SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 22, 2000
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MISSISSIPPI POWER COMPANY
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(Exact name of registrant as specified in its charter)
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Mississippi 0-6849 64-0205820
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(State or other jurisdiction (Commission File (IRS Employer Identification
of incorporation) Number) No.)
2992 West Beach, Gulfport, Mississippi 39501
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (228) 864-1211
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N/A
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
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On March 22, 2000, Mississippi Power Company (the "Company")
entered into an Underwriting Agreement covering the issue and sale of
$100,000,000 aggregate principal amount of its Series C Floating Rate Senior
Notes due March 28, 2002. Said Notes were registered under the Securities Act of
1933, as amended, pursuant to the shelf registration statement (Registration
Statement Nos. 333-45069, 333-45069-01 and 333-45069-02) of the Company.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(c) Exhibits.
1 Underwriting Agreementfor the purchase of
$100,000,000 aggregate principal amount of Series
C Floating Rate Senior Notes due March 28, 2002,
dated March 22, 2000, between the Company and
Salomon Smith Barney Inc.
4.2 Third Supplemental Indenture to Senior Note
Indenture dated as of March 28, 2000, providing
for the issuance of the Company's Series C
Floating Rate Senior Notes due March 28, 2002.
4.9 Form of Series C Floating Rate Senior Note (included in
Exhibit 4.2 above).
12 Computation of ratio of earnings to fixed charges.
23.2 Consent of Eaton and Cottrell, P.A.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Date: March 28, 2000 MISSISSIPPI POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit 1
$100,000,000 Series C Floating Rate Senior Notes
due March 28, 2002
MISSISSIPPI POWER COMPANY
UNDERWRITING AGREEMENT
March 22, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Mississippi Power Company, a Mississippi corporation (the
"Company"), confirms its agreement (the "Agreement") with you (the
"Underwriter"), with respect to the sale by the Company and the purchase by the
Underwriter, of $100,000,000 principal amount of the Series C Floating Rate
Senior Notes due March 28, 2002 (the "Senior Notes").
The Company understands that the Underwriter proposes to make
a public offering of the Senior Notes as soon as the Underwriter deems advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of May 1, 1998 (the "Base Indenture"),
between the Company and Bankers Trust Company, as trustee (the "Trustee"), as
heretofore supplemented and amended and as to be further supplemented and
amended by a third supplemental indenture, dated March 28, 2000, to the Base
Indenture relating to the Senior Notes (the "Supplemental Indenture," and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
Pursuant to a Calculation Agent Agreement, dated as of March
28, 2000 (the "Calculation Agent Agreement"), between the Company and Bankers
Trust Company, as calculation agent thereunder (the "Calculation Agent"), the
Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos. 333-45069,
333-45069-01 and 333-45069-02), in respect of the Senior Notes and
certain other securities has been prepared and filed in accordance
with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
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amendment thereto, each in the form heretofore delivered or to be
delivered to the Underwriter, has been declared effective by the
Commission in such form (except that copies of the registration
statement, as amended, and any post-effective amendment delivered to
the Underwriter need not include exhibits but shall include all
documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to
the best knowledge of the Company, threatened by the Commission (any
preliminary prospectus, as supplemented by a preliminary prospectus
supplement, included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the 1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became effective,
including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes,
in the form in which it was included in the Registration Statement at
the time it became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the 1934 Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and
the Prospectus as amended or supplemented in final form by a
prospectus supplement relating to the Senior Notes in the form in
which it is filed with the Commission, pursuant to Rule 424(b) under
the 1933 Act in accordance with Section 3(f) hereof, including any
documents incorporated by reference therein as of the date of such
filing, being hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission thereunder, and as of
such time of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will comply in all material
respects with the applicable provisions of the 1934 Act and the rules
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and regulations of the Commission thereunder and, when read together
with the Prospectus as it otherwise may be amended or supplemented,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the Company makes no
warranty or representation to the Underwriter with respect to: (A) any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter
expressly for use in the Final Supplemented Prospectus; or (B) any
information set forth in the Final Supplemented Prospectus under the
caption "Description of the Series C Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company".
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects
with the applicable provisions of the 1933 Act, the 1934 Act, the 1939
Act (hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the
applicable effective date as to the Registration Statement and any
amendment thereto, and (ii) as of the applicable filing date as to the
Final Supplemented Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the Company makes no warranties or
representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form
T-1) (collectively, the "Form T-1") under the Trust Indenture Act of
1939, as amended (the "1939 Act"), (B) statements or omissions made in
the Registration Statement or the Final Supplemented Prospectus in
reliance upon and in conformity with information furnished in writing
to the Company by the Underwriter expressly for use therein or (C) any
information set forth in the Final Supplemented Prospectus under the
caption "Description of the Series C Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of Mississippi, is duly qualified to carry on its business
as a foreign corporation under the laws of the State of Alabama, and
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has due corporate authority to carry on the public utility business in
which it is engaged and to own and operate the properties used by it in
such business, to enter into and perform its obligations under this
Agreement and the Indenture and to issue and sell the Senior Notes to
the Underwriter.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of
the Indenture by the Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally
or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in all
material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture
will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The Calculation Agent Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered by the Company, and, assuming due authorization, execution
and delivery of the Calculation Agent Agreement by the Calculation
Agent, the Calculation Agent Agreement will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions.
(k) The execution, delivery and performance by the Company of this
Agreement, the Calculation Agent Agreement, the Indenture and the
Senior Notes and the consummation by the Company of the transactions
contemplated herein and therein and compliance by the Company with its
obligations hereunder and thereunder shall have been duly authorized
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by all necessary corporate action on the part of the Company and do
not and will not result in any violation of the charter or bylaws of
the Company, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it
may be bound or to which any of its properties may be subject (except
for conflicts, breaches or defaults which would not, individually or
in the aggregate, be materially adverse to the Company or materially
adverse to the transactions contemplated by this Agreement), or (B)
any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency
or other governmental body having jurisdiction over the Company, or
any of its properties.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"); (C)
the qualification of the Indenture under the 1939 Act; and (D) such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITER; CLOSING.
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(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, $100,000,000
principal amount of Senior Notes at a price equal to 99.971% of
the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made at the offices of Troutman Sanders LLP, Bank of
America Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta,
Georgia at 10:00 A.M., Atlanta time, on March 28, 2000 or such
other time, place or date as shall be agreed upon by the
Underwriter and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall
be made to the Company by wire transfer in federal funds at the
Closing Date against delivery of the Senior Notes to the
Underwriter.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriter shall accept such delivery.
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The certificate(s) for the Senior Notes will be made available
for examination by the Underwriter not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company
covenants with the Underwriter as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriter conformed copies of the Registration Statement as originally filed
and of all amendments thereto, heretofore or hereafter made, including any
post-effective amendment (in each case including all exhibits filed therewith,
and including unsigned copies of each consent and certificate included
therein or filed as an exhibit thereto, except exhibits incorporated by
reference, unless specifically requested). As soon as the Company is advised
thereof, it will advise the Underwriter orally of the issuance of any stop
order under the 1933 Act with respect to the Registration Statement, or the
institution of any proceedings therefor, of which the Company shall
have received notice, and will use its best efforts to prevent the issuance of
any such stop order and to secure the prompt removal thereof, if issued. The
Company will deliver to the Underwriter sufficient conformed copies of the
Registration Statement, the Prospectus and the Final Supplemented Prospectus
and of all supplements and amendments thereto (in each case without exhibits)
for distribution to the Underwriter and, from time to time, as many copies of
the Prospectus and the Final Supplemented Prospectus as the Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act.
(b) The Company will furnish the Underwriter with copies of each
amendment and supplement to the Final Supplemented Prospectus relating to the
offering of the Senior Notes in such quantities as the Underwriter may from
time to time reasonably request. If, during the period (not exceeding nine
months) when the delivery of a prospectus shall be required by law in connection
with the sale of any Senior Notes by the Underwriter, any event relating to
or affecting the Company, or of which the Company shall be advised in writing by
the Underwriter, shall occur, which in the opinion of the Company or of
Underwriter's counsel should be set forth in a supplement to or an amendment of
the Final Supplemented Prospectus in order to make the Final Supplemented
Prospectus not misleading in the light of the circumstances when it is
delivered, or if for any other reason it shall be necessary during such period
to amend or supplement the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the Preliminary Prospectus or
Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company
forthwith will (i) notify the Underwriter to suspend solicitation of purchases
of the Senior Notes and (ii) at its expense, make any such filing or prepare
and furnish to the Underwriter a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Final Supplemented Prospectus
which will supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a
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material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Final
Supplemented Prospectus is delivered, not misleading or which will effect any
other necessary compliance. In case the Underwriter is required to deliver a
prospectus in connection with the sale of any Senior Notes after the expiration
of the period specified in the preceding sentence, the Company, upon the request
of the Underwriter, will furnish to the Underwriter, at the expense of the
Underwriter, a reasonable quantity of a supplemented or amended prospectus,
or supplements or amendments to the Final Supplemented Prospectus, complying
with Section 10(a) of the 1933 Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required under the
1934 Act and the rules and regulations thereunder; provided, that the Company
shall not file such documents or amendments without also furnishing copies
thereof prior to such filing to the Underwriter and Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the Underwriter, to
qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Underwriter may designate; provided, however, that
the Company shall not be obligated to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified or to file a
consent to service of process or to file annual reports or to comply
with any other requirements in connection with such qualification
deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the rules and regulations under the 1933 Act)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement, the
Company will not, without the Underwriter's prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Senior Notes or any security convertible into
or exchangeable into or exercisable for the Senior Notes or any debt
securities substantially similar to the Senior Notes (except for the
Senior Notes issued pursuant to this Agreement).
(f) As soon as practicable after the date of this Agreement and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Underwriter of such filing and to confirm such advice in
writing.
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SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incidental to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and filing
of the Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificate(s)
for the Senior Notes, (iii) the fees and disbursements of the Company's
counsel and accountants, (iv) the qualification of the Senior Notes under
securities laws in accordance with the provisions of Section 3(c) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriter in connection therewith and in connection with the
preparation of any blue sky survey (such fees and disbursements of counsel
shall not exceed $3,500), (v) the printing and delivery to the Underwriter
of copies of the Registration Statement as originally filed and of each
amendment thereto and of the Prospectus, the Final Supplemented Prospectus
and any amendments or supplements thereto, (vi) the printing and delivery
to the Underwriter of copies of any blue sky survey, (vii) the fee of the
National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Trustee and the Calculation Agent,
including the fees and disbursements of counsel for the Trustee and the
Calculation Agent in connection with the Calculation Agent Agreement, the
Indenture and the Senior Notes, (ix) any fees payable in connection with
the rating of the Senior Notes, (x) the cost and charges of any transfer
agent or registrar and (xi) the cost of qualifying the Senior Notes with
The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriter shall pay all other expenses incurred by it in connection with its
offering of the Senior Notes including fees and disbursements of its counsel,
Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The
obligations of the Underwriter to purchase and pay for the Senior Notes are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date.
If filing of the Final Supplemented Prospectus, or any supplement
thereto, is required pursuant to Rule 424, the Final Supplemented
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424.
(b) Any required orders of the Commission permitting the
transactions contemplated hereby substantially in accordance with the
terms and conditions hereof shall be in full force and effect and
shall contain no provision unacceptable to the Underwriter or the
Company (but all provisions of such order or orders heretofore
entered, copies of which have heretofore been delivered to the
Underwriter, are deemed acceptable to the Underwriter and the Company
and all provisions of such order or orders hereafter entered shall be
deemed acceptable to the Underwriter and the Company unless within 24
hours after receiving a copy of any such order any party to this
Agreement shall give notice to the other parties to the effect that
such order contains an unacceptable provision).
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(c) On the Closing Date the Underwriter shall have received:
(1) The opinion, dated the Closing Date, of Eaton and
Cottrell, P.A. general counsel for the Company, substantially in
the form attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders
LLP, counsel for the Company, substantially in the form attached
hereto as Schedule II-B.
(3) The opinion, dated the Closing Date, of White & Case,
counsel to the Trustee and the Calculation Agent, substantially
in the form attached hereto as Schedule III.
(4) The opinion, dated as of the Closing Date, of Dewey
Ballantine LLP, counsel for the Underwriter, substantially in the
form attached hereto as Schedule IV.
(5) At the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of which
information is given in the Registration Statement and the Final
Supplemented Prospectus, any material adverse change in the
business, properties or financial condition of the Company,
whether or not arising in the ordinary course of business, and
the Underwriter shall have received a certificate of the
President or any Vice President of the Company, and dated as of
the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties
in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Date,
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the
knowledge of the Company, threatened by the Commission.
(6) On the Closing Date, the Underwriter shall have received
from Arthur Andersen LLP a letter dated the Closing Date to the
effect that: (A) they are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the
rules and regulations under the 1933 Act; (B) in their opinion,
the financial statements and schedules audited by them and
incorporated by reference in the Final Supplemented Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the
rules and regulations under the 1933 Act and the 1934 Act; (C)
they have performed certain limited procedures through a
specified date not more than five business days prior to the date
of such letter, namely (i) reading the minute books of the
Company; (ii) reading the unaudited financial statements, if any,
of the Company incorporated in the Final Supplemented Prospectus
and agreeing the amounts therein with the Company's accounting
records; (iii) making inquiries of certain officials of the
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Company who have responsibility for financial and accounting
matters regarding whether the unaudited financial statements, if
any, incorporated in the Final Supplemented Prospectus (a) are in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements incorporated in the Final Supplemented
Prospectus and (b) comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and
the rules and regulations under the 1934 Act; (iv) reading the
unaudited amounts for Operating Revenues, Income Before Interest
Charges and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis), which amounts shall include such amounts for the
latest calendar quarter subsequent to that covered by the
financial statements incorporated by reference in the Final
Supplemented Prospectus for which such amounts are available at
the time this agreement becomes effective; (v) reading the
unaudited financial statements from which the amounts and ratios
described in (iv) were derived and agreeing the amounts therein
to the Company's accounting records; (vi) making inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters regarding whether (a) the
unaudited amounts and ratios referred to in (iv) above and the
unaudited financial statements referred to in (v) above are
stated on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or incorporated
by reference in the Final Supplemented Prospectus and (b) as of a
specified date not more than five business days prior to the date
of delivery of such letter, there has been any change in the
capital stock or long-term debt of the Company or any decrease in
net assets as compared with amounts shown in the latest audited
balance sheet incorporated in the Prospectus, except in each case
for changes or decreases which (I) the Final Supplemented
Prospectus discloses have occurred or may occur, (II) are
occasioned by the declaration of dividends, (III) are occasioned
by draw-downs under existing pollution control financing
arrangements, (IV) are occasioned by draw-downs and regularly
scheduled payments of capitalized lease obligations, (V) are
occasioned by the purchase or redemption of bonds or stock to
satisfy mandatory or optional redemption provisions relating
thereto, or (VI) are disclosed in such letter; (vii) reading the
unaudited amounts for Operating Revenues, Income Before Interest
Charges and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) for the latest calendar quarter subsequent to those
set forth in (iv) above, which if available shall be set forth in
such letter; (viii) reading the unaudited financial statements
from which the amounts and ratios described in (vii) above were
derived and which will be attached to such letter and agreeing
the amounts therein to the Company's accounting records; and (ix)
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding
whether the unaudited amounts and ratios referred to in (vii)
above and the unaudited financial statements referred to in
(viii) above are stated on a basis substantially consistent with
that of the corresponding audited amounts or ratios included or
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incorporated by reference in the Final Supplemented Prospectus;
and (D) reporting their findings as a result of performing the
limited procedures set forth in (C) above. It is understood that
the foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with respect
to the comments made in such letter, and accordingly that Arthur
Andersen LLP make no representations as to the sufficiency of
such procedures for the Underwriter's purposes.
(7) On the Closing Date, counsel for the Underwriter shall
have been furnished with such documents and opinions as it may
reasonably require for the purpose of enabling it to pass upon
the issuance and sale of the Senior Notes as herein contemplated
and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of
the Senior Notes as herein contemplated shall be satisfactory in
form and substance to the Underwriter and Dewey Ballantine LLP,
counsel for the Underwriter.
(8) That no amendment or supplement to the Registration
Statement or the Final Supplemented Prospectus filed subsequent
to the date of this Agreement (including any filing made by the
Company pursuant to Section 13 or 14 of the 1934 Act) shall be
unsatisfactory in form to Dewey Ballantine LLP or shall contain
information (other than with respect to an amendment or
supplement relating solely to the activity of the Underwriter)
which, in the reasonable judgment of the Underwriter, shall
materially impair the marketability of the Senior Notes.
(9) The Company shall have performed its obligations when
and as provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriter. Any such termination shall be without liability of any party to any
other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
11
<PAGE>
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a)
of the 1934 Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may
become subject under the 1933 Act, 1934 Act or otherwise, and to
reimburse the Underwriter and such controlling person or persons,
if any, for any legal or other expenses incurred by them in
connection with defending any actions, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented
Prospectus or, if the Company shall furnish to the Underwriter
any amendments or any supplements thereto, or shall make any
filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary Prospectus,
the Registration Statement, the Prospectus or the Final
Supplemented Prospectus as so amended or supplemented, or arise
out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any such untrue statement or
alleged untrue statement or omission or alleged omission which
was made in such Registration Statement, Preliminary Prospectus,
Prospectus or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the
Company by the Underwriter for use therein and except that this
indemnity with respect to the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus, if the Company
shall have furnished any amendment or supplement thereto, shall
not inure to the benefit of the Underwriter (or of any person
controlling the Underwriter) on account of any losses, claims,
damages, liabilities or actions arising from the sale of the
Senior Notes to any person if a copy of the Preliminary
Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference
pursuant to Item 12 of Form S-3), as the same may then be amended
or supplemented, shall not have been sent or given by or on
behalf of the Underwriter to such person with or prior to the
written confirmation of the sale involved and the untrue
statement or alleged untrue statement or omission or alleged
omission was corrected in the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus as supplemented
or amended at the time of such confirmation. The Underwriter
agrees, within ten days after the receipt by it of notice of the
commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company
on account of its agreement contained in this Section 7, to
notify the Company in writing of the commencement thereof but the
omission of the Underwriter so to notify the Company of any such
action shall not release the Company from any liability which it
may have to the Underwriter or to such controlling person
otherwise than on account of the indemnity agreement contained in
this Section 7. In case any such action shall be brought against
the Underwriter or any such person controlling the Underwriter
and the Underwriter shall notify the Company of the commencement
thereof as above provided, the Company shall be entitled to
participate in (and, to the extent that it shall wish, including
the selection of counsel, to direct) the defense thereof, at its
own expense. In case the Company elects to direct such defense
12
<PAGE>
and select such counsel, the Underwriter or controlling person
shall have the right to employ its own counsel, but, in any such
case, the fees and expenses of such counsel shall be at the
expense of the Underwriter or such controlling person unless the
employment of such counsel has been authorized in writing by the
Company in connection with defending such action. No indemnifying
party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such
action or claim and (ii) does not include any statement as to, or
an admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in
respect of the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(b) The Underwriter agrees to indemnify and hold harmless
the Company, its directors and such of its officers who have signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act to the same extent and upon the same terms as the indemnity agreement of
the Company set forth in Section 7(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus,
or such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by the Underwriter for use
therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Underwriter may terminate this Agreement, by notice
to the Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by
federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any other
substantial national or international calamity or emergency affecting
13
<PAGE>
the United States, in any such case provided for in clauses (i) through (iv)
with the result that, in the reasonable judgement of the Underwriter, the
market ability of the Senior Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the
Underwriter pursuant to subsection (a) above or because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such case,
the Company will reimburse the Underwriter for the reasonable fees and
disbursements of Dewey Ballantine LLP and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the Underwriter in making
preparations for the purchase, sale and delivery of the Senior Notes and, upon
such reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Sections 4 and 7.
SECTION 10. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriter shall be directed to Salomon Smith Barney Inc.,
390 Greenwich Street, New York, New York 10013, Attention: Howard Hiller;
notices to the Company shall be delivered to 2992 West Beach, Gulfport,
Mississippi, Attention: Corporate Secretary, with a copy to Southern Company
Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention:
Jeffrey A. Spencer.
SECTION 11. PARTIES. This Agreement shall inure to the
benefit of and be binding upon the Underwriter, the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriter and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Senior Notes from the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in said State. Except
as otherwise set forth herein, specified times of day refer to New York City
time.
SECTION 13. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
14
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Company in accordance with its terms.
Very truly yours,
MISSISSIPPI POWER COMPANY
By: ______________________________
Title: _____________________________
CONFIRMED AND ACCEPTED,
as of the date first above written
SALOMON SMITH BARNEY INC.
By:___________________________
Title: _________________________
<PAGE>
Schedule II-A
[Letterhead of Eaton and Cottrell, P.A.]
___________ __, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
MISSISSIPPI POWER COMPANY
Series C Floating Rate Senior Notes
due March __, 2002
Ladies and Gentlemen:
We have acted as general counsel to Mississippi Power Company
(the "Company") in connection with (i) the Company's issuance of $______
aggregate principal amount of its Series C Floating Rate Senior Notes due March
__, 2002 (the "Notes") pursuant to a Senior Note Indenture dated as of May 1,
1998, by and between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as supplemented by the Third Supplemental Indenture dated as of
__________ __, 2000 (collectively, the "Indenture"); and (ii) the purchase by
you of the Notes pursuant to the terms of an Underwriting Agreement dated March
__, 2000, among the Company and you (the "Underwriter") (the "Underwriting
Agreement"). Pursuant to a Calculation Agent Agreement, dated as of March __,
2000 (the "Calculation Agent Agreement"), between the Company and Bankers Trust
Company, as calculation agent thereunder (the "Calculation Agent"), the Company
has engaged the Calculation Agent to perform certain services with respect to
the floating interest rate on the Senior Notes. This opinion is being delivered
to you pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-45069, 333-45069-01 and
333-45069-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
________, 2000 as supplemented by a final prospectus supplement dated
__________, 2000 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended __________________, ___ (the "Form 10-K"), the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ____________ and the
Current Reports on Form 8-K of the Company dated __________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
<PAGE>
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
We have also examined the opinion of Troutman Sanders LLP to
you of even date with respect to matters relating to the Securities Act of 1933,
as amended; the Securities Exchange Act of 1934, as amended; the Trust Indenture
Act of 1939, as amended, and to the applicable rules and regulations of the
Commission under said Acts and in expressing the opinions stated herein, with
respect to such matters, we are relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Mississippi, is
duly qualified to carry on its business as a foreign corporation under the laws
of the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business and to enter into and perform its obligations under
the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Notes have been
obtained; such orders are sufficient for the issuance and the sale of the Notes;
the issuance and the sale of the Notes conform in all material respects with the
terms of such orders; and no other order, consent or other authorization or
approval of any Mississippi or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and sale of the Notes in accordance with the terms of the
Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
2
<PAGE>
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriter pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above and in the Final Supplemented Prospectus in the second paragraph
under the caption "Experts". In the course of the preparation by the Company of
the Registration Statement, the Final Supplemented Prospectus and the Exchange
Act Documents, we participated in conferences with certain officers and
employees of the Company, with other counsel for the Company and with
representatives of Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents and our participation in the conferences referred to above, (i) we are
of the opinion that the Registration Statement, as of its effective date, and
the Final Supplemented Prospectus, as of __________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
3
<PAGE>
therein of a material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the caption "Description of the Series C Senior Notes - Book-Entry Only Issuance
- - The Depository Trust Company".
We are members of the State Bar of Mississippi and we do not
express any opinion herein concerning any law other than the law of such State
and the federal law of the United States and, to the extent set forth herein,
the laws of the States of Alabama and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinion relates to matters of Mississippi and Alabama
law.
Yours very truly,
EATON AND COTTRELL, P.A.
4
<PAGE>
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
MISSISSIPPI POWER COMPANY
Series C Floating Rate Senior Notes
due March __, 2002
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the
"Company") in connection with (i) the Company's issuance of $__________
aggregate principal amount of its Series C Floating Rate Senior Notes due March
__, 2002 (the "Notes") pursuant to a Senior Note Indenture dated as of May 1,
1998, by and between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as supplemented by the Third Supplemental Indenture dated as of
__________ __, 2000 (collectively, the "Indenture"); and (ii) the purchase by
you (the "Underwriter") of the Notes pursuant to the terms of an Underwriting
Agreement dated March __, 2000, among the Company and you (the "Underwriting
Agreement"). Pursuant to a Calculation Agent Agreement, dated as of March __,
2000 (the "Calculation Agent Agreement"), between the Company and Bankers Trust
Company, as calculation agent thereunder (the "Calculation Agent"), the Company
has engaged the Calculation Agent to perform certain services with respect to
the floating interest rate on the Notes. This opinion is being delivered to you
pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-45069, 333-45069-01 and
333-45069-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
___________, 2000 as supplemented by a final prospectus supplement dated
__________, 2000 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended _____________, ___ (the "Form 10-K"), the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ____________ and the
Current Reports on Form 8-K of the Company dated _________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
<PAGE>
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Mississippi and Alabama law upon the opinion dated the date hereof rendered to
you by Eaton and Cottrell, P.A. and relying as to matters of New York law upon
the opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Mississippi, is duly
qualified to carry on its business as a foreign corporation under the laws of
the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the properties used
by it in such business and to enter into and perform its obligations under the
Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and sale of the Notes have been
obtained; such orders are sufficient for the issuance and sale of the Notes; the
issuance and sale of the Notes conform in all material respects with the terms
of such orders; and no other order, consent or other authorization or approval
of any Mississippi or United States governmental body (other than in connection
or in compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction, as to which we express no opinion) is legally required for the
issuance and sale of the Notes in accordance with the terms of the Underwriting
Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
2
<PAGE>
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriter pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Arthur Andersen LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of _______________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
3
<PAGE>
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series C Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Alabama, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Eaton and Cottrell, P.A. may rely on this
opinion in giving its opinion pursuant to Section 5(c) of the Underwriting
Agreement, insofar as such opinion relates to matters of federal securities law.
Yours very truly,
TROUTMAN SANDERS LLP
4
<PAGE>
Schedule III
[Letterhead of White & Case]
__________ __, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
Mississippi Power Company
2992 West Beach
Gulfport, Mississippi 39501
Mississippi Power Company
Series C Floating Rate Senior Notes due March __, 2002
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust Company (the "Bank")
in connection with (a) the Senior Note Indenture, dated as of May 1, 1998 (the
"Original Indenture"), between Mississippi Power Company (the "Company") and the
Bank, as Trustee, and (b) the Third Supplemental Indenture dated as of
___________ (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee and (c) the
Calculation Agent Agreement, dated as of March __, 2000 (the "Calculation Agent
Agreement"), between the Company and the Bank, as Calculation Agent.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the State
of New York;
ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Indenture and the Calculation
Agent Agreement, has duly executed and delivered the Indenture and the
Calculation Agent Agreement, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due authorization, execution and
<PAGE>
delivery thereof by the Company, each of the Indenture and the Calculation Agent
Agreement constitutes a legal, valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its terms subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
other laws affecting creditors' rights generally from time to time in effect
and to general principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank of
the Indenture and the Calculation Agent Agreement does not conflict with or
constitute a breach of the charter or bylaws of the Bank; and
iv) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the State of
New York having jurisdiction over the trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Indenture or the
Calculation Agent Agreement or the performance by the Bank of its duties
thereunder, except such as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
WHITE & CASE
<PAGE>
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 2000
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
MISSISSIPPI POWER COMPANY
Series C Floating Rate Senior Notes
due March __, 2002
Ladies and Gentlemen:
We have represented you (the "Underwriter") in connection with
(i) the Company's issuance of $____________ of its Series C Floating Rate Senior
Notes (the "Notes") pursuant to a Senior Note Indenture dated as of May 1, 1998,
by and between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as heretofore supplemented and as further supplemented by the Third
Supplemental Indenture dated as of __________ __, 2000 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated March __, 2000, among the Company and the
Underwriter (the "Underwriting Agreement"). Pursuant to a Calculation Agent
Agreement, dated as of March __, 2000 (the "Calculation Agent Agreement"),
between the Company and Bankers Trust Company, as calculation agent thereunder
(the "Calculation Agent"), the Company has engaged the Calculation Agent to
perform certain services with respect to the floating interest rate on the
Notes. This opinion is being delivered to you pursuant to Section 5(c)(4)
thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-45069, 333-45069-01 and
333-45069-02) pertaining to the Notes (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated ________, 2000, as supplemented by a final prospectus supplement dated
_________, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended ________________,
___ (the "Form 10-K"), the Quarterly Reports on Form 10-Q of the Company for the
quarters ended _________ the Current Reports on Form 8-K of the Company, dated
__________ (the "Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
<PAGE>
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Mississippi and Alabama upon the opinion of Eaton and
Cottrell, P.A. dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Mississippi, is duly qualified to carry on its business as a foreign corporation
in the State of Alabama, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business and to enter into and perform its obligations under
the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Notes have
been obtained; such orders are sufficient for the issuance and sale of the
Notes; the issuance and sale of the Notes conform in all material respects with
the terms of such orders; and no other order, consent or other authorization or
approval of any Mississippi or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and sale of the Notes in accordance with the terms of the
Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
2
<PAGE>
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriter pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Arthur Andersen LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of ___________, complied as to form in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Form 10-K (including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement of a material fact
3
<PAGE>
or omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that in each case we express no
opinion or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the caption "Description of the Series C Senior Notes - Book-Entry Only Issuance
- - The Depository Trust Company".
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the States of Mississippi and Alabama.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Eaton and Cottrell, P.A. and Troutman Sanders LLP may rely
on this opinion in giving their opinions pursuant to Section 5 of the
Underwriting Agreement, insofar as such opinions relate to matters of New York
law, and Troutman Sanders LLP may rely on this opinion in giving its opinion
pursuant to Sections 102, 302 and 904 of the Indenture, insofar as such opinion
relates to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
4
Exhibit 4.2
MISSISSIPPI POWER COMPANY
TO
BANKERS TRUST COMPANY,
TRUSTEE.
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 28, 2000
$100,000,000
SERIES C FLOATING RATE SENIOR NOTES
DUE MARCH 28, 2002
<PAGE>
TABLE OF CONTENTS 1
PAGE
ARTICLE 1....................................................................2
SECTION 101. Establishment...................................................2
-------------
SECTION 102. Definitions.....................................................2
-----------
SECTION 103. Payment of Principal and Interest...............................3
---------------------------------
SECTION 104. Determination of Interest.......................................4
-------------------------
SECTION 105. Denominations...................................................5
-------------
SECTION 106. Global Securities...............................................5
-----------------
SECTION 107. Transfer................ .......................................5
--------
SECTION 108. Redemption......................................................6
----------
ARTICLE 2....................................................................6
SECTION 201. Recitals by Company.............................................6
-------------------
SECTION 202. Ratification and Incorporation of Original Indenture............6
----------------------------------------------------
SECTION 203. Executed in Counterparts........................................6
------------------------
1This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
<PAGE>
THIS THIRD SUPPLEMENTAL INDENTURE is made as of the 28th day
of March, 2000, by and between MISSISSIPPI POWER COMPANY, a Mississippi
corporation, 2992 West Beach, Gulfport, Mississippi 39501 (the "Company"), and
BANKERS TRUST COMPANY, a banking corporation duly organized and existing under
the laws of the State of New York, having its principal corporate trust office
at Four Albany Street, New York, New York 10006 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Senior Note
Indenture, dated as of May 1, 1998 (the "Original Indenture"), with Bankers
Trust Company, as supplemented by a First Supplemental Indenture, dated as of
May 19, 1998 (the "First Supplemental Indenture"), with Bankers Trust Company
and by a Second Supplemental Indenture, dated as of May 20, 1998 (the "Second
Supplemental Indenture"), with Bankers Trust Company;
WHEREAS, the Original Indenture is incorporated herein
by this reference and the Original Indenture, as supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture and this Third
Supplemental Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of
Senior Notes may at any time be established by the Board of Directors of the
Company in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture
a new series of Senior Notes;
WHEREAS, additional Senior Notes of other series hereafter
established, except as may be limited in the Original Indenture as at the time
supplemented and modified, may be issued from time to time pursuant to the
Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution
and delivery of this Third Supplemental Indenture and to make it a valid and
binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
<PAGE>
ARTICLE 1
Series C Senior Notes
SECTION 101. Establishment. There is hereby established a new series of
Senior Notes to be issued under the Indenture, to be designated as the Company's
Series C Floating Rate Senior Notes due March 28, 2002 (the "Series C Notes").
There are to be authenticated and delivered $100,000,000 principal
amount of Series C Notes, and no further Series C Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series C Notes shall be issued in definitive fully
registered form.
The Series C Notes shall be issued in the form of one Global Security
in substantially the form set out in Exhibit A hereto. The Depositary with
respect to the Series C Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
C Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series C Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
SECTION 102. Definitions. The following defined terms used herein
shall, unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Calculation Agent" means Bankers Trust Company, or its successor
appointed by the Company, acting as calculation agent.
"Interest etermination Date" means the second London Business Day
immediately preceding the first day of the relevant Interest Period.
"Interest Payment Dates" means the 28th day of each month, commencing
April 28, 2000; provided, however, in the event that any Interest Payment Date
would otherwise be a day that is not a Business Day, the Interest Payment Date
will be the next succeeding Business Day.
"Interest Period" means the period commencing on an Interest Payment
Date (or, with respect to the initial Interest Period only, commencing on the
Original Issue Date) and ending on the day before the next succeeding Interest
Payment Date.
"LIBOR" for any Interest Determination Date will be the Reported Rate
for deposits in U. S. dollars having an index maturity of one month for a period
commencing on the second London Business Day immediately following the Interest
Determination Date in amounts of not less than $1,000,000, at approximately
11:00 a.m., London time, on the Interest Determination Date.
2
<PAGE>
"London Business Day" means a day that is a Business Day and a day on
which dealings in deposits in U. S. dollars are transacted, or with respect to
any future date are expected to be transacted, in the London interbank market.
"Original Issue Date" means March 28, 2000.
"Rate Quotation" is defined in Section 104 hereof.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date.
"Reported Rate" means the rate that appears on Telerate Page 3750 or a
successor reporter of such rates selected by the Calculation Agent and
acceptable to the Company.
"Representative Amounts" is defined in Section 104 hereof.
"Stated Maturity" means March 28, 2002.
"Telerate Page 3750" means the display designated on page 3750 on
Bridge Telerate, Inc. (or such other page as may replace the 3750 page on that
service or such other service as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for U.
S. dollar deposits).
SECTION 103. Payment of Principal and Interest. The principal of the
Series C Notes shall be due at Stated Maturity. The unpaid principal amount of
the Series C Notes shall bear interest at the rates set monthly pursuant to
Section 104 hereof until paid or duly provided for. Interest shall be paid
monthly in arrears on each Interest Payment Date to the Person in whose name the
Series C Notes are registered on the Regular Record Date for such Interest
Payment Date, provided that interest payable at the Stated Maturity of principal
or on a Redemption Date as provided herein will be paid to the Person to whom
principal is payable. Any such interest that is not so punctually paid or duly
provided for will forthwith cease to be payable to the Holders on such Regular
Record Date and may either be paid to the Person or Persons in whose name the
Series C Notes are registered at the close of business on a Special Record Date
for the payment of such defaulted interest to be fixed by the Trustee, notice
whereof shall be given to Holders of the Series C Notes not less than ten (10)
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange,
if any, on which the Series C Notes shall be listed, and upon such notice as may
be required by any such exchange, all as more fully provided in the Original
Indenture.
Payments of interest on the Series C Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series C Notes shall be computed and paid on the basis of the
actual number of days elapsed over a 360-day year.
3
<PAGE>
Payment of the principal and interest due at the Stated Maturity or
earlier redemption of the Series C Notes shall be made upon surrender of the
Series C Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series C Notes shall be paid in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts. Payments of interest (including interest on any
Interest Payment Date) will be made, subject to such surrender where applicable,
at the option of the Company, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer at such place and to such account at a banking institution in
the United States as may be designated in writing to the Trustee at least
sixteen (16) days prior to the date for payment by the Person entitled thereto.
SECTION 104. Determination of Interest Rate. The Series C Notes will
bear interest for each Interest Period at a per annum rate determined by the
Calculation Agent, subject to the maximum interest rate permitted by New York or
other applicable state law, as such law may be modified by United States law of
general application. The interest rate applicable during each Interest Period
will be equal to LIBOR on the Interest Determination Date for such Interest
Period plus 0.08%; provided, however, that in certain circumstances described
below, the interest rate will be determined without reference to LIBOR. Promptly
upon such determination, the Calculation Agent will notify the Company and the
Trustee, if the Trustee is not then serving as the Calculation Agent, of the
interest rate for the new Interest Period. The interest rate determined by the
Calculation Agent, absent manifest error, shall be binding and conclusive upon
the beneficial owners and Holders of the Series C Notes, the Company and the
Trustee.
If the following circumstances exist on any Interest Determination
Date, the Calculation Agent shall determine the interest rate for the Series
C Notes as follows:
(1) In the event no Reported Rate appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on an Interest
Determination Date, the Calculation Agent shall request the principal
London offices of each of four major banks in the London interbank
market selected by the Calculation Agent (after consultation with the
Company) to provide a quotation of the rate (the "Rate Quotation") at
which one month deposits in amounts of not less than $1,000,000 are
offered by it to prime banks in the London interbank market, as of
approximately 11:00 a.m., London time, on such Interest Determination
Date, that is representative of single transactions at such time (the
"Representative Amounts"). If at least two Rate Quotations are
provided, the interest rate will be the arithmetic mean of the Rate
Quotations obtained by the Calculation Agent, plus 0.08%.
(2) In the event no Reported Rate appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on an Interest
Determination Date and there are fewer than two Rate Quotations, the
interest rate will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m., New York City time, on such Interest
Determination Date, by three major banks in New York City selected by
the Calculation Agent (after consultation with the Company), for loans
in Representative Amounts in U. S. dollars to leading European banks,
4
<PAGE>
having an index maturity of one month for a period commencing on the
second London Business Day immediately following such nterest
Determination Date, plus 0.08%; provided, however, that if fewer than
three banks selected by the Calculation Agent are quoting such rates,
the interest rate for the applicable Interest Period will be the same
as the interest rate in effect for the immediately preceding Interest
Period.
Upon the request of a Holder of the Series C Notes, the Calculation
Agent will provide to such Holder the interest rate in effect on the date of
such request and, if determined, the interest rate for the next Interest Period.
SECTION 105. Denominations. The Series C Notes may be issued in the
denominations of $1,000, or any integral multiple thereof.
SECTION 106. Global Securities. The Series C Notes will be issued in
the form of one or more Global Securities registered in the name of the
Depositary (which shall be The Depository Trust Company) or its nominee. Except
under the limited circumstances described below, Series C Notes represented by
the Global Security will not be exchangeable for, and will not otherwise be
issuable as, Series C Notes in definitive form. The Global Securities described
above may not be transferred except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or to a successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Series C Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
A Global Security shall be exchangeable for Series C Notes registered
in the names of persons other than the Depositary or its nominee only if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security and no successor Depositary shall have been
appointed by the Company, or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when the Depositary is required to be so registered to act as
such Depositary and no successor Depositary shall have been appointed by the
Company, in each case within 90 days after the Company receives such notice or
becomes aware of such cessation, (ii) the Company in its sole discretion
determines that such Global Security shall be so exchangeable, or (iii) there
shall have occurred an Event of Default with respect to the Series C Notes. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series C Notes registered in such names as the Depositary shall
direct.
SECTION 107 Transfer. No service charge will be made for any transfer
or exchange of Series C Notes, but payment will be required of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
5
<PAGE>
The Company shall not be required (a) to issue, transfer or exchange
any Series C Notes during a period beginning at the opening of business fifteen
(15) days before the day of the mailing of a notice identifying the serial
numbers of the Series C Notes to be called for redemption, and ending at the
close of business on the day of the mailing, or (b) to transfer or exchange any
Series C Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series C Note redeemed in part.
SECTION 108. Redemption. The Series C Notes shall be subject to
redemption at the option of the Company, in whole or in part, without premium or
penalty, on any Interest Payment Date on or after March 28, 2001, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest to the Redemption Date.
In the event of redemption of the Series C Notes in part only, a new
Series C Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
The Series C Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Series C Notes shall, with
respect to the principal thereof, be divisible by $1,000.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this Third
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of Series C Notes and of this Third Supplemental Indenture
as fully and with like effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture. As
heretofore supplemented by the First Supplemental Indenture and the Second
Supplemental Indenture and as supplemented hereby, the Original Indenture is in
all respects ratified and confirmed, and the Original Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture and this Third
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 203. Executed in Counterparts. This Third Supplemental
Indenture may be simultaneously executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
6
<PAGE>
0540138.doc
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
ATTEST: MISSISSIPPI POWER COMPANY
By: By:
-----------------------
Vicki L. Pierce Michael W. Southern
Assistant Secretary Vice President, Secretary, Treasurer and
Chief Financial Officer
ATTEST: BANKERS TRUST COMPANY, as Trustee
By: By:
-----------------------------------------
Name: Name:
Title: Title:
<PAGE>
EXHIBIT A
FORM OF SERIES C NOTE
<PAGE>
NO. __ CUSIP NO. 605417BL7
MISSISSIPPI POWER COMPANY
SERIES C FLOATING RATE SENIOR NOTE
DUE MARCH 28, 2002
Principal Amount: $_____________
Regular Record Date: 15th calendar day prior to Interest
Payment Date
Original Issue Date: March 28, 2000
Stated Maturity: March 28, 2002
Interest Payment Dates: 28th day of each month; provided,
however, in the event that any
Interest Payment Date would otherwise
be a day that is not a Business Day,
the Interest Payment Date will be the
next succeeding Business Day
Interest Rate: LIBOR plus 0.08% per annum, as set on
each Interest Determination Date
Interest Determination Dates: 2nd London Business Day immediately
preceding the first day of the
relevant Interest Period
Authorized Denomination: $1,000
Initial Redemption Date: March 28, 2001
Mississippi Power Company, a Mississippi corporation (the "Company",
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
_______________________________________________, or registered assigns, the
principal sum of _________ DOLLARS ($__________) on the Stated Maturity shown
above (or upon earlier redemption), and to pay interest thereon from the
Original Issue Date shown above, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, monthly in arrears on each
Interest Payment Date as specified above, commencing on April 28, 2000, and on
the Stated Maturity (or upon earlier redemption) at the rates per annum
determined in accordance with the provisions specified below until the principal
hereof is paid or made available for payment and on any overdue principal and on
any overdue installment of interest. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date (other than an Interest
Payment Date that is the Stated Maturity or on a Redemption Date) will, as
provided in such Indenture, be paid to the Person in whose name this Note (the
"Note") is registered at the close of business on the Regular Record Date as
specified above next preceding such Interest Payment Date, provided that any
<PAGE>
interest payable at Stated Maturity or on any Redemption Date will be paid to
the Person to whom principal is payable. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note is registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof shall be given to Holders of Notes of
this series not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange, if any, on which the Notes of this series shall be
listed, and upon such notice as may be required by any such exchange, all as
more fully provided in the Indenture.
The Series C Notes (as defined on the reverse hereof) will bear
interest for each Interest Period at a per annum rate determined by the
Calculation Agent, subject to the maximum interest rate permitted by New York or
other applicable state law, as such law may be modified by United States law of
general application. The interest rate applicable during each Interest Period
will be equal to LIBOR on the Interest Determination Date for such Interest
Period plus 0.08%; provided, however, that in certain circumstances described
below, the interest rate will be determined without reference to LIBOR. Promptly
upon such determination, the Calculation Agent will notify the Company and the
Trustee, if the Trustee is not then serving as the Calculation Agent, of the
interest rate for the new Interest Period. The interest rate determined by the
Calculation Agent, absent manifest error, shall be binding and conclusive upon
the beneficial owners and Holders of the Series C Notes, the Company and the
Trustee.
If the following circumstances exist on any Interest Determination
Date, the Calculation Agent shall determine the interest rate for the Series C
Notes as follows:
(1) In the event no Reported Rate appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on an Interest
Determination Date, the Calculation Agent shall request the principal
London offices of each of four major banks in the London interbank
market selected by the Calculation Agent (after consultation with the
Company) to provide a quotation of the rate (the "Rate Quotation") at
which one month deposits in amounts of not less than $1,000,000 are
offered by it to prime banks in the London interbank market, as of
approximately 11:00 a.m., London time, on such Interest Determination
Date, that is representative of single transactions at such time (the
"Representative Amounts"). If at least two Rate Quotations are
provided, the interest rate will be the arithmetic mean of the Rate
Quotations obtained by the Calculation Agent, plus 0.08%.
(2) In the event no Reported Rate appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on an Interest
Determination Date and there are fewer than two Rate Quotations, the
interest rate will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m., New York City time, on such Interest
Determination Date, by three major banks in New York City selected by
the Calculation Agent (after consultation with the Company), for loans
in Representative Amounts in U. S. dollars to leading European banks,
2
<PAGE>
having an index maturity of one month for a period commencing on the
second London Business Day immediately following such Interest
Determination Date, plus 0.08%; provided, however, that if fewer than
three banks selected by the Calculation Agent are quoting such rates,
the interest rate for the applicable Interest Period will be the same
as the interest rate in effect for the immediately preceding Interest
Period.
"Calculation Agent" means Bankers Trust Company, or its successor
appointed by the Company, acting as calculation agent.
"Interest Determination Date" means the second London Business Day
immediately preceding the first day of the relevant Interest Period.
"Interest Period" means the period commencing on an Interest Payment
Date (or, with respect to the initial Interest Period only, commencing on the
Original Issue Date) and ending on the day before the next succeeding Interest
Payment Date.
"LIBOR" for any Interest Determination Date will be the Reported Rate
for deposits in U. S. dollars having an index maturity of one month for a period
commencing on the second London Business Day immediately following the Interest
Determination Date in amounts of not less than $1,000,000, at approximately
11:00 a.m., London time, on the Interest Determination Date.
"London Business Day" means a day that is a Business Day and a day on
which dealings in deposits in U. S. dollars are transacted, or with respect to
any future date are expected to be transacted, in the London interbank market.
"Reported Rate" means the rate that appears on Telerate Page 3750 or a
successor reporter of such rates selected by the Calculation Agent and
acceptable to the Company.
"Telerate Page 3750" means the display designated on page 3750 on
Bridge Telerate, Inc. (or such other page as may replace the 3750 page on that
service or such other service as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for U.
S. dollar deposits).
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of the actual number of days elapsed
over a 360-day year. A "Business Day" shall mean any day other than a Saturday
or a Sunday or a day on which banking institutions in New York City are
authorized or required by law or executive order to remain closed or a day on
which the Corporate Trust Office of the Trustee is closed for business.
Payment of the principal of and interest due at the Stated Maturity or
earlier redemption of the Series C Notes shall be made upon surrender of the
Series C Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series C Notes shall be paid in such coin or currency of the
3
<PAGE>
United States of America as at the time of payment is legal tender for payment
of public and private debts. Payment of interest (including interest on an
Interest Payment Date) will be made, subject to such surrender where applicable,
at the option of the Company, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer at such place and to such account at a banking institution in
the United States as may be designated in writing to the Trustee at least 16
days prior to the date for payment by the Person entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
MISSISSIPPI POWER COMPANY
By:
Name:
Title:
Attest:
Assistant Secretary
{Seal of MISSISSIPPI POWER COMPANY appears here}
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
Title:
<PAGE>
(Reverse Side of Note)
This Note is one of a duly authorized issue of Senior Notes of the
Company (the "Notes"), issued and issuable in one or more series under a Senior
Note Indenture, dated as of May 1, 1998, as supplemented (the "Indenture"),
between the Company and Bankers Trust Company, Trustee (the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures incidental thereto reference is hereby made for a statement of
the respective rights, limitation of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes issued thereunder and of
the terms upon which said Notes are, and are to be, authenticated and delivered.
This Note is one of the series designated on the face hereof as Series C
Floating Rate Senior Notes due March 28, 2002 (the "Series C Notes") in the
aggregate principal amount of up to $100,000,000. Capitalized terms used herein
for which no definition is provided herein shall have the meanings set forth in
the Indenture.
The Company shall have the right, subject to the terms and conditions
of the Indenture, to redeem this Note on any Interest Payment Date on or after
March 28, 2001 at the option of the Company, without premium or penalty, in
whole or in part, at a Redemption Price equal to 100% of the principal amount to
be redeemed plus accrued but unpaid interest to the Redemption Date.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the surrender hereof.
The Series C Notes will not have a sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rates, and in the coin or currency, herein prescribed.
<PAGE>
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and of like tenor and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same upon surrender of the Note or Notes to be exchanged
at the office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
<PAGE>
TEN COM- as tenants in UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used
though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
_______________________________________________________________________________
(please insert Social Security or other identifying number of assignee)
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
_______________________________________________________________________________
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________________
_______________________________________________________________________________
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: _______________________
NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of the within
instrument in every particular
without alteration or enlargement, or
any change whatever.
<PAGE>
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
Title:
<TABLE>
<CAPTION>
Exhibit 12
3/23/100
MISSISSIPPI POWER COMPANY
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 1998
and the twelve months ended December 31, 1999
Twelve
Months
Ended
Year ended December 31, December 31,
-------------------------------------------------------
1994 1995 1996 1997 1998 1999
--------------------------Thousands of Dollars---------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Earnings Before Interest and Income Taxes $ 107,680 $ 118,257 $ 114,073 $ 113,149 $ 118,316 $ 121,704
AFUDC - Debt funds 1,039 399 713 0 0 0
---------- ------------ ----------- ---------- ---------- -----------
Earnings as defined $ 108,719 $ 118,656 $ 114,786 $ 113,149 $ 118,316 $ 121,704
========== ============ =========== ========== ========== ===========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 19,725 $ 21,898 $ 19,898 $ 19,856 $ 20,567 $ 20,455
Interest on interim obligations 1,442 1,141 1,416 96 943 2,750
Amort of debt disc, premium and expense, net 1,479 1,510 1,547 1,577 1,446 1,432
Other interest charges 404 1,185 753 2,943 3,586 6,128
---------- ------------ ----------- ---------- ---------- -----------
Fixed charges as defined $ 23,050 $ 25,734 $ 23,614 $ 24,472 $ 26,542 $ 30,765
========== ============ =========== ========== ========== ===========
RATIO OF EARNINGS TO FIXED CHARGES 4.72 4.61 4.86 4.62 4.46 3.96
==== ==== ==== ===== ===== ====
</TABLE>
EATON AND COTTRELL, P.A.
1310 TWENTY FIFTH AVENUE
GULFPORT, MISSISSIPPI 39501-7748
March 28, 2000
Mississippi Power Company
2992 West Beach,
Gulfport, Mississippi 39501
Ladies and Gentlemen:
We hereby consent to the reference to our firm under the caption
"Experts" in the Prospectus Supplement of Mississippi Company (the "Company")
dated March 22, 2000, relating to $100,000,000 aggregate principal amount of
Series C Floating Rate Senior Notes due March 28, 2002 of the Company, and to
the filing hereof with the Securities and Exchange Commission as an exhibit to
the Company's Current Report on Form 8-K dated March 22, 2000.
Very truly yours,
/s/Eaton and Cottrell, P.A.
