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
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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Item 5. Other Events.
On May 14, 1998, Mississippi Power Company (the "Company") entered into (1) an Underwriting Agreement covering the issue and sale of $55,000,000 aggregate principal amount of its Series A 6.75% Senior Insured Quarterly Notes due June 30, 2038, and (2) a Purchase Contract covering the issue and sale of $35,000,000 aggregate principal amount of its Series B 6.05% Senior Notes due May 1, 2003. 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.
(c) Exhibits.
1(a) Underwriting Agreement for the purchase of
$55,000,000 aggregate principal amount of Series A
6.75% Senior Insured Quarterly Notes due June 30,
2038, dated May 14, 1998, between the Company and
Edward D.
Jones & Co., L.P.
1(b) Form of Proposal for the purchase of $35,000,000
aggregate principal amount of Series B 6.05%
Senior Notes due May 1, 2003, dated May 14, 1998,
submitted by First Union Capital Markets, a
division of Wheat First Securities, Inc., with
Purchase Contract attached thereto.
4.1 Senior Note Indenture dated as of May 1, 1998 between the
Company and Bankers Trust Company, as Trustee.
4.2(a) First Supplemental Indenture to Senior Note
Indenture dated as of May 19, 1998, providing for
the issuance of the Company's Series A 6.75%
Senior Insured Quarterly Notes due June 30, 2038.
4.2(b) Second Supplemental Indenture to Senior Note
Indenture dated as of May 20, 1998, providing for
the issuance of the Company's Series B 6.05%
Senior Notes due May 1, 2003.
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4.9(a) Form of Series A 6.75% Senior Insured Quarterly Note
(included in Exhibit 4.2(a) above).
4.9(b) Form of Series B 6.05% Senior Note (included in Exhibit
4.2(b) above).
12.1 Computation of ratio of earnings to fixed charges.
12.2 Computation of ratio of earnings to fixed charges plus
preferred dividend requirements (pre-income tax basis).
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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: May 19, 1998 MISSISSIPPI POWER COMPANY
By /s/ Wayne Boston
Wayne Boston
Assistant Secretary
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EXHIBIT 1(b)
FORM OF PROPOSAL
For the Purchase of
MISSISSIPPI POWER COMPANY
$35,000,000
SERIES B ___% SENIOR NOTES DUE MAY 1, 2003
Dated: May 14, 1998
MISSISSIPPI POWER COMPANY
c/o Southern Company Services, Inc.
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Ladies and Gentlemen:
Referring to the terms and conditions dated May 8, 1998 (the "Terms and Conditions"), relating to proposals for the purchase of Series B ___% Senior Notes due May 1, 2003 (the "Series B Senior Notes") of Mississippi Power Company (the "Company"), the persons, firms and corporations named in Exhibit A attached hereto (the "Bidders") have submitted and confirm herewith the following proposal for the purchase of $35,000,000 aggregate principal amount of the Series B Senior Notes (the "Designated Principal Amount"):
1. The interest rate of the Series B Senior Notes shall be 6.05% per annum.
2. The price to be paid to the Company for the Series B Senior
Notes shall be 99.835%* of the Designated Principal Amount thereof,
each of the Bidders hereby offering, severally and not jointly, to
purchase from the Company, at said price and upon the terms and
conditions set forth in the form of purchase contract attached hereto
as Exhibit B (the "Purchase Contract"), the principal amount of Series
B Senior Notes set forth opposite its name in Exhibit A attached
hereto, or the principal amount of Series B Senior Notes to be set
forth opposite its name in Exhibit A attached hereto as provided in
Section 3 of the Terms and Conditions, which together aggregate the
Designated Principal Amount of the Series B Senior Notes. Exhibit A
attached hereto, when completed, is hereinafter and in the Purchase
Contract called "Exhibit A to the Form of Proposal".
3. In consideration of the agreement of the Company set forth in the Terms and Conditions that, subject to the provisions thereof, the Company will accept the proposal which results in the lowest "annual cost of money" to it for the Series B Senior Notes, each of the Bidders agrees (a) that the offer of such Bidder included in this proposal shall be irrevocable until three hours after the time fixed
* May not be less than 98.75%
for the submission of proposals, unless sooner rejected by the Company;
(b) that, if this proposal shall be accepted in writing by the Company,
such Bidder, either in person or by the Representative(s) on its
behalf, will forthwith furnish to the Company in writing the
information referred to in Section 7 of the Terms and Conditions; and
(c) that, if this proposal shall be so accepted by the Company, the
Purchase Contract shall thereupon become effective without any separate
execution thereof and shall constitute the agreement between the
Company and the Bidders and, upon performance by the Bidders, and the
Representative(s), of their obligations under Sections 3, 4 and 7 of
the Terms and Conditions, all rights of the Company and of the Bidders
shall be determined solely in accordance with the terms thereof,
subject, however, to such modifications therein (including Exhibit A to
the Form of Proposal) as may be necessary and as are contemplated by
the Terms and Conditions.
4. This proposal must be accepted or rejected by the Company in its entirety within three hours after the time fixed for the submission thereof.
5. This proposal may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
Each of the Bidders acknowledges receipt of a copy of the prospectus in respect of the Series B Senior Notes furnished by the Company to the Bidders pursuant to the last paragraph of Section 5 of the Terms and Conditions.
Very truly yours,
First Union Capital Markets, a division of Wheat First Securities, Inc.
Name(s) of Representative(s)
By:
Title:
On behalf of and as
Representative(s) of the
persons, firms and
corporations named in
Exhibit A hereto.
Address
Accepted:
MISSISSIPPI POWER COMPANY
By:
Title:
EXHIBIT A
The names of the Bidders and the respective principal amounts of the Series B Senior Notes which they severally offer to purchase are as follows:
Name Principal Amount
EXHIBIT B
MISSISSIPPI POWER COMPANY
PURCHASE CONTRACT
For Purchase of Series B Senior Notes of the Company
AGREEMENT made between Mississippi Power Company, a corporation organized and existing under the laws of the State of Mississippi ("Company"), party of the first part, and the several persons, firms and corporations (the "Purchasers") named as Bidders in Exhibit A to the Form of Proposal to which this agreement is attached as Exhibit B (the "Form of Proposal"), parties of the second part,
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell the Designated Principal Amount (as defined in the Form of Proposal) of its Series B Senior Notes due May 1, 2003 (the "Series B Senior Notes"), to be issued under the Senior Note Indenture dated as of May 1, 1998, as supplemented and as to be supplemented (the "Indenture"), between the Company and Bankers Trust Company, as Trustee (the "Trustee"), and to bear interest at the rate per annum specified in paragraph 1 of the Form of Proposal; and
WHEREAS, the Purchasers have authorized the person or persons signing the Form of Proposal (the "Representative") to execute the Form of Proposal on behalf of the respective Purchasers and to act for the respective Purchasers in the manner provided in this agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933, as amended (the "Securities Act"), with the Securities and Exchange Commission (the "Commission"), a registration statement and prospectus relating to the Series B Senior Notes and certain other securities, and such registration statement has become effective (such registration statement, as it became effective, including the exhibits thereto and all documents incorporated by reference in the prospectus at such time pursuant to Item 12 of Form S-3, being herein called the "Registration Statement"); and
WHEREAS, the prospectus referred to in the last paragraph of the Form of Proposal (such prospectus, including all documents incorporated therein by reference pursuant to Item 12 of Form S-3 as of the time of the acceptance of the Form of Proposal, being herein called the "Bidding Prospectus") is to be supplemented by a prospectus supplement (the "Prospectus Supplement"), including certain information relating to the Purchasers, the price and the terms of offering, and the interest rate, maturity date and redemption provisions of the Series B Senior Notes (the Bidding Prospectus as supplemented by the Prospectus Supplement being herein called the "Prospectus").
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations and on the terms and subject to the conditions herein set forth, the Company agrees to sell to the respective Purchasers, severally and not jointly, and the respective Purchasers, severally and not jointly, agree to
purchase from the Company, at the price specified in paragraph 2 of the Form of Proposal, the respective principal amounts of Series B Senior Notes set opposite their names in Exhibit A to the Form of Proposal, which together aggregate the Designated Principal Amount of the Series B Senior Notes.
2. Payment and Delivery: Payment for the Series B Senior Notes shall be made to the Company or its order by wire transfer of federal funds, upon the delivery of the Series B Senior Notes as hereinafter provided to the Representative for the respective accounts of the Purchasers, against receipt therefor signed by the Representative on behalf of itself and as agent for the other Purchasers. Such payment and delivery shall be made at the offices of Troutman Sanders LLP, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308-2216 (or at such other place as may be agreed upon by the Representative and the Company) at 10 a.m. New York time on the sixth day (which shall be a full business day) after this agreement becomes effective (or at such other time or on such other day as may be agreed upon by the Representative and the Company), unless postponed in accordance with the provisions of Section 7 hereof. The time at which payment and delivery are to be made is herein sometimes called the "time of purchase."
Delivery of definitive Series B Senior Notes is expected to be made in registered form without coupons, registered in the name of Cede & Co. or other nominee of The Depository Trust Company ("DTC"). One or more global Series B Senior Notes certificates will be issued and deposited with DTC or its designee. Such certificate or certificates will be made available for examination by the Representative not later than 12:00 noon New York time on the last business day prior to the time of purchase.
3. Conditions of Purchasers' Obligations: The several obligations of the Purchasers hereunder are subject to the accuracy of the warranties and representations on the part of the Company herein contained and to the following other conditions:
(a) That all legal proceedings to be taken by the Company in connection with the issue and sale of the Series B Senior Notes and the legal opinions provided for in Sections 3(b)(1) and (2) hereof shall be satisfactory in form and substance to Dewey Ballantine LLP, counsel to the Purchasers.
(b) That, at the time of purchase, the Representative shall be furnished the following opinions and letter and copies or signed counterparts thereof for each of the Purchasers, with such changes therein as may be agreed upon by the Company and the Representative with the approval of Dewey Ballantine LLP:
(1) Opinion of Eaton and Cottrell, P.A., of Gulfport, Mississippi, general counsel for the Company, substantially in the form attached hereto as Exhibit 1.
(2) Opinion of Troutman Sanders LLP, of Atlanta, Georgia, counsel to the Company, substantially in the form attached hereto as Exhibit 2.
(3) Opinion of Dewey Ballantine LLP, of New York, New York, substantially in the form attached hereto as Exhibit 3.
(4) Letter dated the date of payment and delivery from Arthur Andersen LLP to the effect that: (A) they are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder; (B) in their opinion, the financial statements and schedules audited by them and incorporated by reference in the Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the related published rules and regulations; (C)
they have performed certain limited procedures through a
specified date not more than five business days prior to the
date of such letter, namely (i) reading the minute books of
the Company; (ii) reading the unaudited financial statements,
if any, of the Company incorporated in the Prospectus and
agreeing the amounts therein with the Company's accounting
records; (iii) making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding whether the unaudited financial statements,
if any, incorporated in the Prospectus (a) are in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements incorporated in the Prospectus and (b)
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations; (iv) reading the unaudited
amounts for Operating Revenues, Income Before Interest Charges
and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) set forth in the Prospectus Supplement, which
amounts shall include such amounts for the latest calendar
quarter subsequent to that covered by the financial statements
incorporated by reference in the Prospectus for which such
amounts are available at the time this agreement becomes
effective; (v) reading the unaudited financial statements from
which the amounts and ratios described in (iv) were derived
and agreeing the amounts therein to the Company's accounting
records; (vi) making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding whether (a) the unaudited amounts and ratios
referred to in (iv) above and the unaudited financial
statements referred to in (v) above are stated on a basis
substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in the Prospectus and (b) as of a specified date not
more than five business days prior to the date of delivery of
such letter, there has been any change in the capital stock or
long-term debt of the Company or any decrease in net assets as
compared with amounts shown in the latest audited balance
sheet incorporated in the Prospectus, except in each case for
changes or decreases which (I) the Prospectus discloses have
occurred or may occur, (II) are occasioned by the declaration
of dividends, (III) are occasioned by draw-downs under
existing pollution control financing arrangements, (IV) are
occasioned by draw-downs and regularly scheduled payments of
capitalized lease obligations, (V) are occasioned by the
purchase or redemption of bonds or stock to satisfy mandatory
or optional redemption provisions relating thereto, or (VI)
are disclosed in such letter; (vii) reading the unaudited
amounts for Operating Revenues, Income Before Interest Charges
and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) for the latest calendar quarter subsequent to those
set forth in (iv) above, which if available shall be set forth
in such letter; (viii) reading the unaudited financial
statements from which the amounts and ratios described in
(vii) above were derived and which will be attached to such
letter and agreeing the amounts therein to the Company's
accounting records; and (ix) making inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited amounts
and ratios referred to in (vii) above and the unaudited
financial statements referred to in (viii) above are stated on
a basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus; and (D) reporting
their findings as a result of performing the limited
procedures set forth in (C) above. It is understood that the
foregoing procedures do not constitute an audit performed in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Arthur Andersen LLP make no representations as to the sufficiency of such procedures for the several Purchasers' purposes.
(c) That no amendment or supplement (including the Prospectus Supplement) to the registration statement or prospectus filed subsequent to the time this agreement becomes effective (including any filing made by the Company pursuant to Section 13 or 14 of the Exchange Act) shall be unsatisfactory in form to Dewey Ballantine LLP or shall contain information (other than with respect to an amendment or supplement relating solely to the activity of any Purchaser or Purchasers) which, in the reasonable judgment of the Representative, shall materially impair the marketability of the Series B Senior Notes.
(d) That, at or before 8 p.m. New York time on the first business day after the date this agreement becomes effective, or at such later time and date as the Representative may from time to time consent to in writing or by telephone, confirmed in writing, an appropriate order or orders of the Commission under the Public Utility Holding Company Act of 1935, as amended, necessary to permit the issue and sale of the Series B Senior Notes shall be in effect; and that, prior to the time of purchase, no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act by the Commission or proceedings therefor initiated or threatened.
(e) That, prior to the time of purchase, there shall have been no material adverse change in the business, properties or financial condition of the Company (whether or not arising in the ordinary course of business) from that set forth in or contemplated by the Prospectus, and that the Company shall, at the time of purchase, have delivered to the Representative a certificate to such effect of an executive officer of the Company. For the purpose of this condition, the sale by the Company of, or its failure to sell, any issue of other securities shall not be deemed to be such a change.
(f) That the Company shall have performed such of its obligations under this agreement as are to be performed at or prior to the time of purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the agreements of the Purchasers herein contained, the Company covenants as follows:
(a) As soon as practicable after this agreement becomes effective, and in any event within the time prescribed by Rule 424 under the Securities Act, to file the Prospectus Supplement with the Commission and to advise the Representative of such filing and to confirm such advice in writing.
(b) As soon as the Company is advised thereof, to advise the Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement or Prospectus, including any amendment to any of the documents incorporated therein by reference pursuant to Item 12 of Form S-3, or of the issuance of a stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceedings for that purpose and, if such a stop order should be issued by the Commission, to make every reasonable effort to obtain the lifting or removal thereof as soon as possible.
(c) To deliver to the Purchasers, without charge, as soon as practicable on or after the date this agreement becomes effective, and from time to time thereafter during such period of time (not exceeding nine months) after this agreement becomes effective as the Purchasers are required by law to deliver a prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto) as the Representative may reasonably request; and, in case any Purchaser is required by law to deliver a prospectus after the expiration of nine months after the date this agreement becomes effective, to furnish to such Purchaser, upon request of the Representative, at the expense of such Purchaser, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) During such period of time after the date this agreement becomes effective as the Purchasers are required by law to deliver a prospectus, to file timely all documents required to be filed with the Commission pursuant to Section 13 or 14 of the Exchange Act.
(e) To furnish to the Representative, or if such Representative consists of two or more persons to one of such persons, one copy, certified by an officer of the Company, of the registration statement as initially filed with the Commission, all amendments thereto and all documents incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 as of the time of purchase (in each case, exclusive of exhibits), and to furnish to the Representative sufficient plain copies of said registration statement and all amendments thereto (exclusive of exhibits) for distribution of two each, and all said documents incorporated therein as of the time of purchase (exclusive of exhibits) for distribution of one each, to the other Purchasers.
(f) In the event that the Purchasers constitute "underwriters" within the meaning of Section 2(11) of the Securities Act, then, for such period of time (not exceeding nine months) after the date this agreement becomes effective as they are required by law to deliver a prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, forthwith to amend or supplement the Prospectus by either (i) preparing and furnishing, at its own expense, to the Purchasers and to dealers (whose names and addresses are furnished to the Company by the Representative) to whom Series B Senior Notes may have been sold by the Representative on behalf of the Purchasers and, upon request, to any other dealers making such request, either amendments to the Prospectus or supplements thereto, or (ii) making an appropriate filing pursuant to Section 13 or 14 of the Exchange Act which would supplement or amend the Prospectus, so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading.
(g) To make generally available to the Company's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" of the Registration Statement as defined in Rule 158(c) under the Securities Act, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(h) To use its best efforts to qualify the Series B Senior Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Representative may designate within six months
after the date this agreement becomes effective and to pay filing fees and disbursements in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and disbursements paid or incurred prior to the date this agreement becomes effective), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(i) To pay expenses, fees and taxes (other than transfer taxes) in connection with (1) the preparation and filing of the Registration Statement and Prospectus, (2) the preparation and execution of the new supplemental indenture pursuant to which the Series B Senior Notes are to be issued, (3) the issue and delivery of the Series B Senior Notes to the Purchasers, and (4) the furnishing of the opinions, letter and certificates referred to in Section 3 hereof, except that the Company shall be required to pay the fees and disbursements (other than filing fees and disbursements referred to in paragraph (h) of this Section 4) of Dewey Ballantine LLP only in an event provided in paragraph (j) of this Section 4, the Purchasers hereby agreeing to pay such fees and disbursements in any other event and, if such fees should be less than the amount stated by such counsel to the Representative, to repay the Company the amount of any reduction.
(j) If the Purchasers shall not take up and pay for the Series B Senior Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or if this agreement shall be terminated in accordance with the provisions of Section 7 or 8 hereof, to pay the reasonable fees and disbursements of Dewey Ballantine LLP, and, if the Purchasers shall not take up and pay for the Series B Senior Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Purchasers for their reasonable out-of-pocket expenses, in an amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this agreement.
(k) During the period of 15 days from the date this agreement becomes effective, without the prior written consent of the Representative, not to issue or sell directly or indirectly any senior notes (other than the Series B Senior Notes and $55,000,000 aggregate principal amount of Series A Senior Insured Quarterly Notes due June 30, 2038) or any other long-term debt of the Company having terms and provisions substantially similar to the Series B Senior Notes.
5. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the Purchasers that:
(i) The Registration Statement, when it became effective, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Bidding Prospectus, on said date, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; when the Prospectus Supplement is filed with the Commission, and at the time of purchase, the Registration Statement and the Prospectus, as they may be amended or supplemented, will comply, or be deemed to comply, in all material respects with the provisions of the Securities Act and the rules and regulations of the Commission thereunder, the Registration Statement, as it may be amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as it may be amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and all documents incorporated therein by reference pursuant to Item 12 of Form S-3 as of such dates complied or will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the Commission thereunder, and, on said dates, when read together with the Prospectus, or the Prospectus as it may be otherwise amended or supplemented, will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Company makes no warranty or representation to any Purchaser with respect to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by, or through the Representative on behalf of, any Purchaser for use in the Registration Statement or the Prospectus, or to any statements in or omissions from that part of the Registration Statement that shall constitute the Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture.
(ii) The consummation of the transactions herein contemplated and the performance by the Company of the terms of this agreement will not violate any of the terms, conditions or provisions of, or constitute a default under, any indenture or other contract or agreement to which the Company is now a party or the charter or by-laws of the Company or any order of any court or administrative agency entered in any proceedings to which the Company is now a party.
(b) The Company agrees to indemnify and hold harmless each of the Purchasers and each person, if any, who controls any such Purchaser within the meaning of Section 15 of the Securities Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or otherwise, and to reimburse the Purchasers and such controlling person or persons, if any, for any legal or other expenses incurred by them in connection with defending any actions, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Bidding Prospectus (if used prior to the date this agreement becomes effective), or in the Registration Statement, or in the Prospectus or, if the Company shall furnish to the Purchasers any amendments or any supplements to the Prospectus, or shall make any filings pursuant to Section 13 or 14 of the Exchange Act which are incorporated therein by reference, in the Prospectus as so amended or supplemented (provided that, if such Prospectus or such Prospectus as amended or supplemented is used after the expiration of the period of time specified in Section 4(f) hereof, it shall contain such amendments or supplements as the Company deems necessary to comply with Section 10(a)(3) of the Securities Act), or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission which was made in such Registration Statement or Prospectus in reliance upon and in conformity with information furnished in writing to the Company by, or through the Representative on behalf of, any Purchaser for use therein and except that this indemnity with respect to the Bidding Prospectus, and with respect to the Prospectus if the Company shall have furnished any amendment or supplement thereto, shall not inure to the benefit of any Purchaser (or of any person controlling such Purchaser) on account of
any losses, claims, damages, liabilities or actions arising from the sale of Series B Senior Notes to any person if a copy of the Prospectus (exclusive of documents incorporated therein by reference pursuant to Item 12 of Form S-3), as the same may then be amended or supplemented, shall not have been sent or given by or on behalf of such Purchaser to such person with or prior to the written confirmation of the sale involved and the untrue statement or alleged untrue statement or omission or alleged omission was corrected in the Prospectus as amended or supplemented at the time of such confirmation. Each Purchaser agrees, within ten days after the receipt by it of notice of the commencement of any action in respect of which indemnity may be sought by it, or by any person controlling it, from the Company on account of its agreement contained in this Section 5(b), to notify the Company in writing of the commencement thereof, but the omission of such Purchaser so to notify the Company of any such action shall not release the Company from any liability which it may have to such Purchaser or to such controlling person otherwise than on account of the indemnity agreement contained in this Section 5(b). In case any such action shall be brought against any Purchaser or any such person controlling such Purchaser and such Purchaser shall notify the Company of the commencement thereof, as above provided, the Company shall be entitled to participate in (and, to the extent that it shall wish, including the selection of counsel, to direct) the defense thereof at its own expense. In case the Company elects to direct such defense and select such counsel, any Purchaser or controlling person shall have the right to employ its own counsel, but, in any such case, the fees and expenses of such counsel shall be at the expense of such Purchaser or controlling person unless the employment of such counsel has been authorized in writing by the Company in connection with defending such action. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include any statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. In no event shall any indemnifying party have any liability or responsibility in respect of the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim effected without its prior written consent.
The Company's indemnity agreement contained in this Section
5(b), and its covenants, warranties and representations contained in
this agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any Purchaser or controlling
person, and shall survive the delivery of and payment for the Series B
Senior Notes hereunder.
6. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents to the Company, its directors and such of its officers as shall have signed the Registration Statement, and to each other Purchaser that the information furnished in writing to the Company by, or through the Representative on behalf of, such Purchaser for use in the Registration Statement or the Prospectus does not contain an untrue statement of a material fact and does not omit to state a material fact in connection with such information required to be stated therein or necessary to make such information not misleading.
(b) Each Purchaser agrees to indemnify and hold harmless the Company, its directors and such of its officers as shall have signed the Registration Statement, and each other Purchaser and each person, if any, who controls the Company or any such other Purchaser within the
meaning of Section 15 of the Securities Act, to the same extent and upon the same terms as the indemnity agreement of the Company set forth in Section 5(b) hereof, but only with respect to untrue statements or omissions or alleged untrue statements or omissions made in the Registration Statement or the Prospectus, or the Prospectus as amended or supplemented, in reliance upon and in conformity with information furnished in writing to the Company by, or through the Representative on behalf of, such Purchaser for use therein.
The indemnity agreement on the part of each Purchaser contained in this Section 6(b), and the warranties and representations of such Purchaser contained in this agreement, shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or other Purchaser or controlling person, and shall survive the delivery of and payment for the Series B Senior Notes hereunder.
7. Substitution of Purchasers: If any Purchaser under this agreement
shall fail or refuse (whether for some reason sufficient to justify, in
accordance with the terms hereof, the termination of its obligations to purchase
or otherwise) to purchase the principal amount of the Series B Senior Notes
which it has agreed to purchase, the Company shall immediately notify the
Representative, and the Representative may, within 24 hours of receipt of such
notice, procure some other responsible party or parties satisfactory to the
Company, who may include one or more of the remaining Purchasers, to purchase or
agree to purchase such principal amount of the Series B Senior Notes on the
terms herein set forth; and, if the Representative shall fail to procure a
satisfactory party or parties to purchase or agree to purchase such principal
amount of the Series B Senior Notes on such terms within such period after the
receipt of such notice, then the Company shall be entitled to an additional
period of 24 hours within which to procure another party or parties to purchase
or agree to purchase such principal amount of the Series B Senior Notes on the
terms herein set forth. In any such case, either the Representative or the
Company shall have the right to postpone the time of purchase for a period not
to exceed five full business days from the date determined as provided in
Section 2 hereof, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may be
effected. If the Representative shall fail to procure a satisfactory party or
parties to purchase or agree to purchase such principal amount of the Series B
Senior Notes, and if the Company also does not procure another party or parties
to purchase or agree to purchase such principal amount of the Series B Senior
Notes, as above provided, then this agreement shall terminate. In the event of
any such termination, the Company shall not be under any liability to any
Purchaser (except to the extent, if any, provided in Section 4(j) hereof), nor
shall any Purchaser (other than a Purchaser who shall have failed or refused to
purchase Series B Senior Notes without some reason sufficient to justify, in
accordance with the terms hereof, its termination of its obligations hereunder)
be under any liability to the Company.
8. Termination of Agreement: This agreement may be terminated at any
time prior to the time of purchase by the Representative with the consent of
Purchasers who have agreed to purchase in the aggregate 50% or more of the
Designated Principal Amount of the Series B Senior Notes, if, after this
agreement becomes effective and prior to the time of purchase, (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgment of the Representative, the marketability of the Series B
Senior Notes shall have been materially impaired.
If the Representative elects to terminate this agreement, as provided in this Section 8, the Company and each other Purchaser shall be notified promptly by the Representative by telephone, confirmed in writing. If this agreement shall not be carried out by any Purchaser for any reason permitted hereunder, or if the sale of the Series B Senior Notes to the Purchasers as herein contemplated shall not be carried out because the Company is not able to comply with the terms hereof, the Company shall not be under any obligation under this agreement and shall not be liable to any Purchaser or to any member of any selling group for the loss of anticipated profits from the transactions contemplated by this agreement (except that the Company shall remain liable to the extent provided in Section 4(j) hereof) and the Purchasers (other than a defaulting Purchaser) shall be under no liability to the Company nor be under any liability under this agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise expressly permitted, be in writing and be delivered at or mailed to the following addresses: if to the Purchasers or the Representative, to the Representative at the address set forth following its signature in the Form of Proposal, and, if to the Company, to the Company at 2992 West Beach, Gulfport, Mississippi 39501, Attention: Michael W. Southern, Vice President, Secretary, Treasurer and Chief Financial Officer, with a copy to Southern Company Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention: Charles N. Eldred.
10. Parties in Interest: The agreement herein set forth has been and is made solely for the benefit of the Purchasers and the Company, its directors and such of its officers as shall have signed the Registration Statement, and the controlling persons, if any, referred to in Sections 5 and 6 hereof, and their respective successors, assigns, executors and administrators, and, subject to the provisions of Section 7 hereof, no other person shall acquire or have any right under or by virtue of this agreement.
11. Definitions of Certain Terms: If there be two or more persons, firms or corporations named in Exhibit A to the Form of Proposal, the term "Purchasers", as used herein, shall be deemed to mean the several persons, firms or corporations so named (including any substitute purchaser or purchasers procured as provided by Section 7 hereof and the Representative hereinafter mentioned, if so named), and the term "Representative", as used herein, shall be deemed to mean the person or persons designated as representative or representatives of the Purchasers by, or in the manner authorized by, the Purchasers, who, by signing the Form of Proposal, represent that it or they have been authorized by the Purchasers to execute the Form of Proposal on their behalf and to act for them in the manner herein provided. In the event that all the Purchasers execute the Form of Proposal and no one or more of them are designated to act as representative or representatives, then the term "Representative" shall be deemed to mean all the persons signing the Form of Proposal. If the Representative consists of more than one person, the Representative may act by any one thereof. All obligations of the Purchasers hereunder are several and not joint. If there shall be only one person, firm or corporation named in Exhibit A to the Form of Proposal, the term "Purchasers" and the term "Representative", as used herein, shall mean such person, firm or corporation.
EXHIBIT 1
[Letterhead of Eaton and Cottrell, P.A.]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998, between Mississippi Power Company and said Purchasers (the "Purchase Contract") for the purchase of Mississippi Power Company Series B ___% Senior Notes due May 1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the "Company") in connection with the purchase by you pursuant to the Purchase Contract of $35,000,000 aggregate principal amount of the Series B Senior Notes, issued under the Senior Note Indenture dated as of May 1, 1998, between the Company and Bankers Trust Company, as trustee (the "Trustee"), as heretofore supplemented and as supplemented by the Second Supplemental Indenture dated as of May __, 1998 (said Indenture, as so supplemented and amended, being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos. 333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the Securities Act of 1933, as amended (the "Act"), as it became effective under the Act (the "Registration Statement"); the Company's prospectus dated February 9, 1998, as supplemented by the prospectus supplement dated May __, 1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and regulations of the Securities and Exchange Commission (the "Commission") under the Act, which pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 1997 and the Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998 and May __, 1998 (the "Exchange Act Documents"), each as filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the Indenture. In addition, we have examined, and have relied as to matters of fact upon, the documents delivered to you at the closing (except the Series B Senior Notes, of which we have examined a specimen), and we have made such other and further investigations as we deemed necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters relating to the laws administered by the Commission, including the Act, the Exchange Act and the Trust Indenture Act (as hereinafter defined), on the opinion dated the date hereof rendered to you by Troutman Sanders LLP and relying as to matters of New York law upon the opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Mississippi, is duly qualified to carry on its business as a foreign corporation in the State of Alabama and has due corporate authority to carry on the public utility business in which it is engaged, to own and operate the properties used by it in such business and to enter into and perform its obligations under the Purchase Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture and the Series B Senior Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture conforms as to legal matters in all material respects to the description thereof in the Prospectus.
3. The Series B Senior Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the Purchase Contract and subject to the qualifications set forth in paragraph 2 above, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms; and the Series B Senior Notes conform as to legal matters in all material respects to the description thereof in the Prospectus.
4. All orders, consents or other authorizations or approvals of the Commission legally required for the issuance of the Series B Senior Notes have been obtained; and no other order, consent or other authorization or approval of any Mississippi or United States governmental body (other than in connection or in compliance with the provisions of the securities or "blue sky" laws of any jurisdiction, as to which we express no opinion) is legally required for the issuance of the Series B Senior Notes by the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed and delivered by the Company.
We have not independently verified the accuracy, completeness or fairness of the statements made or included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility therefor, except as and to the extent set forth in paragraphs 2 and 3 above and in the Prospectus in the second paragraph under the caption "Experts". In the course of the preparation by the Company of the Registration Statement, the Prospectus and the Exchange Act Documents, we participated in conferences with certain officers and employees of the Company, with other counsel for the Company and with representatives of Arthur Andersen LLP. Based upon our examination of the Registration Statement, the Prospectus and the Exchange Act Documents, our investigations made in connection with the preparation of the Registration Statement, the Prospectus and the Exchange Act Documents and our participation in the conferences referred to above, (i) we are of the opinion that the Registration Statement, as of its effective date, and the Prospectus, as of May __, 1998, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder and that the Exchange Act Documents, as of their respective dates of filing with the Commission, complied as to form in all material respects with the relevant requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case we express no opinion as to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents, and (ii) we have no reason to believe that the Registration Statement, as of the date of filing of the Company's Annual Report on Form 10-K for the year ended December 31, 1997 (including the Exchange Act Documents on file with the Commission on such date), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (including the Exchange Act Documents) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case we express no opinion or belief with respect to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the State Bar of Mississippi and we do not express any opinion herein concerning any law other than the law of the States of Mississippi and Alabama and the federal law of the United States and, to the extent set forth herein, the law of the State of New York.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent, except that Troutman Sanders LLP and Dewey
Ballantine LLP may rely on this opinion in giving their opinions pursuant to
Section 3(b) of the Purchase Contract insofar as such opinions relate to matters
of Mississippi and Alabama law.
Very truly yours,
EATON AND COTTRELL, P.A.
EXHIBIT 2
[Letterhead of Troutman Sanders LLP]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998, between Mississippi Power Company and said Purchasers (the "Purchase Contract") for the purchase of Mississippi Power Company Series B ___% Senior Notes due May 1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the "Company") in connection with the purchase by you pursuant to the Purchase Contract of $35,000,000 aggregate principal amount of the Series B Senior Notes, issued under the Senior Note Indenture dated as of May 1, 1998, between the Company and Bankers Trust Company, as trustee (the "Trustee"), as heretofore supplemented and as supplemented by the Second Supplemental Indenture dated as of May __, 1998 (said Indenture, as so supplemented and amended, being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos. 333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the Securities Act of 1933, as amended (the "Act"), as it became effective under the Act (the "Registration Statement"); the Company's prospectus dated February 9, 1998, as supplemented by the prospectus supplement dated May __, 1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and regulations of the Securities and Exchange Commission (the "Commission") under the Act, which pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 1997 and the Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998 and May __, 1998 (the "Exchange Act Documents"), each as filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the Indenture. In addition, we have examined, and have relied as to matters of fact upon, the documents delivered to you at the closing (except the Series B Senior Notes, of which we have examined a specimen), and we have made such other and further investigations as we deemed necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Mississippi and Alabama law upon the opinion of dated the date hereof rendered to you by Eaton and Cottrell, P.A. and relying as to matters of New York law upon the opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Mississippi, is duly qualified to carry on its business as a foreign corporation in the State of Alabama and has due corporate authority to carry on the public utility business in which it is engaged, to own and operate the properties used by it in such business and to enter into and perform its obligations under the Purchase Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture and the Series B Senior Notes may be limited by (a) bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture conforms as to legal matters in all material respects to the description thereof in the Prospectus.
3. The Series B Senior Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the Purchase Contract and subject to the qualifications set forth in paragraph 2 above, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms; and the Series B Senior Notes conform as to legal matters in all material respects to the description thereof in the Prospectus.
4. All orders, consents or other authorizations or approvals of the Commission legally required for the issuance of the Series B Senior Notes have been obtained; and no other order, consent or other authorization or approval of any Mississippi or United States governmental body (other than in connection or in compliance with the provisions of the securities or "blue sky" laws of any jurisdiction, as to which we express no opinion) is legally required for the issuance of the Series B Senior Notes by the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed and delivered by the Company.
We have not independently verified the accuracy, completeness or fairness of the statements made or included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 2 and 3 above. In the course of the preparation by the Company of the Registration Statement, the Prospectus and the Exchange Act Documents, we participated in conferences with certain officers and employees of the Company, with other counsel for the Company and with representatives of Arthur Andersen LLP. Based upon our examination of the Registration Statement, the Prospectus and the Exchange Act Documents, our investigations made in connection with the preparation of the Registration Statement, the Prospectus and the Exchange Act Documents and our participation in the conferences referred to above, (i) we are of the opinion that the Registration Statement, as of its effective date, and the Prospectus, as of May __, 1998, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder and that the Exchange Act Documents, as of their respective dates of filing with the Commission, complied as to form in all material respects with the relevant requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case we express no opinion as to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents, and (ii) we have no reason to believe that the Registration Statement, as of the date of filing of the Company's Annual Report on Form 10-K for the year ended December 31, 1997 (including the Exchange Act Documents on file with the Commission on such date), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (including the Exchange Act Documents) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case we express no opinion or belief with respect to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the State Bar of Georgia and we do not express any opinion herein concerning any law other than the law of the State of Georgia and the federal law of the United States and, to the extent set forth herein, the law of the States of Alabama, Mississippi and New York.
This opinion is rendered to you in connection with the above described transactions. This opinion may not be relied upon by you for any other purpose, or relied upon by, or furnished to, any other person, firm or corporation without our prior written consent, except that Eaton and Cottrell, P.A. may rely on this opinion in giving its opinion pursuant to Section 3(b) of the Purchase Contract insofar as such opinion relates to matters of law administered by the Commission, including the Act, the Exchange Act and the Trust Indenture Act.
Very truly yours,
TROUTMAN SANDERS LLP
EXHIBIT 3
[Letterhead of Dewey Ballantine LLP]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998, between Mississippi Power Company and said Purchasers (the "Purchase Contract") for the purchase of Mississippi Power Company Series B ___% Senior Notes due May 1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by you pursuant to the Purchase Contract of $35,000,000 aggregate principal amount of the Series B Senior Notes, issued under the Indenture dated as of May 1, 1998, between Mississippi Power Company (the "Company") and Bankers Trust Company, as Trustee (the "Trustee"), as heretofore supplemented and as supplemented by the Second Supplemental Indenture dated as of May __, 1998 (said Indenture, as so supplemented and amended, being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos. 333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the Securities Act of 1933, as amended (the "Act"), as it became effective under the Act (the "Registration Statement"); the Company's prospectus dated February 9, 1998, as supplemented by the prospectus supplement dated May __, 1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and regulations of the Securities and Exchange Commission (the "Commission") under the Act, which pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 1997 and the Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998 and May __, 1998 (the "Exchange Act Documents"), each as filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the Indenture. In addition, we have examined, and have relied as to matters of fact upon, the documents delivered to you at the closing (except the Series B Senior Notes, of which we have examined a specimen), and we have made such other and further investigations as we deemed necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Mississippi and Alabama law upon the opinion of Eaton and Cottrell, P.A., referred to below, that:
1. The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Mississippi, is duly qualified to carry on its business as a foreign corporation in the State of Alabama and has due corporate authority to carry on the public utility business in which it is engaged, to own and operate the properties used by it in such business and to enter into and perform its obligations under the Purchase Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture and the Series B Senior Notes may be limited by (a) bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture conforms as to legal matters in all material respects to the description thereof in the Prospectus.
3. The Series B Senior Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the Purchase Contract and subject to the qualifications set forth in paragraph 2 above, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms; and the Series B Senior Notes conform as to legal matters in all material respects to the description thereof in the Prospectus.
4. All orders, consents or other authorizations or approvals of the Commission legally required for the issuance of the Series B Senior Notes have been obtained; and no other order, consent or other authorization or approval of any Mississippi or United States governmental body (other than in connection or in compliance with the provisions of the securities or "blue sky" laws of any jurisdiction, as to which we express no opinion) is legally required for the issuance of the Series B Senior Notes by the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed nd delivered by the Company.
All legal proceedings taken by the Company in connection with the authorization and delivery of the Series B Senior Notes, and the legal opinions dated the date hereof rendered to you by Eaton and Cottrell, P.A. and Troutman Sanders LLP, counsel for the Company, pursuant to the Purchase Contract, are in form satisfactory to us.
We have not independently verified the accuracy, completeness or fairness of the statements made or included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility therefor, except as and to the extent set forth in paragraphs 2 and 3 above. In the course of the preparation by the Company of the Registration Statement, the Prospectus and the Exchange Act Documents, we participated in conferences with certain officers and employees of the Company, with representatives of Arthur Andersen LLP and with counsel for the Company. Based upon our examination of the Registration Statement, the Prospectus and the Exchange Act Documents, our investigations made in connection with the preparation of the Registration Statement and the Prospectus and our participation in the conferences referred to above, (i) we are of the opinion that the Registration Statement, as of its effective date, and the Prospectus, as of May __, 1998, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder and that the Exchange Act Documents, as of their respective dates of filing with the Commission, complied as to form in all material respects with the relevant requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case we express no opinion as to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents, and (ii) we have no reason to believe that the Registration Statement, as of the date of filing of the Company's Annual Report on Form 10-K for the year ended December 31, 1997 (including the Exchange Act Documents on file with the Commission on such date), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (including the Exchange Act Documents) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case we express no opinion or belief with respect to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York and we do not express any opinion herein concerning any law other than the law of the State of New York and the federal law of the United States and, to the extent set forth herein, the law of the States of Mississippi and Alabama.
This opinion is rendered to you in connection with the above described transactions. This opinion may not be relied upon by you for any other purpose, or relied upon by, or furnished to, any other person, firm or corporation without our prior written consent, except that Eaton and Cottrell, P.A. and Troutman Sanders LLP may rely on this opinion in giving their opinions pursuant to Section 3(b) of the Purchase Contract insofar as such opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
EXHIBIT 1(b)
FORM OF PROPOSAL
For the Purchase of
MISSISSIPPI POWER COMPANY
$35,000,000
SERIES B ___% SENIOR NOTES DUE MAY 1, 2003
Dated: May 14, 1998
MISSISSIPPI POWER COMPANY
c/o Southern Company Services, Inc.
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Ladies and Gentlemen:
Referring to the terms and conditions dated May 8, 1998 (the "Terms and Conditions"), relating to proposals for the purchase of Series B ___% Senior Notes due May 1, 2003 (the "Series B Senior Notes") of Mississippi Power Company (the "Company"), the persons, firms and corporations named in Exhibit A attached hereto (the "Bidders") have submitted and confirm herewith the following proposal for the purchase of $35,000,000 aggregate principal amount of the Series B Senior Notes (the "Designated Principal Amount"):
1. The interest rate of the Series B Senior Notes shall be 6.05% per annum.
2. The price to be paid to the Company for the Series B Senior
Notes shall be 99.835%* of the Designated Principal Amount thereof,
each of the Bidders hereby offering, severally and not jointly, to
purchase from the Company, at said price and upon the terms and
conditions set forth in the form of purchase contract attached hereto
as Exhibit B (the "Purchase Contract"), the principal amount of Series
B Senior Notes set forth opposite its name in Exhibit A attached
hereto, or the principal amount of Series B Senior Notes to be set
forth opposite its name in Exhibit A attached hereto as provided in
Section 3 of the Terms and Conditions, which together aggregate the
Designated Principal Amount of the Series B Senior Notes. Exhibit A
attached hereto, when completed, is hereinafter and in the Purchase
Contract called "Exhibit A to the Form of Proposal".
3. In consideration of the agreement of the Company set forth in the Terms and Conditions that, subject to the provisions thereof, the Company will accept the proposal which results in the lowest "annual cost of money" to it for the Series B Senior Notes, each of the Bidders agrees (a) that the offer of such Bidder included in this proposal shall be irrevocable until three hours after the time fixed
* May not be less than 98.75%
for the submission of proposals, unless sooner rejected by the Company;
(b) that, if this proposal shall be accepted in writing by the Company,
such Bidder, either in person or by the Representative(s) on its
behalf, will forthwith furnish to the Company in writing the
information referred to in Section 7 of the Terms and Conditions; and
(c) that, if this proposal shall be so accepted by the Company, the
Purchase Contract shall thereupon become effective without any separate
execution thereof and shall constitute the agreement between the
Company and the Bidders and, upon performance by the Bidders, and the
Representative(s), of their obligations under Sections 3, 4 and 7 of
the Terms and Conditions, all rights of the Company and of the Bidders
shall be determined solely in accordance with the terms thereof,
subject, however, to such modifications therein (including Exhibit A to
the Form of Proposal) as may be necessary and as are contemplated by
the Terms and Conditions.
4. This proposal must be accepted or rejected by the Company in its entirety within three hours after the time fixed for the submission thereof.
5. This proposal may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
Each of the Bidders acknowledges receipt of a copy of the prospectus in respect of the Series B Senior Notes furnished by the Company to the Bidders pursuant to the last paragraph of Section 5 of the Terms and Conditions.
Very truly yours,
First Union Capital Markets, a division of Wheat First Securities, Inc.
Name(s) of Representative(s)
By:
Title:
On behalf of and as
Representative(s) of the
persons, firms and
corporations named in
Exhibit A hereto.
Address
Accepted:
MISSISSIPPI POWER COMPANY
By:
Title:
EXHIBIT A
The names of the Bidders and the respective principal amounts of the Series B Senior Notes which they severally offer to purchase are as follows:
Name Principal Amount
EXHIBIT B
MISSISSIPPI POWER COMPANY
PURCHASE CONTRACT
For Purchase of Series B Senior Notes of the Company
AGREEMENT made between Mississippi Power Company, a corporation organized and existing under the laws of the State of Mississippi ("Company"), party of the first part, and the several persons, firms and corporations (the "Purchasers") named as Bidders in Exhibit A to the Form of Proposal to which this agreement is attached as Exhibit B (the "Form of Proposal"), parties of the second part,
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell the Designated Principal Amount (as defined in the Form of Proposal) of its Series B Senior Notes due May 1, 2003 (the "Series B Senior Notes"), to be issued under the Senior Note Indenture dated as of May 1, 1998, as supplemented and as to be supplemented (the "Indenture"), between the Company and Bankers Trust Company, as Trustee (the "Trustee"), and to bear interest at the rate per annum specified in paragraph 1 of the Form of Proposal; and
WHEREAS, the Purchasers have authorized the person or persons signing the Form of Proposal (the "Representative") to execute the Form of Proposal on behalf of the respective Purchasers and to act for the respective Purchasers in the manner provided in this agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933, as amended (the "Securities Act"), with the Securities and Exchange Commission (the "Commission"), a registration statement and prospectus relating to the Series B Senior Notes and certain other securities, and such registration statement has become effective (such registration statement, as it became effective, including the exhibits thereto and all documents incorporated by reference in the prospectus at such time pursuant to Item 12 of Form S-3, being herein called the "Registration Statement"); and
WHEREAS, the prospectus referred to in the last paragraph of the Form of Proposal (such prospectus, including all documents incorporated therein by reference pursuant to Item 12 of Form S-3 as of the time of the acceptance of the Form of Proposal, being herein called the "Bidding Prospectus") is to be supplemented by a prospectus supplement (the "Prospectus Supplement"), including certain information relating to the Purchasers, the price and the terms of offering, and the interest rate, maturity date and redemption provisions of the Series B Senior Notes (the Bidding Prospectus as supplemented by the Prospectus Supplement being herein called the "Prospectus").
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and representations and on the terms and subject to the conditions herein set forth, the Company agrees to sell to the respective Purchasers, severally and not jointly, and the respective Purchasers, severally and not jointly, agree to
purchase from the Company, at the price specified in paragraph 2 of the Form of Proposal, the respective principal amounts of Series B Senior Notes set opposite their names in Exhibit A to the Form of Proposal, which together aggregate the Designated Principal Amount of the Series B Senior Notes.
2. Payment and Delivery: Payment for the Series B Senior Notes shall be made to the Company or its order by wire transfer of federal funds, upon the delivery of the Series B Senior Notes as hereinafter provided to the Representative for the respective accounts of the Purchasers, against receipt therefor signed by the Representative on behalf of itself and as agent for the other Purchasers. Such payment and delivery shall be made at the offices of Troutman Sanders LLP, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308-2216 (or at such other place as may be agreed upon by the Representative and the Company) at 10 a.m. New York time on the sixth day (which shall be a full business day) after this agreement becomes effective (or at such other time or on such other day as may be agreed upon by the Representative and the Company), unless postponed in accordance with the provisions of Section 7 hereof. The time at which payment and delivery are to be made is herein sometimes called the "time of purchase."
Delivery of definitive Series B Senior Notes is expected to be made in registered form without coupons, registered in the name of Cede & Co. or other nominee of The Depository Trust Company ("DTC"). One or more global Series B Senior Notes certificates will be issued and deposited with DTC or its designee. Such certificate or certificates will be made available for examination by the Representative not later than 12:00 noon New York time on the last business day prior to the time of purchase.
3. Conditions of Purchasers' Obligations: The several obligations of the Purchasers hereunder are subject to the accuracy of the warranties and representations on the part of the Company herein contained and to the following other conditions:
(a) That all legal proceedings to be taken by the Company in connection with the issue and sale of the Series B Senior Notes and the legal opinions provided for in Sections 3(b)(1) and (2) hereof shall be satisfactory in form and substance to Dewey Ballantine LLP, counsel to the Purchasers.
(b) That, at the time of purchase, the Representative shall be furnished the following opinions and letter and copies or signed counterparts thereof for each of the Purchasers, with such changes therein as may be agreed upon by the Company and the Representative with the approval of Dewey Ballantine LLP:
(1) Opinion of Eaton and Cottrell, P.A., of Gulfport, Mississippi, general counsel for the Company, substantially in the form attached hereto as Exhibit 1.
(2) Opinion of Troutman Sanders LLP, of Atlanta, Georgia, counsel to the Company, substantially in the form attached hereto as Exhibit 2.
(3) Opinion of Dewey Ballantine LLP, of New York, New York, substantially in the form attached hereto as Exhibit 3.
(4) Letter dated the date of payment and delivery from Arthur Andersen LLP to the effect that: (A) they are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder; (B) in their opinion, the financial statements and schedules audited by them and incorporated by reference in the Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the related published rules and regulations; (C)
they have performed certain limited procedures through a
specified date not more than five business days prior to the
date of such letter, namely (i) reading the minute books of
the Company; (ii) reading the unaudited financial statements,
if any, of the Company incorporated in the Prospectus and
agreeing the amounts therein with the Company's accounting
records; (iii) making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding whether the unaudited financial statements,
if any, incorporated in the Prospectus (a) are in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements incorporated in the Prospectus and (b)
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations; (iv) reading the unaudited
amounts for Operating Revenues, Income Before Interest Charges
and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) set forth in the Prospectus Supplement, which
amounts shall include such amounts for the latest calendar
quarter subsequent to that covered by the financial statements
incorporated by reference in the Prospectus for which such
amounts are available at the time this agreement becomes
effective; (v) reading the unaudited financial statements from
which the amounts and ratios described in (iv) were derived
and agreeing the amounts therein to the Company's accounting
records; (vi) making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding whether (a) the unaudited amounts and ratios
referred to in (iv) above and the unaudited financial
statements referred to in (v) above are stated on a basis
substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in the Prospectus and (b) as of a specified date not
more than five business days prior to the date of delivery of
such letter, there has been any change in the capital stock or
long-term debt of the Company or any decrease in net assets as
compared with amounts shown in the latest audited balance
sheet incorporated in the Prospectus, except in each case for
changes or decreases which (I) the Prospectus discloses have
occurred or may occur, (II) are occasioned by the declaration
of dividends, (III) are occasioned by draw-downs under
existing pollution control financing arrangements, (IV) are
occasioned by draw-downs and regularly scheduled payments of
capitalized lease obligations, (V) are occasioned by the
purchase or redemption of bonds or stock to satisfy mandatory
or optional redemption provisions relating thereto, or (VI)
are disclosed in such letter; (vii) reading the unaudited
amounts for Operating Revenues, Income Before Interest Charges
and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) for the latest calendar quarter subsequent to those
set forth in (iv) above, which if available shall be set forth
in such letter; (viii) reading the unaudited financial
statements from which the amounts and ratios described in
(vii) above were derived and which will be attached to such
letter and agreeing the amounts therein to the Company's
accounting records; and (ix) making inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited amounts
and ratios referred to in (vii) above and the unaudited
financial statements referred to in (viii) above are stated on
a basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus; and (D) reporting
their findings as a result of performing the limited
procedures set forth in (C) above. It is understood that the
foregoing procedures do not constitute an audit performed in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Arthur Andersen LLP make no representations as to the sufficiency of such procedures for the several Purchasers' purposes.
(c) That no amendment or supplement (including the Prospectus Supplement) to the registration statement or prospectus filed subsequent to the time this agreement becomes effective (including any filing made by the Company pursuant to Section 13 or 14 of the Exchange Act) shall be unsatisfactory in form to Dewey Ballantine LLP or shall contain information (other than with respect to an amendment or supplement relating solely to the activity of any Purchaser or Purchasers) which, in the reasonable judgment of the Representative, shall materially impair the marketability of the Series B Senior Notes.
(d) That, at or before 8 p.m. New York time on the first business day after the date this agreement becomes effective, or at such later time and date as the Representative may from time to time consent to in writing or by telephone, confirmed in writing, an appropriate order or orders of the Commission under the Public Utility Holding Company Act of 1935, as amended, necessary to permit the issue and sale of the Series B Senior Notes shall be in effect; and that, prior to the time of purchase, no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act by the Commission or proceedings therefor initiated or threatened.
(e) That, prior to the time of purchase, there shall have been no material adverse change in the business, properties or financial condition of the Company (whether or not arising in the ordinary course of business) from that set forth in or contemplated by the Prospectus, and that the Company shall, at the time of purchase, have delivered to the Representative a certificate to such effect of an executive officer of the Company. For the purpose of this condition, the sale by the Company of, or its failure to sell, any issue of other securities shall not be deemed to be such a change.
(f) That the Company shall have performed such of its obligations under this agreement as are to be performed at or prior to the time of purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the agreements of the Purchasers herein contained, the Company covenants as follows:
(a) As soon as practicable after this agreement becomes effective, and in any event within the time prescribed by Rule 424 under the Securities Act, to file the Prospectus Supplement with the Commission and to advise the Representative of such filing and to confirm such advice in writing.
(b) As soon as the Company is advised thereof, to advise the Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement or Prospectus, including any amendment to any of the documents incorporated therein by reference pursuant to Item 12 of Form S-3, or of the issuance of a stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceedings for that purpose and, if such a stop order should be issued by the Commission, to make every reasonable effort to obtain the lifting or removal thereof as soon as possible.
(c) To deliver to the Purchasers, without charge, as soon as practicable on or after the date this agreement becomes effective, and from time to time thereafter during such period of time (not exceeding nine months) after this agreement becomes effective as the Purchasers are required by law to deliver a prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto) as the Representative may reasonably request; and, in case any Purchaser is required by law to deliver a prospectus after the expiration of nine months after the date this agreement becomes effective, to furnish to such Purchaser, upon request of the Representative, at the expense of such Purchaser, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) During such period of time after the date this agreement becomes effective as the Purchasers are required by law to deliver a prospectus, to file timely all documents required to be filed with the Commission pursuant to Section 13 or 14 of the Exchange Act.
(e) To furnish to the Representative, or if such Representative consists of two or more persons to one of such persons, one copy, certified by an officer of the Company, of the registration statement as initially filed with the Commission, all amendments thereto and all documents incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 as of the time of purchase (in each case, exclusive of exhibits), and to furnish to the Representative sufficient plain copies of said registration statement and all amendments thereto (exclusive of exhibits) for distribution of two each, and all said documents incorporated therein as of the time of purchase (exclusive of exhibits) for distribution of one each, to the other Purchasers.
(f) In the event that the Purchasers constitute "underwriters" within the meaning of Section 2(11) of the Securities Act, then, for such period of time (not exceeding nine months) after the date this agreement becomes effective as they are required by law to deliver a prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, forthwith to amend or supplement the Prospectus by either (i) preparing and furnishing, at its own expense, to the Purchasers and to dealers (whose names and addresses are furnished to the Company by the Representative) to whom Series B Senior Notes may have been sold by the Representative on behalf of the Purchasers and, upon request, to any other dealers making such request, either amendments to the Prospectus or supplements thereto, or (ii) making an appropriate filing pursuant to Section 13 or 14 of the Exchange Act which would supplement or amend the Prospectus, so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading.
(g) To make generally available to the Company's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" of the Registration Statement as defined in Rule 158(c) under the Securities Act, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(h) To use its best efforts to qualify the Series B Senior Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Representative may designate within six months
after the date this agreement becomes effective and to pay filing fees and disbursements in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and disbursements paid or incurred prior to the date this agreement becomes effective), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(i) To pay expenses, fees and taxes (other than transfer taxes) in connection with (1) the preparation and filing of the Registration Statement and Prospectus, (2) the preparation and execution of the new supplemental indenture pursuant to which the Series B Senior Notes are to be issued, (3) the issue and delivery of the Series B Senior Notes to the Purchasers, and (4) the furnishing of the opinions, letter and certificates referred to in Section 3 hereof, except that the Company shall be required to pay the fees and disbursements (other than filing fees and disbursements referred to in paragraph (h) of this Section 4) of Dewey Ballantine LLP only in an event provided in paragraph (j) of this Section 4, the Purchasers hereby agreeing to pay such fees and disbursements in any other event and, if such fees should be less than the amount stated by such counsel to the Representative, to repay the Company the amount of any reduction.
(j) If the Purchasers shall not take up and pay for the Series B Senior Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or if this agreement shall be terminated in accordance with the provisions of Section 7 or 8 hereof, to pay the reasonable fees and disbursements of Dewey Ballantine LLP, and, if the Purchasers shall not take up and pay for the Series B Senior Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Purchasers for their reasonable out-of-pocket expenses, in an amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this agreement.
(k) During the period of 15 days from the date this agreement becomes effective, without the prior written consent of the Representative, not to issue or sell directly or indirectly any senior notes (other than the Series B Senior Notes and $55,000,000 aggregate principal amount of Series A Senior Insured Quarterly Notes due June 30, 2038) or any other long-term debt of the Company having terms and provisions substantially similar to the Series B Senior Notes.
5. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the Purchasers that:
(i) The Registration Statement, when it became effective, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Bidding Prospectus, on said date, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; when the Prospectus Supplement is filed with the Commission, and at the time of purchase, the Registration Statement and the Prospectus, as they may be amended or supplemented, will comply, or be deemed to comply, in all material respects with the provisions of the Securities Act and the rules and regulations of the Commission thereunder, the Registration Statement, as it may be amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as it may be amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and all documents incorporated therein by reference pursuant to Item 12 of Form S-3 as of such dates complied or will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the Commission thereunder, and, on said dates, when read together with the Prospectus, or the Prospectus as it may be otherwise amended or supplemented, will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Company makes no warranty or representation to any Purchaser with respect to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by, or through the Representative on behalf of, any Purchaser for use in the Registration Statement or the Prospectus, or to any statements in or omissions from that part of the Registration Statement that shall constitute the Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture.
(ii) The consummation of the transactions herein contemplated and the performance by the Company of the terms of this agreement will not violate any of the terms, conditions or provisions of, or constitute a default under, any indenture or other contract or agreement to which the Company is now a party or the charter or by-laws of the Company or any order of any court or administrative agency entered in any proceedings to which the Company is now a party.
(b) The Company agrees to indemnify and hold harmless each of the Purchasers and each person, if any, who controls any such Purchaser within the meaning of Section 15 of the Securities Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or otherwise, and to reimburse the Purchasers and such controlling person or persons, if any, for any legal or other expenses incurred by them in connection with defending any actions, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Bidding Prospectus (if used prior to the date this agreement becomes effective), or in the Registration Statement, or in the Prospectus or, if the Company shall furnish to the Purchasers any amendments or any supplements to the Prospectus, or shall make any filings pursuant to Section 13 or 14 of the Exchange Act which are incorporated therein by reference, in the Prospectus as so amended or supplemented (provided that, if such Prospectus or such Prospectus as amended or supplemented is used after the expiration of the period of time specified in Section 4(f) hereof, it shall contain such amendments or supplements as the Company deems necessary to comply with Section 10(a)(3) of the Securities Act), or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission which was made in such Registration Statement or Prospectus in reliance upon and in conformity with information furnished in writing to the Company by, or through the Representative on behalf of, any Purchaser for use therein and except that this indemnity with respect to the Bidding Prospectus, and with respect to the Prospectus if the Company shall have furnished any amendment or supplement thereto, shall not inure to the benefit of any Purchaser (or of any person controlling such Purchaser) on account of
any losses, claims, damages, liabilities or actions arising from the sale of Series B Senior Notes to any person if a copy of the Prospectus (exclusive of documents incorporated therein by reference pursuant to Item 12 of Form S-3), as the same may then be amended or supplemented, shall not have been sent or given by or on behalf of such Purchaser to such person with or prior to the written confirmation of the sale involved and the untrue statement or alleged untrue statement or omission or alleged omission was corrected in the Prospectus as amended or supplemented at the time of such confirmation. Each Purchaser agrees, within ten days after the receipt by it of notice of the commencement of any action in respect of which indemnity may be sought by it, or by any person controlling it, from the Company on account of its agreement contained in this Section 5(b), to notify the Company in writing of the commencement thereof, but the omission of such Purchaser so to notify the Company of any such action shall not release the Company from any liability which it may have to such Purchaser or to such controlling person otherwise than on account of the indemnity agreement contained in this Section 5(b). In case any such action shall be brought against any Purchaser or any such person controlling such Purchaser and such Purchaser shall notify the Company of the commencement thereof, as above provided, the Company shall be entitled to participate in (and, to the extent that it shall wish, including the selection of counsel, to direct) the defense thereof at its own expense. In case the Company elects to direct such defense and select such counsel, any Purchaser or controlling person shall have the right to employ its own counsel, but, in any such case, the fees and expenses of such counsel shall be at the expense of such Purchaser or controlling person unless the employment of such counsel has been authorized in writing by the Company in connection with defending such action. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include any statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. In no event shall any indemnifying party have any liability or responsibility in respect of the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim effected without its prior written consent.
The Company's indemnity agreement contained in this Section
5(b), and its covenants, warranties and representations contained in
this agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any Purchaser or controlling
person, and shall survive the delivery of and payment for the Series B
Senior Notes hereunder.
6. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents to the Company, its directors and such of its officers as shall have signed the Registration Statement, and to each other Purchaser that the information furnished in writing to the Company by, or through the Representative on behalf of, such Purchaser for use in the Registration Statement or the Prospectus does not contain an untrue statement of a material fact and does not omit to state a material fact in connection with such information required to be stated therein or necessary to make such information not misleading.
(b) Each Purchaser agrees to indemnify and hold harmless the Company, its directors and such of its officers as shall have signed the Registration Statement, and each other Purchaser and each person, if any, who controls the Company or any such other Purchaser within the
meaning of Section 15 of the Securities Act, to the same extent and upon the same terms as the indemnity agreement of the Company set forth in Section 5(b) hereof, but only with respect to untrue statements or omissions or alleged untrue statements or omissions made in the Registration Statement or the Prospectus, or the Prospectus as amended or supplemented, in reliance upon and in conformity with information furnished in writing to the Company by, or through the Representative on behalf of, such Purchaser for use therein.
The indemnity agreement on the part of each Purchaser contained in this Section 6(b), and the warranties and representations of such Purchaser contained in this agreement, shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or other Purchaser or controlling person, and shall survive the delivery of and payment for the Series B Senior Notes hereunder.
7. Substitution of Purchasers: If any Purchaser under this agreement
shall fail or refuse (whether for some reason sufficient to justify, in
accordance with the terms hereof, the termination of its obligations to purchase
or otherwise) to purchase the principal amount of the Series B Senior Notes
which it has agreed to purchase, the Company shall immediately notify the
Representative, and the Representative may, within 24 hours of receipt of such
notice, procure some other responsible party or parties satisfactory to the
Company, who may include one or more of the remaining Purchasers, to purchase or
agree to purchase such principal amount of the Series B Senior Notes on the
terms herein set forth; and, if the Representative shall fail to procure a
satisfactory party or parties to purchase or agree to purchase such principal
amount of the Series B Senior Notes on such terms within such period after the
receipt of such notice, then the Company shall be entitled to an additional
period of 24 hours within which to procure another party or parties to purchase
or agree to purchase such principal amount of the Series B Senior Notes on the
terms herein set forth. In any such case, either the Representative or the
Company shall have the right to postpone the time of purchase for a period not
to exceed five full business days from the date determined as provided in
Section 2 hereof, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may be
effected. If the Representative shall fail to procure a satisfactory party or
parties to purchase or agree to purchase such principal amount of the Series B
Senior Notes, and if the Company also does not procure another party or parties
to purchase or agree to purchase such principal amount of the Series B Senior
Notes, as above provided, then this agreement shall terminate. In the event of
any such termination, the Company shall not be under any liability to any
Purchaser (except to the extent, if any, provided in Section 4(j) hereof), nor
shall any Purchaser (other than a Purchaser who shall have failed or refused to
purchase Series B Senior Notes without some reason sufficient to justify, in
accordance with the terms hereof, its termination of its obligations hereunder)
be under any liability to the Company.
8. Termination of Agreement: This agreement may be terminated at any
time prior to the time of purchase by the Representative with the consent of
Purchasers who have agreed to purchase in the aggregate 50% or more of the
Designated Principal Amount of the Series B Senior Notes, if, after this
agreement becomes effective and prior to the time of purchase, (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgment of the Representative, the marketability of the Series B
Senior Notes shall have been materially impaired.
If the Representative elects to terminate this agreement, as provided in this Section 8, the Company and each other Purchaser shall be notified promptly by the Representative by telephone, confirmed in writing. If this agreement shall not be carried out by any Purchaser for any reason permitted hereunder, or if the sale of the Series B Senior Notes to the Purchasers as herein contemplated shall not be carried out because the Company is not able to comply with the terms hereof, the Company shall not be under any obligation under this agreement and shall not be liable to any Purchaser or to any member of any selling group for the loss of anticipated profits from the transactions contemplated by this agreement (except that the Company shall remain liable to the extent provided in Section 4(j) hereof) and the Purchasers (other than a defaulting Purchaser) shall be under no liability to the Company nor be under any liability under this agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise expressly permitted, be in writing and be delivered at or mailed to the following addresses: if to the Purchasers or the Representative, to the Representative at the address set forth following its signature in the Form of Proposal, and, if to the Company, to the Company at 2992 West Beach, Gulfport, Mississippi 39501, Attention: Michael W. Southern, Vice President, Secretary, Treasurer and Chief Financial Officer, with a copy to Southern Company Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention: Charles N. Eldred.
10. Parties in Interest: The agreement herein set forth has been and is made solely for the benefit of the Purchasers and the Company, its directors and such of its officers as shall have signed the Registration Statement, and the controlling persons, if any, referred to in Sections 5 and 6 hereof, and their respective successors, assigns, executors and administrators, and, subject to the provisions of Section 7 hereof, no other person shall acquire or have any right under or by virtue of this agreement.
11. Definitions of Certain Terms: If there be two or more persons, firms or corporations named in Exhibit A to the Form of Proposal, the term "Purchasers", as used herein, shall be deemed to mean the several persons, firms or corporations so named (including any substitute purchaser or purchasers procured as provided by Section 7 hereof and the Representative hereinafter mentioned, if so named), and the term "Representative", as used herein, shall be deemed to mean the person or persons designated as representative or representatives of the Purchasers by, or in the manner authorized by, the Purchasers, who, by signing the Form of Proposal, represent that it or they have been authorized by the Purchasers to execute the Form of Proposal on their behalf and to act for them in the manner herein provided. In the event that all the Purchasers execute the Form of Proposal and no one or more of them are designated to act as representative or representatives, then the term "Representative" shall be deemed to mean all the persons signing the Form of Proposal. If the Representative consists of more than one person, the Representative may act by any one thereof. All obligations of the Purchasers hereunder are several and not joint. If there shall be only one person, firm or corporation named in Exhibit A to the Form of Proposal, the term "Purchasers" and the term "Representative", as used herein, shall mean such person, firm or corporation.
EXHIBIT 1
[Letterhead of Eaton and Cottrell, P.A.]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998, between Mississippi Power Company and said Purchasers (the "Purchase Contract") for the purchase of Mississippi Power Company Series B ___% Senior Notes due May 1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the "Company") in connection with the purchase by you pursuant to the Purchase Contract of $35,000,000 aggregate principal amount of the Series B Senior Notes, issued under the Senior Note Indenture dated as of May 1, 1998, between the Company and Bankers Trust Company, as trustee (the "Trustee"), as heretofore supplemented and as supplemented by the Second Supplemental Indenture dated as of May __, 1998 (said Indenture, as so supplemented and amended, being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos. 333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the Securities Act of 1933, as amended (the "Act"), as it became effective under the Act (the "Registration Statement"); the Company's prospectus dated February 9, 1998, as supplemented by the prospectus supplement dated May __, 1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and regulations of the Securities and Exchange Commission (the "Commission") under the Act, which pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 1997 and the Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998 and May __, 1998 (the "Exchange Act Documents"), each as filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the Indenture. In addition, we have examined, and have relied as to matters of fact upon, the documents delivered to you at the closing (except the Series B Senior Notes, of which we have examined a specimen), and we have made such other and further investigations as we deemed necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters relating to the laws administered by the Commission, including the Act, the Exchange Act and the Trust Indenture Act (as hereinafter defined), on the opinion dated the date hereof rendered to you by Troutman Sanders LLP and relying as to matters of New York law upon the opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Mississippi, is duly qualified to carry on its business as a foreign corporation in the State of Alabama and has due corporate authority to carry on the public utility business in which it is engaged, to own and operate the properties used by it in such business and to enter into and perform its obligations under the Purchase Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture and the Series B Senior Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture conforms as to legal matters in all material respects to the description thereof in the Prospectus.
3. The Series B Senior Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the Purchase Contract and subject to the qualifications set forth in paragraph 2 above, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms; and the Series B Senior Notes conform as to legal matters in all material respects to the description thereof in the Prospectus.
4. All orders, consents or other authorizations or approvals of the Commission legally required for the issuance of the Series B Senior Notes have been obtained; and no other order, consent or other authorization or approval of any Mississippi or United States governmental body (other than in connection or in compliance with the provisions of the securities or "blue sky" laws of any jurisdiction, as to which we express no opinion) is legally required for the issuance of the Series B Senior Notes by the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed and delivered by the Company.
We have not independently verified the accuracy, completeness or fairness of the statements made or included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility therefor, except as and to the extent set forth in paragraphs 2 and 3 above and in the Prospectus in the second paragraph under the caption "Experts". In the course of the preparation by the Company of the Registration Statement, the Prospectus and the Exchange Act Documents, we participated in conferences with certain officers and employees of the Company, with other counsel for the Company and with representatives of Arthur Andersen LLP. Based upon our examination of the Registration Statement, the Prospectus and the Exchange Act Documents, our investigations made in connection with the preparation of the Registration Statement, the Prospectus and the Exchange Act Documents and our participation in the conferences referred to above, (i) we are of the opinion that the Registration Statement, as of its effective date, and the Prospectus, as of May __, 1998, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder and that the Exchange Act Documents, as of their respective dates of filing with the Commission, complied as to form in all material respects with the relevant requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case we express no opinion as to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents, and (ii) we have no reason to believe that the Registration Statement, as of the date of filing of the Company's Annual Report on Form 10-K for the year ended December 31, 1997 (including the Exchange Act Documents on file with the Commission on such date), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (including the Exchange Act Documents) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case we express no opinion or belief with respect to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the State Bar of Mississippi and we do not express any opinion herein concerning any law other than the law of the States of Mississippi and Alabama and the federal law of the United States and, to the extent set forth herein, the law of the State of New York.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent, except that Troutman Sanders LLP and Dewey
Ballantine LLP may rely on this opinion in giving their opinions pursuant to
Section 3(b) of the Purchase Contract insofar as such opinions relate to matters
of Mississippi and Alabama law.
Very truly yours,
EATON AND COTTRELL, P.A.
EXHIBIT 2
[Letterhead of Troutman Sanders LLP]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998, between Mississippi Power Company and said Purchasers (the "Purchase Contract") for the purchase of Mississippi Power Company Series B ___% Senior Notes due May 1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the "Company") in connection with the purchase by you pursuant to the Purchase Contract of $35,000,000 aggregate principal amount of the Series B Senior Notes, issued under the Senior Note Indenture dated as of May 1, 1998, between the Company and Bankers Trust Company, as trustee (the "Trustee"), as heretofore supplemented and as supplemented by the Second Supplemental Indenture dated as of May __, 1998 (said Indenture, as so supplemented and amended, being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos. 333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the Securities Act of 1933, as amended (the "Act"), as it became effective under the Act (the "Registration Statement"); the Company's prospectus dated February 9, 1998, as supplemented by the prospectus supplement dated May __, 1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and regulations of the Securities and Exchange Commission (the "Commission") under the Act, which pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 1997 and the Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998 and May __, 1998 (the "Exchange Act Documents"), each as filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the Indenture. In addition, we have examined, and have relied as to matters of fact upon, the documents delivered to you at the closing (except the Series B Senior Notes, of which we have examined a specimen), and we have made such other and further investigations as we deemed necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Mississippi and Alabama law upon the opinion of dated the date hereof rendered to you by Eaton and Cottrell, P.A. and relying as to matters of New York law upon the opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Mississippi, is duly qualified to carry on its business as a foreign corporation in the State of Alabama and has due corporate authority to carry on the public utility business in which it is engaged, to own and operate the properties used by it in such business and to enter into and perform its obligations under the Purchase Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture and the Series B Senior Notes may be limited by (a) bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture conforms as to legal matters in all material respects to the description thereof in the Prospectus.
3. The Series B Senior Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the Purchase Contract and subject to the qualifications set forth in paragraph 2 above, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms; and the Series B Senior Notes conform as to legal matters in all material respects to the description thereof in the Prospectus.
4. All orders, consents or other authorizations or approvals of the Commission legally required for the issuance of the Series B Senior Notes have been obtained; and no other order, consent or other authorization or approval of any Mississippi or United States governmental body (other than in connection or in compliance with the provisions of the securities or "blue sky" laws of any jurisdiction, as to which we express no opinion) is legally required for the issuance of the Series B Senior Notes by the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed and delivered by the Company.
We have not independently verified the accuracy, completeness or fairness of the statements made or included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 2 and 3 above. In the course of the preparation by the Company of the Registration Statement, the Prospectus and the Exchange Act Documents, we participated in conferences with certain officers and employees of the Company, with other counsel for the Company and with representatives of Arthur Andersen LLP. Based upon our examination of the Registration Statement, the Prospectus and the Exchange Act Documents, our investigations made in connection with the preparation of the Registration Statement, the Prospectus and the Exchange Act Documents and our participation in the conferences referred to above, (i) we are of the opinion that the Registration Statement, as of its effective date, and the Prospectus, as of May __, 1998, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder and that the Exchange Act Documents, as of their respective dates of filing with the Commission, complied as to form in all material respects with the relevant requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case we express no opinion as to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents, and (ii) we have no reason to believe that the Registration Statement, as of the date of filing of the Company's Annual Report on Form 10-K for the year ended December 31, 1997 (including the Exchange Act Documents on file with the Commission on such date), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (including the Exchange Act Documents) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case we express no opinion or belief with respect to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the State Bar of Georgia and we do not express any opinion herein concerning any law other than the law of the State of Georgia and the federal law of the United States and, to the extent set forth herein, the law of the States of Alabama, Mississippi and New York.
This opinion is rendered to you in connection with the above described transactions. This opinion may not be relied upon by you for any other purpose, or relied upon by, or furnished to, any other person, firm or corporation without our prior written consent, except that Eaton and Cottrell, P.A. may rely on this opinion in giving its opinion pursuant to Section 3(b) of the Purchase Contract insofar as such opinion relates to matters of law administered by the Commission, including the Act, the Exchange Act and the Trust Indenture Act.
Very truly yours,
TROUTMAN SANDERS LLP
EXHIBIT 3
[Letterhead of Dewey Ballantine LLP]
[Date]
as the several Purchasers under Purchase Contract effective May __, 1998, between Mississippi Power Company and said Purchasers (the "Purchase Contract") for the purchase of Mississippi Power Company Series B ___% Senior Notes due May 1, 2003 (the "Series B Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by you pursuant to the Purchase Contract of $35,000,000 aggregate principal amount of the Series B Senior Notes, issued under the Indenture dated as of May 1, 1998, between Mississippi Power Company (the "Company") and Bankers Trust Company, as Trustee (the "Trustee"), as heretofore supplemented and as supplemented by the Second Supplemental Indenture dated as of May __, 1998 (said Indenture, as so supplemented and amended, being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos. 333-45069, 333-45069-01 and 333-45069-02) filed by the Company under the Securities Act of 1933, as amended (the "Act"), as it became effective under the Act (the "Registration Statement"); the Company's prospectus dated February 9, 1998, as supplemented by the prospectus supplement dated May __, 1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and regulations of the Securities and Exchange Commission (the "Commission") under the Act, which pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 1997 and the Current Reports on Form 8-K of the Company dated February 12, 1998, May __, 1998 and May __, 1998 (the "Exchange Act Documents"), each as filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the Indenture. In addition, we have examined, and have relied as to matters of fact upon, the documents delivered to you at the closing (except the Series B Senior Notes, of which we have examined a specimen), and we have made such other and further investigations as we deemed necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Mississippi and Alabama law upon the opinion of Eaton and Cottrell, P.A., referred to below, that:
1. The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Mississippi, is duly qualified to carry on its business as a foreign corporation in the State of Alabama and has due corporate authority to carry on the public utility business in which it is engaged, to own and operate the properties used by it in such business and to enter into and perform its obligations under the Purchase Contract, the Indenture and the Series B Senior Notes.
2. The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture and the Series B Senior Notes may be limited by (a) bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture conforms as to legal matters in all material respects to the description thereof in the Prospectus.
3. The Series B Senior Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the Purchase Contract and subject to the qualifications set forth in paragraph 2 above, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms; and the Series B Senior Notes conform as to legal matters in all material respects to the description thereof in the Prospectus.
4. All orders, consents or other authorizations or approvals of the Commission legally required for the issuance of the Series B Senior Notes have been obtained; and no other order, consent or other authorization or approval of any Mississippi or United States governmental body (other than in connection or in compliance with the provisions of the securities or "blue sky" laws of any jurisdiction, as to which we express no opinion) is legally required for the issuance of the Series B Senior Notes by the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed nd delivered by the Company.
All legal proceedings taken by the Company in connection with the authorization and delivery of the Series B Senior Notes, and the legal opinions dated the date hereof rendered to you by Eaton and Cottrell, P.A. and Troutman Sanders LLP, counsel for the Company, pursuant to the Purchase Contract, are in form satisfactory to us.
We have not independently verified the accuracy, completeness or fairness of the statements made or included in the Registration Statement, the Prospectus or the Exchange Act Documents and take no responsibility therefor, except as and to the extent set forth in paragraphs 2 and 3 above. In the course of the preparation by the Company of the Registration Statement, the Prospectus and the Exchange Act Documents, we participated in conferences with certain officers and employees of the Company, with representatives of Arthur Andersen LLP and with counsel for the Company. Based upon our examination of the Registration Statement, the Prospectus and the Exchange Act Documents, our investigations made in connection with the preparation of the Registration Statement and the Prospectus and our participation in the conferences referred to above, (i) we are of the opinion that the Registration Statement, as of its effective date, and the Prospectus, as of May __, 1998, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder and that the Exchange Act Documents, as of their respective dates of filing with the Commission, complied as to form in all material respects with the relevant requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case we express no opinion as to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents, and (ii) we have no reason to believe that the Registration Statement, as of the date of filing of the Company's Annual Report on Form 10-K for the year ended December 31, 1997 (including the Exchange Act Documents on file with the Commission on such date), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (including the Exchange Act Documents) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case we express no opinion or belief with respect to the financial statements or other financial or statistical data contained or incorporated by reference in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York and we do not express any opinion herein concerning any law other than the law of the State of New York and the federal law of the United States and, to the extent set forth herein, the law of the States of Mississippi and Alabama.
This opinion is rendered to you in connection with the above described transactions. This opinion may not be relied upon by you for any other purpose, or relied upon by, or furnished to, any other person, firm or corporation without our prior written consent, except that Eaton and Cottrell, P.A. and Troutman Sanders LLP may rely on this opinion in giving their opinions pursuant to Section 3(b) of the Purchase Contract insofar as such opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
EXHIBIT 4.1
MISSISSIPPI POWER COMPANY
TO
BANKERS TRUST COMPANY,
TRUSTEE.
SENIOR NOTE INDENTURE
DATED AS OF MAY 1, 1998
MISSISSIPPI POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
SENIOR NOTE INDENTURE, DATED AS OF MAY 1, 1998
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310(a)(1)..............................................................................................609
(a)(2)..............................................................................................609
(a)(3)...................................................................................Not Applicable
(a)(4)...................................................................................Not Applicable
(b).................................................................................................608
610
(S) 311(a)..............................................................................................613
311(b)(4)...........................................................................................613(a)
(b)(6)...........................................................................................613(b)
(S) 312(a).................................................................................................701
702(a)
(c)..............................................................................................702(b)
(S) 313(a)..............................................................................................703(a)
313(b)..............................................................................................703(b)
313(c)..............................................................................................703(c)
704
(d)..............................................................................................703(c)
(S) 314(a)...........................................................................................704, 1005
(b)......................................................................................Not Applicable
(c)(1)..............................................................................................102
(c)(2)..............................................................................................102
(c)(3)...................................................................................Not Applicable
(d)......................................................................................Not Applicable
(e).................................................................................................102
(S) 315(a)..............................................................................................601(a)
(b).................................................................................................602
(c)..............................................................................................601(b)
(d)..............................................................................................601(c)
(d)(1)........................................................................................601(a)(1)
(d)(2)........................................................................................601(c)(2)
(d)(3)........................................................................................601(c)(3)
(e).................................................................................................514
(S) 316(a).................................................................................................101
(a)(1)(A)...........................................................................................502
512
(a)(1)(B)...........................................................................................513
(a)(2)...................................................................................Not Applicable
(b).................................................................................................508
(S) 317(a)(1)..............................................................................................503
(a)(2)..............................................................................................504
(b)................................................................................................1003
(S) 318(a).................................................................................................107
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TABLE OF CONTENTS
PAGE
Parties..........................................................................................................1
Recitals of the Company..........................................................................................1
ARTICLE ONE......................................................................................................1
SECTION 101. DEFINITIONS................................................................................1
Act............................................................................................2
Affiliate......................................................................................2
Authenticating Agent...........................................................................2
Board of Directors.............................................................................2
Board Resolution...............................................................................2
Business Day...................................................................................2
Certificate of a Firm of Independent Public Accountants........................................2
Commission.....................................................................................2
Company........................................................................................2
Company Request or Company Order...............................................................3
Corporate Trust Office.........................................................................3
Corporation....................................................................................3
Defaulted Interest.............................................................................3
Depositary.....................................................................................3
Event of Default...............................................................................3
Global Security................................................................................3
Holder.........................................................................................3
Indenture......................................................................................3
Interest Payment Date..........................................................................3
Maturity.......................................................................................3
Officers' Certificate..........................................................................4
Opinion of Counsel.............................................................................4
Outstanding....................................................................................4
Paying Agent...................................................................................4
Person.........................................................................................5
Predecessor Security...........................................................................5
Redemption Date................................................................................5
Redemption Price...............................................................................5
Regular Record Date............................................................................5
Responsible Officer............................................................................5
Security Register and Security Registrar.......................................................5
Senior Note....................................................................................5
Special Record Date............................................................................5
Stated Maturity................................................................................5
Trust Indenture Act............................................................................5
Trustee........................................................................................6
Vice President.................................................................................6
|
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.......................................................6
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.....................................................6
SECTION 104. ACTS OF HOLDERS............................................................................7
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY......................................................8
SECTION 106. NOTICE TO HOLDERS OF SENIOR NOTES; WAIVER..................................................8
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT..........................................................9
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS...................................................9
SECTION 109. SUCCESSORS AND ASSIGNS.....................................................................9
SECTION 110. SEPARABILITY CLAUSE........................................................................9
SECTION 111. BENEFITS OF INDENTURE......................................................................9
SECTION 112. GOVERNING LAW..............................................................................9
SECTION 113. LEGAL HOLIDAYS............................................................................10
ARTICLE TWO.....................................................................................................10
SECTION 201. FORMS GENERALLY...........................................................................10
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION...........................................11
SECTION 203. SENIOR NOTES ISSUABLE IN THE FORM OF A GLOBAL SECURITY....................................11
ARTICLE THREE...................................................................................................13
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES......................................................13
SECTION 302. EXECUTION, AUTHENTICATION, DELIVERY AND DATING............................................14
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.......................................16
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN SENIOR NOTES........................................17
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED............................................18
SECTION 306. PERSONS DEEMED OWNERS.....................................................................19
SECTION 307. CANCELLATION..............................................................................19
SECTION 308. COMPUTATION OF INTEREST...................................................................19
ARTICLE FOUR....................................................................................................19
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE...................................................19
SECTION 402. APPLICATION OF TRUST......................................................................20
ARTICLE FIVE....................................................................................................21
SECTION 501. EVENTS OF DEFAULT.........................................................................21
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT........................................22
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE...........................23
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM..........................................................23
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SENIOR NOTES.............................24
SECTION 506. APPLICATION OF MONEY COLLECTED............................................................24
SECTION 507. LIMITATION ON SUITS.......................................................................25
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.................25
|
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES........................................................26
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE............................................................26
SECTION 511. DELAY OR OMISSION NOT WAIVER..............................................................26
SECTION 512. CONTROL BY HOLDERS OF SENIOR NOTES........................................................26
SECTION 513. WAIVER OF PAST DEFAULTS...................................................................27
SECTION 514. UNDERTAKING FOR COSTS.....................................................................27
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS..........................................................27
ARTICLE SIX.....................................................................................................28
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.......................................................28
SECTION 602. NOTICE OF DEFAULTS........................................................................29
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.................................................................29
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SENIOR NOTES..................................30
SECTION 605. MAY HOLD SENIOR NOTES.....................................................................30
SECTION 606. MONEY HELD IN TRUST.......................................................................31
SECTION 607. COMPENSATION AND REIMBURSEMENT............................................................31
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS...................................................31
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...................................................32
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.........................................32
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR....................................................33
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...............................34
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.........................................35
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.......................................................35
ARTICLE SEVEN...................................................................................................37
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.................................37
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS....................................37
SECTION 703. REPORTS BY TRUSTEE........................................................................37
SECTION 704. REPORTS BY COMPANY........................................................................38
ARTICLE EIGHT...................................................................................................38
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS......................................38
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.........................................................39
ARTICLE NINE....................................................................................................39
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS........................................39
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...........................................40
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE.......................................41
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES......................................................41
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES.........................................................42
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.......................................................42
SECTION 907. REFERENCE IN SENIOR NOTES TO SUPPLEMENTAL INDENTURES......................................42
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ARTICLE TEN.....................................................................................................42
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST........................................................42
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY..........................................................42
SECTION 1003. MONEY FOR SENIOR NOTES PAYMENTS TO BE HELD IN TRUST......................................43
SECTION 1004. CORPORATE EXISTENCE......................................................................44
SECTION 1005. STATEMENT AS TO COMPLIANCE...............................................................44
SECTION 1006. WAIVER OF CERTAIN COVENANTS..............................................................44
ARTICLE ELEVEN..................................................................................................45
SECTION 1101. APPLICABILITY OF ARTICLE.................................................................45
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE....................................................45
SECTION 1103. SELECTION BY TRUSTEE OF SENIOR NOTES TO BE REDEEMED......................................45
SECTION 1104. NOTICE OF REDEMPTION.....................................................................46
SECTION 1105. DEPOSIT OF REDEMPTION PRICE..............................................................46
SECTION 1106. SENIOR NOTES PAYABLE ON REDEMPTION DATE..................................................47
SECTION 1107. SENIOR NOTES REDEEMED IN PART............................................................47
ARTICLE TWELVE..................................................................................................47
SECTION 1201. APPLICABILITY OF ARTICLE.................................................................47
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SENIOR NOTES..................................48
SECTION 1203. REDEMPTION OF SENIOR NOTES FOR SINKING FUND..............................................48
ARTICLE THIRTEEN................................................................................................48
SECTION 1301. NO RECOURSE AGAINST OTHERS...............................................................48
SECTION 1302. ASSIGNMENT; BINDING EFFECT...............................................................49
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SENIOR NOTE INDENTURE
THIS SENIOR NOTE INDENTURE is made as of May 1, 1998, between MISSISSIPPI POWER COMPANY, a corporation duly organized and existing under the laws of the State of Mississippi (herein called the "Company"), having its principal office at 2992 West Beach, Gulfport, Mississippi 39501, 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, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of this Senior Note Indenture to provide for the issuance from time to time of its unsecured senior debentures, notes or other evidences of indebtedness (herein called the "Senior Notes"), to be issued in one or more series as in this Senior Note Indenture provided; and
WHEREAS, all things necessary to make this Senior Note Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the purchase of the Senior Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Senior Notes or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101.......DEFINITIONS
For all purposes of this Senior Note Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Senior Note Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
"Act," when used with respect to any Holder of a Senior Note, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person or Persons authorized by the Trustee to authenticate one or more series of Senior Notes.
"Board of Directors" means either the board of directors of the Company or any duly authorized committee of the officers and/or directors of the Company appointed by that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which banks in New York, New York are authorized or obligated by law or executive order to remain closed, or (iii) a day on which the Trustee's Corporate Trust Office is closed for business.
"Certificate of a Firm of Independent Public Accountants" means a certificate signed by an independent public accountant or a firm of independent public accountants who may be the independent public accountants regularly retained by the Company or who may be other independent public accountants. Such accountant or firm shall be entitled to rely upon an Opinion of Counsel as to the interpretation of any legal matters relating to such certificate.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Senior Note Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee in the Borough of Manhattan, New York City, at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this Senior Note Indenture is located at Four Albany Street, New York, New York 10006.
"Corporation" includes corporations, partnerships, limited liability companies, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 305.
"Depositary" means, unless otherwise specified by the Company pursuant to either Section 203 or 301, with respect to Senior Notes of any series issuable or issued as a Global Security, The Depository Trust Company, New York, New York, or any successor thereto registered as a clearing agency under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means, with respect to any series of Senior Notes issued hereunder, a Senior Note that is executed by the Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary's instruction, all in accordance with Section 203 of this Indenture and any indenture supplemental hereto.
"Holder," when used with respect to any Senior Note, means the Person in whose name the Senior Note is registered in the Security Register.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of the particular series of Senior Notes established as contemplated by Section 301.
"Interest Payment Date," when used with respect to any series of Senior Notes, means the dates established for the payment of interest thereon, as provided in the supplemental indenture for such series.
"Maturity," when used with respect to any Senior Note, means the date on which the principal of such Senior Note or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding," when used with respect to Senior Notes, means, as of the date of determination, all Senior Notes theretofore authenticated and delivered under this Indenture, except:
(i) Senior Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Senior Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Senior Notes; provided that if such Senior Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Senior Notes that have been paid or in exchange for or in lieu of which other Senior Notes have been authenticated and delivered pursuant to this Indenture, other than any such Senior Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Senior Notes are held by a bona fide purchaser in whose hands such Senior Notes are valid obligations of the Company; and
(iv) Senior Notes, or portions thereof, converted into or exchanged for another security if the terms of such Senior Notes provide for such conversion or exchange;
provided, however, that in determining, during any period in which any Senior Notes of a series are owned by any Person other than the Company or any Affiliate thereof, whether the Holders of the requisite principal amount of Outstanding Senior Notes of such series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Senior Notes of such series owned by the Company or any Affiliate thereof shall be disregarded and deemed not to be Outstanding. In determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Senior Notes that the Trustee knows to be so owned by the Company or an Affiliate of the Company in the above circumstances shall be so disregarded. Senior Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Senior Notes and that the pledgee is not the Company or any Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Senior Notes on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Senior Note means every previous Senior Note evidencing all or a portion of the same debt as that evidenced by such particular Senior Note; and, for the purposes of this definition, any Senior Note authenticated and delivered under Section 304 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Senior Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Senior Note.
"Redemption Date," when used with respect to any Senior Note to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Senior Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Senior Notes of any series means the date specified for that purpose as contemplated by Section 301, whether or not a Business Day.
"Responsible Officer," when used with respect to the Trustee, means any managing director, any vice president, any assistant vice president, any assistant secretary, any assistant treasurer or any other officer of the Corporate Trust and Agency Group of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 303.
"Senior Note" has the meaning stated in the first recital of this Indenture and more particularly means any Senior Notes authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the Senior Notes of any series means a date fixed by the Trustee pursuant to Section 305.
"Stated Maturity," when used with respect to any Senior Note or any installment of principal thereof or interest thereon, means the date specified in such Senior Note as the fixed date on which the principal of such Senior Note or such installment of principal or interest is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, and any reference herein to the Trust Indenture Act or a particular provision thereof shall mean such Trust Indenture Act or provision, as the case may be, as amended or replaced from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Senior Notes pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Senior Notes of any series shall mean the Trustee with respect to Senior Notes of that series.
"Vice President," when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president."
SECTION 102 COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include
(i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv)a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 103 FORM OF DOCUMENTS DELIVERED TO TRUSTEE
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104 ACTS OF HOLDERS
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c) The principal amount and serial numbers of Senior Notes held by any Person, and the date of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, election, waiver or other Act of the Holder of any Senior Note shall bind every future Holder of the same Senior Note and the Holder of every Senior Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Senior Note.
(e) The fact and date of execution of any such instrument or writing and the authority of the Person executing the same may also be proved in any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(f) If the Company shall solicit from the Holders of Senior Notes of any series any Act, the Company may, at its option, by Board Resolution, fix in advance a record date for the determination of Holders of Senior Notes entitled to take such Act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company's discretion. If such a record date is fixed, such Act may be sought or given before or after the record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders of Senior Notes for the purpose of determining whether Holders of the requisite proportion of Senior Notes of such series Outstanding have authorized or agreed or consented to such Act, and for that purpose the Senior Notes of such series Outstanding shall be computed as of such record date.
SECTION 105 NOTICES, ETC., TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, election, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of a Senior Note or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust and Agency Group, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Treasurer, 2992 West Beach, Gulfport, Mississippi 39501, with a copy to Southern Company Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention: Corporate Finance Department, or at any other address previously furnished in writing to the Trustee by the Company.
SECTION 106 NOTICE TO HOLDERS OF SENIOR NOTES; WAIVER
Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of Senior Notes of any event, such notice shall be sufficiently given if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such Notice.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Senior Notes shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 107 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required to be a part of and govern this Indenture, such required provision shall control.
SECTION 108 EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 109 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 110 SEPARABILITY CLAUSE
In case any provision in this Indenture or the Senior Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111 BENEFITS OF INDENTURE
Nothing in this Indenture or the Senior Notes, express or implied, shall give to any Person, other than the parties hereto, their successors hereunder and the Holders of Senior Notes any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112 GOVERNING LAW
THIS INDENTURE AND THE SENIOR NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED THEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS INDENTURE OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS. THE COMPANY AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS INDENTURE OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK.
SECTION 113 LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Senior Note shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Senior Notes) payment of interest or principal (and premium, if any) need not be made on such date, but may be made on the next succeeding Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECTION 201 FORMS GENERALLY
The Senior Notes of each series shall be in substantially the form appended to the supplemental indenture authorizing such series, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Senior Notes, as evidenced by their execution of the Senior Notes.
The Senior Notes of each series shall be issuable in registered form without coupons.
The definitive Senior Notes may be printed, typewritten, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Senior Notes, as evidenced by their execution of such Senior Notes.
SECTION 202 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The form of the Trustee's Certificate of Authentication for a series of Senior Notes shall be in substantially the form appended to the Supplemental Indenture authorizing such series.
SECTION 203. SENIOR NOTES ISSUABLE IN THE FORM OF A GLOBAL SECURITY
(a) If the Company shall establish pursuant to Section 301 that
the Senior Notes of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 302 and the Company Order
delivered to the Trustee thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Senior
Notes of such series to be represented by such Global Security or Securities,
(ii) may provide that the aggregate amount of Outstanding Senior Notes
represented thereby may from time to time be increased or reduced to reflect
exchanges, (iii) shall be registered in the name of the Depositary for such
Global Security or Securities or its nominee, (iv) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (v)
shall bear a legend in accordance with the requirements of the Depositary.
(b) Notwithstanding any other provision of this Section 203 or of
Section 303, subject to the provisions of paragraph (c) below, unless the terms
of a Global Security expressly permit such Global Security to be exchanged in
whole or in part for individual Senior Notes, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 303,
only to a nominee of the Depositary for such Global Security, or to the
Depositary, or to a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global Security notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time the Depositary for the Senior Notes for such series shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to such Global Security. If a successor Depositary for such Global Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of individual Senior Notes of such series in exchange for such Global Security, will authenticate and deliver individual Senior Notes of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security.
(2) The Company may at any time and in its sole discretion determine that the Senior Notes of any series issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Request for the authentication and delivery of individual Senior Notes of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual Senior Notes of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities representing such series in exchange for such Global Security or Securities.
(3) If specified by the Company pursuant to Section 301 with respect to Senior Notes issued or issuable in the form of a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for individual Senior Notes of such series of like tenor and terms in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (A) to each Person specified by such Depositary a new Senior Note or Notes of the same series of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (B) to such Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Senior Notes delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver individual Senior Notes in definitive form in authorized denominations. Upon the exchange of the entire principal amount of a Global Security for individual Senior Notes, such Global Security shall be cancelled by the Trustee. Except as provided in the preceding paragraph, Senior Notes issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Provided that the Company and the Trustee have so agreed, the Trustee shall deliver such Senior Notes to the Persons in whose names the Senior Notes are registered.
(5) Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Senior Notes represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order to be delivered pursuant to Section 302 with respect thereto. Subject to the provisions of Section 302, the Trustee shall deliver and redeliver any such Global Security in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 302 has been, or simultaneously is, delivered, any instructions by the Company with respect to such Global Security shall be in writing but need not be accompanied by or contained in an Officers' Certificate and need not be accompanied by an Opinion of Counsel.
ARTICLE THREE
THE SENIOR NOTES
SECTION 301 AMOUNT UNLIMITED; ISSUABLE IN SERIES
The aggregate principal amount of Senior Notes which may be authenticated and delivered under this Indenture is unlimited.
The Senior Notes may be issued in one or more series. There may be established, pursuant to one or more indentures supplemental hereto, prior to the issuance of Senior Notes of any series,
(1) the title of the Senior Notes of the series (which shall distinguish the Senior Notes of the series from Senior Notes of all other series);
(2) any limit upon the aggregate principal amount of the Senior Notes of the series which may be authenticated and delivered under this Indenture (except for Senior Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Senior Notes of the series pursuant to Sections 203, 303, 304, 907 or 1107);
(3) the Person to whom interest on a Senior Note of the series shall be payable if other than the Person in whose name that Senior Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Senior Notes of the series is payable;
(5) the rate or rates at which the Senior Notes of the series shall bear interest, if any, or any method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable, the Regular Record Date for the interest payable on Senior Notes on any Interest Payment Date and the basis upon which interest shall be calculated if other than that of a 360-day year consisting of twelve 30-day months;
(6) the place or places where the principal of (and premium, if any) and interest, if any, on Senior Notes of the series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and conditions upon which Senior Notes of the series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Senior Notes of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Senior Notes of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the denominations in which Senior Notes of the series shall be issuable;
(10) if the amount of payments of principal of (and premium, if any) or interest on the Senior Notes of the series may be determined with reference to an index or formula, the manner in which such amounts shall be determined;
(11) if other than the principal amount thereof, the portion of the principal amount of Senior Notes of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(12) any deletions from, modifications of or additions to the Events of Default or covenants of the Company as provided herein pertaining to the Senior Notes of the series, and any change in the rights of the Trustee or Holders of such series pursuant to Section 901 or 902;
(13) any additions to the definitions currently set forth in this Indenture with respect to such series;
(14) whether the Senior Notes of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for certificated Senior Notes of such series and of like tenor of any authorized denomination and the circumstances under which such exchange may occur, if other than in the manner provided for in Section 203; the Depositary for such Global Security or Securities; and the form of any legend or legends to be borne by any such Global Security in addition to or in lieu of the legend referred to in Section 203;
(15) any restriction or condition on the transferability of such Senior Notes; and
(16) any other terms of the series.
All Senior Notes of any one series shall be substantially identical except as to the date or dates from which interest, if any, shall accrue and denomination and except as may otherwise be provided in the terms of such Senior Notes determined or established as provided above. All Senior Notes of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened for issuances of additional Senior Notes of such series.
SECTION 302 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Senior Notes shall be executed on behalf of the Company by its Chairman of the Board, its President or one of its Vice Presidents, under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Senior Notes may be manual or facsimile.
Senior Notes bearing the manual or facsimile signatures of individuals who were at the time relevant to the authorization thereof the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Senior Notes or did not hold such offices at the date of such Senior Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Senior Notes of any series executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Senior Notes, and the Trustee, in
accordance with the Company Order, shall authenticate and deliver such Senior
Notes. If all of the Senior Notes of any series are not to be issued at one time
and if the supplemental indenture establishing such series shall so permit, such
Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Senior Notes and determining the terms of particular Senior
Notes of such series, such as interest rate, maturity date, date of issuance and
date from which interest shall accrue. In authenticating Senior Notes hereunder,
and accepting the additional responsibilities under this Indenture in relation
to such Senior Notes, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon:
(1) an Opinion of Counsel, to the effect that:
(a) the form and terms of such Senior Notes or the manner of determining such terms have been established in conformity with the provisions of this Indenture; and
(b) such Senior Notes, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and
(2) an Officers' Certificate stating, to the best knowledge of each signer of such certificate, that no event which is, or after notice or lapse of time would become, an Event of Default with respect to any of the Senior Notes shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Senior Notes if the issue of such Senior Notes pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Senior Notes and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
If all the Senior Notes of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel and Officers' Certificate at the time of issuance of each such Senior Note, but such opinion and certificate shall be delivered at or before the time of issuance of the first Senior Note of such series to be issued.
Each Senior Note shall be dated the date of its authentication.
No Senior Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Senior Note a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Senior Note shall be conclusive evidence, and the only evidence, that such Senior Note has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
SECTION 303 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
The Company shall cause to be kept at the office of the Security Registrar designated pursuant to this Section 303 or Section 1002 a register (referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Senior Notes and of transfers of Senior Notes. The Trustee is hereby initially appointed as Security Registrar for the purpose of registering Senior Notes and transfers of Senior Notes as herein provided.
Subject to Section 203, upon surrender for registration of transfer of any Senior Note of any series at the office or agency maintained for such purpose for such series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Senior Notes of the same series, Stated Maturity and original issue date, of any authorized denominations and of like tenor and aggregate principal amount.
Subject to Section 203, Senior Notes of any series may be exchanged, at the option of the Holder, for Senior Notes of the same series, Stated Maturity and original issue date, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Senior Notes to be exchanged at any such office or agency.
Whenever any Senior Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Senior Notes that the Holder making the exchange is entitled to receive.
All Senior Notes issued upon any registration of transfer or exchange of Senior Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Senior Notes surrendered upon such registration of transfer or exchange.
Every Senior Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Senior Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Senior Notes, other than exchanges pursuant to Section 304, 907 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, to register the transfer of or to exchange Senior Notes of any series during a period of 15 days immediately preceding the date notice is given identifying the serial numbers of the Senior Notes of that series called for redemption, or (ii) to issue, to register the transfer of or to exchange any Senior Notes so selected for redemption in whole or in part, except the unredeemed portion of any Senior Note being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
SECTION 304 MUTILATED, DESTROYED, LOST AND STOLEN SENIOR NOTES
If any mutilated Senior Note is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Senior Note of the same series, Stated Maturity and original issue date, and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Senior Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Senior Note has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Senior
Note, a new Senior Note of the same series, Stated Maturity and original issue
date, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Senior Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Senior Note, pay such Senior Note.
Upon the issuance of any new Senior Note under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Senior Note of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Senior Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Senior Note shall be at any time enforceable by anyone, and any such new Senior Note shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Senior Notes of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Senior Notes.
SECTION 305 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Unless otherwise provided as contemplated by Section 301 with respect to any series of Senior Notes, interest on any Senior Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Senior Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Senior Note of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
.........(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Senior Notes of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Senior Note of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Senior Notes of such
series at the address of such Holder as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Senior Notes of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
.........(2) The Company may make payment of any Defaulted Interest on the Senior Notes of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Senior Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Senior Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Senior Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Senior Note.
SECTION 306.......PERSONS DEEMED OWNERS
Prior to due presentment of a Senior 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 such Senior Note is registered as the absolute owner of such Senior Note for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 305) interest on such Senior Note and for all other purposes whatsoever, whether or not such Senior Note be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 307.......CANCELLATION
All Senior Notes surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Senior Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Senior Notes so delivered shall be canceled by the Trustee. No Senior Notes shall be authenticated in lieu of or in exchange for any Senior Notes canceled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Senior Notes held by the Trustee shall be disposed of in accordance with a Company Order and the Trustee shall promptly deliver a certificate of disposition to the Company.
SECTION 308.......COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 301 for Senior Notes of any series, interest on the Senior Notes of each series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401.......SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall, upon Company Request, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Senior Notes herein expressly provided for) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Senior Notes theretofore authenticated and delivered
(other than (i) Senior Notes that have been destroyed, lost
or stolen and that have been replaced as provided for in
Section 304 and (ii) Senior Notes for whose payment money
has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Senior Notes not theretofore delivered to the Trustee for cancellation have become due and payable, or have been called for redemption,
and the Company, in the case of (B) above, has deposited or caused to be deposited with the Trustee as funds in trust for the purpose described above an amount sufficient to pay and discharge the entire indebtedness on such Senior Notes not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of the Stated Maturity or Redemption Date, as the case may be, or if later, the date of payment;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
In the event there are Senior Notes of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Senior Notes of all series as to which it is Trustee and if the other conditions thereto are met. In the event there are two or more Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Company to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402.......APPLICATION OF TRUST
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Senior Notes, and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or an Affiliate acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501.......EVENTS OF DEFAULT
"Event of Default", wherever used herein with respect to Senior Notes of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Senior Note of
that series when it becomes due and payable on an Interest
Payment Date other than at Maturity and continuance of such
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default for a period of ten (10) days; or
(2) default in the payment of the principal of, (or premium, if any) or interest on any Senior Note of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Senior Note of that series and continuance of such default for a period of 3 Business Days; or
(4) default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of one or more series of Senior Notes other than that series),
and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Senior Notes of that series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition by one or more Persons other than the Company seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Company or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of a case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in a case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Senior Notes of that series in the supplemental indenture authorizing such series.
SECTION 502.......ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
If an Event of Default with respect to Senior Notes of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Senior Notes of that series may declare the principal amount (or such portion of the principal amount as may be specified in the terms of that series) of all of the Senior Notes of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Senior Notes of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in principal amount of the Outstanding Senior Notes of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Senior Notes of that series,
(B) the principal of (and premium, if any) any Senior Notes of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Senior Notes,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Senior Notes, and
D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 607; and
(2) all Events of Default with respect to Senior Notes of that series, other than the non-payment of the principal of Senior Notes of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
The Company covenants that if an Event of Default occurs under Section 501(1), (2) or (3) with respect to any Senior Notes the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Senior Notes, the whole amount then due and payable on such Senior Notes for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Senior Notes, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Senior Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Senior Notes, wherever situated.
If an Event of Default with respect to Senior Notes of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Senior Notes of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504.......TRUSTEE MAY FILE PROOFS OF CLAIM
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Senior Notes or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Senior Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Senior Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee under
Section 607) and of the Holders of Senior Notes allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Senior Notes to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Senior Notes, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Senior Note any plan of reorganization, arrangement, adjustment or composition affecting the Senior Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a Senior Note in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SENIOR NOTES
All rights of action and claims under this Indenture or the Senior Notes may be prosecuted and enforced by the Trustee without the possession of any of the Senior Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Senior Notes in respect of which such judgment has been recovered.
SECTION 506 APPLICATION OF MONEY COLLECTED
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Senior Notes, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 607; and
Second: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Senior Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Senior Notes for principal (and premium, if any) and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507 LIMITATION ON SUITS
No Holder of any Senior Note of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Senior Notes of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Senior Notes of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Senior Notes of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST
Notwithstanding any other provision in this Indenture, the Holder of
any Senior Notes shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 305) interest on such Senior Note on the due dates expressed in such
Senior Note (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509.......RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder of a Senior Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Senior Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510.......RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Senior Notes in the last paragraph of
Section 304, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Senior Notes is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511.......DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Senior Note to exercise any right or remedy upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Senior Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Senior Notes.
SECTION 512.......CONTROL BY HOLDERS OF SENIOR NOTES
The Holders of not less than a majority in principal amount of the Outstanding Senior Notes of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Senior Notes of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and could not involve the Trustee in personal liability in circumstances where reasonable indemnity would not be adequate, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 513.......WAIVER OF PAST DEFAULTS
The Holders of not less than a majority in principal amount of the Outstanding Senior Notes of any series may, on behalf of the Holders of all the Senior Notes of such series, waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest on any Senior Note of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Senior Note of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514.......UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any Senior Note by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Senior Notes of any series, or to any suit instituted by any Holder of any Senior Note for the enforcement of the payment of the principal of (or premium, if any) or interest on any Senior Note on or after the Stated Maturity or Maturities expressed in such Senior Note (or, in the case of redemption, on or after the Redemption Date).
SECTION 515.......WAIVER OF STAY OR EXTENSION LAWS
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601.......CERTAIN DUTIES AND RESPONSIBILITIES
(a) Except during the continuance of an Event of Default with
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respect to Senior Notes of any series,
(1) the Trustee undertakes to perform, with respect to Senior Notes of such series, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with respect to Senior Notes of such series, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.
(b)......In case an Event of Default with respect to Senior Notes of any series has occurred and is continuing, the Trustee shall exercise, with
respect to Senior Notes of such series, such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c)......No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
.........(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Senior Notes of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Senior Notes of such series; and
.........(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d)......Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602.......NOTICE OF DEFAULTS
Within 90 days after the occurrence of any default hereunder with respect to the Senior Notes of any series, the Trustee shall transmit by mail to all Holders of Senior Notes of such series entitled to receive reports pursuant to Section 313(c) of the Trust Indenture Act, notice of all defaults hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Senior Note of such series or in the payment of any sinking fund installment with respect to Senior Notes of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Senior Notes of such series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Senior Notes of such series, no such notice to Holders shall be given until at least 45 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Senior Notes of such series.
SECTION 603.......CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 601:
.........(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and a resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Senior Notes of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and
.........(h) the Trustee shall not be charged with knowledge of any Event of Default with respect to the Senior Notes of any series for which it is acting as Trustee unless either (1) a Responsible Officer of the Trustee shall have actual knowledge of the Event of Default or (2) written notice of such Event of Default shall have been given to the Trustee by the Company, any other obligor on such Senior Notes or by any Holder of such Senior Notes.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SENIOR NOTES
The recitals contained herein and in the Senior Notes (except the Trustee's certificates of authentication) shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Senior Notes. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Senior Notes or the proceeds thereof.
SECTION 605.......MAY HOLD SENIOR NOTES
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Senior Notes and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606.......MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
SECTION 607.......COMPENSATION AND REIMBURSEMENT
The Company agrees
.........(1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
.........(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
.........(3) to indemnify the Trustee and each of its officers, directors, agents and employees for, and to hold it harmless against, any loss, liability or expense incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section the Trustee shall have a lien prior to the Senior Notes upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, premium, if any, or interest, if any, on particular Senior Notes.
The provisions of this Section 607 shall survive the termination of this Indenture or the resignation or removal of the Trustee.
SECTION 608.......DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire any conflicting interest, within the meaning of the Trust Indenture Act, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609.......CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by federal or state authority and qualified and eligible under this Article and otherwise permitted by the Trust Indenture Act to act as Trustee under an Indenture qualified under the Trust Indenture Act. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 610.......RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(a)......No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b)......The Trustee may resign at any time with respect to the Senior Notes of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Senior Notes of such series.
(c)......The Trustee may be removed at any time with respect to the Senior Notes of any series by Act of the Holders of a majority in principal amount of the Outstanding Senior Notes of such series delivered to the Trustee and to the Company.
(d)......If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder of a Senior Note who has been a Holder of a Senior Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee with respect to all Senior Notes, or (ii) subject to Section 514, any Holder of a Senior Note who has been a bona fide Holder of a Senior Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Senior Notes and the appointment of a successor Trustee or Trustees.
(e)......If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Senior Notes of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Senior Notes of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Senior Notes of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Senior Notes of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Senior Notes of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Senior Notes of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee with respect to the Senior Notes of
such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Senior Notes of any series shall have been so appointed by the Company or the Holders of Senior Notes and accepted appointment in the manner required by Section 611, any Holder of a Senior Note who has been a bona fide Holder of a Senior Note of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Senior Notes of such series.
(f)......The Company shall give notice of each resignation and each removal of the Trustee with respect to the Senior Notes of any series and each appointment of a successor Trustee with respect to the Senior Notes of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of such series of Senior Notes as their names and addresses appear in the Security Register.
SECTION 611.......ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a)......In case of the appointment hereunder of a successor Trustee with respect to all Senior Notes, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b)......In case of the appointment hereunder of a successor Trustee with respect to the Senior Notes of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Senior Notes of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Senior Notes of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Senior Notes, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Senior Notes of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Senior Notes of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Senior Notes of that or those series to which the appointment of such successor Trustee relates.
(c)......Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d)......No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Senior Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Senior Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Senior Notes.
SECTION 613.......PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Senior Notes), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). For purposes of Section 311(b)(4) and (6) of the Trust Indenture Act:
(a)......"cash transaction" means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b)......"self-liquidating paper" means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company (or any such obligor) for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company (or any such obligor) arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 614.......APPOINTMENT OF AUTHENTICATING AGENT
At any time when any of the Senior Notes remain Outstanding the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Senior Notes that shall be authorized to act on behalf of the Trustee to authenticate Senior Notes of such series issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 304, and Senior Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Senior Notes by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Senior Notes, if any, of the series with respect to which such Authenticating Agent
will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
The provisions of Sections 306, 604 and 605 shall be applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made pursuant to this Section, the Senior Notes of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Senior Notes of the series designated therein referred to in the within-mentioned Indenture.
As Trustee
By:
As Authenticating Agent
By:
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the Trustee
.........(a) semi-annually, not later than June 1 and December 1, in each year, a list, in such form as the Trustee may reasonably require, containing all the information in the possession or control of the Company, or any of its Paying Agents other than the Trustee, as to the names and addresses of the Holders of Senior Notes as of the preceding May 15 or November 15, as the case may be, and
.........(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of the most recent Regular Record Date;
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
(a)......The Trustee shall comply with the obligations imposed on it pursuant to Section 312 of the Trust Indenture Act.
(b)......Every Holder of Senior Notes, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Senior Notes in accordance with Section 312(b) of the Trust Indenture Act, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 703.......REPORTS BY TRUSTEE
(a)......Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Senior Notes pursuant to this Indenture, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit a brief report dated as of such May 15 with respect to any of the events specified in such Section 313(a) that may have occurred since the later of the immediately preceding May 15 and the date of this Indenture.
(b)......The Trustee shall transmit the reports required by Section 313(b) of the Trust Indenture Act at the times specified therein.
(c)......Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and (d) of the Trust Indenture Act.
SECTION 704.......REPORTS BY COMPANY
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
.........(1) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
.........(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations;
.........(3) transmit, within 30 days after the filing thereof with the Trustee, to the Holders of Senior Notes, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section 704 as may be required by rules and regulations prescribed from time to time by the Commission; and
........(4) notify the Trustee when and as the Senior Notes of any series become admitted to trading on any national securities exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless
.........(1) in case the Company shall consolidate with or merge into another corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Senior Notes and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
.........(2) immediately after giving effect to such transactions, no
Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
happened and be continuing; and
.........(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease complies with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
SECTION 802.......SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation by the Company with or merger by the Company into any corporation or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Senior Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901.......SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders of Senior Notes, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
.........(1) to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company herein and in the Senior Notes; or
.........(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Senior Notes (and if such covenants are to be for the benefit of less than all series of Senior Notes, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
.........(3) to add any additional Events of Default; or
.........(4) to add to or change any of the provisions of this Indenture, to change or eliminate any restrictions on the payment of principal (or premium, if any) on Senior Notes or to permit the issuance of Senior Notes in uncertificated form, provided any such action shall not adversely affect the interests of the Holders of Senior Notes of any series in any material respect; or
.........(5) to change or eliminate any of the provisions of this Indenture with respect to any series of Senior Notes theretofore unissued; or
.........(6) to secure the Senior Notes; or
.........(7) to establish the form or terms of Senior Notes of any series as permitted by Sections 201 and 301; or
.........(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Senior Notes of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
.........(9) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make provisions with respect to matters or questions arising under this indenture, provided such action shall not adversely affect the interests of the Holders of Senior Notes of any series in any material respect; or
.........(10) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the Trust Indenture Act or under any similar federal statute hereafter enacted, and to add to this Indenture such other provisions as may be expressly required by the Trust Indenture Act.
SECTION 902.......SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Senior Notes of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Senior Notes of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Senior Note affected thereby,
.........(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Senior Note, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change the method of calculating the rate of interest thereon, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
.........(2) reduce the percentage in principal amount of the Outstanding Senior Notes of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
.........(3) modify any of the provisions of this Section 902, Section 513 or Section 1006, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Senior Note affected thereby, provided, however, that this clause shall not be deemed to require the consent of any Holder of a Senior Note with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1006, or the deletion of this proviso, in accordance with the requirements of Sections 611(b) and 901(8).
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE
(a)......A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Senior Notes, or which modifies the rights of the Holders of Senior Notes of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Senior Notes of any other series.
(b)......It shall not be necessary for any Act of Holders of Senior Notes under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act or action shall approve the substance thereof.
SECTION 904.......EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties, immunities or liabilities under this Indenture or otherwise.
SECTION 905.......EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Senior Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 906.......CONFORMITY WITH TRUST INDENTURE ACT
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
SECTION 907.......REFERENCE IN SENIOR NOTES TO SUPPLEMENTAL INDENTURES
Senior Notes of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Senior Notes of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Senior Notes of such series.
ARTICLE TEN
COVENANTS
SECTION 1001......PAYMENT OF PRINCIPAL AND INTEREST
The Company covenants and agrees for the benefit of each series of Senior Notes that it will duly and punctually pay the principal of (and premium, if any) and interest on the Senior Notes of that series in accordance with the terms of the Senior Notes and this Indenture.
SECTION 1002......MAINTENANCE OF OFFICE OR AGENCY
The Company or its Affiliate will maintain an office or agency where Senior Notes of each series may be presented or surrendered for payment, where Senior Notes of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Senior Notes of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Senior Notes or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders of Senior Notes of that series may be made and notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Senior Notes of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 1003......MONEY FOR SENIOR NOTES PAYMENTS TO BE HELD IN TRUST
If the Company or one of its Affiliates shall at any time act as its own Paying Agent with respect to any series of Senior Notes, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Senior Notes of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Senior Notes, it will, prior to each due date of the principal of (and premium, if any) or interest on any Senior Notes of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Senior Notes other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Senior Notes of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Senior Notes of that series) in the making of any payment of principal of (and premium, if any) or interest on the Senior Notes of that series; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Senior Note of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Senior Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper of general
circulation in New York City notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004......CORPORATE EXISTENCE
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory) and franchises of the Company; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company, and that the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005......STATEMENT AS TO COMPLIANCE
(a)......The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement, which need not comply with Section 102, signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company, as to his or her knowledge of the Company's compliance with all conditions and covenants under this Indenture. For purposes of this Section 1005, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
(b)......The Company shall deliver to the Trustee, within five days after the occurrence thereof, written notice of any event which after notice or lapse of time or both would become an Event of Default pursuant to Section 501.
SECTION 1006......WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any term, provision or condition set forth in Section 1004 with respect to the Senior Notes of any series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Senior Notes of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SENIOR NOTES
SECTION 1101......APPLICABILITY OF ARTICLE
Senior Notes of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Senior Notes of any series) in accordance with this Article.
SECTION 1102......ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Senior Notes shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of all of the Senior Notes of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date. In case of any redemption at the election of the Company of less than all the Senior Notes of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of Senior Notes of such series to be redeemed. In the case of any redemption of Senior Notes (i) prior to the expiration of any restriction on such redemption provided in the terms of such Senior Notes or elsewhere in this Indenture, or (ii) pursuant to an election of the Company which is subject to a condition specified in the terms of such Senior Notes, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 1103......SELECTION BY TRUSTEE OF SENIOR NOTES TO BE REDEEMED
If the Senior Notes are registered in the name of only one Holder, any partial redemptions shall be pro rata. If the Senior Notes are held in definitive form by more than one Holder and if less than all the Senior Notes of any series are to be redeemed, the particular Senior Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Senior Notes of such series not previously called for redemption, by lot or other such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Senior Notes of that series or any integral multiple thereof) of the principal amount of Senior Notes of such series of a denomination larger than the minimum authorized denomination for Senior Notes of that series.
The Trustee shall promptly notify the Company in writing of the Senior Notes selected for redemption and, in the case of any Senior Notes selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Senior Notes shall relate, in the case of any Senior Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Senior Notes which has been or is to be redeemed.
SECTION 1104......NOTICE OF REDEMPTION
Notice of redemption shall be given in the manner provided in Section 106 to the Holders of Senior Notes to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
.........(1) the Redemption Date,
.........(2) the Redemption Price,
.........(3) if less than all the Outstanding Senior Notes of any eries are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Senior Notes to be redeemed,
.........(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Senior Note to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
.........(5) the place or places where such Senior Notes are to be surrendered for payment of the Redemption Price, and
.........(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Senior Notes to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company.
SECTION 1105......DEPOSIT OF REDEMPTION PRICE
Except as otherwise provided in a supplemental indenture pursuant to
Section 301, prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company or its Affiliate is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of and accrued
interest, if any, on all the Senior Notes which are to be redeemed on that date.
SECTION 1106......SENIOR NOTES PAYABLE ON REDEMPTION DATE
Notice of redemption having been given as aforesaid, the Senior Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified together with any accrued interest thereon,
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Senior Notes shall cease to bear
interest. Upon surrender of any such Senior Note for redemption in accordance
with such notice, such Senior Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any; provided, however,
that, except as otherwise provided in a supplemental indenture pursuant to
Section 301, installments of interest on Senior Notes whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Senior Notes, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 305.
If any Senior Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Senior Note.
SECTION 1107......SENIOR NOTES REDEEMED IN PART
.........Any Senior Note that is to be redeemed only in part shall be surrendered at an office or agency of the Company therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Senior Note without service charge, a new Senior Note of the same series, Stated Maturity and original issue date of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Senior Note so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201......APPLICABILITY OF ARTICLE
The provisions of this Article shall be applicable to any sinking fund for the retirement of Senior Notes of a series except as otherwise specified as contemplated by Section 301 for Senior Notes of such series.
The minimum amount of any sinking fund payment provided for by the terms of Senior Notes of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Senior Notes of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of Senior Notes of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Senior Notes of any series as provided for by the terms of Senior Notes of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SENIOR NOTES
The Company (1) may deliver Outstanding Senior Notes of a series (other than any previously called for redemption), and (2) may apply as a credit Senior Notes of a series which have been redeemed either at the election of the Company pursuant to the terms of such Senior Notes or through the application of permitted optional sinking fund payments pursuant to the terms of such Senior Notes, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Senior Notes of such series required to be made pursuant to the terms of such Senior Notes as provided for by the terms of such series; provided that such Senior Notes have not been previously so credited. Such Senior Notes shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Senior Notes for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203......REDEMPTION OF SENIOR NOTES FOR SINKING FUND
Not less than 60 days prior to each sinking fund payment date for any series of Senior Notes, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Senior Notes of that series pursuant to Section 1202 and stating the basis for such credit and that such Senior Notes have not previously been so credited and will also deliver to the Trustee any Senior Notes to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Senior Notes to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Senior Notes shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 1301......NO RECOURSE AGAINST OTHERS
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Senior Notes or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Senior Note, each Holder shall waive and release all
such liability. Such waiver and release shall be part of the consideration for
the issue of the Senior Notes.
SECTION 1302......ASSIGNMENT; BINDING EFFECT
The Company shall have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned subsidiary of the Company, provided that, in the event of any such assignment, the Company shall remain primarily liable for the performance of all such obligations. This Indenture may also be assigned by the Company in connection with a transaction described in Article Eight. This Indenture shall be binding upon and inure to the benefit of the Company, the Trustee, the Holders, any Security Registrar, Paying Agent, and Authenticating Agent and their respective successors and assigns.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
MISSISSIPPI POWER COMPANY
By:
Name:
Title:
Attest:
Name:
Title:
BANKERS TRUST COMPANY
Trustee
By:
Name:
Title:
Attest:
Name:
Title:
EXHIBIT 4.2(a)
MISSISSIPPI POWER COMPANY
TO
BANKERS TRUST COMPANY,
TRUSTEE.
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MAY 19, 1998
$55,000,000
SERIES A 6.75% SENIOR INSURED QUARTERLY NOTES
DUE JUNE 30, 2038
TABLE OF CONTENTS1
PAGE
ARTICLE 1.........................................................................................................1
SECTION 101. Establishment........................................................................................1
SECTION 102. Definitions..........................................................................................2
SECTION 103. Payment of Principal and Interest....................................................................2
SECTION 104. Denominations........................................................................................3
SECTION 105. Global Securities....................................................................................3
SECTION 106. Transfer.............................................................................................4
SECTION 107. Redemption at the Company's Option..................................................................4
SECTION 108. Redemption at the Holder's Option...................................................................4
ARTICLE 2.........................................................................................................7
SECTION 201. Supplemental Indentures.............................................................................7
SECTION 202. Events of Default and Remedies......................................................................7
SECTION 203. Insurance Policy Payment Procedures.................................................................7
SECTION 204. Application of Term "Outstanding" to Series A Notes.................................................8
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.
|
SECTION 205. Insurer as Third Party Beneficiary..................................................................8 SECTION 206. Concerning the Special Insurance Provisions.........................................................8 ARTICLE 3.........................................................................................................9 SECTION 301. Recitals by Company.................................................................................9 SECTION 302. Ratification and Incorporation of Original Indenture................................................9 SECTION 303. Executed in Counterparts............................................................................9 |
THIS FIRST SUPPLEMENTAL INDENTURE is made as of the 19th day of May, 1998, 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;
WHEREAS, the Original Indenture is incorporated herein by this reference and the Original Indenture, as supplemented by this First 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 he 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 First 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:
ARTICLE 1
Series A 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 A 6.75% Senior Insured Quarterly Notes due June 30, 2038 (the "Series A Notes").
There are to be authenticated and delivered $55,000,000 principal amount of Series A Notes, and no further Series A Notes shall be authenticated and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the Original Indenture. The Series A Notes shall be issued in definitive fully registered form.
The Series A 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 A Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series A Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series A 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.
"Insurance Trustee" means the United States Trust Company of New York, New York, New York, or any successor thereto, as the Insurance Trustee under the Policy.
"Insurer" means Ambac Assurance Corporation, a Wisconsin-domiciled stock insurance corporation.
"Interest Payment Dates" means March 31, June 30, September 30, and December 31 of each year.
"Original Issue Date" means May 19, 1998.
"Policy" means the financial guaranty insurance policy issued by the Insurer with respect to payments due for principal of and interest on the Series A Notes as provided in such policy.
"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.
"Stated Maturity" means June 30, 2038.
SECTION 103. Payment of Principal and Interest. The unpaid principal amount of the Series A Notes shall bear interest at the rate of 6.75% per annum until paid or duly provided for. Interest shall be paid quarterly in arrears on each Interest Payment Date to the Person in whose name the Series A 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 A 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 A 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 A 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 A Notes will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for the Series A Notes shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on the Series A Notes is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day that is a Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the date the payment was originally payable.
Payment of the principal and interest due at the Stated Maturity or earlier redemption of the Series A Notes shall be made upon surrender of the Series A Notes at the Corporate Trust Office of the Trustee, 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. Denominations. The Series A Notes may be issued in the denominations of $1,000, or any integral multiple thereof.
SECTION 105. Global Securities. The Series A 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 A Notes represented by the Global Security will not be exchangeable for, and will not otherwise be issuable as, Series A 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 A 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 A 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 A Notes. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Series A Notes registered in such names as the Depositary shall direct.
SECTION 106. Transfer. No service charge will be made for any transfer or exchange of Series A 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.
The Company shall not be required (a) to issue, transfer or exchange
any Series A 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 A 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 A Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series A Note redeemed in part.
SECTION 107. Redemption at the Company's Option. The Series A Notes shall be subject to redemption at the option of the Company, in whole or in part, without premium or penalty, at any time or from time to time on or after June 1, 2003, 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 A Notes in part only, a new Series A 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 A 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 A Notes shall, with respect to the principal thereof, be divisible by $1,000.
SECTION 108. Redemption at the Holder's Option. For purposes of this
Section 108, a "Beneficial Owner" means the Person who has the right to sell,
transfer or otherwise dispose of an interest in a Series A Note and the right to
receive the proceeds therefrom, as well as the interest and principal payable to
the Holder thereof. In general, a determination of beneficial ownership in the Series A Notes will be subject to the rules, regulations and procedures governing the Depositary and institutions that have accounts with the Depositary or a nominee thereof ("Participants"). Participants may hold interests in the Series A Notes as Beneficial Owners for their own accounts, or as nominees for other Persons.
Unless the Series A Notes have been declared due and payable prior to their maturity by reason of an Event of Default, the Representative (as hereinafter defined) of a deceased Beneficial Owner has the right to request redemption of all or part of his interest, expressed in integral multiples of $1,000 principal amount, in the Series A Notes for payment prior to its maturity, and the Company will redeem the same subject to the limitations that the Company will not be obligated to redeem, during the period from the Original Issue Date through and including June 1, 1999 (the "Initial Period"), and during any twelve-month period which ends on and includes each June 1 thereafter (each such twelve-month period being hereinafter referred to as a "Subsequent Period"), (i) on behalf of a deceased Beneficial Owner any interest in the Series A Notes which exceeds an aggregate principal amount of $25,000 or (ii) interests in the Series A Notes in an aggregate principal amount exceeding $1,100,000. A request for redemption may be presented to the Trustee by the Representative of a deceased Beneficial Owner at any time and in any principal amount in integral multiples of $1,000. If the Company, although not obligated to do so, chooses to redeem interests of any deceased Beneficial Owner in the Series A Notes in the Initial Period or any Subsequent Period in excess of the $25,000 limitation, such redemption, to the extent that it exceeds the $25,000 limitation for any deceased Beneficial Owner, shall not be included in the computation of the $1,100,000 limitation for such Initial Period or such Subsequent Period, as the case may be, or for any succeeding Subsequent Period.
Subject to the $25,000 and $1,100,000 limitations, the Company will, upon the death of any Beneficial Owner, redeem the interest of such Beneficial Owner in the Series A Notes within 60 days following receipt by the Trustee of a Redemption Request (as herein defined) from such Beneficial Owner's personal representative or other Person authorized to represent the estate of the Beneficial Owner or from a surviving joint tenant(s) or tenant(s) by the entirety (each, a "Representative"). If Redemption Requests exceed the aggregate principal amount of interests in Series A Notes required to be redeemed during the Initial Period or during any Subsequent Period, then such excess Redemption Requests will be applied to successive Subsequent Periods, regardless of the number of Subsequent Periods required to redeem such interests.
A request for redemption of an interest in the Series A Notes may be made by delivering a request to the Depositary, in the case of a Participant which is the Beneficial Owner of such interest, or to the Participant through whom the deceased Beneficial Owner owned such interest, in form satisfactory to the Participant, together with evidence of the death of the Beneficial Owner, evidence of the authority of the Representative satisfactory to the Participant and Trustee and such waivers, notices or certificates as may be required under applicable state or federal law. A Representative of a deceased Beneficial Owner may make the request for redemption and shall submit such other evidence of the right to such redemption as the Participant or Trustee shall require. The request shall specify the principal amount of the interest in the Series A Notes
to be redeemed. A request for redemption in the form satisfactory to the Participant and accompanied by the documents relevant to the request as above provided, together with a certification by the Participant that it holds the interest on behalf of the deceased Beneficial Owner with respect to whom the request for redemption is being made (a "Redemption Request"), shall be provided to the Depositary by a Participant and the Depositary will forward the request to the Trustee. Redemption Requests shall be in form satisfactory to the Trustee.
The price to be paid by the Company for interests in the Series A Notes to be redeemed pursuant to a Redemption Request from a deceased Beneficial Owner's Representative is 100% of the principal amount thereof plus accrued but unpaid interest to the date of payment. Subject to arrangements with the Depositary, payment for interests in the Series A Notes which are to be redeemed shall be made to the Depositary upon presentation of Series A Notes to the Trustee for redemption in the aggregate principal amount specified in the Redemption Requests submitted to the Trustee by the Depositary which are to be fulfilled in connection with such payment. Any acquisition of Series A Notes by the Company other than by redemption at the option of any Representative of a deceased Beneficial Owner pursuant to this Section 108 shall not be included in the computation of either the $25,000 or the $1,100,000 limitation for the Initial Period or for any Subsequent Period.
For purposes of this Section 108, an interest in a Series A Note held in tenancy by the entirety, joint tenancy or by tenants in common will be deemed to be held by a single Beneficial Owner and the death of a tenant by the entirety, joint tenant or tenant in common will be deemed the death of a Beneficial Owner. The death of a Person, who, during his lifetime, was entitled to substantially all of the rights of a Beneficial Owner of an interest in the Series A Notes will be deemed the death of the Beneficial Owner, regardless of the recordation of such interest on the records of the Participant, if such rights can be established to the satisfaction of the Participant and the Trustee. Such interests shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act, community property or other similar joint ownership arrangements, including individual retirement accounts or Keogh [H.R. 10] plans maintained solely by or for the decedent or by or for the decedent and any spouse, and trust and certain other arrangements where one Person has substantially all of the rights of a Beneficial Owner during such Person's lifetime.
In the case of any Redemption Request which is presented pursuant to
this Section 108 and which has not been fulfilled at the time the Company gives
notice of its election to redeem Series A Notes pursuant to Section 107 hereof,
such interest or portion thereof shall not be subject to redemption pursuant to
such Section 107, but shall remain subject to redemption pursuant to this
Section 108.
Subject to the provisions of the immediately preceding sentence, any Redemption Request may be withdrawn by the Person(s) presenting the same upon delivery of a written request for such withdrawal given by the Depositary to the Trustee prior to payment of such Redemption Request.
ARTICLE 2
Special Insurance Provisions
SECTION 201. Supplemental Indentures. The consent of the Insurer shall be required with respect to any indenture or indentures supplemental to the Original Indenture requiring the consent of the Holders of the Series A Notes pursuant to Section 902 of the Original Indenture.
SECTION 202. Events of Default and Remedies. If an Event of Default with respect to the Series A Notes occurs and is continuing, the Insurer shall be entitled to control and direct the enforcement of all rights and remedies granted to the Holders of the Series A Notes or the Trustee for the benefit of the Holders of the Series A Notes under the Indenture, including, without limitation, (i) the right to accelerate the principal of the Series A Notes as provided in Section 502 of the Original Indenture, and (ii) the right to annul any such declaration of acceleration, and the Insurer shall also be entitled to approve any waiver of an Event of Default with respect to the Series A Notes.
SECTION 203. Insurance Policy Payment Procedures. (a) The Insurer will make payments of principal or interest due on the Series A Notes in accordance with the Policy on or before the first (1st) Business Day next following the date on which the Insurer shall have received notice of Nonpayment (as defined in the Policy) from the Trustee.
(b) In the event of Nonpayment and notification thereof to the Insurer, the Security Registrar shall make available to the Insurer and, at the Insurer's direction, to the Insurance Trustee, the books kept by the Security Registrar for the registration and for the registration of transfer of Series A Notes as provided in the Indenture.
(c) The Trustee shall, at the time it provides notice to the Insurer pursuant to (a) above, notify Holders of Series A Notes entitled to receive the payment of principal or interest thereon from the Insurer (i) as to the fact of such entitlement, (ii) that the Insurer will remit to them all or a part of the interest payments next coming due upon proof of Holder entitlement to interest payments and delivery to the Insurance Trustee, in form satisfactory to the Insurance Trustee, of an appropriate assignment of the Holder's right to payment, (iii) that should they be entitled to receive full payment of principal from the Insurer, they must surrender their Series A Notes (along with an appropriate instrument of assignment in form satisfactory to the Insurance Trustee to permit ownership of such Series A Notes to be registered in the name of the Insurer) for payment to the Insurance Trustee, and not the Trustee or any Paying Agent, and (iv) that should they be entitled to receive partial payment of principal from the Insurer, they must surrender their Series A Notes for payment thereon first to the Trustee, who shall note on such Series A Notes the portion of the principal paid by the Trustee, and then, along with an appropriate instrument of assignment in form satisfactory to the Insurance Trustee, to the Insurance Trustee, which will then pay the unpaid portion of principal.
(d) In the event that the Trustee has notice that any payment of principal of or interest on a Series A Note which has become Due for Payment (as
defined in the Policy) and which is made to a Holder by or on behalf of the Company has been deemed a preferential transfer and theretofore recovered from its Holder owner pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in accordance with a final, nonappealable order of a court having competent jurisdiction, the Trustee shall, at the time the Insurer is notified pursuant to (a) above, notify all Holders of the Series A Notes that in the event that any Holder's payment is so recovered, such Holder will be entitled to payment from the Insurer to the extent of such recovery if sufficient funds are not otherwise available, and the Trustee shall furnish to the Insurer its records evidencing the payments of principal of and interest on the Series A Notes which have been made by the Trustee and subsequently recovered from Holders and the dates on which such payments were made.
(e) In addition to those rights granted the Insurer under the Indenture, the Insurer shall, to the extent it makes payment of principal of or interest on Series A Notes, become subrogated to the rights of the recipients of such payments in accordance with the terms of the Policy, and to evidence such subrogation (i) in the case of subrogation as to claims for past due interest, the Trustee shall note the Insurer's rights as subrogee on the registration books of the Company maintained by the Trustee upon receipt from the Insurer of proof of the payment of interest thereon to the Holders of the Series A Notes, and (ii) in the case of subrogation as to claims for past due principal, the Trustee shall note the Insurer's rights as subrogee on the registration books of the Company maintained by the Trustee upon surrender of the Series A Notes by the Holders thereof together with proof of the payment of principal thereof.
SECTION 204. Application of Term "Outstanding" to Series A Notes. In the event that the principal and/or interest due on the Series A Notes shall be paid by the Insurer pursuant to the Policy, the Series A Notes shall remain Outstanding for all purposes of the Indenture, not be considered defeased or otherwise satisfied and not be considered paid by the Company, and the assignment and pledge of the Indenture and all covenants, agreements and other obligations of the Company to the Holders of the Series A Notes shall continue to exist and shall run to the benefit of the Insurer, and the Insurer shall be subrogated to the rights of such Holders to the extent of each such payment.
SECTION 205. Insurer as Third Party Beneficiary. To the extent that the Indenture confers upon or gives or grants to the Insurer any right, remedy or claim under or by reason of the Indenture, the Insurer is hereby explicitly recognized as being a third-party beneficiary hereunder and may enforce any such right, remedy or claim conferred, given or granted hereunder.
SECTION 206. Concerning the Special Insurance Provisions. The provisions of this Article 2 shall apply notwithstanding anything in the Indenture to the contrary, but only so long as the Policy shall be in full force and effect and the Insurer is not in default thereunder.
ARTICLE 3
Miscellaneous Provisions
SECTION 301. Recitals by Company The recitals in this First 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 A Notes and of this First Supplemental Indenture as fully and with like effect as if set forth herein in full.
SECTION 302. Ratification and Incorporation of Original Indenture. As supplemented hereby, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture and this First Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 303. Executed in Counterparts This First 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.
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:
ATTEST: BANKERS TRUST COMPANY, as Trustee
By: By:
EXHIBIT A
FORM OF SERIES A NOTE
NO. 1 CUSIP NO. 605417BJ2
MISSISSIPPI POWER COMPANY
SERIES A 6.75% SENIOR INSURED QUARTERLY NOTE
DUE JUNE 30, 2038
Principal Amount: $_____________ Regular Record Date: 15th calendar day prior to Interest Payment Date Original Issue Date: May 19, 1998 Stated Maturity: June 30, 2038 Interest Payment Dates: March 31, June 30, September 30 and December 31 Interest Rate: 6.75% per annum Authorized Denomination: $1,000 Initial Redemption Date: June 1, 2003 |
Mississippi Power Company, a Mississippi corporation (the "Company", which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to _____________________________________________, or registered assigns, the principal sum of _________ DOLLARS ($__________) 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, quarterly in arrears on each Interest Payment Date as specified above, commencing on the Interest Payment Date next succeeding the Original Issue Date shown above and on the Stated Maturity (or upon earlier redemption) at the rate per annum shown above 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 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.
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 a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day that is a Business Day, except that, if such Business Day is in the next succeeding calendar year, payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the date the payment was originally payable. 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 A Notes shall be made upon surrender of the Series A Notes at the Corporate Trust Office of the Trustee, 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. 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.
Financial Guaranty Insurance Policy No. FG0356BE (the "Policy") with respect to payments due for principal of and interest on this Note has been issued by Ambac Assurance Corporation ("Ambac Assurance"). The Policy has been delivered to the United States Trust Company of New York, New York, New York, as the Insurance Trustee under said Policy and will be held by such Insurance Trustee or any successor insurance trustee. The Policy is on file and available for inspection at the principal office of the Insurance Trustee and a copy thereof may be secured from Ambac Assurance or the Insurance Trustee. All payments required to be made under the Policy shall be made in accordance with the provisions thereof. The owner of this Note acknowledges and consents to the subrogation rights of Ambac Assurance as more fully set forth in the Policy.
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.
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:
Title:
{Seal of MISSISSIPPI POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
(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 A 6.75% Senior Insured Quarterly Notes due June 30, 2038 (the "Series A Notes") in the aggregate principal amount of up to $55,000,000. 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 at any time on or after June 1, 2003 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 addition, at the option of any deceased Beneficial Owner's Representative, interests in the Series A Notes are redeemable at 100% of their principal amount, plus accrued interest, subject to certain limitations provided in the Indenture.
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 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 rate, and in the coin or currency, herein prescribed.
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.
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:
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.
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:
Exhibit 4.2(b)
MISSISSIPPI POWER COMPANY
TO
BANKERS TRUST COMPANY,
TRUSTEE.
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF MAY 20, 1998
$35,000,000
SERIES B 6.05% SENIOR NOTES
DUE MAY 1, 2003
TABLE OF CONTENTS1
PAGE
ARTICLE 1....................................................................1
SECTION 101. Establishment...................................................1
SECTION 102. Definitions.....................................................2
SECTION 103. Payment of Principal and Interest...............................2
SECTION 104. Denominations...................................................3
SECTION 105. Global Securities...............................................3
SECTION 106. Transfer........................................................4
ARTICLE 2....................................................................4
SECTION 201. Recitals by Company.............................................4
SECTION 202. Ratification and Incorporation of Original Indenture............4
SECTION 203. Executed in Counterparts........................................4
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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.
THIS SECOND SUPPLEMENTAL INDENTURE is made as of the 20th day of May, 1998, 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;
WHEREAS, the Original Indenture is incorporated herein by this reference and the Original Indenture, as supplemented by the First Supplemental Indenture and this Second 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 Second 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:
ARTICLE 1
Series B 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 B 6.05% Senior Notes due May 1, 2003 (the "Series B Notes").
There are to be authenticated and delivered $35,000,000 principal amount of Series B Notes, and no further Series B Notes shall be authenticated and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the Original Indenture. The Series B Notes shall be issued in definitive fully registered form.
The Series B 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 B Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series B Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series B 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.
"Interest Payment Dates" means May 1 and November 1 of each year.
"Original Issue Date" means May 20, 1998.
"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.
"Stated Maturity" means May 1, 2003.
SECTION 103. Payment of Principal and Interest. The unpaid principal amount of the Series B Notes shall bear interest at the rate of 6.05% per annum until paid or duly provided for. Interest shall be paid semi-annually in arrears on each Interest Payment Date to the Person in whose name the Series B Notes are registered on the Regular Record Date for such Interest Payment Date, provided that interest payable at the Stated Maturity of principal 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 B 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 B 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 B 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 B Notes will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for the Series B Notes shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on the Series B Notes is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day that is a Business Day, with the same force and effect as if made on the date the payment was originally payable.
Payment of the principal and interest due at the Stated Maturity of the Series B Notes shall be made upon surrender of the Series B Notes at the Corporate Trust Office of the Trustee, 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. Denominations. The Series B Notes may be issued in the denominations of $1,000, or any integral multiple thereof.
SECTION 105. Global Securities. The Series B 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 B Notes represented by the Global Security will not be exchangeable for, and will not otherwise be issuable as, Series B 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 B 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 B 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 B Notes. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Series B Notes registered in such names as the Depositary shall direct.
SECTION 106. Transfer. No service charge will be made for any transfer or exchange of Series B 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.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this Second 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 B Notes and of this Second 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 as supplemented hereby, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture, the First Supplemental Indenture and this Second Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 203. Executed in Counterparts. This Second 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.
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:
ATTEST: BANKERS TRUST COMPANY, as Trustee
By: By:
EXHIBIT A
FORM OF SERIES B NOTE
NO. 1 CUSIP NO. 605417BH6
MISSISSIPPI POWER COMPANY
SERIES B 6.05% SENIOR NOTE
DUE MAY 1, 2003
Principal Amount: $_____________ Regular Record Date: 15th calendar day prior to Interest Payment Date Original Issue Date: May 20, 1998 Stated Maturity: May 1, 2003 Interest Payment Dates: May 1 and November 1 Interest Rate: 6.05% per annum Authorized Denomination: $1,000 |
Mississippi Power Company, a Mississippi corporation (the "Company", which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to _____________________________________________, or registered assigns, the principal sum of _________ DOLLARS ($__________) on the Stated Maturity shown above, 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, semi-annually in arrears on each Interest Payment Date as specified above, commencing on the Interest Payment Date next succeeding the Original Issue Date shown above and on the Stated Maturity at the rate per annum shown above 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) 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 interest payable at Stated Maturity 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.
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 a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day that is a Business Day, with the same force and effect as if made on the date the payment was originally payable. 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 of the Series B Notes shall be made upon surrender of the Series B Notes at the Corporate Trust Office of the Trustee, 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. 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.
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:
Title:
{Seal of MISSISSIPPI POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
(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 B 6.05% Senior Notes due May 1, 2003 (the "Series B Notes") in the aggregate principal amount of up to $35,000,000. Capitalized terms used herein for which no definition is provided herein shall have the meanings set forth in the Indenture.
The Notes will not have a sinking fund.
The Notes will not be redeemable at the option of the Company prior to maturity.
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 rate, and in the coin or currency, herein prescribed.
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.
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:
TEN COM- as tenants in UNIF GIFT MIN ACT- _______ Custodian ________
common st) (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
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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.
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:
EXHIBIT 12.1
MISSISSIPPI POWER COMPANY
Computation of ratio of earnings to fixed charges for the the five years ended December 31, 1997 and the twelve months ended March 31, 1998
Twelve
Months
Ended
Year ended December 31, March 31,
===================================================================
1993 1994 1995 1996 1997 1998
----------------------------Thousands of Dollars-------------------------------
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $ 67,726 $ 76,067 $ 82,765 $ 80,523 $ 81,769 $ 79,504
Federal and state income taxes 18,787 30,050 35,972 33,476 33,188 32,212
Deferred income taxes, net 5,039 1,563 (480) 74 (1,808) (2,620)
Deferred investment tax credits - - - - - -
AFUDC - Debt funds 788 1,039 399 713 - (8)
-------- --------- --------- --------- --------- ---------
Earnings as defined $ 92,340 $ 108,719 $ 118,656 $ 114,786 $ 113,149 $ 109,088
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FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 17,688 $ 19,725 $ 21,898 $ 19,898 $ 19,856 $ 19,758
Interest on interim obligations 1,000 1,442 1,141 1,416 96 478
Amort of debt disc, premium and expense, net 1,262 1,479 1,510 1,547 1,577 1,578
Other interest charges 728 404 1,185 753 2,943 3,372
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Fixed charges as defined $ 20,678 $ 23,050 $ 25,734 $ 23,614 $ 24,472 $ 25,186
========= ======== ======== ========= ======== ========
RATIO OF EARNINGS TO FIXED CHARGES 4.47 4.72 4.61 4.86 4.62 4.33
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EXHIBIT 12.2
MISSISSIPPI POWER COMPANY
Computation of ratio of earnings to fixed charges plus preferred dividend requirements for the five years ended December 31, 1997 and the twelve months ended March 31, 1998
Twelve
Months
Ended
Year ended December 31, March 31,
=============================================================
1993 1994 1995 1996 1997 1998
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---------------------------Thousands of Dollars-------------------------
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $ 67,726 $ 76,067 $ 82,765 $ 80,523 $ 81,769 $ 79,504
Federal and state income taxes 18,787 30,050 35,972 33,476 33,188 32,212
Deferred income taxes, net 5,039 1,563 (480) 74 (1,808) (2,620)
Deferred investment tax credits - - - - - -
AFUDC - Debt funds 788 1,039 399 713 - (8)
--------- ---------- ---------- ---------- ---------- ----------
Earnings as defined $ 92,340 $ 108,719 $ 118,656 $ 114,786 $ 113,149 $ 109,088
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FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 17,688 $ 19,725 $ 21,898 $ 19,898 $ 19,856 $ 19,758
Interest on interim obligations 1,000 1,442 1,141 1,416 96 478
Amort of debt disc, premium and expense, net 1,262 1,479 1,510 1,547 1,577 1,578
Other interest charges 728 404 1,185 753 2,943 3,372
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Fixed charges as defined 20,678 23,050 25,734 23,614 24,472 25,186
Tax deductible preferred dividends 330 261 261 261 261 261
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21,008 23,311 25,995 23,875 24,733 25,447
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Non-tax deductible preferred dividends 5,070 4,638 4,638 4,638 3,026 2,297
Ratio of net income before taxes to net income x 1.499 x 1.585 x 1.618 x 1.582 x 1.548 x 1.545
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Pref dividend requirements before income taxes 7,600 7,351 7,504 7,337 4,684 3,549
---------- ----------- ----------- ----------- ----------- -----------
Fixed charges plus pref dividend requirements $ 28,608 $ 30,662 $ 33,499 $ 31,212 $ 29,417 $ 28,996
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RATIO OF EARNINGS TO FIXED CHARGES PLUS
PREFERRED DIVIDEND REQUIREMENTS 3.23 3.55 3.54 3.68 3.85 3.76
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