CERTIFICATE OF NOTIFICATION
Filed by
MISSISSIPPI POWER COMPANY
Pursuant to supplemental order of the Securities and Exchange
Commission dated April 6, 1994, in the matter of File No. 70-
7294.
- - - - - - - - - -
Mississippi Power Company ("MISSISSIPPI") hereby certifies
to said Commission, pursuant to Rule 24, that the transactions
were carried out in accordance with the terms and conditions of
and for the purposes represented by the application, as amended,
and of said order with respect thereto.
Filed herewith are the following exhibits:
Exhibit A-1 Loan Agreement between MISSISSIPPI and First
Union National Bank of Georgia for $9,000,000
principal amount bearing interest at the rate
of 4.87% per annum and maturing on December 30,
1994 (the "4.87% Note").
Exhibit A-2 Loan Agreement between MISSISSIPPI and First
Union National Bank of Georgia for $9,000,000
principal amount bearing interest at the rate
of 5.39% per annum and maturing on June 30,
1995 (the "5.39% Note").
Exhibit A-3 Loan Agreement between MISSISSIPPI and First
Union National Bank of Georgia for $9,000,000
principal amount bearing interest at the rate
of 5.72% per annum and maturing on December 29,
1995, (the "5.72% Note").
Exhibit B-1 The 4.87% Note from Fuelco, Inc. to
MISSISSIPPI.
Exhibit B-2 The 5.39% Note from Fuelco, Inc. to
MISSISSIPPI.
Exhibit B-3 The 5.72% Note from Fuelco, Inc. to
MISSISSIPPI.<PAGE>
-2-
Exhibit C-1 Subordinate Land Deed of Trust by MISSISSIPPI
relating to the 4.87% Note.
Exhibit C-2 Subordinate Land Deed of Trust by MISSISSIPPI
relating to the 5.39% Note.
Exhibit C-3 Subordinate Land Deed of Trust by MISSISSIPPI
relating to the 5.72% Note.
Exhibit D Opinion of Eaton and Cottrell, counsel for
MISSISSIPPI, dated August 8, 1994.
Dated August 8, 1994 MISSISSIPPI POWER COMPANY
By Wayne Boston
Wayne Boston
Assistant Secretary
LOAN AGREEMENT
Dated as of April 22, 1994
By and Between
MISSISSIPPI POWER COMPANY
AND
FIRST UNION NATIONAL BANK OF GEORGIA<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of April 22, 1994 (the
"Agreement"), by and between MISSISSIPPI POWER COMPANY, a
corporation organized and existing under the laws of the State of
Mississippi (the "Borrower"), and FIRST UNION NATIONAL BANK OF
GEORGIA (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Bank to extend the
Loan (as hereinafter defined), and the Bank is willing to do so
subject to and upon the terms and conditions set forth in this
Agreement;
NOW THEREFORE, for and in consideration of the premises and
the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. In addition to the other terms
defined herein, the following terms used herein shall have the
meanings herein specified (such meanings to be equally applicable
to both the singular and plural forms of the terms defined except
where specifically defined):
"Adjusted Funded Debt," with respect to any person, shall
mean without duplication:
(1) its liabilities for borrowed money, other than Current
Debt;
(2) liabilities, other than Current Debt, secured by any
lien existing on property owned by such person (whether or not
such liabilities have been assumed);
(3) the present value of all payments due under any lease
or under any other arrangement for retention of title (discounted
at the implicit rate if known or 8% per annum otherwise) if such
lease or other arrangement is in substance (a) a financing lease
(including any lease under which (i) the lessee has or will have
an option to purchase the property subject thereto at a nominal
amount or an amount less than a reasonable estimate of the fair
market value of such property at the date of such purchase, (ii)
the lessor has filed a financing statement, or (iii) the term of
the lease approximates or exceeds the expected useful life of the<PAGE>
property subject thereto), (b) an arrangement for the retention
of title for security purposes, or (c) an installment purchase;
and
(4) any other obligations (other than deferred taxes) which
are required by generally accepted accounting principles to be
shown as liabilities on its balance sheet and which are payable
or remain unpaid more than one year from the creation thereof.
The "Adjusted Funded Debt" of the Borrower shall mean all
obligations described in the foregoing clauses in respect of
which the Borrower is liable as obligor, guarantor or otherwise.
"Business Day" shall mean a day on which commercial banks
are not required or authorized to close in Atlanta, Georgia.
"Capitalization," with respect to any person, shall mean the
sum of (a) the aggregate of the capital stock (but excluding
treasury stock and capital stock subscribed and unissued) and
other equity accounts (including retained earnings and paid-in
capital) of such person as the same appears on the balance sheet
of such person prepared in accordance with generally accepted
accounting principles as of the date of determination, and (b)
the amount of Adjusted Funded Debt of such person as of the same
date.
"Current Debt," with respect to any person, shall mean all
liabilities for borrowed money and all liabilities secured by any
lien existing on property owned by such person whether or not
such liabilities have been assumed, which, in either case, are
payable on demand or within one year from the creation thereof,
except:
(1) any such liabilities which are renewable or extendible
at the option of the debtor to a date more than one year from the
date of creation thereof, and
(2) any such liabilities which, although payable within one
year, constitute payments required to be made on account of
principal of indebtedness expressed to mature more than one year
from the date of creation thereof.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as such Act may be amended.
"First Mortgage Indenture" shall mean the Indenture, dated
as of September 1, 1941, between the Borrower and Morgan Guaranty
Trust Company of New York, as Trustee, as supplemented and
amended to date, and as may hereafter be supplemented and amended
by supplemental indentures.
"Plan" shall mean any employee benefit plan or other plan
2<PAGE>
maintained for employees.
"Significant Subsidiary," with respect to any person, shall
mean any corporation of which such person owns a majority of the
capital stock having voting powers, and which represents more
than 25% of such person's assets on a consolidated basis.
ARTICLE II
AMOUNT AND TERMS OF LOAN
SECTION 2.01. Loan and Note. Subject to and upon the terms
and conditions set forth in this Agreement, the Bank agrees to
lend to the Borrower Nine Million Dollars ($9,000,000) on the
date of this Agreement (the "Loan"). The Loan shall be evidenced
by a single Promissory Note payable to the Bank in the form of
Exhibit A attached hereto (the "Note").
SECTION 2.02. Increased Costs. If (i) Regulation D of the
Board of Governors of the Federal Reserve System, or (ii) after
the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the
Bank with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable
agency,
(1) shall subject the Bank to any tax, duty or other
charge with respect to the Loan or the Note, or shall change
the basis of taxation of payments to the Bank of the
principal of or interest on the Note or any other amounts
due under this Agreement in respect of the Loan (except for
changes in the rate of tax on the overall net income of the
Bank imposed by the jurisdiction in which the Bank's
principal executive office is located); or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed
by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
the Bank; or
(3) shall impose on the Bank any other condition
affecting the Loan or the Note;
and the result of any of the foregoing is to increase the cost to
(or in the case of Regulation D referred to above, to impose a
cost on) the Bank of extending or maintaining the Loan, or to
reduce the amount of any sum received or receivable by the Bank
3<PAGE>
under this Agreement or under the Note with respect thereto, then
within 15 days after demand by the Bank (which demand shall be
accompanied by a statement setting forth the basis of such
demand), the Borrower shall pay directly to the Bank such
additional amount or amounts as will compensate the Bank for such
increased cost or such reduction. The Bank shall promptly notify
the Borrower of any event of which it has knowledge, occurring
after the date hereof, which will entitle the Bank to
compensation pursuant to this Section 2.02 and will take such
reasonable action, if such action will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole
judgment of the Bank, be otherwise disadvantageous to the Bank.
SECTION 2.03. Capital Adequacy. If the Bank determines
that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect
the amount of capital required or expected to be maintained by
the Bank or any corporation controlling the Bank and that the
amount of such capital is increased by or based upon the
existence of the Bank's Loan hereunder and other commitments of
this type, then, upon demand by the Bank, the Borrower shall pay
to the Bank, from time to time as specified by the Bank,
additional amounts sufficient to compensate the Bank or such
corporation in the light of such circumstances, to the extent in
each case that the Bank and the Borrower shall mutually agree in
writing with respect thereto; provided, however, that in no event
shall any such additional amount commence accruing earlier than
ninety days after the date of any demand therefor.
SECTION 2.04. Making of Payments. All payments of
principal of, or interest on, the Note shall be made in
immediately available funds to the Bank at its principal office
in Atlanta, Georgia. All such payments shall be made not later
than 1:00 p.m. Atlanta, Georgia time on the date specified for
payment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties. The Borrower
represents and warrants to the Bank as follows:
(a) the Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Mississippi and each Significant Subsidiary,
if any, of the Borrower is a corporation duly
organized, validly existing and in good standing under
the laws of its respective state of incorporation;
4<PAGE>
(b) the Borrower has taken all necessary corporate action
to authorize its execution, delivery and performance of
this Agreement and its obtaining the Loan;
(c) each of this Agreement and the Note is the valid and
binding obligation of the Borrower enforceable in
accordance with its terms, except as such enforcement
may be limited by any bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors'
rights generally or general principles of equity;
(d) this Agreement, the Note and the Loan do not and will
not violate any provisions of any applicable law or
conflict with, result in a breach of, or constitute a
default under, the Borrower's Charter or By-laws or any
indenture or other agreement or instrument, or any
legal restriction that the Borrower is a party to or
bound by;
(e) no approval or consent of, or other filing with or
notice to, any governmental body is legally required
for the issuance by the Borrower of the Note or the
execution, delivery and performance by the Borrower of
this Agreement and the Note except for an order or
orders of the Securities and Exchange Commission under
the Public Utility Holding Company Act of 1935, as
amended, which order or orders have been obtained and
are in effect;
(f) other than in the ordinary course of business
(including, without limitation, actions, suits or
proceedings involving rates or licenses or permits for
the construction or operation of generating or
transmission facilities), there are no actions, suits
or proceedings pending or to the Borrower's knowledge
threatened against or directly involving the Borrower
or its properties before any court, arbitrator or
governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, except
(i) actions, suits or proceedings which will not effect
a material adverse change in the Borrower's financial
condition or operations and (ii) as disclosed in or
contemplated by the Borrower's Annual Report on Form
10-K for the year ended December 31, 1993 (the
"Exchange Act Document");
(g) to the best knowledge of the Borrower, no Reportable
Event (as defined in Title IV of ERISA) has occurred
and is continuing with respect to any Plan of the
Borrower;
5<PAGE>
(h) the Borrower has not incurred any material accumulated
funding deficiency within the meaning of ERISA and the
Borrower has not incurred any material liability to the
Pension Benefit Guaranty Corporation established under
ERISA (or any successor thereto) in connection with any
Plan of the Borrower;
(i) no Event of Default (as defined in Section 5.01
hereof), or event which with the passage of time or
giving of notice, or both, would constitute an Event of
Default, has occurred and is continuing;
(j) the Borrower has furnished to the Bank its balance
sheet as of December 31, 1993, and related statements
of income and cash flows for the twelve months then
ended, in each case certified by Arthur Andersen & Co.,
independent certified public accountants;
(k) such financial statements fairly present the Borrower's
financial position as of December 31, 1993, and the
results of its operations for the twelve months then
ended, in conformity with generally accepted accounting
principles consistently applied during such period
(except as stated therein);
(l) there has been no material adverse change in the
financial condition or operations of the Borrower and
it subsidiaries (taken as a whole) since December 31,
1993, except as reflected in or contemplated by the
Exchange Act Document, it being understood and agreed
that this exception is not intended to cover statements
in the Exchange Act Document that are stated therein to
be applicable to the electric utility industry
generally unless they describe specific problems or
types of problems which, at the date hereof, are
affecting the Borrower's financial condition or
operations or its prospects; and
(m) the Borrower is not engaged principally, or as one of
its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System), and no
proceeds of the Loan are to be used to purchase or
carry any margin stock or to extend credit to others
for such purpose.
As used in this Agreement, the term "material adverse change"
shall mean an adverse change which significantly increases the
risk that the Note or other obligations hereunder will not be
repaid when due. The Bank recognizes and agrees that the
Borrower is entering into this Agreement in part because it
6<PAGE>
foresees the possibility that from time to time during the term
of this Agreement it may not be able to issue first mortgage
bonds or preferred stock and that such inability shall not, in
and of itself, constitute a material adverse change. The Bank
further agrees that an unsuccessful or failed remarketing,
auction or similar procedure with respect to any security subject
to such procedure also shall not, in and of itself, constitute a
material adverse change.
ARTICLE IV
AFFIRMATIVE COVENANTS
SECTION 4.01. Certain Covenants. So long as the Note shall
remain unpaid, the Borrower will, unless the Bank shall otherwise
consent in writing:
(a) pay and discharge all taxes, assessments and
governmental charges or levies imposed upon the
Borrower or upon its income or profits, or upon any
properties belonging to the Borrower, prior to the date
on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a lien or charge
upon any properties of the Borrower, provided it shall
not be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good
faith and by proper proceedings;
(b) maintain insurance in accordance with Section 7.06 of
the First Mortgage Indenture;
(c) preserve and maintain its corporate existence in
Mississippi, and qualify and remain qualified as a
foreign corporation in each jurisdiction in which such
qualification is necessary or desirable in view of its
business and operations or the ownership of its
properties;
(d) comply with the requirements of all applicable laws,
non-compliance with which would effect a material
adverse change in its financial condition or operations
except applicable laws being contested in good faith;
(e) provide the Bank with prompt notice in writing of any
Event of Default or any event which with the passage of
time or giving of notice, or both, would constitute an
Event of Default; and
(f) comply with the provisions of the First Mortgage
Indenture with respect to the maintenance and
replacement of utility plant.
7<PAGE>
SECTION 4.02. Financial Statements. The Borrower, so long
as any indebtedness under this Agreement is outstanding and
unpaid, will furnish or cause to be furnished to the Bank (a)
within 120 days after the end of each of its fiscal years, its
consolidated balance sheet and related consolidated statements of
income and cash flows, in each case certified by independent
certified public accountants of nationally recognized standing,
showing its financial position at the close of such year and the
results of its operations and cash flows for such year; (b)
within 55 days after the end of each of the first three quarters
in each of its fiscal years, its unaudited condensed consolidated
balance sheet and related condensed consolidated statements of
income and cash flows, such balance sheets to be as of the end of
such quarter and such statements of income and cash flows to be
for the period from the beginning of the fiscal year to the end
of such quarter, in each case in the forms included in its
Quarterly Report on Form 10-Q for such quarter filed with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended, and subject to audit and year-
end adjustments; and (c) such other information respecting the
Borrower's business, properties or its condition or operations,
financial or otherwise, as the Bank may from time to time
reasonably request.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.01. Events of Default. Any one or more of the
following shall constitute an Event of Default hereunder:
(a) the Borrower (or, in the case of an event described in
(v) below, either the Borrower or any Significant
Subsidiary of the Borrower) shall:
(i) default in the payment when due of any
principal of the Note, or default for 5
Business Days in the payment when due of any
interest on the Note,
(ii) default in the performance of any other
agreement or covenant contained in this
Agreement (other than a covenant or agreement
a default in the performance of which is
elsewhere in this paragraph specifically
dealt with) and such default shall continue
for a period of 30 days after the Bank has
given the Borrower written notice thereof,
(iii) default in the payment when due or within any
applicable period of grace of any Adjusted
8<PAGE>
Funded Debt or Current Debt of the Borrower
(other than Adjusted Funded Debt or Current
Debt incurred under the Note and under
agreements or instruments involving in the
aggregate less than $500,000),
(iv) default under the provisions of any
instrument evidencing Adjusted Funded Debt or
Current Debt of the Borrower (other than
Adjusted Funded Debt or Current Debt incurred
under the Note and under agreements or
instruments involving in the aggregate less
than $500,000), or of any agreement relating
to any such Adjusted Funded Debt or Current
Debt of the Borrower the effect of which
default is to permit any party or parties to
any such instrument or agreement to cause
such Adjusted Funded Debt or Current Debt to
become due prior to its stated maturity, or
(v) (A) apply for or consent to the appointment
of a receiver, trustee, liquidator or the
like of the Borrower or any Significant
Subsidiary of the Borrower, or of all or a
substantial part of its or any such
Significant Subsidiary's property, (B) be
unable, or admit in writing inability, to pay
debts generally as they mature, (C) make a
general assignment for the benefit of
creditors, (D) be adjudicated a bankrupt or
insolvent, or (E) file a voluntary petition
in bankruptcy or a petition or answer seeking
reorganization or an arrangement with
creditors or to take advantage of any
insolvency law or an answer admitting the
material allegations of a petition filed
against it or any such Significant Subsidiary
in any bankruptcy, reorganization or
insolvency proceeding, or corporate action
shall be taken by it or any such Significant
Subsidiary for the purpose of effecting any
of the foregoing,
(b) any representation made by the Borrower hereunder shall
prove incorrect in any material respect when made, or
(c) an order, judgment or decree shall be entered, without
the application, approval or consent of the Borrower or
any Significant Subsidiary of the Borrower, by any
court or governmental agency of competent jurisdiction,
approving a petition seeking the Borrower's or
Significant Subsidiary's reorganization, or appointing
9<PAGE>
a receiver, trustee, liquidator, or the like of it or
any such Significant Subsidiary, or of all or a
substantial part of its or any such Significant
Subsidiary's assets, and such order, judgment or decree
shall continue unstayed and in effect for any period of
60 consecutive days.
SECTION 5.02. Remedies on Default. Upon the occurrence and
continuation of an Event of Default, then, except in the case of
an event described in clause (A), (C), (D), or (E) of Section
5.01 (a)(v) above or in Section 5.01 (c) above, the Bank may,
upon written notice to the Borrower, declare the principal and
interest on the Note to be immediately due and payable, whereupon
the outstanding principal amount of the Note, accrued interest
thereon, and all other amounts payable under this Agreement and
the Note, shall be immediately due and payable. In the case of
an event described in clause (A), (C), (D) or (E) of Section 5.01
(a)(v) above or in Section 5.01 (c) above, without any notice to
the Borrower or declaration by the Bank, the outstanding
principal amount of the Note, accrued interest thereon, and all
other amounts payable by the Borrower under this Agreement and
the Note shall be immediately due and payable.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. No Waiver. The Bank's rights and remedies
under this Agreement and the Note are cumulative and not
exclusive of any rights or remedies which the Bank would
otherwise have, and no failure or delay by the Bank in exercising
any right shall operate as a waiver of it, nor shall any single
or partial exercise of any power or right preclude its other or
further exercise or the exercise of any other power or right.
Any term, covenant, agreement or condition of this Agreement and
the Note may be amended by a writing executed by the parties
hereto or the Bank may waive compliance therewith in writing
(either generally or any particular instance or retrospectively
or prospectively) and upon execution of such waiver or amendment,
the failure to observe, perform or discharge any such term,
covenant, agreement or condition (whether such amendment is
executed or such waiver is given before or after such failure)
shall not be construed as a breach of such term, covenant,
agreement or condition or an Event of Default to the extent so
amended or waived.
SECTION 6.02. Investment. The Bank represents that it is
the present intention of the Bank to acquire the Note for its own
account in the ordinary course of its banking business and not
with a view to the distribution or sale thereof, subject,
nevertheless, to the necessity that the Bank remain in control at
10<PAGE>
all times of the disposition of property held by it for its own
account, it being understood that the foregoing representation
shall not affect the character of the Loan as a commercial
lending transaction nor the ability or right of the Bank to grant
participations in its rights and obligations hereunder and under
the Note as specified in Section 6.03 hereof.
SECTION 6.03. Participations. The Bank may from time to
time enter into participation agreements and pursuant thereto
assign its rights under this Agreement and the Note. All amounts
payable by the Borrower under this Agreement and the Note shall
be determined as if the Bank had not entered into any such
participation agreement. The Bank may furnish any information
concerning the Borrower in the possession of the Bank from time
to time to participants and prospective participants.
SECTION 6.04. Notices. All notices and other
communications under this Agreement shall be mailed, telegraphed,
telexed, telecopied or delivered to each party at the address set
forth below, unless such address shall have been changed by
written notice to the other party of such change, in which event
it shall be addressed to such changed address:
If to the Bank, to it at:
First Union National Bank of Georgia
999 Peachtree Street, Suite 640
Atlanta, Georgia 30309
Attention: Ms. Mara Holley
Telecopy No.: (404) 225-4011
If to the Borrower, to it at:
2992 West Beach
Gulfport, Mississippi 39501
Attention: Treasurer
Telecopy No.: (601) 865-5658
All such notices and communications shall, when mailed,
telegraphed, telexed or telecopied, be effective when deposited
in the mails or delivered to the telegraph company or sent by
telex or telecopy, respectively, addressed as aforesaid.
SECTION 6.05. Governing Law. This Agreement and the Note
shall be construed in accordance with and governed by the laws of
the State of Georgia.
SECTION 6.06. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to
be an original and all of which, taken together, shall constitute
one and the same instrument.
11<PAGE>
WITNESS the hand and seal of the parties hereto through
their duly authorized officers, as of the date first above
written.
MISSISSIPPI POWER COMPANY
By: _______________________________
Title: ____________________________
[CORPORATE SEAL]
FIRST UNION NATIONAL BANK OF GEORGIA
By: _______________________________
Title: ____________________________
12<PAGE>
EXHIBIT A
MISSISSIPPI POWER COMPANY
2992 West Beach
Gulfport, Mississippi 39501
April 22, 1994
FOR VALUE RECEIVED, the undersigned promises to pay to
the order of First Union National Bank of Georgia (the "Bank") at
its office at 999 Peachtree Street, N.E., Atlanta, Georgia 30309,
the principal amount of Nine Million Dollars ($9,000,000) on
December 30, 1994, and to pay interest (calculated on the basis
of a year of 360 days, and the actual number of days elapsed) on
the unpaid principal amount hereof at the rate of 4.87% per
annum, such interest being payable in arrears on June 30 and
September 30, 1994 and at the maturity hereof. Any principal not
paid when due shall bear interest from maturity until paid in
full at a floating rate per annum equal to 110% of that rate of
interest from time to time announced by the Bank at its principal
office as its base rate, such interest to be payable on demand
and upon payment in full of such principal.
All payments hereunder shall be made in lawful money of
the United States of America in immediately available funds. If
any payment hereunder shall be specified to be made on a day
which is not a business day, it shall be made on the next
succeeding day which is a business day and such extension of time
shall in such case be included in computing interest, if any, in
connection with such payment.
The principal of this Note may not be prepaid by the
undersigned.
Demand for payment, protest and notice of dishonor are
hereby waived by the undersigned.
This Note evidences a loan made to the undersigned
under and is entitled to the benefits of a certain Loan Agreement
dated as of April 22, 1994, to which Loan Agreement reference is
hereby made, and this Note may be accelerated as therein
provided.
13<PAGE>
The undersigned promises to pay all out-of-pocket costs
and expenses (including reasonable fees and out-of-pocket costs
and expenses of legal counsel) which the Bank may incur in the
enforcement against the undersigned of said Loan Agreement or
this Note.
MISSISSIPPI POWER COMPANY
By:________________________________
[SEAL]
Title:_____________________________
Attest:
By:_________________________
Title:______________________
14<PAGE>
LOAN AGREEMENT
Dated as of April 22, 1994
By and Between
MISSISSIPPI POWER COMPANY
AND
FIRST UNION NATIONAL BANK OF GEORGIA<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of April 22, 1994 (the
"Agreement"), by and between MISSISSIPPI POWER COMPANY, a
corporation organized and existing under the laws of the State of
Mississippi (the "Borrower"), and FIRST UNION NATIONAL BANK OF
GEORGIA (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Bank to extend the
Loan (as hereinafter defined), and the Bank is willing to do so
subject to and upon the terms and conditions set forth in this
Agreement;
NOW THEREFORE, for and in consideration of the premises and
the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. In addition to the other terms
defined herein, the following terms used herein shall have the
meanings herein specified (such meanings to be equally applicable
to both the singular and plural forms of the terms defined except
where specifically defined):
"Adjusted Funded Debt," with respect to any person, shall
mean without duplication:
(1) its liabilities for borrowed money, other than Current
Debt;
(2) liabilities, other than Current Debt, secured by any
lien existing on property owned by such person (whether or not
such liabilities have been assumed);
(3) the present value of all payments due under any lease
or under any other arrangement for retention of title (discounted
at the implicit rate if known or 8% per annum otherwise) if such
lease or other arrangement is in substance (a) a financing lease
(including any lease under which (i) the lessee has or will have
an option to purchase the property subject thereto at a nominal
amount or an amount less than a reasonable estimate of the fair
market value of such property at the date of such purchase, (ii)
the lessor has filed a financing statement, or (iii) the term of
the lease approximates or exceeds the expected useful life of the<PAGE>
property subject thereto), (b) an arrangement for the retention
of title for security purposes, or (c) an installment purchase;
and
(4) any other obligations (other than deferred taxes) which
are required by generally accepted accounting principles to be
shown as liabilities on its balance sheet and which are payable
or remain unpaid more than one year from the creation thereof.
The "Adjusted Funded Debt" of the Borrower shall mean all
obligations described in the foregoing clauses in respect of
which the Borrower is liable as obligor, guarantor or otherwise.
"Business Day" shall mean a day on which commercial banks
are not required or authorized to close in Atlanta, Georgia.
"Capitalization," with respect to any person, shall mean the
sum of (a) the aggregate of the capital stock (but excluding
treasury stock and capital stock subscribed and unissued) and
other equity accounts (including retained earnings and paid-in
capital) of such person as the same appears on the balance sheet
of such person prepared in accordance with generally accepted
accounting principles as of the date of determination, and (b)
the amount of Adjusted Funded Debt of such person as of the same
date.
"Current Debt," with respect to any person, shall mean all
liabilities for borrowed money and all liabilities secured by any
lien existing on property owned by such person whether or not
such liabilities have been assumed, which, in either case, are
payable on demand or within one year from the creation thereof,
except:
(1) any such liabilities which are renewable or extendible
at the option of the debtor to a date more than one year from the
date of creation thereof, and
(2) any such liabilities which, although payable within one
year, constitute payments required to be made on account of
principal of indebtedness expressed to mature more than one year
from the date of creation thereof.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as such Act may be amended.
"First Mortgage Indenture" shall mean the Indenture, dated
as of September 1, 1941, between the Borrower and Morgan Guaranty
Trust Company of New York, as Trustee, as supplemented and
amended to date, and as may hereafter be supplemented and amended
by supplemental indentures.
"Plan" shall mean any employee benefit plan or other plan
2<PAGE>
maintained for employees.
"Significant Subsidiary," with respect to any person, shall
mean any corporation of which such person owns a majority of the
capital stock having voting powers, and which represents more
than 25% of such person's assets on a consolidated basis.
ARTICLE II
AMOUNT AND TERMS OF LOAN
SECTION 2.01. Loan and Note. Subject to and upon the terms
and conditions set forth in this Agreement, the Bank agrees to
lend to the Borrower Nine Million Dollars ($9,000,000) on the
date of this Agreement (the "Loan"). The Loan shall be evidenced
by a single Promissory Note payable to the Bank in the form of
Exhibit A attached hereto (the "Note").
SECTION 2.02. Increased Costs. If (i) Regulation D of the
Board of Governors of the Federal Reserve System, or (ii) after
the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the
Bank with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable
agency,
(1) shall subject the Bank to any tax, duty or other
charge with respect to the Loan or the Note, or shall change
the basis of taxation of payments to the Bank of the
principal of or interest on the Note or any other amounts
due under this Agreement in respect of the Loan (except for
changes in the rate of tax on the overall net income of the
Bank imposed by the jurisdiction in which the Bank's
principal executive office is located); or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed
by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
the Bank; or
(3) shall impose on the Bank any other condition
affecting the Loan or the Note;
and the result of any of the foregoing is to increase the cost to
(or in the case of Regulation D referred to above, to impose a
cost on) the Bank of extending or maintaining the Loan, or to
reduce the amount of any sum received or receivable by the Bank
3<PAGE>
under this Agreement or under the Note with respect thereto, then
within 15 days after demand by the Bank (which demand shall be
accompanied by a statement setting forth the basis of such
demand), the Borrower shall pay directly to the Bank such
additional amount or amounts as will compensate the Bank for such
increased cost or such reduction. The Bank shall promptly notify
the Borrower of any event of which it has knowledge, occurring
after the date hereof, which will entitle the Bank to
compensation pursuant to this Section 2.02 and will take such
reasonable action, if such action will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole
judgment of the Bank, be otherwise disadvantageous to the Bank.
SECTION 2.03. Capital Adequacy. If the Bank determines
that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect
the amount of capital required or expected to be maintained by
the Bank or any corporation controlling the Bank and that the
amount of such capital is increased by or based upon the
existence of the Bank's Loan hereunder and other commitments of
this type, then, upon demand by the Bank, the Borrower shall pay
to the Bank, from time to time as specified by the Bank,
additional amounts sufficient to compensate the Bank or such
corporation in the light of such circumstances, to the extent in
each case that the Bank and the Borrower shall mutually agree in
writing with respect thereto; provided, however, that in no event
shall any such additional amount commence accruing earlier than
ninety days after the date of any demand therefor.
SECTION 2.04. Making of Payments. All payments of
principal of, or interest on, the Note shall be made in
immediately available funds to the Bank at its principal office
in Atlanta, Georgia. All such payments shall be made not later
than 1:00 p.m. Atlanta, Georgia time on the date specified for
payment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties. The Borrower
represents and warrants to the Bank as follows:
(a) the Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Mississippi and each Significant Subsidiary,
if any, of the Borrower is a corporation duly
organized, validly existing and in good standing under
the laws of its respective state of incorporation;
4<PAGE>
(b) the Borrower has taken all necessary corporate action
to authorize its execution, delivery and performance of
this Agreement and its obtaining the Loan;
(c) each of this Agreement and the Note is the valid and
binding obligation of the Borrower enforceable in
accordance with its terms, except as such enforcement
may be limited by any bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors'
rights generally or general principles of equity;
(d) this Agreement, the Note and the Loan do not and will
not violate any provisions of any applicable law or
conflict with, result in a breach of, or constitute a
default under, the Borrower's Charter or By-laws or any
indenture or other agreement or instrument, or any
legal restriction that the Borrower is a party to or
bound by;
(e) no approval or consent of, or other filing with or
notice to, any governmental body is legally required
for the issuance by the Borrower of the Note or the
execution, delivery and performance by the Borrower of
this Agreement and the Note except for an order or
orders of the Securities and Exchange Commission under
the Public Utility Holding Company Act of 1935, as
amended, which order or orders have been obtained and
are in effect;
(f) other than in the ordinary course of business
(including, without limitation, actions, suits or
proceedings involving rates or licenses or permits for
the construction or operation of generating or
transmission facilities), there are no actions, suits
or proceedings pending or to the Borrower's knowledge
threatened against or directly involving the Borrower
or its properties before any court, arbitrator or
governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, except
(i) actions, suits or proceedings which will not effect
a material adverse change in the Borrower's financial
condition or operations and (ii) as disclosed in or
contemplated by the Borrower's Annual Report on Form
10-K for the year ended December 31, 1993 (the
"Exchange Act Document");
(g) to the best knowledge of the Borrower, no Reportable
Event (as defined in Title IV of ERISA) has occurred
and is continuing with respect to any Plan of the
Borrower;
5<PAGE>
(h) the Borrower has not incurred any material accumulated
funding deficiency within the meaning of ERISA and the
Borrower has not incurred any material liability to the
Pension Benefit Guaranty Corporation established under
ERISA (or any successor thereto) in connection with any
Plan of the Borrower;
(i) no Event of Default (as defined in Section 5.01
hereof), or event which with the passage of time or
giving of notice, or both, would constitute an Event of
Default, has occurred and is continuing;
(j) the Borrower has furnished to the Bank its balance
sheet as of December 31, 1993, and related statements
of income and cash flows for the twelve months then
ended, in each case certified by Arthur Andersen & Co.,
independent certified public accountants;
(k) such financial statements fairly present the Borrower's
financial position as of December 31, 1993, and the
results of its operations for the twelve months then
ended, in conformity with generally accepted accounting
principles consistently applied during such period
(except as stated therein);
(l) there has been no material adverse change in the
financial condition or operations of the Borrower and
it subsidiaries (taken as a whole) since December 31,
1993, except as reflected in or contemplated by the
Exchange Act Document, it being understood and agreed
that this exception is not intended to cover statements
in the Exchange Act Document that are stated therein to
be applicable to the electric utility industry
generally unless they describe specific problems or
types of problems which, at the date hereof, are
affecting the Borrower's financial condition or
operations or its prospects; and
(m) the Borrower is not engaged principally, or as one of
its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System), and no
proceeds of the Loan are to be used to purchase or
carry any margin stock or to extend credit to others
for such purpose.
As used in this Agreement, the term "material adverse change"
shall mean an adverse change which significantly increases the
risk that the Note or other obligations hereunder will not be
repaid when due. The Bank recognizes and agrees that the
Borrower is entering into this Agreement in part because it
6<PAGE>
foresees the possibility that from time to time during the term
of this Agreement it may not be able to issue first mortgage
bonds or preferred stock and that such inability shall not, in
and of itself, constitute a material adverse change. The Bank
further agrees that an unsuccessful or failed remarketing,
auction or similar procedure with respect to any security subject
to such procedure also shall not, in and of itself, constitute a
material adverse change.
ARTICLE IV
AFFIRMATIVE COVENANTS
SECTION 4.01. Certain Covenants. So long as the Note shall
remain unpaid, the Borrower will, unless the Bank shall otherwise
consent in writing:
(a) pay and discharge all taxes, assessments and
governmental charges or levies imposed upon the
Borrower or upon its income or profits, or upon any
properties belonging to the Borrower, prior to the date
on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a lien or charge
upon any properties of the Borrower, provided it shall
not be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good
faith and by proper proceedings;
(b) maintain insurance in accordance with Section 7.06 of
the First Mortgage Indenture;
(c) preserve and maintain its corporate existence in
Mississippi, and qualify and remain qualified as a
foreign corporation in each jurisdiction in which such
qualification is necessary or desirable in view of its
business and operations or the ownership of its
properties;
(d) comply with the requirements of all applicable laws,
non-compliance with which would effect a material
adverse change in its financial condition or operations
except applicable laws being contested in good faith;
(e) provide the Bank with prompt notice in writing of any
Event of Default or any event which with the passage of
time or giving of notice, or both, would constitute an
Event of Default; and
(f) comply with the provisions of the First Mortgage
Indenture with respect to the maintenance and
replacement of utility plant.
7<PAGE>
SECTION 4.02. Financial Statements. The Borrower, so long
as any indebtedness under this Agreement is outstanding and
unpaid, will furnish or cause to be furnished to the Bank (a)
within 120 days after the end of each of its fiscal years, its
consolidated balance sheet and related consolidated statements of
income and cash flows, in each case certified by independent
certified public accountants of nationally recognized standing,
showing its financial position at the close of such year and the
results of its operations and cash flows for such year; (b)
within 55 days after the end of each of the first three quarters
in each of its fiscal years, its unaudited condensed consolidated
balance sheet and related condensed consolidated statements of
income and cash flows, such balance sheets to be as of the end of
such quarter and such statements of income and cash flows to be
for the period from the beginning of the fiscal year to the end
of such quarter, in each case in the forms included in its
Quarterly Report on Form 10-Q for such quarter filed with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended, and subject to audit and year-
end adjustments; and (c) such other information respecting the
Borrower's business, properties or its condition or operations,
financial or otherwise, as the Bank may from time to time
reasonably request.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.01. Events of Default. Any one or more of the
following shall constitute an Event of Default hereunder:
(a) the Borrower (or, in the case of an event described in
(v) below, either the Borrower or any Significant
Subsidiary of the Borrower) shall:
(i) default in the payment when due of any
principal of the Note, or default for 5
Business Days in the payment when due of any
interest on the Note,
(ii) default in the performance of any other
agreement or covenant contained in this
Agreement (other than a covenant or agreement
a default in the performance of which is
elsewhere in this paragraph specifically
dealt with) and such default shall continue
for a period of 30 days after the Bank has
given the Borrower written notice thereof,
(iii) default in the payment when due or within any
applicable period of grace of any Adjusted
8<PAGE>
Funded Debt or Current Debt of the Borrower
(other than Adjusted Funded Debt or Current
Debt incurred under the Note and under
agreements or instruments involving in the
aggregate less than $500,000),
(iv) default under the provisions of any
instrument evidencing Adjusted Funded Debt or
Current Debt of the Borrower (other than
Adjusted Funded Debt or Current Debt incurred
under the Note and under agreements or
instruments involving in the aggregate less
than $500,000), or of any agreement relating
to any such Adjusted Funded Debt or Current
Debt of the Borrower the effect of which
default is to permit any party or parties to
any such instrument or agreement to cause
such Adjusted Funded Debt or Current Debt to
become due prior to its stated maturity, or
(v) (A) apply for or consent to the appointment
of a receiver, trustee, liquidator or the
like of the Borrower or any Significant
Subsidiary of the Borrower, or of all or a
substantial part of its or any such
Significant Subsidiary's property, (B) be
unable, or admit in writing inability, to pay
debts generally as they mature, (C) make a
general assignment for the benefit of
creditors, (D) be adjudicated a bankrupt or
insolvent, or (E) file a voluntary petition
in bankruptcy or a petition or answer seeking
reorganization or an arrangement with
creditors or to take advantage of any
insolvency law or an answer admitting the
material allegations of a petition filed
against it or any such Significant Subsidiary
in any bankruptcy, reorganization or
insolvency proceeding, or corporate action
shall be taken by it or any such Significant
Subsidiary for the purpose of effecting any
of the foregoing,
(b) any representation made by the Borrower hereunder shall
prove incorrect in any material respect when made, or
(c) an order, judgment or decree shall be entered, without
the application, approval or consent of the Borrower or
any Significant Subsidiary of the Borrower, by any
court or governmental agency of competent jurisdiction,
approving a petition seeking the Borrower's or
Significant Subsidiary's reorganization, or appointing
9<PAGE>
a receiver, trustee, liquidator, or the like of it or
any such Significant Subsidiary, or of all or a
substantial part of its or any such Significant
Subsidiary's assets, and such order, judgment or decree
shall continue unstayed and in effect for any period of
60 consecutive days.
SECTION 5.02. Remedies on Default. Upon the occurrence and
continuation of an Event of Default, then, except in the case of
an event described in clause (A), (C), (D), or (E) of Section
5.01 (a)(v) above or in Section 5.01 (c) above, the Bank may,
upon written notice to the Borrower, declare the principal and
interest on the Note to be immediately due and payable, whereupon
the outstanding principal amount of the Note, accrued interest
thereon, and all other amounts payable under this Agreement and
the Note, shall be immediately due and payable. In the case of
an event described in clause (A), (C), (D) or (E) of Section 5.01
(a)(v) above or in Section 5.01 (c) above, without any notice to
the Borrower or declaration by the Bank, the outstanding
principal amount of the Note, accrued interest thereon, and all
other amounts payable by the Borrower under this Agreement and
the Note shall be immediately due and payable.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. No Waiver. The Bank's rights and remedies
under this Agreement and the Note are cumulative and not
exclusive of any rights or remedies which the Bank would
otherwise have, and no failure or delay by the Bank in exercising
any right shall operate as a waiver of it, nor shall any single
or partial exercise of any power or right preclude its other or
further exercise or the exercise of any other power or right.
Any term, covenant, agreement or condition of this Agreement and
the Note may be amended by a writing executed by the parties
hereto or the Bank may waive compliance therewith in writing
(either generally or any particular instance or retrospectively
or prospectively) and upon execution of such waiver or amendment,
the failure to observe, perform or discharge any such term,
covenant, agreement or condition (whether such amendment is
executed or such waiver is given before or after such failure)
shall not be construed as a breach of such term, covenant,
agreement or condition or an Event of Default to the extent so
amended or waived.
SECTION 6.02. Investment. The Bank represents that it is
the present intention of the Bank to acquire the Note for its own
account in the ordinary course of its banking business and not
with a view to the distribution or sale thereof, subject,
nevertheless, to the necessity that the Bank remain in control at
10<PAGE>
all times of the disposition of property held by it for its own
account, it being understood that the foregoing representation
shall not affect the character of the Loan as a commercial
lending transaction nor the ability or right of the Bank to grant
participations in its rights and obligations hereunder and under
the Note as specified in Section 6.03 hereof.
SECTION 6.03. Participations. The Bank may from time to
time enter into participation agreements and pursuant thereto
assign its rights under this Agreement and the Note. All amounts
payable by the Borrower under this Agreement and the Note shall
be determined as if the Bank had not entered into any such
participation agreement. The Bank may furnish any information
concerning the Borrower in the possession of the Bank from time
to time to participants and prospective participants.
SECTION 6.04. Notices. All notices and other
communications under this Agreement shall be mailed, telegraphed,
telexed, telecopied or delivered to each party at the address set
forth below, unless such address shall have been changed by
written notice to the other party of such change, in which event
it shall be addressed to such changed address:
If to the Bank, to it at:
First Union National Bank of Georgia
999 Peachtree Street, Suite 640
Atlanta, Georgia 30309
Attention: Ms. Mara Holley
Telecopy No.: (404) 225-4011
If to the Borrower, to it at:
2992 West Beach
Gulfport, Mississippi 39501
Attention: Treasurer
Telecopy No.: (601) 865-5658
All such notices and communications shall, when mailed,
telegraphed, telexed or telecopied, be effective when deposited
in the mails or delivered to the telegraph company or sent by
telex or telecopy, respectively, addressed as aforesaid.
SECTION 6.05. Governing Law. This Agreement and the Note
shall be construed in accordance with and governed by the laws of
the State of Georgia.
SECTION 6.06. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to
be an original and all of which, taken together, shall constitute
one and the same instrument.
11<PAGE>
WITNESS the hand and seal of the parties hereto through
their duly authorized officers, as of the date first above
written.
MISSISSIPPI POWER COMPANY
By: _______________________________
Title: ____________________________
[CORPORATE SEAL]
FIRST UNION NATIONAL BANK OF GEORGIA
By: _______________________________
Title: ____________________________
12<PAGE>
EXHIBIT A
MISSISSIPPI POWER COMPANY
2992 West Beach
Gulfport, Mississippi 39501
April 22, 1994
FOR VALUE RECEIVED, the undersigned promises to pay to
the order of First Union National Bank of Georgia (the "Bank") at
its office at 999 Peachtree Street, N.E., Atlanta, Georgia 30309,
the principal amount of Nine Million Dollars ($9,000,000) on
June 30, 1995, and to pay interest (calculated on the basis of a
year of 360 days, and the actual number of days elapsed) on the
unpaid principal amount hereof at the rate of 5.39% per annum,
such interest being payable in arrears on March 31, June 30,
September 30 and December 31 in each year and at the maturity
hereof. Any principal not paid when due shall bear interest from
maturity until paid in full at a floating rate per annum equal to
110% of that rate of interest from time to time announced by the
Bank at its principal office as its base rate, such interest to
be payable on demand and upon payment in full of such principal.
All payments hereunder shall be made in lawful money of
the United States of America in immediately available funds. If
any payment hereunder shall be specified to be made on a day
which is not a business day, it shall be made on the next
succeeding day which is a business day and such extension of time
shall in such case be included in computing interest, if any, in
connection with such payment.
The principal of this Note may not be prepaid by the
undersigned.
Demand for payment, protest and notice of dishonor are
hereby waived by the undersigned.
This Note evidences a loan made to the undersigned
under and is entitled to the benefits of a certain Loan Agreement
dated as of April 22, 1994, to which Loan Agreement reference is
hereby made, and this Note may be accelerated as therein
provided.
13<PAGE>
The undersigned promises to pay all out-of-pocket costs
and expenses (including reasonable fees and out-of-pocket costs
and expenses of legal counsel) which the Bank may incur in the
enforcement against the undersigned of said Loan Agreement or
this Note.
MISSISSIPPI POWER COMPANY
By:________________________________
[SEAL]
Title:_____________________________
Attest:
By:_________________________
Title:______________________
14<PAGE>
LOAN AGREEMENT
Dated as of April 22, 1994
By and Between
MISSISSIPPI POWER COMPANY
AND
FIRST UNION NATIONAL BANK OF GEORGIA<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of April 22, 1994 (the
"Agreement"), by and between MISSISSIPPI POWER COMPANY, a
corporation organized and existing under the laws of the State of
Mississippi (the "Borrower"), and FIRST UNION NATIONAL BANK OF
GEORGIA (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Bank to extend the
Loan (as hereinafter defined), and the Bank is willing to do so
subject to and upon the terms and conditions set forth in this
Agreement;
NOW THEREFORE, for and in consideration of the premises and
the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. In addition to the other terms
defined herein, the following terms used herein shall have the
meanings herein specified (such meanings to be equally applicable
to both the singular and plural forms of the terms defined except
where specifically defined):
"Adjusted Funded Debt," with respect to any person, shall
mean without duplication:
(1) its liabilities for borrowed money, other than Current
Debt;
(2) liabilities, other than Current Debt, secured by any
lien existing on property owned by such person (whether or not
such liabilities have been assumed);
(3) the present value of all payments due under any lease
or under any other arrangement for retention of title (discounted
at the implicit rate if known or 8% per annum otherwise) if such
lease or other arrangement is in substance (a) a financing lease
(including any lease under which (i) the lessee has or will have
an option to purchase the property subject thereto at a nominal
amount or an amount less than a reasonable estimate of the fair
market value of such property at the date of such purchase, (ii)
the lessor has filed a financing statement, or (iii) the term of
the lease approximates or exceeds the expected useful life of the<PAGE>
property subject thereto), (b) an arrangement for the retention
of title for security purposes, or (c) an installment purchase;
and
(4) any other obligations (other than deferred taxes) which
are required by generally accepted accounting principles to be
shown as liabilities on its balance sheet and which are payable
or remain unpaid more than one year from the creation thereof.
The "Adjusted Funded Debt" of the Borrower shall mean all
obligations described in the foregoing clauses in respect of
which the Borrower is liable as obligor, guarantor or otherwise.
"Business Day" shall mean a day on which commercial banks
are not required or authorized to close in Atlanta, Georgia.
"Capitalization," with respect to any person, shall mean the
sum of (a) the aggregate of the capital stock (but excluding
treasury stock and capital stock subscribed and unissued) and
other equity accounts (including retained earnings and paid-in
capital) of such person as the same appears on the balance sheet
of such person prepared in accordance with generally accepted
accounting principles as of the date of determination, and (b)
the amount of Adjusted Funded Debt of such person as of the same
date.
"Current Debt," with respect to any person, shall mean all
liabilities for borrowed money and all liabilities secured by any
lien existing on property owned by such person whether or not
such liabilities have been assumed, which, in either case, are
payable on demand or within one year from the creation thereof,
except:
(1) any such liabilities which are renewable or extendible
at the option of the debtor to a date more than one year from the
date of creation thereof, and
(2) any such liabilities which, although payable within one
year, constitute payments required to be made on account of
principal of indebtedness expressed to mature more than one year
from the date of creation thereof.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as such Act may be amended.
"First Mortgage Indenture" shall mean the Indenture, dated
as of September 1, 1941, between the Borrower and Morgan Guaranty
Trust Company of New York, as Trustee, as supplemented and
amended to date, and as may hereafter be supplemented and amended
by supplemental indentures.
"Plan" shall mean any employee benefit plan or other plan
2<PAGE>
maintained for employees.
"Significant Subsidiary," with respect to any person, shall
mean any corporation of which such person owns a majority of the
capital stock having voting powers, and which represents more
than 25% of such person's assets on a consolidated basis.
ARTICLE II
AMOUNT AND TERMS OF LOAN
SECTION 2.01. Loan and Note. Subject to and upon the terms
and conditions set forth in this Agreement, the Bank agrees to
lend to the Borrower Nine Million Dollars ($9,000,000) on the
date of this Agreement (the "Loan"). The Loan shall be evidenced
by a single Promissory Note payable to the Bank in the form of
Exhibit A attached hereto (the "Note").
SECTION 2.02. Increased Costs. If (i) Regulation D of the
Board of Governors of the Federal Reserve System, or (ii) after
the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the
Bank with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable
agency,
(1) shall subject the Bank to any tax, duty or other
charge with respect to the Loan or the Note, or shall change
the basis of taxation of payments to the Bank of the
principal of or interest on the Note or any other amounts
due under this Agreement in respect of the Loan (except for
changes in the rate of tax on the overall net income of the
Bank imposed by the jurisdiction in which the Bank's
principal executive office is located); or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed
by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
the Bank; or
(3) shall impose on the Bank any other condition
affecting the Loan or the Note;
and the result of any of the foregoing is to increase the cost to
(or in the case of Regulation D referred to above, to impose a
cost on) the Bank of extending or maintaining the Loan, or to
reduce the amount of any sum received or receivable by the Bank
3<PAGE>
under this Agreement or under the Note with respect thereto, then
within 15 days after demand by the Bank (which demand shall be
accompanied by a statement setting forth the basis of such
demand), the Borrower shall pay directly to the Bank such
additional amount or amounts as will compensate the Bank for such
increased cost or such reduction. The Bank shall promptly notify
the Borrower of any event of which it has knowledge, occurring
after the date hereof, which will entitle the Bank to
compensation pursuant to this Section 2.02 and will take such
reasonable action, if such action will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole
judgment of the Bank, be otherwise disadvantageous to the Bank.
SECTION 2.03. Capital Adequacy. If the Bank determines
that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect
the amount of capital required or expected to be maintained by
the Bank or any corporation controlling the Bank and that the
amount of such capital is increased by or based upon the
existence of the Bank's Loan hereunder and other commitments of
this type, then, upon demand by the Bank, the Borrower shall pay
to the Bank, from time to time as specified by the Bank,
additional amounts sufficient to compensate the Bank or such
corporation in the light of such circumstances, to the extent in
each case that the Bank and the Borrower shall mutually agree in
writing with respect thereto; provided, however, that in no event
shall any such additional amount commence accruing earlier than
ninety days after the date of any demand therefor.
SECTION 2.04. Making of Payments. All payments of
principal of, or interest on, the Note shall be made in
immediately available funds to the Bank at its principal office
in Atlanta, Georgia. All such payments shall be made not later
than 1:00 p.m. Atlanta, Georgia time on the date specified for
payment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties. The Borrower
represents and warrants to the Bank as follows:
(a) the Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Mississippi and each Significant Subsidiary,
if any, of the Borrower is a corporation duly
organized, validly existing and in good standing under
the laws of its respective state of incorporation;
4<PAGE>
(b) the Borrower has taken all necessary corporate action
to authorize its execution, delivery and performance of
this Agreement and its obtaining the Loan;
(c) each of this Agreement and the Note is the valid and
binding obligation of the Borrower enforceable in
accordance with its terms, except as such enforcement
may be limited by any bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors'
rights generally or general principles of equity;
(d) this Agreement, the Note and the Loan do not and will
not violate any provisions of any applicable law or
conflict with, result in a breach of, or constitute a
default under, the Borrower's Charter or By-laws or any
indenture or other agreement or instrument, or any
legal restriction that the Borrower is a party to or
bound by;
(e) no approval or consent of, or other filing with or
notice to, any governmental body is legally required
for the issuance by the Borrower of the Note or the
execution, delivery and performance by the Borrower of
this Agreement and the Note except for an order or
orders of the Securities and Exchange Commission under
the Public Utility Holding Company Act of 1935, as
amended, which order or orders have been obtained and
are in effect;
(f) other than in the ordinary course of business
(including, without limitation, actions, suits or
proceedings involving rates or licenses or permits for
the construction or operation of generating or
transmission facilities), there are no actions, suits
or proceedings pending or to the Borrower's knowledge
threatened against or directly involving the Borrower
or its properties before any court, arbitrator or
governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, except
(i) actions, suits or proceedings which will not effect
a material adverse change in the Borrower's financial
condition or operations and (ii) as disclosed in or
contemplated by the Borrower's Annual Report on Form
10-K for the year ended December 31, 1993 (the
"Exchange Act Document");
(g) to the best knowledge of the Borrower, no Reportable
Event (as defined in Title IV of ERISA) has occurred
and is continuing with respect to any Plan of the
Borrower;
5<PAGE>
(h) the Borrower has not incurred any material accumulated
funding deficiency within the meaning of ERISA and the
Borrower has not incurred any material liability to the
Pension Benefit Guaranty Corporation established under
ERISA (or any successor thereto) in connection with any
Plan of the Borrower;
(i) no Event of Default (as defined in Section 5.01
hereof), or event which with the passage of time or
giving of notice, or both, would constitute an Event of
Default, has occurred and is continuing;
(j) the Borrower has furnished to the Bank its balance
sheet as of December 31, 1993, and related statements
of income and cash flows for the twelve months then
ended, in each case certified by Arthur Andersen & Co.,
independent certified public accountants;
(k) such financial statements fairly present the Borrower's
financial position as of December 31, 1993, and the
results of its operations for the twelve months then
ended, in conformity with generally accepted accounting
principles consistently applied during such period
(except as stated therein);
(l) there has been no material adverse change in the
financial condition or operations of the Borrower and
it subsidiaries (taken as a whole) since December 31,
1993, except as reflected in or contemplated by the
Exchange Act Document, it being understood and agreed
that this exception is not intended to cover statements
in the Exchange Act Document that are stated therein to
be applicable to the electric utility industry
generally unless they describe specific problems or
types of problems which, at the date hereof, are
affecting the Borrower's financial condition or
operations or its prospects; and
(m) the Borrower is not engaged principally, or as one of
its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System), and no
proceeds of the Loan are to be used to purchase or
carry any margin stock or to extend credit to others
for such purpose.
As used in this Agreement, the term "material adverse change"
shall mean an adverse change which significantly increases the
risk that the Note or other obligations hereunder will not be
repaid when due. The Bank recognizes and agrees that the
Borrower is entering into this Agreement in part because it
6<PAGE>
foresees the possibility that from time to time during the term
of this Agreement it may not be able to issue first mortgage
bonds or preferred stock and that such inability shall not, in
and of itself, constitute a material adverse change. The Bank
further agrees that an unsuccessful or failed remarketing,
auction or similar procedure with respect to any security subject
to such procedure also shall not, in and of itself, constitute a
material adverse change.
ARTICLE IV
AFFIRMATIVE COVENANTS
SECTION 4.01. Certain Covenants. So long as the Note shall
remain unpaid, the Borrower will, unless the Bank shall otherwise
consent in writing:
(a) pay and discharge all taxes, assessments and
governmental charges or levies imposed upon the
Borrower or upon its income or profits, or upon any
properties belonging to the Borrower, prior to the date
on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a lien or charge
upon any properties of the Borrower, provided it shall
not be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good
faith and by proper proceedings;
(b) maintain insurance in accordance with Section 7.06 of
the First Mortgage Indenture;
(c) preserve and maintain its corporate existence in
Mississippi, and qualify and remain qualified as a
foreign corporation in each jurisdiction in which such
qualification is necessary or desirable in view of its
business and operations or the ownership of its
properties;
(d) comply with the requirements of all applicable laws,
non-compliance with which would effect a material
adverse change in its financial condition or operations
except applicable laws being contested in good faith;
(e) provide the Bank with prompt notice in writing of any
Event of Default or any event which with the passage of
time or giving of notice, or both, would constitute an
Event of Default; and
(f) comply with the provisions of the First Mortgage
Indenture with respect to the maintenance and
replacement of utility plant.
7<PAGE>
SECTION 4.02. Financial Statements. The Borrower, so long
as any indebtedness under this Agreement is outstanding and
unpaid, will furnish or cause to be furnished to the Bank (a)
within 120 days after the end of each of its fiscal years, its
consolidated balance sheet and related consolidated statements of
income and cash flows, in each case certified by independent
certified public accountants of nationally recognized standing,
showing its financial position at the close of such year and the
results of its operations and cash flows for such year; (b)
within 55 days after the end of each of the first three quarters
in each of its fiscal years, its unaudited condensed consolidated
balance sheet and related condensed consolidated statements of
income and cash flows, such balance sheets to be as of the end of
such quarter and such statements of income and cash flows to be
for the period from the beginning of the fiscal year to the end
of such quarter, in each case in the forms included in its
Quarterly Report on Form 10-Q for such quarter filed with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended, and subject to audit and year-
end adjustments; and (c) such other information respecting the
Borrower's business, properties or its condition or operations,
financial or otherwise, as the Bank may from time to time
reasonably request.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.01. Events of Default. Any one or more of the
following shall constitute an Event of Default hereunder:
(a) the Borrower (or, in the case of an event described in
(v) below, either the Borrower or any Significant
Subsidiary of the Borrower) shall:
(i) default in the payment when due of any
principal of the Note, or default for 5
Business Days in the payment when due of any
interest on the Note,
(ii) default in the performance of any other
agreement or covenant contained in this
Agreement (other than a covenant or agreement
a default in the performance of which is
elsewhere in this paragraph specifically
dealt with) and such default shall continue
for a period of 30 days after the Bank has
given the Borrower written notice thereof,
(iii) default in the payment when due or within any
applicable period of grace of any Adjusted
8<PAGE>
Funded Debt or Current Debt of the Borrower
(other than Adjusted Funded Debt or Current
Debt incurred under the Note and under
agreements or instruments involving in the
aggregate less than $500,000),
(iv) default under the provisions of any
instrument evidencing Adjusted Funded Debt or
Current Debt of the Borrower (other than
Adjusted Funded Debt or Current Debt incurred
under the Note and under agreements or
instruments involving in the aggregate less
than $500,000), or of any agreement relating
to any such Adjusted Funded Debt or Current
Debt of the Borrower the effect of which
default is to permit any party or parties to
any such instrument or agreement to cause
such Adjusted Funded Debt or Current Debt to
become due prior to its stated maturity, or
(v) (A) apply for or consent to the appointment
of a receiver, trustee, liquidator or the
like of the Borrower or any Significant
Subsidiary of the Borrower, or of all or a
substantial part of its or any such
Significant Subsidiary's property, (B) be
unable, or admit in writing inability, to pay
debts generally as they mature, (C) make a
general assignment for the benefit of
creditors, (D) be adjudicated a bankrupt or
insolvent, or (E) file a voluntary petition
in bankruptcy or a petition or answer seeking
reorganization or an arrangement with
creditors or to take advantage of any
insolvency law or an answer admitting the
material allegations of a petition filed
against it or any such Significant Subsidiary
in any bankruptcy, reorganization or
insolvency proceeding, or corporate action
shall be taken by it or any such Significant
Subsidiary for the purpose of effecting any
of the foregoing,
(b) any representation made by the Borrower hereunder shall
prove incorrect in any material respect when made, or
(c) an order, judgment or decree shall be entered, without
the application, approval or consent of the Borrower or
any Significant Subsidiary of the Borrower, by any
court or governmental agency of competent jurisdiction,
approving a petition seeking the Borrower's or
Significant Subsidiary's reorganization, or appointing
9<PAGE>
a receiver, trustee, liquidator, or the like of it or
any such Significant Subsidiary, or of all or a
substantial part of its or any such Significant
Subsidiary's assets, and such order, judgment or decree
shall continue unstayed and in effect for any period of
60 consecutive days.
SECTION 5.02. Remedies on Default. Upon the occurrence and
continuation of an Event of Default, then, except in the case of
an event described in clause (A), (C), (D), or (E) of Section
5.01 (a)(v) above or in Section 5.01 (c) above, the Bank may,
upon written notice to the Borrower, declare the principal and
interest on the Note to be immediately due and payable, whereupon
the outstanding principal amount of the Note, accrued interest
thereon, and all other amounts payable under this Agreement and
the Note, shall be immediately due and payable. In the case of
an event described in clause (A), (C), (D) or (E) of Section 5.01
(a)(v) above or in Section 5.01 (c) above, without any notice to
the Borrower or declaration by the Bank, the outstanding
principal amount of the Note, accrued interest thereon, and all
other amounts payable by the Borrower under this Agreement and
the Note shall be immediately due and payable.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. No Waiver. The Bank's rights and remedies
under this Agreement and the Note are cumulative and not
exclusive of any rights or remedies which the Bank would
otherwise have, and no failure or delay by the Bank in exercising
any right shall operate as a waiver of it, nor shall any single
or partial exercise of any power or right preclude its other or
further exercise or the exercise of any other power or right.
Any term, covenant, agreement or condition of this Agreement and
the Note may be amended by a writing executed by the parties
hereto or the Bank may waive compliance therewith in writing
(either generally or any particular instance or retrospectively
or prospectively) and upon execution of such waiver or amendment,
the failure to observe, perform or discharge any such term,
covenant, agreement or condition (whether such amendment is
executed or such waiver is given before or after such failure)
shall not be construed as a breach of such term, covenant,
agreement or condition or an Event of Default to the extent so
amended or waived.
SECTION 6.02. Investment. The Bank represents that it is
the present intention of the Bank to acquire the Note for its own
account in the ordinary course of its banking business and not
with a view to the distribution or sale thereof, subject,
nevertheless, to the necessity that the Bank remain in control at
10<PAGE>
all times of the disposition of property held by it for its own
account, it being understood that the foregoing representation
shall not affect the character of the Loan as a commercial
lending transaction nor the ability or right of the Bank to grant
participations in its rights and obligations hereunder and under
the Note as specified in Section 6.03 hereof.
SECTION 6.03. Participations. The Bank may from time to
time enter into participation agreements and pursuant thereto
assign its rights under this Agreement and the Note. All amounts
payable by the Borrower under this Agreement and the Note shall
be determined as if the Bank had not entered into any such
participation agreement. The Bank may furnish any information
concerning the Borrower in the possession of the Bank from time
to time to participants and prospective participants.
SECTION 6.04. Notices. All notices and other
communications under this Agreement shall be mailed, telegraphed,
telexed, telecopied or delivered to each party at the address set
forth below, unless such address shall have been changed by
written notice to the other party of such change, in which event
it shall be addressed to such changed address:
If to the Bank, to it at:
First Union National Bank of Georgia
999 Peachtree Street, Suite 640
Atlanta, Georgia 30309
Attention: Ms. Mara Holley
Telecopy No.: (404) 225-4011
If to the Borrower, to it at:
2992 West Beach
Gulfport, Mississippi 39501
Attention: Treasurer
Telecopy No.: (601) 865-5658
All such notices and communications shall, when mailed,
telegraphed, telexed or telecopied, be effective when deposited
in the mails or delivered to the telegraph company or sent by
telex or telecopy, respectively, addressed as aforesaid.
SECTION 6.05. Governing Law. This Agreement and the Note
shall be construed in accordance with and governed by the laws of
the State of Georgia.
SECTION 6.06. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to
be an original and all of which, taken together, shall constitute
one and the same instrument.
11<PAGE>
WITNESS the hand and seal of the parties hereto through
their duly authorized officers, as of the date first above
written.
MISSISSIPPI POWER COMPANY
By: _______________________________
Title: ____________________________
[CORPORATE SEAL]
FIRST UNION NATIONAL BANK OF GEORGIA
By: _______________________________
Title: ____________________________
12<PAGE>
EXHIBIT A
MISSISSIPPI POWER COMPANY
2992 West Beach
Gulfport, Mississippi 39501
April 22, 1994
FOR VALUE RECEIVED, the undersigned promises to pay to
the order of First Union National Bank of Georgia (the "Bank") at
its office at 999 Peachtree Street, N.E., Atlanta, Georgia 30309,
the principal amount of Nine Million Dollars ($9,000,000) on
December 29, 1995, and to pay interest (calculated on the basis
of a year of 360 days, and the actual number of days elapsed) on
the unpaid principal amount hereof at the rate of 5.72% per
annum, such interest being payable in arrears on March 31,
June 30, September 30 and December 31 in each year and at the
maturity hereof. Any principal not paid when due shall bear
interest from maturity until paid in full at a floating rate per
annum equal to 110% of that rate of interest from time to time
announced by the Bank at its principal office as its base rate,
such interest to be payable on demand and upon payment in full of
such principal.
All payments hereunder shall be made in lawful money of
the United States of America in immediately available funds. If
any payment hereunder shall be specified to be made on a day
which is not a business day, it shall be made on the next
succeeding day which is a business day and such extension of time
shall in such case be included in computing interest, if any, in
connection with such payment.
The principal of this Note may not be prepaid by the
undersigned.
Demand for payment, protest and notice of dishonor are
hereby waived by the undersigned.
This Note evidences a loan made to the undersigned
under and is entitled to the benefits of a certain Loan Agreement
dated as of April 22, 1994, to which Loan Agreement reference is
hereby made, and this Note may be accelerated as therein
provided.
13<PAGE>
The undersigned promises to pay all out-of-pocket costs
and expenses (including reasonable fees and out-of-pocket costs
and expenses of legal counsel) which the Bank may incur in the
enforcement against the undersigned of said Loan Agreement or
this Note.
MISSISSIPPI POWER COMPANY
By:________________________________
[SEAL]
Title:_____________________________
Attest:
By:_________________________
Title:______________________
14<PAGE>
FUELCO, INC.
1310 25TH AVENUE
GULFPORT, MISSISSIPPI 39501
April 22, 1994
FOR VALUE RECEIVED, the undersigned promises to pay to
the order of Mississippi Power Company ("MPC") at its office
at 2992 West Beach Boulevard, Gulfport, MS 39501, the
principal amount of NINE MILLION AND NO/100 ($9,000,000.00)
DOLLARS on December 30, 1994, and to pay interest
(calculated on the basis of a year of 360 days, and the
actual number of days elapsed) on the unpaid principal
amount hereof at the rate of 4.87% per annum, such interest
being payable in arrears on June 30 and September 30 and at
the maturity hereof. Any principal not paid when due shall
bear interest from maturity until paid in full at a floating
rate per annum equal to 110% of that rate of interest from
time to time announced by the First Union Bank at its
principal office as its base rate, such interest to be
payable on demand and upon payment in full of such
principal.
All payments hereunder shall be made in lawful money of
the United States of America in immediately available funds.
If any payment hereunder shall be specified to be made on a
day which is not a business day, it shall be made on the
next succeeding day which is a business day and such
extension of time shall in such case be included in
computing interest, if any, in connection with such payment.
The principal of this Note may not be prepaid by the
undersigned.
Demand for payment, protest and notice of dishonor are
hereby waived by the undersigned.
Upon any default in payment when due of any principal
of this note or default for five (5) business days in the
payment when due of any interest on the note, MPC or any
holder may upon written notice to Borrower declare the
principal and interest on the note to be immediately due and
payable whereupon the outstanding principal amount of the
Note, accrued Interest thereon, and all other amounts
payable under this Note shall be immediately due and
payable.
FUELCO, INC.
[SEAL]
By: M. A. Ferrucci<PAGE>
Title: President
Attest:
By: A. M. Horne
Title: Secretary<PAGE>
FUELCO, INC.
1310 25TH AVENUE
GULFPORT, MISSISSIPPI 39501
April 22, 1994
FOR VALUE RECEIVED, the undersigned promises to pay to
the order of Mississippi Power Company ("MPC") at its office
at 2992 West Beach Boulevard, Gulfport, MS 39501, the
principal amount of NINE MILLION AND NO/100 ($9,000,000.00)
DOLLARS on June 30, 1995, and to pay interest (calculated on
the basis of a year of 360 days, and the actual number of
days elapsed) on the unpaid principal amount hereof at the
rate of 5.39% per annum, such interest being payable in
arrears on March 31, June 30, September 30 and December 31
in each year and at the maturity hereof. Any principal not
paid when due shall bear interest from maturity until paid
in full at a floating rate per annum equal to 110% of that
rate of interest from time to time announced by the First
Union Bank at its principal office as its base rate, such
interest to be payable on demand and upon payment in full of
such principal.
All payments hereunder shall be made in lawful money of
the United States of America in immediately available funds.
If any payment hereunder shall be specified to be made on a
day which is not a business day, it shall be made on the
next succeeding day which is a business day and such
extension of time shall in such case be included in
computing interest, if any, in connection with such payment.
The principal of this Note may not be prepaid by the
undersigned.
Demand for payment, protest and notice of dishonor are
hereby waived by the undersigned.
Upon any default in payment when due of any principal
of this note or default for five (5) business days in the
payment when due of any interest on the note, MPC or any
holder may upon written notice to Borrower declare the
principal and interest on the note to be immediately due and
payable whereupon the outstanding principal amount of the
Note, accrued Interest thereon, and all other amounts
payable under this Note shall be immediately due and
payable.
FUELCO, INC.
[SEAL]
By: M. A. Ferrucci<PAGE>
Title: President
Attest:
By: A. M. Horne
Title: Secretary<PAGE>
FUELCO, INC.
1310 25TH AVENUE
GULFPORT, MISSISSIPPI 39501
April 22, 1994
FOR VALUE RECEIVED, the undersigned promises to pay to
the order of Mississippi Power Company ("MPC") at its office
at 2992 West Beach Boulevard, Gulfport, MS 39501, the
principal amount of NINE MILLION AND NO/100 ($9,000,000.00)
DOLLARS on December 29, 1995, and to pay interest
(calculated on the basis of a year of 360 days, and the
actual number of days elapsed) on the unpaid principal
amount hereof at the rate of 5.72% per annum, such interest
being payable in arrears on March 31, June 30, September 30
and December 31 in each year and at the maturity hereof.
Any principal not paid when due shall bear interest from
maturity until paid in full at a floating rate per annum
equal to 110% of that rate of interest from time to time
announced by the First Union Bank at its principal office as
its base rate, such interest to be payable on demand and
upon payment in full of such principal.
All payments hereunder shall be made in lawful money of
the United States of America in immediately available funds.
If any payment hereunder shall be specified to be made on a
day which is not a business day, it shall be made on the
next succeeding day which is a business day and such
extension of time shall in such case be included in
computing interest, if any, in connection with such payment.
The principal of this Note may not be prepaid by the
undersigned.
Demand for payment, protest and notice of dishonor are
hereby waived by the undersigned.
Upon any default in payment when due of any principal
of this note or default for five (5) business days in the
payment when due of any interest on the note, MPC or any
holder may upon written notice to Borrower declare the
principal and interest on the note to be immediately due and
payable whereupon the outstanding principal amount of the
Note, accrued Interest thereon, and all other amounts
payable under this Note shall be immediately due and
payable.
FUELCO, INC.
[SEAL]
By: M. A. Ferrucci<PAGE>
Title: President
Attest:
By: A. M. Horne
Title: Secretary<PAGE>
STATE OF MISSISSIPPI
COUNTY OF JACKSON
$ 9,000,000.00
SUBORDINATE LAND DEED OF TRUST
THIS INDENTURE, made and entered into this day by and
among Mississippi Power Company whose address is 2992 W.
Beach Boulevard, Gulfport, MS 39501, as Grantor (herein
designated as "Debtor"), Ben H. Stone, as Trustee and First
Union National Bank of Georgia, as beneficiary (herein
designated as "Secured Party"), WITNESSETH:
WHEREAS, Debtor is indebted to Secured Party in the
full principal sum of Nine Million and 00/100
($9,000,000.00) Dollars evidenced by Debtor's Promissory
Note issued of even date herewith in favor of Secured Party
(the "Note") pursuant to the Loan Agreement between Debtor
and the Secured Party of even date herewith, said
indebtedness bearing interest as specified in the Note which
provides for payment of attorney's fees for collection if
not paid according to the terms thereof and being due and
payable as set forth in the above described Loan Agreement
and Note. Unless sooner paid, the final maturity date of
the indebtedness evidenced by the said Note is December 30,
1994.
NOW, THEREFORE, in consideration of the Indebtedness
and obligations herein recited, Debtor hereby conveys and
warrants unto Trustee, a one third (1/3rd) undivided
interest in Debtor's undivided one-half (1/2) interest in
the land together with all improvements thereon described
below situated in the County of Jackson, State of
Mississippi:
A steam plant site at or near Cumbest Bluff in
Jackson County, Mississippi, or known as the Jackson
County Steam Plant site ("Plant Victor J. Daniel")
on land recorded in the office of the Chancery Clerk
of Jackson County and described as follows:
Section 15 Township 6 South Range 6 West
Lots 1 and 2 as recorded in Book 416 Page 299 and
Book 428 Page 259.
Section 14 Township 6 South Range 6 West
Beginning at the Northeast corner of Section 14,
Township 6 South, Range 6 West, and run thence
South along the East line of said Section 14 a
distance of 2030 feet to a point, run thence
West a distance of 380 feet to a point, thence
South 3 degrees 30 minutes East a distance of<PAGE>
125 feet to a point, run thence West a distance
of 730 feet to Clark Bayou, run thence
Southwesterly along the meanderings of Clark
Bayou 6,560 feet, more or less, to the Southwest
corner of Section 14, thence North along the
West section line of Section 14 to the Northwest
corner of said section, thence run East along
the North line of Section 14 a distance of 5251
feet, more or less, to the Northeast corner of
said Section 14 and the Point of Beginning, less
and except that part to Miss. State Highway
Dept. recorded in Book 172 Page 585-6, all as
recorded in Book 439 Page 467-70.
Section 11 Township 6 South Range 6 West
All that part of the SE 1/4 of SE 1/4 East of
Mississippi State Highway 63; all of Section 11
West of Highway 63 all being recorded in Book
439 Page 467-70, Book 434 Page 601, Book 434
Page 664, Book 434 Page 600, Book 442 Page 155,
and Book 441 Page 327.
Section 10 Township 6 South Range 6 West
All of the entire Section as recorded in Book
428 Page 259, Book 448 Page 288, Book 449 Page
418, Book 449 Page 507.
Section 9 Township 6 South Range 6 West
All that part East of Pascagoula River as
recorded in Book 428 Page 259.
Section 4 Township 6 South Range 6 West
All that part East of Pascagoula River and South
of Vaughn Bayou, as recorded in Book 428 Page
259.
Section 37 Township 6 South Range 6 West
All that part of Allen Goodwin Private Claim 37
that would have been the S 1/2 of Regular
Section 3, if regularly surveyed, less and
except that part lying Northwest of Vaughn Bayou
as recorded in Book 428 Page 259.
Section 2 Township 6 South Range 6 West
All that part of the SW 1/4 of Section 2 lying
West of Highway 63 as recorded in Book 417 Page
468, Book 419 Page 57, Book 444 Page 36, Book
414 Page 163, Book 419 Page 557, Book 423 Page<PAGE>
160, Book 448 Page 282, Book 455 Page 401 and
Book 455 Page 400.
A tract of land in the A. Goodwin Claim, Section
Thirty-five (35) and the Kirkwood Claim, Section
Forty-two (42), both in Township Five (5) South,
Range Six (6) West, Jackson County, described as
follows:
Beginning at a point 75 feet West of the
Southeast corner of the A. Goodwin Claim Section
35, Township 5 South, Range 6 West, on the West
margin of the County Road known as "River Road"
(Now Mississippi State Highway No. 63) and
thence run West along the South boundary line of
the aforesaid A. Goodwin Claim No. 35, 1575
feet; thence North 1609.50 feet; thence East 295
feet; thence South 69 degrees and 19 minutes
East 885 feet to the West margin of the County
Road known as "River Road" (Now Mississippi
State Highway No. 63); thence Southerly along
the West margin of said Road South 6 degrees and
24 minutes West 100 feet; thence South 1 degree
and 34 minutes East 100 feet; thence South 7
degrees and 44 minutes East 100 feet; thence
South 9 degrees and 33 minutes East 100 feet;
thence South 12 degrees and 46 minutes East 200
feet; thence South 16 degrees and 30 minutes
East 100 feet; thence South 25 degrees and 12
minutes East 100 feet; thence South 30 degrees
and 45 minutes East 200 feet; thence South 34
degrees and 22 minutes East 300 feet; thence
South 23 degrees and 20 minutes East 108.7 feet
to the point of beginning.
LESS AND EXCEPT those certain parcels sold to
David Thomas Pinter and sold to Erbie Gene
Bailey and wife all as recorded in Deed Book
250, Page 336
394 168 and 171
399 420
407 170
LESS AND EXCEPT any part of the above described
land which lies East of the New Mississippi
Highway No. 63 as now laid out and used. As
recorded in Book 423, Page 157.
together with all improvements and appurtenances now or
hereafter erected on, and all fixtures of any and every
description now or hereafter attached to, said land (all
being herein referred to as the "Property"). Debtor
reserves the right to execute with trustee (without the<PAGE>
consent of Secured Party), an amendment to this instrument
substituting for the property collateral having a value in
the judgment of Debtor not less than the then unpaid amount
of the Note.
THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt
performance by Debtor to Secured Party as described
hereinabove under the provisions of this Deed of Trust. If
Debtor shall discharge its obligation to Secured Party
according to the tenor of the Loan Agreement and Note
described hereinabove and shall perform all covenants made
by Debtor to Secured Party herein, then this conveyance
shall be void and of no effect. If Debtor shall be in
default in the performance of its obligations under its Loan
Agreement and Note described hereinabove, then, in that
event, Trustee shall, at the request of Secured Party, sell
the Property conveyed, or a sufficiency thereof, to satisfy
the Indebtedness at public outcry to the highest bidder for
cash. Sale of the property shall be advertised for three
consecutive weeks preceding the sale in a newspaper
published in the county where the Property is situated, or
if none is so published, then in some newspaper having a
general circulation therein, and by posting a notice for the
same time at the courthouse of the same county. The notice
and advertisement shall disclose the names of the original
Debtor in this Deed of Trust.
Secured Party shall have the same right to purchase the
property at the foreclosure sale as would a purchaser who is
not a party to this Deed of Trust. Debtor waives the
provisions of Section 89-1-55 of the Mississippi Code of
1972 as amended, if any, as far as this section restricts
the right of Trustee to offer at sale more than 160 acres at
a time, and Trustee may offer the property herein as a
whole, regardless of how it is described.
From the proceeds of the sale Trustee shall first pay
all costs of the sale including reasonable compensation to
Trustee; then the Indebtedness due Secured Party by Debtor,
including accrued interest and attorney's fees due for
collection of the debt; and then, lastly, any balance
remaining to other lienholders or to Debtor, as required by
law.
IT IS AGREED that this conveyance is made subject to
the covenants, stipulations and conditions set forth below
which shall be binding upon all parties hereto.
1. Debtor shall pay all taxes and assessments,
general or special, levied against the Property or upon the
interest of Trustee or Secured Party therein, during the
term of this Deed of Trust before such taxes or assessments
become delinquent, except to the extent the same may be
contested.
2. Debtor shall keep the Property in good repair and
shall not permit or commit waste, impairment or
deterioration thereof. Debtor shall use the Property for
lawful purposes only.
3. Debtor shall be in default under the provisions of<PAGE>
this Deed of Trust if Debtor shall default in the
performance according to the tenor of the Loan Agreement and
Note described hereinabove.
4. Secured Party may by giving 30 days written notice
to the original or any successor Trustee, and to Debtor,
appoint another person or succession of persons to act as
Trustee, and such appointee in the execution of this trust
shall have all the powers vested in and obligations imposed
upon Trustee.
5. This Deed of Trust and the rights of the Secured
Party hereunder are subordinate in their entirety to the
lien of that certain Mortgage Indenture dated as of
September 1, 1941 and recorded in Book 23 at Page 465, et
seq. of the Records of the Mortgages and Deeds of Trust on
Land in Jackson County, Mississippi, executed by the Debtor
named herein, with Morgan Guaranty Trust Company, New York,
New York, (formerly Guaranty Trust Company of New York), as
Trustees for the benefit of the holders of certain
obligations of Debtor (the "Trust Indenture"). This Deed of
Trust, and the rights of the Secured Party hereunder, are
also subordinate to the rights of the Trustee named in the
Trust Indenture and the parties secured thereby with respect
to any future indebtedness issued by the Debtor and secured
by the Trust Indenture as it is now constituted and as it
may be subsequently supplemented and/or amended. In the
event the Debtor shall elect to sell all or part of the
property secured hereby and Debtor's obligations secured by
the Trust Indenture shall not have been fully satisfied at
the time of such sale, the entire proceeds from such a sale
shall be paid over by Debtor to the Trustee under the Trust
Indenture and the Secured Party named herein shall have no
right to receive any part thereof unless and until all
obligations then secured by the Trust Indenture shall be
fully paid. A release by the Trustee named in the Trust
Indenture, or any successor thereto, of all or of any of
such property so sold shall constitute a release of the lien
of this Deed of Trust by the Secured Party named herein;
Secured Party, by accepting this Deed of Trust, hereby
appoints the Trustee for the Trust Indenture as its agent
and attorney-in-fact for the purpose of releasing from the
lien of this Deed of Trust all or any parts of the property
described herein in the event of a sale of all or any part
thereof by the Debtor; and, in such event, Secured Party
disclaims any right to receive any of the proceeds from any
such sale unless Debtor shall, at the time be in default
under the terms of its Note secured hereby; and then only to
the extent that all of the obligations of the Debtor then
secured by the Trust Indenture are first satisfied.
6. This Deed of Trust and the rights of the Secured
Party hereunder are also subordinate in their entirety to
the lien of a subordinate deed of trust dated December 18,
1986 executed by the Debtor named herein with The Prudential
Insurance Company of America, Equitable Variable Life
Insurance Company, Integrity Life Insurance Company, Aetna<PAGE>
Life Insurance Company and The Travelers Insurance
Corporation.
7. This Deed of Trust and the rights of the Secured
Party hereunder are also subordinate in their entirety to
the lien of a subordinate deed of trust dated December 18,
1986 executed by the Debtor named herein with Fuelco, Inc.
8. Notices required herein from Secured Party to
Debtor shall be sent to the address of Debtor shown in this
Deed of Trust.
IN WITNESS WHEREOF, Debtor has executed this Deed of
Trust on the 22nd day of April, 1994.
ATTEST: MISSISSIPPI POWER COMPANY, Debtor
By: Ann D. Estes By: H. E. Blakeslee
Its: Asst. Corp. Secretary Its: Vice President
(SEAL)
STATE OF MISSISSIPPI
COUNTY OF HARRISON
PERSONALLY appeared before me, the undersigned
authority in and for the said county and state, on this 22nd
day of April , 1994, within my jurisdiction, the within
named H. E. Blakeslee and Ann D. Estes , who
acknowledged that they are the Vice President and
Asst. Corp. Secy. respectively of Mississippi Power
Company, a Mississippi corporation, and that for and on
behalf of the said corporation, and as its act and deed they
executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
Kim E. Necaise
NOTARY PUBLIC
My Commission Expires:
My commission expires July 14, 1997
(SEAL)
GRANTOR: MISSISSIPPI POWER COMPANY
2992 West Beach Boulevard<PAGE>
Gulfport, MS 39501
SECURED PARTY: FIRST UNION NATIONAL BANK OF
GEORGIA
999 Peachtree Street, N.E.
Suite 640
Atlanta, Georgia 30309
INDEXING INSTRUCTIONS:
All quarter quarter sections in Sections 15, 14, 11,
10, 9, 4, 37 and 2, all in Township 6 South, Range
6 West; and All quarter quarter sections in the A.
Goodwin Claim, Section 35, and the Kirkwood Claim,
Section 42, both in Township 5 South, Range 6 West,
Jackson County, Mississippi.
INSTRUMENT PREPARED BY: BRENDA VANOVER ZNACHKO
Eaton & Cottrell, P.A.
1310 Twenty Fifth Avenue
Gulfport, Mississippi 39501-7748<PAGE>
STATE OF MISSISSIPPI
COUNTY OF JACKSON
$ 9,000,000.00
SUBORDINATE LAND DEED OF TRUST
THIS INDENTURE, made and entered into this day by and
among Mississippi Power Company whose address is 2992 W.
Beach Boulevard, Gulfport, MS 39501, as Grantor (herein
designated as "Debtor"), Ben H. Stone, as Trustee and First
Union National Bank of Georgia, as beneficiary (herein
designated as "Secured Party"), WITNESSETH:
WHEREAS, Debtor is indebted to Secured Party in the
full principal sum of Nine Million and 00/100
($9,000,000.00) Dollars evidenced by Debtor's Promissory
Note issued of even date herewith in favor of Secured Party
(the "Note") pursuant to the Loan Agreement between Debtor
and the Secured Party of even date herewith, said
indebtedness bearing interest as specified in the Note which
provides for payment of attorney's fees for collection if
not paid according to the terms thereof and being due and
payable as set forth in the above described Loan Agreement
and Note. Unless sooner paid, the final maturity date of
the indebtedness evidenced by the said Note is June 30,
1995.
NOW, THEREFORE, in consideration of the Indebtedness
and obligations herein recited, Debtor hereby conveys and
warrants unto Trustee, a one third (1/3rd) undivided
interest in Debtor's undivided one-half (1/2) interest in
the land together with all improvements thereon described
below situated in the County of Jackson, State of
Mississippi:
A steam plant site at or near Cumbest Bluff in
Jackson County, Mississippi, or known as the Jackson
County Steam Plant site ("Plant Victor J. Daniel")
on land recorded in the office of the Chancery Clerk
of Jackson County and described as follows:
Section 15 Township 6 South Range 6 West
Lots 1 and 2 as recorded in Book 416 Page 299 and
Book 428 Page 259.
Section 14 Township 6 South Range 6 West
Beginning at the Northeast corner of Section 14,
Township 6 South, Range 6 West, and run thence
South along the East line of said Section 14 a
distance of 2030 feet to a point, run thence
West a distance of 380 feet to a point, thence
South 3 degrees 30 minutes East a distance of<PAGE>
125 feet to a point, run thence West a distance
of 730 feet to Clark Bayou, run thence
Southwesterly along the meanderings of Clark
Bayou 6,560 feet, more or less, to the Southwest
corner of Section 14, thence North along the
West section line of Section 14 to the Northwest
corner of said section, thence run East along
the North line of Section 14 a distance of 5251
feet, more or less, to the Northeast corner of
said Section 14 and the Point of Beginning, less
and except that part to Miss. State Highway
Dept. recorded in Book 172 Page 585-6, all as
recorded in Book 439 Page 467-70.
Section 11 Township 6 South Range 6 West
All that part of the SE 1/4 of SE 1/4 East of
Mississippi State Highway 63; all of Section 11
West of Highway 63 all being recorded in Book
439 Page 467-70, Book 434 Page 601, Book 434
Page 664, Book 434 Page 600, Book 442 Page 155,
and Book 441 Page 327.
Section 10 Township 6 South Range 6 West
All of the entire Section as recorded in Book
428 Page 259, Book 448 Page 288, Book 449 Page
418, Book 449 Page 507.
Section 9 Township 6 South Range 6 West
All that part East of Pascagoula River as
recorded in Book 428 Page 259.
Section 4 Township 6 South Range 6 West
All that part East of Pascagoula River and South
of Vaughn Bayou, as recorded in Book 428 Page
259.
Section 37 Township 6 South Range 6 West
All that part of Allen Goodwin Private Claim 37
that would have been the S 1/2 of Regular
Section 3, if regularly surveyed, less and
except that part lying Northwest of Vaughn Bayou
as recorded in Book 428 Page 259.
Section 2 Township 6 South Range 6 West
All that part of the SW 1/4 of Section 2 lying
West of Highway 63 as recorded in Book 417 Page
468, Book 419 Page 57, Book 444 Page 36, Book
414 Page 163, Book 419 Page 557, Book 423 Page<PAGE>
160, Book 448 Page 282, Book 455 Page 401 and
Book 455 Page 400.
A tract of land in the A. Goodwin Claim, Section
Thirty-five (35) and the Kirkwood Claim, Section
Forty-two (42), both in Township Five (5) South,
Range Six (6) West, Jackson County, described as
follows:
Beginning at a point 75 feet West of the
Southeast corner of the A. Goodwin Claim Section
35, Township 5 South, Range 6 West, on the West
margin of the County Road known as "River Road"
(Now Mississippi State Highway No. 63) and
thence run West along the South boundary line of
the aforesaid A. Goodwin Claim No. 35, 1575
feet; thence North 1609.50 feet; thence East 295
feet; thence South 69 degrees and 19 minutes
East 885 feet to the West margin of the County
Road known as "River Road" (Now Mississippi
State Highway No. 63); thence Southerly along
the West margin of said Road South 6 degrees and
24 minutes West 100 feet; thence South 1 degree
and 34 minutes East 100 feet; thence South 7
degrees and 44 minutes East 100 feet; thence
South 9 degrees and 33 minutes East 100 feet;
thence South 12 degrees and 46 minutes East 200
feet; thence South 16 degrees and 30 minutes
East 100 feet; thence South 25 degrees and 12
minutes East 100 feet; thence South 30 degrees
and 45 minutes East 200 feet; thence South 34
degrees and 22 minutes East 300 feet; thence
South 23 degrees and 20 minutes East 108.7 feet
to the point of beginning.
LESS AND EXCEPT those certain parcels sold to
David Thomas Pinter and sold to Erbie Gene
Bailey and wife all as recorded in Deed Book
250, Page 336
394 168 and 171
399 420
407 170
LESS AND EXCEPT any part of the above described
land which lies East of the New Mississippi
Highway No. 63 as now laid out and used. As
recorded in Book 423, Page 157.
together with all improvements and appurtenances now or
hereafter erected on, and all fixtures of any and every
description now or hereafter attached to, said land (all
being herein referred to as the "Property"). Debtor
reserves the right to execute with trustee (without the<PAGE>
consent of Secured Party), an amendment to this instrument
substituting for the property collateral having a value in
the judgment of Debtor not less than the then unpaid amount
of the Note.
THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt
performance by Debtor to Secured Party as described
hereinabove under the provisions of this Deed of Trust. If
Debtor shall discharge its obligation to Secured Party
according to the tenor of the Loan Agreement and Note
described hereinabove and shall perform all covenants made
by Debtor to Secured Party herein, then this conveyance
shall be void and of no effect. If Debtor shall be in
default in the performance of its obligations under its Loan
Agreement and Note described hereinabove, then, in that
event, Trustee shall, at the request of Secured Party, sell
the Property conveyed, or a sufficiency thereof, to satisfy
the Indebtedness at public outcry to the highest bidder for
cash. Sale of the property shall be advertised for three
consecutive weeks preceding the sale in a newspaper
published in the county where the Property is situated, or
if none is so published, then in some newspaper having a
general circulation therein, and by posting a notice for the
same time at the courthouse of the same county. The notice
and advertisement shall disclose the names of the original
Debtor in this Deed of Trust.
Secured Party shall have the same right to purchase the
property at the foreclosure sale as would a purchaser who is
not a party to this Deed of Trust. Debtor waives the
provisions of Section 89-1-55 of the Mississippi Code of
1972 as amended, if any, as far as this section restricts
the right of Trustee to offer at sale more than 160 acres at
a time, and Trustee may offer the property herein as a
whole, regardless of how it is described.
From the proceeds of the sale Trustee shall first pay
all costs of the sale including reasonable compensation to
Trustee; then the Indebtedness due Secured Party by Debtor,
including accrued interest and attorney's fees due for
collection of the debt; and then, lastly, any balance
remaining to other lienholders or to Debtor, as required by
law.
IT IS AGREED that this conveyance is made subject to
the covenants, stipulations and conditions set forth below
which shall be binding upon all parties hereto.
1. Debtor shall pay all taxes and assessments,
general or special, levied against the Property or upon the
interest of Trustee or Secured Party therein, during the
term of this Deed of Trust before such taxes or assessments
become delinquent, except to the extent the same may be
contested.
2. Debtor shall keep the Property in good repair and
shall not permit or commit waste, impairment or
deterioration thereof. Debtor shall use the Property for
lawful purposes only.
3. Debtor shall be in default under the provisions of<PAGE>
this Deed of Trust if Debtor shall default in the
performance according to the tenor of the Loan Agreement and
Note described hereinabove.
4. Secured Party may by giving 30 days written notice
to the original or any successor Trustee, and to Debtor,
appoint another person or succession of persons to act as
Trustee, and such appointee in the execution of this trust
shall have all the powers vested in and obligations imposed
upon Trustee.
5. This Deed of Trust and the rights of the Secured
Party hereunder are subordinate in their entirety to the
lien of that certain Mortgage Indenture dated as of
September 1, 1941 and recorded in Book 23 at Page 465, et
seq. of the Records of the Mortgages and Deeds of Trust on
Land in Jackson County, Mississippi, executed by the Debtor
named herein, with Morgan Guaranty Trust Company, New York,
New York, (formerly Guaranty Trust Company of New York), as
Trustees for the benefit of the holders of certain
obligations of Debtor (the "Trust Indenture"). This Deed of
Trust, and the rights of the Secured Party hereunder, are
also subordinate to the rights of the Trustee named in the
Trust Indenture and the parties secured thereby with respect
to any future indebtedness issued by the Debtor and secured
by the Trust Indenture as it is now constituted and as it
may be subsequently supplemented and/or amended. In the
event the Debtor shall elect to sell all or part of the
property secured hereby and Debtor's obligations secured by
the Trust Indenture shall not have been fully satisfied at
the time of such sale, the entire proceeds from such a sale
shall be paid over by Debtor to the Trustee under the Trust
Indenture and the Secured Party named herein shall have no
right to receive any part thereof unless and until all
obligations then secured by the Trust Indenture shall be
fully paid. A release by the Trustee named in the Trust
Indenture, or any successor thereto, of all or of any of
such property so sold shall constitute a release of the lien
of this Deed of Trust by the Secured Party named herein;
Secured Party, by accepting this Deed of Trust, hereby
appoints the Trustee for the Trust Indenture as its agent
and attorney-in-fact for the purpose of releasing from the
lien of this Deed of Trust all or any parts of the property
described herein in the event of a sale of all or any part
thereof by the Debtor; and, in such event, Secured Party
disclaims any right to receive any of the proceeds from any
such sale unless Debtor shall, at the time be in default
under the terms of its Note secured hereby; and then only to
the extent that all of the obligations of the Debtor then
secured by the Trust Indenture are first satisfied.
6. This Deed of Trust and the rights of the Secured
Party hereunder are also subordinate in their entirety to
the lien of a subordinate deed of trust dated December 18,
1986 executed by the Debtor named herein with The Prudential
Insurance Company of America, Equitable Variable Life
Insurance Company, Integrity Life Insurance Company, Aetna<PAGE>
Life Insurance Company and The Travelers Insurance
Corporation.
7. This Deed of Trust and the rights of the Secured
Party hereunder are also subordinate in their entirety to
the lien of a subordinate deed of trust dated December 18,
1986 executed by the Debtor named herein with Fuelco, Inc.
8. Notices required herein from Secured Party to
Debtor shall be sent to the address of Debtor shown in this
Deed of Trust.
IN WITNESS WHEREOF, Debtor has executed this Deed of
Trust on the 22nd day of April, 1994.
ATTEST: MISSISSIPPI POWER COMPANY, Debtor
By: Ann D. Estes By: H. E. Blakeslee
Its: Asst. Corp. Secretary Its: Vice
President
(SEAL)
STATE OF Mississippi
COUNTY OF Harrison
PERSONALLY appeared before me, the undersigned
authority in and for the said county and state, on this 22nd
day of April , 1994, within my jurisdiction, the within
named H. E. Blakeslee and Ann D. Estes , who
acknowledged that they are the Vice President and
Asst. Corp. Secy. respectively of Mississippi Power
Company, a Mississippi corporation, and that for and on
behalf of the said corporation, and as its act and deed they
executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
Kim E. Necaise
NOTARY PUBLIC
My Commission Expires:
My commission Expires July 14, 1997.
(SEAL)
GRANTOR: MISSISSIPPI POWER COMPANY<PAGE>
2992 West Beach Boulevard
Gulfport, MS 39501
SECURED PARTY: FIRST UNION NATIONAL BANK OF
GEORGIA
999 Peachtree Street, N.E.
Suite 640
Atlanta, Georgia 30309
INDEXING INSTRUCTIONS:
All quarter quarter sections in Sections 15, 14, 11,
10, 9, 4, 37 and 2, all in Township 6 South, Range
6 West; and All quarter quarter sections in the A.
Goodwin Claim, Section 35, and the Kirkwood Claim,
Section 42, both in Township 5 South, Range 6 West,
Jackson County, Mississippi.
INSTRUMENT PREPARED BY: BRENDA VANOVER ZNACHKO
Eaton & Cottrell, P.A.
1310 Twenty Fifth Avenue
Gulfport, Mississippi
39501-7748<PAGE>
STATE OF MISSISSIPPI
COUNTY OF JACKSON
$ 9,000,000.00
SUBORDINATE LAND DEED OF TRUST
THIS INDENTURE, made and entered into this day by and
among Mississippi Power Company whose address is 2992 W.
Beach Boulevard, Gulfport, MS 39501, as Grantor (herein
designated as "Debtor"), Ben H. Stone, as Trustee and First
Union National Bank of Georgia, as beneficiary (herein
designated as "Secured Party"), WITNESSETH:
WHEREAS, Debtor is indebted to Secured Party in the
full principal sum of Nine Million and 00/100
($9,000,000.00) Dollars evidenced by Debtor's Promissory
Note issued of even date herewith in favor of Secured Party
(the "Note") pursuant to the Loan Agreement between Debtor
and the Secured Party of even date herewith, said
indebtedness bearing interest as specified in the Note which
provides for payment of attorney's fees for collection if
not paid according to the terms thereof and being due and
payable as set forth in the above described Loan Agreement
and Note. Unless sooner paid, the final maturity date of
the indebtedness evidenced by the said Note is December 29,
1995.
NOW, THEREFORE, in consideration of the Indebtedness
and obligations herein recited, Debtor hereby conveys and
warrants unto Trustee, a one third (1/3rd) undivided
interest in Debtor's undivided one-half (1/2) interest in
the land together with all improvements thereon described
below situated in the County of Jackson, State of
Mississippi:
A steam plant site at or near Cumbest Bluff in
Jackson County, Mississippi, or known as the Jackson
County Steam Plant site ("Plant Victor J. Daniel")
on land recorded in the office of the Chancery Clerk
of Jackson County and described as follows:
Section 15 Township 6 South Range 6 West
Lots 1 and 2 as recorded in Book 416 Page 299 and
Book 428 Page 259.
Section 14 Township 6 South Range 6 West
Beginning at the Northeast corner of Section 14,
Township 6 South, Range 6 West, and run thence
South along the East line of said Section 14 a
distance of 2030 feet to a point, run thence
West a distance of 380 feet to a point, thence
South 3 degrees 30 minutes East a distance of<PAGE>
125 feet to a point, run thence West a distance
of 730 feet to Clark Bayou, run thence
Southwesterly along the meanderings of Clark
Bayou 6,560 feet, more or less, to the Southwest
corner of Section 14, thence North along the
West section line of Section 14 to the Northwest
corner of said section, thence run East along
the North line of Section 14 a distance of 5251
feet, more or less, to the Northeast corner of
said Section 14 and the Point of Beginning, less
and except that part to Miss. State Highway
Dept. recorded in Book 172 Page 585-6, all as
recorded in Book 439 Page 467-70.
Section 11 Township 6 South Range 6 West
All that part of the SE 1/4 of SE 1/4 East of
Mississippi State Highway 63; all of Section 11
West of Highway 63 all being recorded in Book
439 Page 467-70, Book 434 Page 601, Book 434
Page 664, Book 434 Page 600, Book 442 Page 155,
and Book 441 Page 327.
Section 10 Township 6 South Range 6 West
All of the entire Section as recorded in Book
428 Page 259, Book 448 Page 288, Book 449 Page
418, Book 449 Page 507.
Section 9 Township 6 South Range 6 West
All that part East of Pascagoula River as
recorded in Book 428 Page 259.
Section 4 Township 6 South Range 6 West
All that part East of Pascagoula River and South
of Vaughn Bayou, as recorded in Book 428 Page
259.
Section 37 Township 6 South Range 6 West
All that part of Allen Goodwin Private Claim 37
that would have been the S 1/2 of Regular
Section 3, if regularly surveyed, less and
except that part lying Northwest of Vaughn Bayou
as recorded in Book 428 Page 259.
Section 2 Township 6 South Range 6 West
All that part of the SW 1/4 of Section 2 lying
West of Highway 63 as recorded in Book 417 Page
468, Book 419 Page 57, Book 444 Page 36, Book
414 Page 163, Book 419 Page 557, Book 423 Page<PAGE>
160, Book 448 Page 282, Book 455 Page 401 and
Book 455 Page 400.
A tract of land in the A. Goodwin Claim, Section
Thirty-five (35) and the Kirkwood Claim, Section
Forty-two (42), both in Township Five (5) South,
Range Six (6) West, Jackson County, described as
follows:
Beginning at a point 75 feet West of the
Southeast corner of the A. Goodwin Claim Section
35, Township 5 South, Range 6 West, on the West
margin of the County Road known as "River Road"
(Now Mississippi State Highway No. 63) and
thence run West along the South boundary line of
the aforesaid A. Goodwin Claim No. 35, 1575
feet; thence North 1609.50 feet; thence East 295
feet; thence South 69 degrees and 19 minutes
East 885 feet to the West margin of the County
Road known as "River Road" (Now Mississippi
State Highway No. 63); thence Southerly along
the West margin of said Road South 6 degrees and
24 minutes West 100 feet; thence South 1 degree
and 34 minutes East 100 feet; thence South 7
degrees and 44 minutes East 100 feet; thence
South 9 degrees and 33 minutes East 100 feet;
thence South 12 degrees and 46 minutes East 200
feet; thence South 16 degrees and 30 minutes
East 100 feet; thence South 25 degrees and 12
minutes East 100 feet; thence South 30 degrees
and 45 minutes East 200 feet; thence South 34
degrees and 22 minutes East 300 feet; thence
South 23 degrees and 20 minutes East 108.7 feet
to the point of beginning.
LESS AND EXCEPT those certain parcels sold to
David Thomas Pinter and sold to Erbie Gene
Bailey and wife all as recorded in Deed Book
250, Page 336
394 168 and 171
399 420
407 170
LESS AND EXCEPT any part of the above described
land which lies East of the New Mississippi
Highway No. 63 as now laid out and used. As
recorded in Book 423, Page 157.
together with all improvements and appurtenances now or
hereafter erected on, and all fixtures of any and every
description now or hereafter attached to, said land (all
being herein referred to as the "Property"). Debtor
reserves the right to execute with trustee (without the<PAGE>
consent of Secured Party), an amendment to this instrument
substituting for the property collateral having a value in
the judgment of Debtor not less than the then unpaid amount
of the Note.
THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt
performance by Debtor to Secured Party as described
hereinabove under the provisions of this Deed of Trust. If
Debtor shall discharge its obligation to Secured Party
according to the tenor of the Loan Agreement and Note
described hereinabove and shall perform all covenants made
by Debtor to Secured Party herein, then this conveyance
shall be void and of no effect. If Debtor shall be in
default in the performance of its obligations under its Loan
Agreement and Note described hereinabove, then, in that
event, Trustee shall, at the request of Secured Party, sell
the Property conveyed, or a sufficiency thereof, to satisfy
the Indebtedness at public outcry to the highest bidder for
cash. Sale of the property shall be advertised for three
consecutive weeks preceding the sale in a newspaper
published in the county where the Property is situated, or
if none is so published, then in some newspaper having a
general circulation therein, and by posting a notice for the
same time at the courthouse of the same county. The notice
and advertisement shall disclose the names of the original
Debtor in this Deed of Trust.
Secured Party shall have the same right to purchase the
property at the foreclosure sale as would a purchaser who is
not a party to this Deed of Trust. Debtor waives the
provisions of Section 89-1-55 of the Mississippi Code of
1972 as amended, if any, as far as this section restricts
the right of Trustee to offer at sale more than 160 acres at
a time, and Trustee may offer the property herein as a
whole, regardless of how it is described.
From the proceeds of the sale Trustee shall first pay
all costs of the sale including reasonable compensation to
Trustee; then the Indebtedness due Secured Party by Debtor,
including accrued interest and attorney's fees due for
collection of the debt; and then, lastly, any balance
remaining to other lienholders or to Debtor, as required by
law.
IT IS AGREED that this conveyance is made subject to
the covenants, stipulations and conditions set forth below
which shall be binding upon all parties hereto.
1. Debtor shall pay all taxes and assessments,
general or special, levied against the Property or upon the
interest of Trustee or Secured Party therein, during the
term of this Deed of Trust before such taxes or assessments
become delinquent, except to the extent the same may be
contested.
2. Debtor shall keep the Property in good repair and
shall not permit or commit waste, impairment or
deterioration thereof. Debtor shall use the Property for
lawful purposes only.
3. Debtor shall be in default under the provisions of<PAGE>
this Deed of Trust if Debtor shall default in the
performance according to the tenor of the Loan Agreement and
Note described hereinabove.
4. Secured Party may by giving 30 days written notice
to the original or any successor Trustee, and to Debtor,
appoint another person or succession of persons to act as
Trustee, and such appointee in the execution of this trust
shall have all the powers vested in and obligations imposed
upon Trustee.
5. This Deed of Trust and the rights of the Secured
Party hereunder are subordinate in their entirety to the
lien of that certain Mortgage Indenture dated as of
September 1, 1941 and recorded in Book 23 at Page 465, et
seq. of the Records of the Mortgages and Deeds of Trust on
Land in Jackson County, Mississippi, executed by the Debtor
named herein, with Morgan Guaranty Trust Company, New York,
New York, (formerly Guaranty Trust Company of New York), as
Trustees for the benefit of the holders of certain
obligations of Debtor (the "Trust Indenture"). This Deed of
Trust, and the rights of the Secured Party hereunder, are
also subordinate to the rights of the Trustee named in the
Trust Indenture and the parties secured thereby with respect
to any future indebtedness issued by the Debtor and secured
by the Trust Indenture as it is now constituted and as it
may be subsequently supplemented and/or amended. In the
event the Debtor shall elect to sell all or part of the
property secured hereby and Debtor's obligations secured by
the Trust Indenture shall not have been fully satisfied at
the time of such sale, the entire proceeds from such a sale
shall be paid over by Debtor to the Trustee under the Trust
Indenture and the Secured Party named herein shall have no
right to receive any part thereof unless and until all
obligations then secured by the Trust Indenture shall be
fully paid. A release by the Trustee named in the Trust
Indenture, or any successor thereto, of all or of any of
such property so sold shall constitute a release of the lien
of this Deed of Trust by the Secured Party named herein;
Secured Party, by accepting this Deed of Trust, hereby
appoints the Trustee for the Trust Indenture as its agent
and attorney-in-fact for the purpose of releasing from the
lien of this Deed of Trust all or any parts of the property
described herein in the event of a sale of all or any part
thereof by the Debtor; and, in such event, Secured Party
disclaims any right to receive any of the proceeds from any
such sale unless Debtor shall, at the time be in default
under the terms of its Note secured hereby; and then only to
the extent that all of the obligations of the Debtor then
secured by the Trust Indenture are first satisfied.
6. This Deed of Trust and the rights of the Secured
Party hereunder are also subordinate in their entirety to
the lien of a subordinate deed of trust dated December 18,
1986 executed by the Debtor named herein with The Prudential
Insurance Company of America, Equitable Variable Life
Insurance Company, Integrity Life Insurance Company, Aetna<PAGE>
Life Insurance Company and The Travelers Insurance
Corporation.
7. This Deed of Trust and the rights of the Secured
Party hereunder are also subordinate in their entirety to
the lien of a subordinate deed of trust dated December 18,
1986 executed by the Debtor named herein with Fuelco, Inc.
8. Notices required herein from Secured Party to
Debtor shall be sent to the address of Debtor shown in this
Deed of Trust.
IN WITNESS WHEREOF, Debtor has executed this Deed of
Trust on the 22nd day of April, 1994.
ATTEST: MISSISSIPPI POWER COMPANY, Debtor
By: Ann D. Estes By: H. E. Blakeslee
Its: Asst. Corp. Secretary Its: Vice President
(SEAL)
STATE OF Mississippi
COUNTY OF Harrison
PERSONALLY appeared before me, the undersigned
authority in and for the said county and state, on this
22nd day of April , 1994, within my jurisdiction, the
within named H. E. Blakeslee and Ann D. Estes
, who acknowledged that they are the Vice President
and Asst. Corp. Secy. respectively of Mississippi Power
Company, a Mississippi corporation, and that for and on
behalf of the said corporation, and as its act and deed they
executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
Kim E. Necaise
NOTARY PUBLIC
My Commission Expires:
My Commission Expires Juny 14, 1997
(SEAL)
GRANTOR: MISSISSIPPI POWER COMPANY
2992 West Beach Boulevard<PAGE>
Gulfport, MS 39501
SECURED PARTY: FIRST UNION NATIONAL BANK OF
GEORGIA
999 Peachtree Street, N.E.
Suite 640
Atlanta, Georgia 30309
INDEXING INSTRUCTIONS:
All quarter quarter sections in Sections 15, 14, 11,
10, 9, 4, 37 and 2, all in Township 6 South, Range
6 West; and All quarter quarter sections in the A.
Goodwin Claim, Section 35, and the Kirkwood Claim,
Section 42, both in Township 5 South, Range 6 West,
Jackson County, Mississippi.
INSTRUMENT PREPARED BY: BRENDA VANOVER ZNACHKO
Eaton & Cottrell, P.A.
1310 Twenty Fifth Avenue
Gulfport, Mississippi
39501-7748<PAGE>
EXHIBIT D
EATON AND COTTRELL, P. A.
1310 Twenty Fifth Avenue
Gulfport, MS 39501
August 8, 1994
Securities and Exchange Commission
Washington, D. C. 20549
Re: Statement on Form U-1 of
Mississippi Power Company
(herein called the "Company")
File No. 70-7294
Ladies and Gentlemen:
We have read the statement on Form U-1, as amended, referred to
above which relates to the transactions contemplated in Amendment
No. 4 (Post-Effective No. 2) to such statement.
We are of the opinion that:
(a) the Company is validly organized and duly existing as a
corporation under the laws of the State of Mississippi and
is duly admitted to do business under the laws of the State
of Alabama;
(b) the transactions have been consummated in accordance with
such statement on Form U-1, as amended;
(c) all state laws applicable to the transactions have been
complied with;
(d) the Loan Agreements, Notes and Subordinate Deeds of Trust
are valid and binding obligations of the Company in
accordance with their terms; and
(e) the consummation of the transactions did not violate the
legal rights of the holders of any securities issued by the
Company or any associate company thereof.<PAGE>
Securities and Exchange Commission
August 5, 1994
Page 2
We hereby give our written consent to the use of this opinion in
connection with the above-mentioned statement on Form U-1 and to
the filing thereof with the Commission at the time of the filing
of the certificate pursuant to Rule 24.
Very truly yours,
Eaton and Cottrell, P. A.<PAGE>
