EXHIBIT 1(b)
FORM OF PROPOSAL
For the Purchase of
MISSISSIPPI POWER COMPANY
$35,000,000
SERIES B ___% SENIOR NOTES DUE MAY 1, 2003
Dated: May 14, 1998
MISSISSIPPI POWER COMPANY
c/o Southern Company Services, Inc.
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Ladies and Gentlemen:
Referring to the terms and conditions dated May 8, 1998 (the "Terms and
Conditions"), relating to proposals for the purchase of Series B ___% Senior
Notes due May 1, 2003 (the "Series B Senior Notes") of Mississippi Power Company
(the "Company"), the persons, firms and corporations named in Exhibit A attached
hereto (the "Bidders") have submitted and confirm herewith the following
proposal for the purchase of $35,000,000 aggregate principal amount of the
Series B Senior Notes (the "Designated Principal Amount"):
1. The interest rate of the Series B Senior Notes shall be
6.05% per annum.
2. The price to be paid to the Company for the Series B Senior
Notes shall be 99.835%* of the Designated Principal Amount thereof,
each of the Bidders hereby offering, severally and not jointly, to
purchase from the Company, at said price and upon the terms and
conditions set forth in the form of purchase contract attached hereto
as Exhibit B (the "Purchase Contract"), the principal amount of Series
B Senior Notes set forth opposite its name in Exhibit A attached
hereto, or the principal amount of Series B Senior Notes to be set
forth opposite its name in Exhibit A attached hereto as provided in
Section 3 of the Terms and Conditions, which together aggregate the
Designated Principal Amount of the Series B Senior Notes. Exhibit A
attached hereto, when completed, is hereinafter and in the Purchase
Contract called "Exhibit A to the Form of Proposal".
3. In consideration of the agreement of the Company set forth
in the Terms and Conditions that, subject to the provisions thereof,
the Company will accept the proposal which results in the lowest
"annual cost of money" to it for the Series B Senior Notes, each of the
Bidders agrees (a) that the offer of such Bidder included in this
proposal shall be irrevocable until three hours after the time fixed
* May not be less than 98.75%
for the submission of proposals, unless sooner rejected by the Company;
(b) that, if this proposal shall be accepted in writing by the Company,
such Bidder, either in person or by the Representative(s) on its
behalf, will forthwith furnish to the Company in writing the
information referred to in Section 7 of the Terms and Conditions; and
(c) that, if this proposal shall be so accepted by the Company, the
Purchase Contract shall thereupon become effective without any separate
execution thereof and shall constitute the agreement between the
Company and the Bidders and, upon performance by the Bidders, and the
Representative(s), of their obligations under Sections 3, 4 and 7 of
the Terms and Conditions, all rights of the Company and of the Bidders
shall be determined solely in accordance with the terms thereof,
subject, however, to such modifications therein (including Exhibit A to
the Form of Proposal) as may be necessary and as are contemplated by
the Terms and Conditions.
4. This proposal must be accepted or rejected by the Company
in its entirety within three hours after the time fixed for the
submission thereof.
5. This proposal may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
Each of the Bidders acknowledges receipt of a copy of the prospectus in
respect of the Series B Senior Notes furnished by the Company to the Bidders
pursuant to the last paragraph of Section 5 of the Terms and Conditions.
Very truly yours,
First Union Capital Markets,
a division of Wheat First Securities, Inc.
Name(s) of Representative(s)
By:
Title:
On behalf of and as
Representative(s) of the
persons, firms and
corporations named in
Exhibit A hereto.
Address
Accepted:
MISSISSIPPI POWER COMPANY
By:
Title:
EXHIBIT A
The names of the Bidders and the respective principal amounts of the
Series B Senior Notes which they severally offer to purchase are as follows:
Name Principal Amount
EXHIBIT B
MISSISSIPPI POWER COMPANY
PURCHASE CONTRACT
For Purchase of Series B Senior Notes of the Company
AGREEMENT made between Mississippi Power Company, a corporation
organized and existing under the laws of the State of Mississippi ("Company"),
party of the first part, and the several persons, firms and corporations (the
"Purchasers") named as Bidders in Exhibit A to the Form of Proposal to which
this agreement is attached as Exhibit B (the "Form of Proposal"), parties of the
second part,
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell the Designated
Principal Amount (as defined in the Form of Proposal) of its Series B Senior
Notes due May 1, 2003 (the "Series B Senior Notes"), to be issued under the
Senior Note Indenture dated as of May 1, 1998, as supplemented and as to be
supplemented (the "Indenture"), between the Company and Bankers Trust Company,
as Trustee (the "Trustee"), and to bear interest at the rate per annum specified
in paragraph 1 of the Form of Proposal; and
WHEREAS, the Purchasers have authorized the person or persons signing
the Form of Proposal (the "Representative") to execute the Form of Proposal on
behalf of the respective Purchasers and to act for the respective Purchasers in
the manner provided in this agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission"), a registration
statement and prospectus relating to the Series B Senior Notes and certain other
securities, and such registration statement has become effective (such
registration statement, as it became effective, including the exhibits thereto
and all documents incorporated by reference in the prospectus at such time
pursuant to Item 12 of Form S-3, being herein called the "Registration
Statement"); and
WHEREAS, the prospectus referred to in the last paragraph of the Form
of Proposal (such prospectus, including all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 as of the time of the acceptance of
the Form of Proposal, being herein called the "Bidding Prospectus") is to be
supplemented by a prospectus supplement (the "Prospectus Supplement"), including
certain information relating to the Purchasers, the price and the terms of
offering, and the interest rate, maturity date and redemption provisions of the
Series B Senior Notes (the Bidding Prospectus as supplemented by the Prospectus
Supplement being herein called the "Prospectus").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions herein set forth,
the Company agrees to sell to the respective Purchasers, severally and not
jointly, and the respective Purchasers, severally and not jointly, agree to
purchase from the Company, at the price specified in paragraph 2 of the Form of
Proposal, the respective principal amounts of Series B Senior Notes set opposite
their names in Exhibit A to the Form of Proposal, which together aggregate the
Designated Principal Amount of the Series B Senior Notes.
2. Payment and Delivery: Payment for the Series B Senior Notes shall be
made to the Company or its order by wire transfer of federal funds, upon the
delivery of the Series B Senior Notes as hereinafter provided to the
Representative for the respective accounts of the Purchasers, against receipt
therefor signed by the Representative on behalf of itself and as agent for the
other Purchasers. Such payment and delivery shall be made at the offices of
Troutman Sanders LLP, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia
30308-2216 (or at such other place as may be agreed upon by the Representative
and the Company) at 10 a.m. New York time on the sixth day (which shall be a
full business day) after this agreement becomes effective (or at such other time
or on such other day as may be agreed upon by the Representative and the
Company), unless postponed in accordance with the provisions of Section 7
hereof. The time at which payment and delivery are to be made is herein
sometimes called the "time of purchase."
Delivery of definitive Series B Senior Notes is expected to be made in
registered form without coupons, registered in the name of Cede & Co. or other
nominee of The Depository Trust Company ("DTC"). One or more global Series B
Senior Notes certificates will be issued and deposited with DTC or its designee.
Such certificate or certificates will be made available for examination by the
Representative not later than 12:00 noon New York time on the last business day
prior to the time of purchase.
3. Conditions of Purchasers' Obligations: The several obligations of
the Purchasers hereunder are subject to the accuracy of the warranties and
representations on the part of the Company herein contained and to the following
other conditions:
(a) That all legal proceedings to be taken by the Company in
connection with the issue and sale of the Series B Senior Notes and the
legal opinions provided for in Sections 3(b)(1) and (2) hereof shall be
satisfactory in form and substance to Dewey Ballantine LLP, counsel to
the Purchasers.
(b) That, at the time of purchase, the Representative shall be
furnished the following opinions and letter and copies or signed
counterparts thereof for each of the Purchasers, with such changes
therein as may be agreed upon by the Company and the Representative
with the approval of Dewey Ballantine LLP:
(1) Opinion of Eaton and Cottrell, P.A., of Gulfport,
Mississippi, general counsel for the Company, substantially in
the form attached hereto as Exhibit 1.
(2) Opinion of Troutman Sanders LLP, of Atlanta,
Georgia, counsel to the Company, substantially in the form
attached hereto as Exhibit 2.
(3) Opinion of Dewey Ballantine LLP, of New York, New
York, substantially in the form attached hereto as Exhibit 3.
(4) Letter dated the date of payment and delivery
from Arthur Andersen LLP to the effect that: (A) they are
independent public accountants with respect to the Company
within the meaning of the Securities Act and the applicable
published rules and regulations thereunder; (B) in their
opinion, the financial statements and schedules audited by
them and incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the related published rules and regulations; (C)
they have performed certain limited procedures through a
specified date not more than five business days prior to the
date of such letter, namely (i) reading the minute books of
the Company; (ii) reading the unaudited financial statements,
if any, of the Company incorporated in the Prospectus and
agreeing the amounts therein with the Company's accounting
records; (iii) making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding whether the unaudited financial statements,
if any, incorporated in the Prospectus (a) are in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements incorporated in the Prospectus and (b)
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations; (iv) reading the unaudited
amounts for Operating Revenues, Income Before Interest Charges
and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) set forth in the Prospectus Supplement, which
amounts shall include such amounts for the latest calendar
quarter subsequent to that covered by the financial statements
incorporated by reference in the Prospectus for which such
amounts are available at the time this agreement becomes
effective; (v) reading the unaudited financial statements from
which the amounts and ratios described in (iv) were derived
and agreeing the amounts therein to the Company's accounting
records; (vi) making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding whether (a) the unaudited amounts and ratios
referred to in (iv) above and the unaudited financial
statements referred to in (v) above are stated on a basis
substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in the Prospectus and (b) as of a specified date not
more than five business days prior to the date of delivery of
such letter, there has been any change in the capital stock or
long-term debt of the Company or any decrease in net assets as
compared with amounts shown in the latest audited balance
sheet incorporated in the Prospectus, except in each case for
changes or decreases which (I) the Prospectus discloses have
occurred or may occur, (II) are occasioned by the declaration
of dividends, (III) are occasioned by draw-downs under
existing pollution control financing arrangements, (IV) are
occasioned by draw-downs and regularly scheduled payments of
capitalized lease obligations, (V) are occasioned by the
purchase or redemption of bonds or stock to satisfy mandatory
or optional redemption provisions relating thereto, or (VI)
are disclosed in such letter; (vii) reading the unaudited
amounts for Operating Revenues, Income Before Interest Charges
and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) for the latest calendar quarter subsequent to those
set forth in (iv) above, which if available shall be set forth
in such letter; (viii) reading the unaudited financial
statements from which the amounts and ratios described in
(vii) above were derived and which will be attached to such
letter and agreeing the amounts therein to the Company's
accounting records; and (ix) making inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited amounts
and ratios referred to in (vii) above and the unaudited
financial statements referred to in (viii) above are stated on
a basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus; and (D) reporting
their findings as a result of performing the limited
procedures set forth in (C) above. It is understood that the
foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with
respect to the comments made in such letter, and accordingly
that Arthur Andersen LLP make no representations as to the
sufficiency of such procedures for the several Purchasers'
purposes.
(c) That no amendment or supplement (including the Prospectus
Supplement) to the registration statement or prospectus filed
subsequent to the time this agreement becomes effective (including any
filing made by the Company pursuant to Section 13 or 14 of the Exchange
Act) shall be unsatisfactory in form to Dewey Ballantine LLP or shall
contain information (other than with respect to an amendment or
supplement relating solely to the activity of any Purchaser or
Purchasers) which, in the reasonable judgment of the Representative,
shall materially impair the marketability of the Series B Senior Notes.
(d) That, at or before 8 p.m. New York time on the first
business day after the date this agreement becomes effective, or at
such later time and date as the Representative may from time to time
consent to in writing or by telephone, confirmed in writing, an
appropriate order or orders of the Commission under the Public Utility
Holding Company Act of 1935, as amended, necessary to permit the issue
and sale of the Series B Senior Notes shall be in effect; and that,
prior to the time of purchase, no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Securities Act by the Commission or proceedings therefor
initiated or threatened.
(e) That, prior to the time of purchase, there shall have been
no material adverse change in the business, properties or financial
condition of the Company (whether or not arising in the ordinary course
of business) from that set forth in or contemplated by the Prospectus,
and that the Company shall, at the time of purchase, have delivered to
the Representative a certificate to such effect of an executive officer
of the Company. For the purpose of this condition, the sale by the
Company of, or its failure to sell, any issue of other securities shall
not be deemed to be such a change.
(f) That the Company shall have performed such of its
obligations under this agreement as are to be performed at or prior to
the time of purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Purchasers herein contained, the Company covenants as follows:
(a) As soon as practicable after this agreement becomes
effective, and in any event within the time prescribed by Rule 424
under the Securities Act, to file the Prospectus Supplement with the
Commission and to advise the Representative of such filing and to
confirm such advice in writing.
(b) As soon as the Company is advised thereof, to advise the
Representative and confirm the advice in writing of any request made by
the Commission for amendments to the Registration Statement or
Prospectus, including any amendment to any of the documents
incorporated therein by reference pursuant to Item 12 of Form S-3, or
of the issuance of a stop order suspending the effectiveness of the
Registration Statement or of the initiation or threat of any
proceedings for that purpose and, if such a stop order should be issued
by the Commission, to make every reasonable effort to obtain the
lifting or removal thereof as soon as possible.
(c) To deliver to the Purchasers, without charge, as soon as
practicable on or after the date this agreement becomes effective, and
from time to time thereafter during such period of time (not exceeding
nine months) after this agreement becomes effective as the Purchasers
are required by law to deliver a prospectus, as many copies of the
Prospectus (as supplemented or amended if the Company shall have made
any supplements or amendments thereto) as the Representative may
reasonably request; and, in case any Purchaser is required by law to
deliver a prospectus after the expiration of nine months after the date
this agreement becomes effective, to furnish to such Purchaser, upon
request of the Representative, at the expense of such Purchaser, a
reasonable quantity of a supplemental prospectus or of supplements to
the Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) During such period of time after the date this agreement
becomes effective as the Purchasers are required by law to deliver a
prospectus, to file timely all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the Exchange Act.
(e) To furnish to the Representative, or if such
Representative consists of two or more persons to one of such persons,
one copy, certified by an officer of the Company, of the registration
statement as initially filed with the Commission, all amendments
thereto and all documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 as of the time of purchase (in each
case, exclusive of exhibits), and to furnish to the Representative
sufficient plain copies of said registration statement and all
amendments thereto (exclusive of exhibits) for distribution of two
each, and all said documents incorporated therein as of the time of
purchase (exclusive of exhibits) for distribution of one each, to the
other Purchasers.
(f) In the event that the Purchasers constitute "underwriters"
within the meaning of Section 2(11) of the Securities Act, then, for
such period of time (not exceeding nine months) after the date this
agreement becomes effective as they are required by law to deliver a
prospectus, if any event shall have occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, forthwith to amend or
supplement the Prospectus by either (i) preparing and furnishing, at
its own expense, to the Purchasers and to dealers (whose names and
addresses are furnished to the Company by the Representative) to whom
Series B Senior Notes may have been sold by the Representative on
behalf of the Purchasers and, upon request, to any other dealers making
such request, either amendments to the Prospectus or supplements
thereto, or (ii) making an appropriate filing pursuant to Section 13 or
14 of the Exchange Act which would supplement or amend the Prospectus,
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading.
(g) To make generally available to the Company's security
holders, as soon as practicable, an earning statement (which need not
be audited) covering a period of at least twelve months beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" of the Registration Statement as defined in Rule
158(c) under the Securities Act, which earning statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(h) To use its best efforts to qualify the Series B Senior
Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as the Representative may designate within six months
after the date this agreement becomes effective and to pay filing fees
and disbursements in connection therewith in an amount not exceeding
$3,500 in the aggregate (including filing fees and disbursements paid
or incurred prior to the date this agreement becomes effective),
provided, however, that the Company shall not be required to qualify as
a foreign corporation or to file a consent to service of process or to
file annual reports or to comply with any other requirements deemed by
the Company to be unduly burdensome.
(i) To pay expenses, fees and taxes (other than transfer
taxes) in connection with (1) the preparation and filing of the
Registration Statement and Prospectus, (2) the preparation and
execution of the new supplemental indenture pursuant to which the
Series B Senior Notes are to be issued, (3) the issue and delivery of
the Series B Senior Notes to the Purchasers, and (4) the furnishing of
the opinions, letter and certificates referred to in Section 3 hereof,
except that the Company shall be required to pay the fees and
disbursements (other than filing fees and disbursements referred to in
paragraph (h) of this Section 4) of Dewey Ballantine LLP only in an
event provided in paragraph (j) of this Section 4, the Purchasers
hereby agreeing to pay such fees and disbursements in any other event
and, if such fees should be less than the amount stated by such counsel
to the Representative, to repay the Company the amount of any
reduction.
(j) If the Purchasers shall not take up and pay for the Series
B Senior Notes due to the failure of the Company to comply with any of
the conditions specified in Section 3 hereof, or if this agreement
shall be terminated in accordance with the provisions of Section 7 or 8
hereof, to pay the reasonable fees and disbursements of Dewey
Ballantine LLP, and, if the Purchasers shall not take up and pay for
the Series B Senior Notes due to the failure of the Company to comply
with any of the conditions specified in Section 3 hereof, to reimburse
the Purchasers for their reasonable out-of-pocket expenses, in an
amount not exceeding a total of $10,000, incurred in connection with
the financing contemplated by this agreement.
(k) During the period of 15 days from the date this agreement
becomes effective, without the prior written consent of the
Representative, not to issue or sell directly or indirectly any senior
notes (other than the Series B Senior Notes and $55,000,000 aggregate
principal amount of Series A Senior Insured Quarterly Notes due June
30, 2038) or any other long-term debt of the Company having terms and
provisions substantially similar to the Series B Senior Notes.
5. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the
Purchasers that:
(i) The Registration Statement, when it became
effective, did not contain any 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 not
misleading and the Bidding Prospectus, on said date, did not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; when the Prospectus Supplement is
filed with the Commission, and at the time of purchase, the
Registration Statement and the Prospectus, as they may be
amended or supplemented, will comply, or be deemed to comply,
in all material respects with the provisions of the Securities
Act and the rules and regulations of the Commission
thereunder, the Registration Statement, as it may be amended
or supplemented, will not contain any 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 not
misleading, and the Prospectus, as it may be amended or
supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, and all documents
incorporated therein by reference pursuant to Item 12 of Form
S-3 as of such dates complied or will comply in all material
respects with the applicable provisions of the Exchange Act
and the rules and regulations of the Commission thereunder,
and, on said dates, when read together with the Prospectus, or
the Prospectus as it may be otherwise amended or supplemented,
will not contain an untrue statement of a material fact or
omit to state a material fact 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 any Purchaser with respect to
any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by, or through the Representative on behalf of, any
Purchaser for use in the Registration Statement or the
Prospectus, or to any statements in or omissions from that
part of the Registration Statement that shall constitute the
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the Trustee under the Indenture.
(ii) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of this agreement will not violate any of the terms,
conditions or provisions of, or constitute a default under,
any indenture or other contract or agreement to which the
Company is now a party or the charter or by-laws of the
Company or any order of any court or administrative agency
entered in any proceedings to which the Company is now a
party.
(b) The Company agrees to indemnify and hold harmless each of
the Purchasers and each person, if any, who controls any such Purchaser
within the meaning of Section 15 of the Securities 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 Securities Act or
otherwise, and to reimburse the Purchasers 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 the Bidding Prospectus (if used prior to the date this
agreement becomes effective), or in the Registration Statement, or in
the Prospectus or, if the Company shall furnish to the Purchasers any
amendments or any supplements to the Prospectus, or shall make any
filings pursuant to Section 13 or 14 of the Exchange Act which are
incorporated therein by reference, in the Prospectus as so amended or
supplemented (provided that, if such Prospectus or such Prospectus as
amended or supplemented is used after the expiration of the period of
time specified in Section 4(f) hereof, it shall contain such amendments
or supplements as the Company deems necessary to comply with Section
10(a)(3) of the Securities Act), 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
omission or alleged untrue statement or omission which was made in such
Registration Statement or Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by, or through the
Representative on behalf of, any Purchaser for use therein and except
that this indemnity with respect to the Bidding Prospectus, and with
respect to the Prospectus if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Purchaser (or of any person controlling such Purchaser) on account of
any losses, claims, damages, liabilities or actions arising from the
sale of Series B Senior Notes to any person if a copy of the Prospectus
(exclusive of documents incorporated therein by reference pursuant to
Item 12 of Form S-3), as the same may then be amended or supplemented,
shall not have been sent or given by or on behalf of such Purchaser 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 Prospectus as amended
or supplemented at the time of such confirmation. Each Purchaser
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 5(b), to notify the Company in
writing of the commencement thereof, but the omission of such Purchaser
so to notify the Company of any such action shall not release the
Company from any liability which it may have to such Purchaser or to
such controlling person otherwise than on account of the indemnity
agreement contained in this Section 5(b). In case any such action shall
be brought against any Purchaser or any such person controlling such
Purchaser and such Purchaser 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, any Purchaser or controlling person shall have the right
to employ its own counsel, but, in any such case, the fees and expenses
of such counsel shall be at the expense of such Purchaser or
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.
The Company's indemnity agreement contained in this Section
5(b), and its covenants, warranties and representations contained in
this agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any Purchaser or controlling
person, and shall survive the delivery of and payment for the Series B
Senior Notes hereunder.
6. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents to the Company, its
directors and such of its officers as shall have signed the
Registration Statement, and to each other Purchaser that the
information furnished in writing to the Company by, or through the
Representative on behalf of, such Purchaser for use in the Registration
Statement or the Prospectus does not contain an untrue statement of a
material fact and does not omit to state a material fact in connection
with such information required to be stated therein or necessary to
make such information not misleading.
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, its directors and such of its officers as shall have signed
the Registration Statement, and each other Purchaser and each person,
if any, who controls the Company or any such other Purchaser within the
meaning of Section 15 of the Securities Act, to the same extent and
upon the same terms as the indemnity agreement of the Company set forth
in Section 5(b) hereof, but only with respect to untrue statements or
omissions or alleged untrue statements or omissions made in the
Registration Statement or the Prospectus, or the Prospectus as amended
or supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Representative
on behalf of, such Purchaser for use therein.
The indemnity agreement on the part of each Purchaser
contained in this Section 6(b), and the warranties and representations
of such Purchaser contained in this agreement, shall remain in full
force and effect regardless of any investigation made by or on behalf
of the Company or other Purchaser or controlling person, and shall
survive the delivery of and payment for the Series B Senior Notes
hereunder.
7. Substitution of Purchasers: If any Purchaser under this agreement
shall fail or refuse (whether for some reason sufficient to justify, in
accordance with the terms hereof, the termination of its obligations to purchase
or otherwise) to purchase the principal amount of the Series B Senior Notes
which it has agreed to purchase, the Company shall immediately notify the
Representative, and the Representative may, within 24 hours of receipt of such
notice, procure some other responsible party or parties satisfactory to the
Company, who may include one or more of the remaining Purchasers, to purchase or
agree to purchase such principal amount of the Series B Senior Notes on the
terms herein set forth; and, if the Representative shall fail to procure a
satisfactory party or parties to purchase or agree to purchase such principal
amount of the Series B Senior Notes on such terms within such period after the
receipt of such notice, then the Company shall be entitled to an additional
period of 24 hours within which to procure another party or parties to purchase
or agree to purchase such principal amount of the Series B Senior Notes on the
terms herein set forth. In any such case, either the Representative or the
Company shall have the right to postpone the time of purchase for a period not
to exceed five full business days from the date determined as provided in
Section 2 hereof, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may be
effected. If the Representative shall fail to procure a satisfactory party or
parties to purchase or agree to purchase such principal amount of the Series B
Senior Notes, and if the Company also does not procure another party or parties
to purchase or agree to purchase such principal amount of the Series B Senior
Notes, as above provided, then this agreement shall terminate. In the event of
any such termination, the Company shall not be under any liability to any
Purchaser (except to the extent, if any, provided in Section 4(j) hereof), nor
shall any Purchaser (other than a Purchaser who shall have failed or refused to
purchase Series B Senior Notes without some reason sufficient to justify, in
accordance with the terms hereof, its termination of its obligations hereunder)
be under any liability to the Company.
8. Termination of Agreement: This agreement may be terminated at any
time prior to the time of purchase by the Representative with the consent of
Purchasers who have agreed to purchase in the aggregate 50% or more of the
Designated Principal Amount of the Series B Senior Notes, if, after this
agreement becomes effective and prior to the time of purchase, (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgment of the Representative, the marketability of the Series B
Senior Notes shall have been materially impaired.
If the Representative elects to terminate this agreement, as provided
in this Section 8, the Company and each other Purchaser shall be notified
promptly by the Representative by telephone, confirmed in writing. If this
agreement shall not be carried out by any Purchaser for any reason permitted
hereunder, or if the sale of the Series B Senior Notes to the Purchasers as
herein contemplated shall not be carried out because the Company is not able to
comply with the terms hereof, the Company shall not be under any obligation
under this agreement and shall not be liable to any Purchaser or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this agreement (except that the Company shall remain liable to
the extent provided in Section 4(j) hereof) and the Purchasers (other than a
defaulting Purchaser) shall be under no liability to the Company nor be under
any liability under this agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
permitted, be in writing and be delivered at or mailed to the following
addresses: if to the Purchasers or the Representative, to the Representative
at the address set forth following its signature in the Form of Proposal, and,
if to the Company, to the Company at 2992 West Beach, Gulfport, Mississippi
39501, Attention: Michael W. Southern, Vice President, Secretary, Treasurer
and Chief Financial Officer, with a copy to Southern Company Services, Inc.,
270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention: Charles N.
Eldred.
10. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Purchasers and the Company, its directors and
such of its officers as shall have signed the Registration Statement, and the
controlling persons, if any, referred to in Sections 5 and 6 hereof, and their
respective successors, assigns, executors and administrators, and, subject to
the provisions of Section 7 hereof, no other person shall acquire or have any
right under or by virtue of this agreement.
11. Definitions of Certain Terms: If there be two or more persons,
firms or corporations named in Exhibit A to the Form of Proposal, the term
"Purchasers", as used herein, shall be deemed to mean the several persons, firms
or corporations so named (including any substitute purchaser or purchasers
procured as provided by Section 7 hereof and the Representative hereinafter
mentioned, if so named), and the term "Representative", as used herein, shall be
deemed to mean the person or persons designated as representative or
representatives of the Purchasers by, or in the manner authorized by, the
Purchasers, who, by signing the Form of Proposal, represent that it or they have
been authorized by the Purchasers to execute the Form of Proposal on their
behalf and to act for them in the manner herein provided. In the event that all
the Purchasers execute the Form of Proposal and no one or more of them are
designated to act as representative or representatives, then the term
"Representative" shall be deemed to mean all the persons signing the Form of
Proposal. If the Representative consists of more than one person, the
Representative may act by any one thereof. All obligations of the Purchasers
hereunder are several and not joint. If there shall be only one person, firm or
corporation named in Exhibit A to the Form of Proposal, the term "Purchasers"
and the term "Representative", as used herein, shall mean such person, firm or
corporation.
EXHIBIT 1
[Letterhead of Eaton and Cottrell, P.A.]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998,
between Mississippi Power Company and said Purchasers (the "Purchase Contract")
for the purchase of Mississippi Power Company Series B ___% Senior Notes due May
1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the "Company")
in connection with the purchase by you pursuant to the Purchase Contract of
$35,000,000 aggregate principal amount of the Series B Senior Notes, issued
under the Senior Note Indenture dated as of May 1, 1998, between the Company and
Bankers Trust Company, as trustee (the "Trustee"), as heretofore supplemented
and as supplemented by the Second Supplemental Indenture dated as of May __,
1998 (said Indenture, as so supplemented and amended, being hereinafter called
the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos.
333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the
Securities Act of 1933, as amended (the "Act"), as it became effective under the
Act (the "Registration Statement"); the Company's prospectus dated February 9,
1998, as supplemented by the prospectus supplement dated May __, 1998 (the
"Prospectus"), filed by the Company pursuant to Rule 424 of the rules and
regulations of the Securities and Exchange Commission (the "Commission") under
the Act, 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, 1997 and the
Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998
and May __, 1998 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Series B Senior
Notes, of which we have examined a specimen), and we have made such other and
further investigations as we deemed necessary to enable us 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.
We are of the opinion, relying as to matters relating to the laws
administered by the Commission, including the Act, the Exchange Act and the
Trust Indenture Act (as hereinafter defined), on the opinion dated the date
hereof rendered to you by Troutman Sanders 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 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 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 Purchase
Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming 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 and the Series B Senior Notes may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and 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 Prospectus.
3. The Series B Senior Notes have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with
the Purchase Contract and subject to the qualifications set forth in
paragraph 2 above, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms; and the Series B Senior Notes conform as
to legal matters in all material respects to the description thereof in
the Prospectus.
4. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance of the Series B
Senior Notes have been obtained; 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 of
the Series B Senior Notes by the Company in accordance with the terms
of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed
and delivered by the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 2 and 3 above and in the
Prospectus in the second paragraph under the caption "Experts". In the course of
the preparation by the Company of the Registration Statement, the Prospectus and
the Exchange Act Documents, we participated in conferences with certain officers
and employees of the Company, with other counsel for the Company and with
representatives of Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the 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 Prospectus, as of May
__, 1998, complied as to form in all material respects with the requirements of
the Act, the Trust Indenture 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 Prospectus or the Exchange Act Documents, and (ii)
we have no reason to believe that the Registration Statement, as of the date of
filing of the Company's Annual Report on Form 10-K for the year ended December
31, 1997 (including the Exchange Act Documents on file with the Commission on
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 Prospectus (including
the Exchange Act Documents) contains any untrue statement of a material fact or
omits to state any 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
Prospectus or the Exchange Act Documents.
We are members of the State Bar of Mississippi and we do not express
any opinion herein concerning any law other than the law of the States of
Mississippi and Alabama and the federal law of the United States and, to the
extent set forth herein, the law of the State of New York.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent, except that Troutman Sanders LLP and Dewey
Ballantine LLP may rely on this opinion in giving their opinions pursuant to
Section 3(b) of the Purchase Contract insofar as such opinions relate to matters
of Mississippi and Alabama law.
Very truly yours,
EATON AND COTTRELL, P.A.
EXHIBIT 2
[Letterhead of Troutman Sanders LLP]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998,
between Mississippi Power Company and said Purchasers (the "Purchase Contract")
for the purchase of Mississippi Power Company Series B ___% Senior Notes due May
1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the "Company")
in connection with the purchase by you pursuant to the Purchase Contract of
$35,000,000 aggregate principal amount of the Series B Senior Notes, issued
under the Senior Note Indenture dated as of May 1, 1998, between the Company and
Bankers Trust Company, as trustee (the "Trustee"), as heretofore supplemented
and as supplemented by the Second Supplemental Indenture dated as of May __,
1998 (said Indenture, as so supplemented and amended, being hereinafter called
the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos.
333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the
Securities Act of 1933, as amended (the "Act"), as it became effective under the
Act (the "Registration Statement"); the Company's prospectus dated February 9,
1998, as supplemented by the prospectus supplement dated May __, 1998 (the
"Prospectus"), filed by the Company pursuant to Rule 424 of the rules and
regulations of the Securities and Exchange Commission (the "Commission") under
the Act, 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, 1997 and the
Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998
and May __, 1998 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Series B Senior
Notes, of which we have examined a specimen), and we have made such other and
further investigations as we deemed necessary to enable us 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.
We are of the opinion, relying as to matters of Mississippi and Alabama
law upon the opinion of dated the date hereof rendered to you by Eaton and
Cottrell, P.A. and relying as to matters of New York law upon the opinion dated
the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly
existing 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 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 Purchase
Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming 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 and the Series B Senior Notes may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and (b)
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 Prospectus.
3. The Series B Senior Notes have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with
the Purchase Contract and subject to the qualifications set forth in
paragraph 2 above, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms; and the Series B Senior Notes conform as
to legal matters in all material respects to the description thereof in
the Prospectus.
4. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance of the Series B
Senior Notes have been obtained; 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 of
the Series B Senior Notes by the Company in accordance with the terms
of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed
and delivered by the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 2 and 3 above. In the course
of the preparation by the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with other counsel for the Company and
with representatives of Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the 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 Prospectus, as of May
__, 1998, complied as to form in all material respects with the requirements of
the Act, the Trust Indenture 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 Prospectus or the Exchange Act Documents, and (ii)
we have no reason to believe that the Registration Statement, as of the date of
filing of the Company's Annual Report on Form 10-K for the year ended December
31, 1997 (including the Exchange Act Documents on file with the Commission on
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 Prospectus (including
the Exchange Act Documents) contains any untrue statement of a material fact or
omits to state any 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
Prospectus or the Exchange Act Documents.
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
law of the States of Alabama, Mississippi and New York.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent, except that Eaton and Cottrell, P.A. may rely
on this opinion in giving its opinion pursuant to Section 3(b) of the Purchase
Contract insofar as such opinion relates to matters of law administered by the
Commission, including the Act, the Exchange Act and the Trust Indenture Act.
Very truly yours,
TROUTMAN SANDERS LLP
EXHIBIT 3
[Letterhead of Dewey Ballantine LLP]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998,
between Mississippi Power Company and said Purchasers (the "Purchase Contract")
for the purchase of Mississippi Power Company Series B ___% Senior Notes due May
1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by you
pursuant to the Purchase Contract of $35,000,000 aggregate principal amount of
the Series B Senior Notes, issued under the Indenture dated as of May 1, 1998,
between Mississippi Power Company (the "Company") and Bankers Trust Company, as
Trustee (the "Trustee"), as heretofore supplemented and as supplemented by the
Second Supplemental Indenture dated as of May __, 1998 (said Indenture, as so
supplemented and amended, being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos.
333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the
Securities Act of 1933, as amended (the "Act"), as it became effective under the
Act (the "Registration Statement"); the Company's prospectus dated February 9,
1998, as supplemented by the prospectus supplement dated May __, 1998 (the
"Prospectus"), filed by the Company pursuant to Rule 424 of the rules and
regulations of the Securities and Exchange Commission (the "Commission") under
the Act, 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, 1997 and the
Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998
and May __, 1998 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Series B Senior
Notes, of which we have examined a specimen), and we have made such other and
further investigations as we deemed necessary to enable us 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.
We are of the opinion, relying as to matters of Mississippi and Alabama
law upon the opinion of Eaton and Cottrell, P.A., referred to below, that:
1. The Company has been duly incorporated 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 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 Purchase
Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming 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 and the Series B Senior Notes may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and (b)
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 Prospectus.
3. The Series B Senior Notes have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with
the Purchase Contract and subject to the qualifications set forth in
paragraph 2 above, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms; and the Series B Senior Notes conform as
to legal matters in all material respects to the description thereof in
the Prospectus.
4. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance of the Series B
Senior Notes have been obtained; 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 of
the Series B Senior Notes by the Company in accordance with the terms
of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed
nd delivered by the Company.
All legal proceedings taken by the Company in connection with the
authorization and delivery of the Series B Senior Notes, and the legal opinions
dated the date hereof rendered to you by Eaton and Cottrell, P.A. and Troutman
Sanders LLP, counsel for the Company, pursuant to the Purchase Contract, are in
form satisfactory to us.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 2 and 3 above. In the course
of the preparation by the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with representatives of Arthur Andersen
LLP and with counsel for the Company. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement and the 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 Prospectus, as of May __, 1998, complied as to form in
all material respects with the requirements of the Act, the Trust Indenture 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 Prospectus or the
Exchange Act Documents, and (ii) we have no reason to believe that the
Registration Statement, as of the date of filing of the Company's Annual Report
on Form 10-K for the year ended December 31, 1997 (including the Exchange Act
Documents on file with the Commission on 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 Prospectus (including the Exchange Act Documents)
contains any untrue statement of a material fact or omits to state any 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 Prospectus or the Exchange Act Documents.
We are members of the Bar of the State 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 to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent, except that Eaton and Cottrell, P.A. and
Troutman Sanders LLP may rely on this opinion in giving their opinions pursuant
to Section 3(b) of the Purchase Contract insofar as such opinions relate to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP