLD all said premises, property, franchises
and rights hereby conveyed, assigned, pledged or mortgaged, or
intended so to be, unto the Trustee, its successors in trust, and
their assigns forever;
BUT IN TRUST, NEVERTHELESS, with power of sale, for the
equal and proportionate benefit and security of the holders of
all bonds and interest coupons now or hereafter issued under the
Indenture, pursuant to the provisions thereof, and for the
enforcement of the payment of said bonds and coupons when payable
and the performance of and compliance with the covenants and
conditions of the Indenture, without any preference, distinction
or priority as to lien or otherwise of any bond or bonds over
others by reason of the difference in time of the actual issue,
sale or negotiation thereof or for any other reason whatsoever,
except as otherwise expressly provided in the Indenture, or the
Indenture as supplemented and amended; and so that each and every
bond now or hereafter issued thereunder shall have the same lien,
and so that the principal of and premium, if any, and interest on
every such bond shall, subject to the terms of the Indenture, or
the Indenture as supplemented and amended, be equally and
proportionately secured thereby and hereby, as if it had been
-8-
made, executed, delivered, sold and negotiated simultaneously
with the execution and delivery of the Indenture.
AND IT IS EXPRESSLY DECLARED that all bonds issued and
secured thereunder and hereunder are to be issued, authenticated
and delivered, and all said premises, property, franchises and
rights hereby and by the Indenture, or the Indenture as
supplemented and amended, conveyed, assigned, pledged or
mortgaged, or intended so to be (including the right, title and
interest of the Company in and to any and all premises, property,
franchises and rights of every kind and description, real,
personal and mixed, tangible and intangible, thereafter acquired
by the Company and whether or not specifically described in the
Indenture or in an indenture supplemental thereto, except any
therein expressly excepted), are to be dealt with and disposed
of, under and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes expressed in the
Indenture, or the Indenture as supplemented and amended.
SECTION 1. There is hereby created a series of bonds
designated as hereinbefore set forth (said bonds being sometimes
herein referred to as the "bonds of the Forty-second Series"),
and the form thereof shall be substantially as hereinbefore set
forth. Bonds of the Forty-second Series shall mature on the date
specified in the form thereof hereinbefore set forth. The
definitive bonds of the Forty-second Series shall be issued only
in fully registered form without coupons in denominations of
$1,000 and any integral multiple thereof. The serial numbers of
bonds of the Forty-second Series shall be such as may be approved
by any officer of the Company, the execution thereof by any such
officer to be conclusive evidence of such approval.
Bonds of the Forty-second Series, until the principal
thereof shall have become due and payable, shall bear interest at
the annual rate designated in the title thereof, payable semi-
annually on June 1 and December 1 in each year.
The principal of, the premium, if any, and the interest on
the bonds of the Forty-second Series shall be payable in any coin
or currency of the United States of America which at the time of
payment is legal tender for public and private debts, at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, designated for that purpose.
Bonds of the Forty-second Series may be transferred at the
corporate trust office of the Trustee, in the Borough of
Manhattan, The City of New York. Bonds of the Forty-second
Series shall be exchangeable for other bonds of the same series,
in the manner and upon the conditions prescribed in the
-9-
Indenture, upon the surrender of such bonds at said corporate
trust office of the Trustee. However, notwithstanding the
provisions of Section 2.05 of the Indenture, no charge shall be
made upon any transfer or exchange of bonds of the Forty-second
Series other than for any tax or taxes or other governmental
charge required to be paid by the Company.
The person in whose name any bond of the Forty-second Series
is registered at the close of business on any record date (as
hereinbelow defined) with respect to any interest payment date
shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such
bond upon any transfer or exchange thereof subsequent to the
record date and prior to such interest payment date, except if
and to the extent the Company shall default in the payment of the
interest due on such interest payment date, in which case such
defaulted interest shall be paid to the person in whose name such
bond (or any bond or bonds issued, directly or after intermediate
transactions, upon transfer or exchange or in substitution
thereof) is registered on a subsequent record date for such
payment established as hereinafter provided. A subsequent record
date may be established by the Company by notice mailed to the
holders of bonds not less than ten days preceding such record
date, which record date shall be not less than five nor more than
thirty days prior to the subsequent interest payment date. The
term "record date" as used in this Section with respect to any
regular interest payment date shall mean the May 15 or November
15, as the case may be, next preceding such interest payment
date, or, if such May 15 or November 15 shall be a legal holiday
or a day on which banking institutions in the Borough of
Manhattan, The City of New York, are authorized by law to close,
the next preceding day which shall not be a legal holiday or a
day on which such institutions are so authorized to close.
Bonds of the Forty-second Series shall be dated and, except
as provided in this Section, shall bear interest as provided in
Section 2.03 of the Indenture; provided, however, that, so long
as there is no existing default in the payment of interest on
such bonds, the holder of any such bond authenticated by the
Trustee between the record date for any interest payment date and
such interest payment date shall not be entitled to the payment
of the interest due on such interest payment date and shall have
no claim against the Company with respect thereto; provided,
further, that, if and to the extent the Company shall default in
the payment of the interest due on such interest payment date,
then any such bond shall bear interest from the June 1 or
December 1, as the case may be, next preceding the date of such
bond, to which interest has been paid or, if the Company shall be
-10-
in default with respect to the interest due on June 1, 1996, then
from December 1, 1995.
Prior to December 1, 2005, the bonds of the Forty-second
Series shall not be redeemable at the option of the Company, or
by the operation of Section 4 of the Supplemental Indenture dated
as of June 1, 1964 or of Section 2 of this Supplemental Indenture
or of the improvement fund provisions of any Supplemental
Indenture other than this Supplemental Indenture or by the use of
proceeds of released property.
On or after December 1, 2005, any or all of the bonds of the
Forty-second Series shall be redeemable at the option of the
Company, or by operation of various provisions of the Indenture,
at any time and from time to time, prior to maturity, upon notice
given by mailing the same, by first class mail postage prepaid,
not less than thirty nor more than forty-five days prior to the
date fixed for redemption to each registered holder of a bond to
be redeemed (in whole or in part) at the last address of such
holder appearing on the registry books, at the principal amount
thereof and accrued interest thereon to the date fixed for
redemption, together (a), if redeemed otherwise than by the
operation of Section 4 of the Supplemental Indenture dated as of
June 1, 1964 or of Section 2 of this Supplemental Indenture or of
the improvement fund provisions of any Supplemental Indenture
other than this Supplemental Indenture and otherwise than by the
use of proceeds of released property, with a regular redemption
premium equal to a percentage of the principal amount thereof
determined as set forth in the tabulation appearing in the form
of bond hereinbefore set forth, and (b), if redeemed by the
operation of Section 4 of the Supplemental Indenture dated as of
June 1, 1964 or of Section 2 of this Supplemental Indenture or of
the improvement fund provisions of any Supplemental Indenture
other than this Supplemental Indenture or by the use of proceeds
of released property, either (i) with a special redemption
premium, if any, equal to a percentage of the principal amount
thereof determined as set forth in the tabulation appearing in
the form of bond hereinbefore set forth or (ii), if no special
redemption premium is so set forth, then without premium.
SECTION 2. The Company covenants that, so long as any bonds
of the Forty-second Series shall be outstanding under the
Indenture, it will, on or before June 1 in each year commencing
with June 1, 1996:
(a) deposit with the Trustee subject to the
provisions of this Section cash and/or bonds of any
series authenticated under the Indenture then
outstanding (taken at their principal amount) in an
-11-
amount equal to the "improvement fund requirement"
(which term, as used in this Section, shall mean for
any year an amount equal to one per centum (1%) of the
aggregate principal amount of bonds of the Forty-second
Series authenticated and delivered by the Trustee
pursuant to the provisions of Articles IV, V and VI of
the Indenture, prior to January 1 of that year, after
deducting from such aggregate principal amount the
principal amount of bonds of the Forty-second Series
which, prior to January 1 of that year, have been
deposited with the Trustee for cancellation as the
basis for the release of property or for the withdrawal
of cash representing proceeds of released property or
have been purchased or redeemed by the use of proceeds
of released property); or,
(b) to the extent that it does not so deposit
cash and/or bonds, certify to the Trustee unfunded net
property additions in an amount equal to one hundred
sixty-six and two-thirds per centum (166 2/3%) of the
portion of the improvement fund requirement not so
satisfied.
The term "improvement fund certificate", as used in this
Section, shall mean an accountant's certificate filed by the
Company with the Trustee pursuant to this Section. Such
certificate may be a separate certificate or it may be combined
with an improvement fund certificate or certificates filed
pursuant to the improvement fund provisions of the Indenture or
of any other indenture or indentures supplemental thereto.
On or before the first day of June in each year, beginning
June 1, 1996, so long as any bonds of the Forty-second Series are
outstanding under the Indenture, the Company shall deliver to the
Trustee an improvement fund certificate showing the improvement
fund requirement for that year, the amount of cash, if any, and
the principal amount of bonds authenticated under the Indenture
then outstanding, if any, then to be deposited by the Company
with the Trustee and, if the Company elects to satisfy the
improvement fund requirement for that year in whole or in part by
the certification of unfunded net property additions, the amount,
if any, of unfunded net property additions to be certified. The
Company shall, concurrently with the delivery to the Trustee of
such certificate, deposit with the Trustee the amount of cash, if
any, and the principal amount of bonds, if any, shown in such
certificate.
No property additions shall be certified in any improvement
fund certificate pursuant to the provisions of this Section
-12-
unless there shall be delivered to the Trustee with such
certificate the applicable certificates, opinion of counsel,
instruments and cash, if any, required by paragraphs (3), (4),
(5), (7), (9) and (10) of Section 4.05 of the Indenture, showing
that the Company has unfunded net property additions equal to the
amount so certified.
The Trustee shall hold any cash deposited with it under the
provisions of this Section as a part of the mortgaged and pledged
property until paid out as hereinafter provided. Any cash
deposited with the Trustee under the provisions of this Section
may, upon receipt by the Trustee of the written order of the
Company signed by its President or a Vice President, of a
treasurer's certificate such as is described in paragraph (2) of
Section 4.05 of the Indenture and of an opinion of counsel,
(1) be withdrawn, used or applied by the Company in
accordance with the provisions of paragraph (2), (3) or (4)
of Section 10.05 of the Indenture, except that any premium
required to be paid to purchase or redeem bonds shall be
paid out of funds held by the Trustee under this Section and
the Company shall not be required to furnish the Trustee
with additional funds for such purpose or to reimburse the
Trustee or the improvement fund for moneys so paid out.
Interest and expenses in connection with the purchases or
redemptions pursuant to this Section shall be dealt with as
provided in Section 9.05 of the Indenture; or
(2) be withdrawn by the Company to the extent of sixty
per centum (60%) of the amount of unfunded net property
additions certified to the Trustee for such purpose, but
only upon receipt by the Trustee of the applicable
certificates, opinion of counsel, instruments and cash, if
any, required by paragraphs (3), (4), (5), (7), (9) and (10)
of Section 4.05 of the Indenture, showing that the Company
has unfunded net property additions equal to the amount so
certified.
Bonds deposited with the Trustee pursuant to this Section,
or purchased or redeemed by the use of cash deposited pursuant to
this Section, shall be cancelled and shall not be thereafter made
the basis for the authentication of bonds, the withdrawal, use or
application of cash, or the release of property, under any of the
provisions of the Indenture, or thereafter used to satisfy the
requirements of this Section or of any other improvement fund
provided for in the Indenture or in any indenture supplemental
thereto or to satisfy any replacement deficit pursuant to Section
4 of the Supplemental Indenture dated as of June 1, 1964.
-13-
To the extent that unfunded net property additions are
certified to the Trustee to satisfy the improvement fund
requirement for any year in whole or in part or as a basis for
the withdrawal of cash deposited with the Trustee under the
provisions of this Section, the amount of such unfunded net
property additions shall thereafter be deducted in computing the
amount of unfunded net property additions under Section 1.11 of
the Indenture and in computing gross property additions under
Section 7.07 of the Indenture.
SECTION 3. The Company covenants that the provisions of
Section 4 of the Supplemental Indenture dated as of June 1, 1964,
which are to remain in effect so long as any bonds of the
Thirteenth Series shall be outstanding under the Indenture, shall
remain in full force and effect so long as any bonds of the
Forty-second Series shall be outstanding under the Indenture.
The Company covenants that it will not, in any calendar year
subsequent to 2004, redeem any bonds of the Forty-second Series
through the operation of Section 4 of the Supplemental Indenture
dated as of June 1, 1964 or this Section in a principal amount
that would exceed one per centum (1%) of the aggregate principal
amount of bonds of the Forty-second Series initially
authenticated and delivered under this Supplemental Indenture.
SECTION 4. The Company covenants that, so long as any bonds
of the Forty-second Series shall be outstanding under the
Indenture, it will not, after September 30, 1995, declare or pay
any dividends, or make any other distributions (except (a)
dividends payable or distributions made in shares of common stock
of the Company and (b) dividends payable in cash in cases where,
concurrently with the payment of the dividend, an amount in cash
equal to the dividend is received by the Company as a capital
contribution or as the proceeds of the issue and sale of shares
of its common stock), on or in respect of its common stock, or
purchase or otherwise acquire for a consideration any shares of
its common stock, if the aggregate of such dividends,
distributions and such consideration for purchase or other
acquisition of shares of its common stock after September 30,
1995, shall exceed
(i) the earned surplus of the Company accumulated
after September 30, 1995 (determined in accordance with
generally accepted accounting principles and without giving
effect to charges to earned surplus on account of such
dividends, distributions or acquisitions or on account of
the disposition of any amounts which may then be classified
by the Company on its books as amounts in excess of the
original cost of utility plant or to charges or credits to
-14-
earned surplus on account of items inherent in the balance
sheet at September 30, 1995), plus
(ii) the earned surplus of the Company accumulated
prior to October 1, 1995 in an amount not exceeding
$47,000,000, plus
(iii) such additional amount as shall be authorized or
approved, upon application by the Company, by the Securities
and Exchange Commission, or by any successor commission
thereto, under the Public Utility Holding Company Act of
1935, as amended.
For the purposes of this Section, in determining the earned
surplus of the Company accumulated after September 30, 1995,
there shall be deducted the dividends accruing subsequent to
September 30, 1995 on preferred stock of the Company and the
total amount, if any, by which the charges to income or earned
surplus since September 30, 1995 as provision for depreciation of
the mortgaged and pledged property (other than specially
classified property) shall have been less than the sum of the
amounts equal to the product of the applicable percentage (as
defined in Section 4 of the Supplemental Indenture dated as of
June 1, 1964) and the mathematical average of the amounts of
depreciable property (as defined in said Section 4) at the
opening of business on the first day and at the close of business
on the last day of each calendar year (and, proportionately, of
each period of months which is less than a calendar year)
subsequent to September 30, 1995 included in the period for which
earned surplus is being determined. The term "consideration", as
used in this Section, shall mean cash or fair value if the
consideration be other than cash, and the term "provision for
depreciation", as used in this Section, shall not be deemed to
include provision for the amortization of any amounts classified
by the Company on its books as amounts in excess of the original
cost of utility plant.
SECTION 5. As supplemented by this Supplemental Indenture,
the Indenture, as heretofore supplemented and amended, is in all
respects ratified and confirmed, and the Indenture, as heretofore
supplemented and amended, and this Supplemental Indenture shall
be read, taken and construed as one and the same instrument.
SECTION 6. Nothing in this Supplemental Indenture contained
shall, or shall be construed to, confer upon any person other
than a holder of bonds issued under the Indenture, the Company
and the Trustee any right or interest to avail himself of any
benefit under any provision of the Indenture, as heretofore
supplemented and amended, or of this Supplemental Indenture.
-15-
SECTION 7. This Supplemental Indenture may be executed in
several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the
same instrument.
-16-
IN WITNESS WHEREOF, said Mississippi Power Company has
caused this Supplemental Indenture to be executed in its
corporate name by its President or one of its Vice Presidents and
its corporate seal to be hereunto affixed and to be attested by
its Secretary or one of its Assistant Secretaries, and said
Bankers Trust Company, to evidence its acceptance hereof, has
caused this Supplemental Indenture to be executed in its
corporate name by one of its Vice Presidents, Assistant Vice
Presidents or Trust Officers and its corporate seal to be
hereunto affixed and to be attested by one of its Assistant
Secretaries, in several counterparts, all as of the day and year
first above written.
MISSISSIPPI POWER COMPANY
[CORPORATE SEAL]
By:___________________________
Vice President
Attest:
__________________________
Assistant Secretary
Signed, sealed and delivered
this 15th day of December, 1995
by Mississippi Power Company,
in the County of Harrison,
State of Mississippi, in the
presence of:
__________________________
__________________________
-17-
BANKERS TRUST COMPANY
[CORPORATE SEAL]
By:___________________________
Assistant Vice President
Attest:
__________________________
Assistant Secretary
Signed, sealed and delivered
this 15th day of December 1995
by Bankers Trust Company in the
County of New York, State of
New York, in the presence of:
__________________________
__________________________
-18-
STATE OF MISSISSIPPI)
) SS.:
COUNTY OF HARRISON )
Personally appeared before me, the undersigned authority in
and for the aforesaid state and county, Michael W. Southern, as
Vice President, and Ann D. Estes, as Assistant Secretary, of
MISSISSIPPI POWER COMPANY, who acknowledged that they signed,
attached the corporate seal of the corporation thereto, and
delivered the foregoing instrument on the day and year therein
stated, by the authority of and as the act and deed of the
corporation.
Given under my hand and official seal this 15th day of
December, 1995.
___________________________
Kim E. Necaise, Notary Public
[NOTARIAL SEAL] My Commission Expires
July 14, 1997
STATE OF MISSISSIPPI)
) SS.:
COUNTY OF HARRISON )
On the 15th day of December, in the year one thousand nine
hundred and ninety-five, before me personally came Michael W.
Southern, to me known, who being by me duly sworn, did depose and
say that he resides at #5 Pine Haven, Gulfport, Mississippi
39503; that he is a Vice President of MISSISSIPPI POWER COMPANY,
one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said
corporation; and that he signed his name thereto by like order.
___________________________
Kim E. Necaise, Notary Public
[NOTARIAL SEAL] My Commission Expires
July 14, 1997
-19-
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK)
Personally appeared before me, the undersigned authority in
and for the aforesaid state and county, James C. McDonough, as
Assistant Vice President, and Bernard Angelo, as Assistant
Secretary, of BANKERS TRUST COMPANY, who acknowledged that they
signed, attached the corporate seal of the corporation thereto,
and delivered the foregoing instrument on the day and year
therein stated, by the authority of and as the act and deed of
the corporation.
Given under my hand and official seal this 15th day of
December, 1995.
_____________________________
Sharon V. Alston
Notary Public
State of New York
[NOTARIAL SEAL] No. 31-4966275
Qualified in New York County
Commission Expires May 7, 1996
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK)
On the 15th day of December, in the year one thousand nine
hundred and ninety-five, before me personally came James C.
McDonough, to me known, who being by me duly sworn, did depose
and say that he resides at 150 Draper Lane, Dobbs Ferry, New York
10804; that he is an Assistant Vice President of BANKERS TRUST
COMPANY, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation; and that he signed his name
thereto by like order.
_____________________________
Sharon V. Alston
Notary Public
State of New York
[NOTARIAL SEAL] No. 31-4966275
Qualified in New York County
Commission Expires May 7, 1996
-20-