[FORM OF GENERAL & REFUNDING MORTGAGE BOND
UNDERWRITING AGREEMENT]
Exhibit B-2
MISSISSIPPI POWER & LIGHT COMPANY
$___________
General and Refunding Mortgage Bonds
______% Series due ______, ______
UNDERWRITING AGREEMENT
________ ___, 19__
[UNDERWRITERS]
[LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
The undersigned, Mississippi Power & Light Company, a
Mississippi corporation (the "Company"), proposes to issue and
sell severally to you, as underwriters (the "Underwriters," which
term, when the context permits shall also include any
underwriters substituted as hereinafter in Section 11 provided)
an aggregate of $___________ principal amount of the Company's
General and Refunding Mortgage Bonds, ______% Series due
___________ ___, ______, (the "Bonds"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Bonds set forth opposite the name of such
Underwriter in Schedule I attached hereto at _____% of the
principal amount of the Bonds plus accrued interest thereon from
___________ ____, ______, to the date of payment for and delivery
of the Bonds.
SECTION 2. Description of Bonds. The Bonds shall be issued
under and pursuant to the Company's Mortgage and Deed of Trust,
dated as of February 1, 1988, with Bank of Montreal Trust
Company, as Corporate Trustee, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (successor
to Z. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), as Co-Trustee (the Co-Trustee, together
with the Corporate Trustee, are hereinafter called the
"Trustees"), as supplemented and as it will be further
supplemented by the _______ Supplemental Indenture, dated as of
____________ ____, ______ (the "Supplemental Indenture"). Said
Mortgage and Deed of Trust, as supplemented and as it will be
further supplemented by the Supplemental Indenture, is
hereinafter referred to as the "Mortgage." The Bonds and the
Supplemental Indenture shall have the terms and provisions
described in the Prospectus hereinafter referred to, provided
that subsequent to the date hereof and prior to the Closing Date
(as defined herein) the form of the Supplemental Indenture may be
amended by mutual agreement between the Company and the
Underwriters.
SECTION 3. Representations and Warranties of the Company.
The Company represents and warrants to the several Underwriters
that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Mississippi, is in good standing and duly qualified
to do business in the State of Arkansas, and has the
necessary corporate power and authority to conduct the
business which it is described in the Prospectus
(hereinafter defined) as conducting and to own and operate
the properties owned and operated by it in such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 33-53004) (the "First 1992
Registration Statement") for the registration of 375,000
shares of the Company's Preferred Stock, Cumulative, $100
Par Value, under the Securities Act of 1933, as amended (the
"Securities Act"), and the First 1992 Registration Statement
has become effective. The Company has also filed with the
Commission a Registration Statement on Form S-3 (File No. 33-
55826) (the "Second 1992 Registration Statement") for the
registration of $235,000,000 principal amount of the
Company's general and refunding mortgage bonds under the
Securities Act, and the Second 1992 Registration Statement
has become effective. While an aggregate of $17,500,000
aggregate par value of such preferred stock and $50,000,000
of such general and refunding mortgage bonds remained
unsold, the Company also filed with the Commission a
Registration Statement on Form S-3 (File No. 33-50507) (the
"1993 Registration Statement") for the registration of
$282,500,000 aggregate par value and/or principal amount of
the Company's preferred stock and/or general and refunding
mortgage bonds under the Securities Act, and the 1993
Registration Statement has become effective. The combined
prospectus forming a part of the 1993 Registration Statement
and relating, pursuant to Rule 429 under the Securities Act,
to an aggregate of $350,000,000 aggregate par value and/or
principal amount of the Company's preferred stock and/or
general and refunding mortgage bonds (of which an aggregate
par value and/or principal amount of $_____________ of such
preferred stock and/or general and refunding mortgage bonds
remain unsold), including the Bonds at the time the 1993
Registration Statement became effective, including all
documents incorporated by reference therein at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus." In the event that the Basic
Prospectus shall have been amended, revised or supplemented
(but excluding any amendments, revisions or supplements to
the Basic Prospectus relating solely to General and
Refunding Mortgage Bonds other than the Bonds or relating
solely to shares of Preferred Stock) prior to the time of
effectiveness of this Underwriting Agreement, and with
respect to any documents filed by the Company pursuant to
Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the time the
1993 Registration Statement initially became effective and
up to the time of effectiveness of this Underwriting
Agreement (but excluding documents incorporated therein by
reference relating solely to General and Refunding Mortgage
Bonds other than the Bonds or relating solely to shares of
Preferred Stock), which documents are deemed to be
incorporated by reference in the Basic Prospectus, the term
"Basic Prospectus" as used herein shall also mean such
prospectus as so amended, revised or supplemented. The 1993
Registration Statement as it initially became effective and
as it may have been amended by any amendment thereto
included in the Basic Prospectus (including for these
purposes as an amendment any document incorporated by
reference in the Basic Prospectus), and the Basic Prospectus
as it shall be supplemented to reflect the terms of offering
and sale of the Bonds by a prospectus supplement (a
"Prospectus Supplement") to be filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424"), are hereinafter referred to as
the "Registration Statement" and the "Prospectus,"
respectively. After the time of effectiveness of this
Underwriting Agreement and during the time specified in
Section 6(d), the Company will not file (i) any amendment to
the First 1992 Registration Statement, the Second 1992
Registration Statement or the Registration Statement (except
any amendment relating solely to General and Refunding
Mortgage Bonds other than the Bonds or relating solely to
shares of Preferred Stock) or supplement to the Prospectus
or (ii) prior to the time that the Prospectus is filed with,
or transmitted for filing to, the Commission pursuant to
Rule 424, any document which is to be incorporated by
reference in, or any supplement to (including the Prospectus
Supplement), the Basic Prospectus, in either case, without
prior notice to the Underwriters and to Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("Counsel for the Underwriters"), or any
such amendment or supplement to which said Counsel shall
reasonably object on legal grounds in writing. For purposes
of this Underwriting Agreement, any document which is filed
with the Commission after the time of effectiveness of this
Underwriting Agreement and incorporated by reference in the
Prospectus (except documents incorporated by reference
relating solely to General and Refunding Mortgage Bonds
other than the Bonds or relating solely to shares of
Preferred Stock) pursuant to Item 12 of Form S-3 shall be
deemed a supplement to the Prospectus.
(c) The First 1992 Registration Statement, the Second
1992 Registration Statement and the Registration Statement
at the respective times of their effectiveness, and the
Mortgage, at such times, fully complied, and the Prospectus,
when filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 and at the Closing Date
(hereinafter defined), as it may then be amended or
supplemented, will fully comply, in all material respects
with the applicable provisions of the Securities Act, the
Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the
Commission thereunder or pursuant to said rules and
regulations are or will be deemed to comply therewith. The
documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date first filed
with the Commission pursuant to the Exchange Act, fully
complied or will fully comply in all material respects with
the applicable provisions of the Exchange Act and the rules
and regulations of the Commission thereunder or pursuant to
said rules and regulations are or will be deemed to comply
therewith. On the later of (i) their respective dates of
effectiveness or (ii) the date that the Company's most
recent Annual Report on Form 10-K was filed with the
Commission under the Exchange Act (the date described in
either clause (i) or (ii) is hereinafter referred to as the
"Effective Date"), the First 1992 Registration Statement,
the Second 1992 Registration Statement and the Registration
Statement did not, and on the date that any post-effective
amendment to the First 1992 Registration Statement, the
Second 1992 Registration Statement and the Registration
Statement became or becomes effective (but excluding any
post-effective amendment relating solely to General and
Refunding Mortgage Bonds other than the Bonds or relating
solely to shares of Preferred Stock), the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, as amended by any
such post-effective amendment, did not or will not, as the
case may be, contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading. At the time the Prospectus is filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 and at the Closing Date (as defined herein), the
Prospectus as it may be amended or supplemented will not
include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they are made, not misleading, and on said dates and
at such times the documents then incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3, when read
together with the Prospectus, or the Prospectus as it may
then be amended or supplemented, will not include an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this paragraph (c) shall
not apply to statements or omissions made in reliance upon
and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for
use in connection with the preparation of the First 1992
Registration Statement, the Second 1992 Registration
Statement, the Registration Statement or the Prospectus, as
they may be amended or supplemented, or to any statements
in, or omissions from, the statements of eligibility, as
either may be amended, under the Trust Indenture Act, of the
Trustees under the Mortgage.
(d) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, the Mortgage or any other
financing agreement or instrument to which the Company is
now a party.
(e) Except as set forth or contemplated in the
Prospectus, as it may be amended or supplemented, the
Company possesses adequate franchises, licenses, permits,
and other rights to conduct its business and operations as
now conducted, and without any known conflicts with the
rights of others which could have a material adverse effect
on the Company.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds as soon after the time of
effectiveness of this Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Bonds will be offered to the public at the initial
public offering price specified in the Prospectus Supplement plus
accrued interest thereon from _____________ ____, _____ to the
Closing Date (as defined herein).
SECTION 5. Time and Place of Closing. Delivery of the
Bonds and payment of the purchase price therefor by wire transfer
of, or check or checks payable in, New York Clearing House Funds
shall be made at the offices of ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., New York time, on
____________ _____, ______ or at such other time on the same or
such other day as shall be agreed upon by the Company and [Lead
Underwriter], or as may be established in accordance with Section
11 herein. The hour and date of such delivery and payment are
herein called the "Closing Date."
The Bonds shall be delivered to the Underwriters in book-
entry form through the facilities of The Depository Trust Company
in New York, New York. The certificates for the Bonds shall be
in the form of one or more typewritten bonds in fully registered
form, in the aggregate principal amount of the Bonds, and
registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon among the
Underwriters and the Company, or at such other time and/or date
as may be agreed upon among the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company covenants
and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, as originally
filed with the Commission, and of all amendments thereto
relating to the Bonds, certified by an officer of the
Company to be in the form filed.
(b) The Company will deliver to the Underwriter(s) as
many copies of the Prospectus (and any amendments or
supplements thereto) as the Underwriter(s) may reasonably
request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant
to and in compliance with Rule 424(b) and will advise [Lead
Underwriter] promptly of the issuance of any stop order
under the Securities Act with respect to the First 1992
Registration Statement, the Second 1992 Registration
Statement or the Registration Statement or the institution
of any proceedings therefor of which the Company shall have
received notice. The Company will use its best efforts to
prevent the issuance of any such stop order and to secure
the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are
required by law to deliver a prospectus, if any event
relating to or affecting the Company, or of which the
Company shall be advised by the Underwriters in writing,
shall occur which in the Company's opinion should be set
forth in a supplement or amendment to the Prospectus in
order to make the Prospectus not misleading in the light of
the circumstances when it is delivered to a purchaser of the
Bonds, the Company will amend or supplement, or cause to be
amended or supplemented, the Prospectus by either (i)
preparing and filing with the Commission and furnishing to
the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to
the Prospectus, or (ii) making an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act, which will
supplement or amend the Prospectus, so that, as supplemented
or amended, it will not include an untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary in order to make the
statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading.
Unless such event relates solely to the activities of the
Underwriters (in which case the Underwriters shall assume
the expense of preparing any such amendment or supplement),
the expenses of complying with this Section 6(d) shall be
borne by the Company until the expiration of nine months
from the initial effective date of the Registration
Statement, and such expenses shall be borne by the
Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner, so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act
and Rule 158 promulgated under the Securities Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Bonds for offer and sale under the "blue sky" laws of such
jurisdictions as the Underwriters may reasonably designate,
provided that the Company shall not be required to qualify
as a foreign corporation or dealer in securities, to file
any consents to service of process under the laws of any
jurisdiction, or to meet any other requirements deemed by it
to be unduly burdensome.
(g) The Company will, except as herein provided, pay
or cause to be paid all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and filing of
the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement and any
post-effective amendments thereto, (ii) the printing,
issuance and delivery of the Bonds and the preparation,
execution, printing and recordation of the Supplemental
Indenture, (iii) legal fees and expenses relating to the
qualification of the Bonds under the "blue sky" laws of
various jurisdictions and the determination of the
eligibility of the Bonds for investment under the laws of
various jurisdictions in an amount not to exceed $_______,
(iv) the printing and delivery to the Underwriters of
reasonable quantities of copies of the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, the preliminary
(a1nd any supplemental) blue sky survey and the prospectus
and any amendment or supplement thereto, except as otherwise
provided in paragraph (d) of this Section 6, (v) fees of the
rating agencies in connection with the rating of the Bonds,
and (vi) fees (if any) of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering. Except as provided
above, the Company shall not be required to pay any amount
for any expenses of the Underwriters, except that, if this
Underwriting Agreement shall be terminated in accordance
with the provisions of Section 7, 8 or 12, the Company will
reimburse the Underwriters for (i) the fees and expenses of
Counsel for the Underwriters, whose fees and expenses the
Underwriters agree to pay in any other event, and (ii)
reasonable out-of-pocket expenses, in an amount not
exceeding in the aggregate $15,000, incurred in
contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to
the Underwriters for damages on account of loss of
anticipated profits.
(h) The Company will not sell any additional General
and Refunding Mortgage Bonds without the consent of the
Underwriters until the earlier to occur of (i) the Closing
Date or (ii) the date of the termination of the fixed price
offering restrictions applicable to the Underwriters. The
Underwriters agree to notify the Company of such termination
if it occurs prior to the Closing Date.
(i) As soon as practicable after the Closing Date, the
Company will make all recordings, registrations and filings
necessary to perfect and preserve the lien of the Mortgage
and the rights under the Supplemental Indenture, and the
Company will use its best efforts to cause to be furnished
to the Underwriters a supplemental opinion of ▇▇▇▇ ▇▇▇▇▇▇
Child & ▇▇▇▇▇▇▇, Professional Association, addressed to the
Underwriters, stating that all such recordings,
registrations and filings have been made.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Bonds
shall be subject to the accuracy on the date hereof and on the
Closing Date of the representations and warranties made herein on
the part of the Company and of any certificates furnished by the
Company and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
First 1992 Registration Statement, the Second 1992
Registration Statement or the Registration Statement shall
be in effect at or prior to the Closing Date; no proceedings
for such purpose shall be pending before, or, to the
knowledge of the Company or the Underwriters, threatened by,
the Commission on the Closing Date; and the Underwriters
shall have received a certificate of the Company, dated the
Closing Date and signed by the President or a Vice President
of the Company, to the effect that no such stop order has
been or is in effect and that no proceedings for such
purpose are pending before, or, to the knowledge of the
Company, threatened by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an
order of the Commission under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"),
authorizing the issuance and sale of the Bonds and the
execution of the Supplemental Indenture on the terms set
forth in, or contemplated by, this Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have
received from ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional
Association, general counsel for the Company, Friday,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special Arkansas counsel to the Company,
and ▇▇▇▇ & Priest LLP, of counsel to the Company, opinions,
dated the Closing Date, substantially in the forms set forth
in Exhibits A, B and C hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and the
Underwriters with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for
use in offering the Bonds, with changes therein to reflect
such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters, an opinion,
dated the Closing Date, substantially in the form set forth
in Exhibit D hereto, with such changes therein as may be
necessary to reflect any supplementation of the Prospectus
prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received
from Coopers & ▇▇▇▇▇▇▇ L.L.P., the Company's independent
certified public accountants (the "Accountants"), a letter
dated the date hereof and addressed to you to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the financial
statements and financial statement schedules audited by them
and included or 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 Exchange Act, and the related published rules and
regulations thereunder; (iii) if applicable, on the basis of
performing the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71,
Interim Financial Information, on the latest unaudited
financial statements included or incorporated by reference
in the Prospectus, a reading of the latest available interim
unaudited financial statements of the Company, the minutes
of the meetings of the Board of Directors of the Company,
the Executive Committee thereof, and the stockholder or
stockholders of the Company, since December 31, 1994, to a
specified date not more than five days prior to the date of
such letter or letters, and inquiries of officers of the
Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures
do not constitute an examination made in accordance with
generally accepted auditing standards and that they would
not necessarily reveal matters of significance with respect
to the comments made in such letter and, accordingly, that
the Accountants make no representations as to the
sufficiency of such procedures for the purposes of the
Underwriters), nothing has come to their attention which
caused them to believe that, to the extent applicable, (A)
the unaudited financial statements of the Company included
or incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder; (B) any material
modifications should be made to said unaudited financial
statements for them to be in conformity with generally
accepted accounting principles; and (C) at a specified date
not more than five business days prior to the date of the
letter, there was any change in the capital stock or
long-term debt of the Company, or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur,
for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or
purchase of preferred stock for sinking fund purposes, for
any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial
development revenue bonds, or for changes or decreases as
set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they
have compared specific dollar amounts, percentages of
revenues and earnings and other financial information
pertaining to the Company set forth in the Prospectus and
specified in Exhibit E hereto to the extent that such
amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, the Underwriters shall have
received a certificate of the Company, dated the Closing
Date and signed by the President or a Vice President of the
Company, to the effect that (i) the representations and
warranties of the Company contained herein are true and
correct, (ii) the Company has performed and complied with
all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Company at or prior
to the Closing Date, and (iii) since the most recent date as
of which information is given in the Prospectus, as it may
be amended or supplemented, there has not been any material
adverse change in the business, property or financial
condition of the Company, and there has not been any
material transaction entered into by the Company, other than
transactions in the ordinary course of business, in each
case other than as referred to in, or contemplated by, such
Prospectus, as it may be amended or supplemented.
(h) The Underwriters shall have received duly executed
counterparts of the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five business
days prior to the Closing Date, the statements contained in
the letter delivered pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under
the Mortgage shall have occurred.
(k) Between the date hereof and the Closing Date,
neither ▇▇▇▇▇'▇ Investors Service, Inc. nor Standard and
Poor's Ratings Group shall have lowered its rating of the
Company's outstanding General and Refunding Mortgage Bonds
or First Mortgage Bonds in any respect.
(l) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, which, in the reasonable opinion of
the Underwriters, materially impairs the investment quality
of the Bonds.
(m) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriters.
(n) The Company will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of the Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date determined by the
Company and approved by the Underwriters.
(b) No stop order suspending the effectiveness of the
First 1992 Registration Statement, the Second 1992
Registration Statement or the Registration Statement shall
be in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an
order of the Commission under the 1935 Act authorizing the
issuance and sale of the Bonds and the execution of the
Supplemental Indenture on the terms set forth in, or
contemplated by, this Underwriting Agreement.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to [Lead
Underwriter], provided that, in the case of paragraph (a) above,
the Company shall have used its best efforts to comply with the
requirements of Rule 424(b). Any such termination shall be
without liability of any party to any other party, except as
otherwise provided in paragraph (g) of Section 6 and in Section
10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the
Securities Act from and 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
any other statute or common law and shall reimburse each
Underwriter and any such controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon an untrue statement or alleged untrue statement of a
material fact contained in the First 1992 Registration
Statement, the Second 1992 Registration Statement or the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material
fact necessary to make the statements therein not
misleading, or upon an untrue statement or alleged untrue
statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424), or in the Prospectus, as amended or
supplemented (if any amendments or supplements thereto shall
have been made), or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreement
contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions
arising out of, or based upon, any such untrue statement or
alleged untrue statement, or any such omission or alleged
omission, if such statement or omission were made in
reliance upon and in conformity with information furnished
herein or in writing to the Company by such Underwriter
specifically for use in connection with the preparation of
the Basic Prospectus (if used prior to the date the
Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424) or the First 1992
Registration Statement, the Second 1992 Registration
Statement, the Registration Statement or the Prospectus or
any amendment or supplement to any thereof or arising out
of, or based upon, statements in or omissions from that part
of the Second 1992 Registration Statement or the
Registration Statement which shall constitute the statements
of eligibility under the Trust Indenture Act of the
Trustees; and provided further, that the indemnity agreement
contained in this subsection shall not inure to the benefit
of any Underwriter or to the benefit of any person
controlling any Underwriter on account of any such losses,
claims, damages, liabilities, expenses or actions arising
from the sale of Bonds to any person in respect of the Basic
Prospectus or the Prospectus, as supplemented or amended
(excluding in both cases, however, any document then
incorporated or deemed incorporated by reference therein
pursuant to Item 12 of Form S-3), furnished by any
Underwriter to a person to whom any of the Bonds were sold,
insofar as such indemnity relates to any untrue or
misleading statement or omission made in the Basic
Prospectus or the Prospectus but eliminated or remedied
prior to the consummation of such sale in the Prospectus, or
any amendment or supplement thereto furnished pursuant to
Section 6(d) hereof, respectively, unless a copy of the
Prospectus (in the case of such a statement or omission made
in the Basic Prospectus) or such amendment or supplement (in
the case of such a statement or omission made in the
Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating to any General and
Refunding Mortgage Bonds other than the Bonds or to shares
of Preferred Stock and any document incorporated or deemed
incorporated by reference in the Prospectus or such
amendment or supplement) is furnished by such Underwriter to
such person (i) with or prior to the written confirmation of
the sale involved or (ii) as soon as available after such
written confirmation.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each
person who controls any of the foregoing within the meaning
of Section 15 of the Securities Act, from and 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 any other statute or common law
and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any action,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in the First 1992 Registration Statement, the
Second 1992 Registration Statement or the Registration
Statement, as amended or supplemented, or the omission or
alleged omission to state therein a material fact necessary
to make the statements therein not misleading, or upon an
untrue statement or alleged untrue statement of a material
fact contained in, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b)), or the
Prospectus, as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading, in each case, if (but
only if) such statement or omission were made in reliance
upon and in conformity with information furnished herein or
in writing to the Company by such Underwriter specifically
for use in connection with the preparation of the Basic
Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424(b)) or of the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement or the Prospectus, or any amendment
or supplement thereto.
(c) In case any action shall be brought, based upon
the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement, the
Basic Prospectus or the Prospectus (including amendments or
supplements thereto), against any party or parties in
respect of which indemnity may be sought pursuant to any of
the preceding paragraphs, such party or parties (hereinafter
called the indemnified party) shall promptly notify the
party or parties against whom indemnity shall be sought
hereunder (hereinafter called the indemnifying party) in
writing, and the indemnifying party shall have the right to
participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other
indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the
indemnified party and the payment of all fees and expenses.
If the indemnifying party shall elect not to assume the
defense of any such action, the indemnifying party shall
reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by such indemnified party.
Such indemnified party shall have the right to employ
separate counsel in any such action in which the defense has
been assumed by the indemnifying party and participate in
the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel has been specifically
authorized by the indemnifying party or (ii) the named
parties to any such action (including any impleaded parties)
include each of such indemnified party and the indemnifying
party and such indemnified party shall have been advised by
such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and
for this reason it is not desirable for the same counsel to
represent both the indemnifying party and the indemnified
party (it being understood, however, that the indemnifying
party shall not, in connection with any one such action or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of
attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable
judgment), which firm (or firms), in the case of any of the
Underwriters being the indemnified party, shall be
designated in writing by [Lead Underwriter]. The
indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall
not be liable for any settlement of any such action effected
without its consent, but if any such action is settled with
the consent of the indemnifying party or if there be a final
judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless the
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable
to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Bonds
or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions
which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total
proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to
the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus.
The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and
the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9(d)
were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If either Underwriter
shall fail or refuse (otherwise than for some reason sufficient
to justify, in accordance with the terms hereof, the cancellation
or termination of its obligations hereunder) to purchase and pay
for the principal amount of Bonds which it has agreed to purchase
and pay for hereunder, and the aggregate principal amount of
Bonds which such defaulting Underwriter agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of the Bonds, the other Underwriter shall be
obligated to purchase the Bonds which such defaulting Underwriter
agreed but failed or refused to purchase; provided that in no
event shall the principal amount of Bonds which any Underwriter
has agreed to purchase pursuant to Schedule I hereof be increased
pursuant to this Section 11 by an amount in excess of one-ninth
of such principal amount of Bonds without the written consent of
such Underwriter. If any Underwriter shall fail or refuse to
purchase Bonds and the aggregate principal amount of Bonds with
respect to which such default occurs is more than one-tenth of
the aggregate principal amount of the Bonds, the Company shall
have the right (a) to require the non-defaulting Underwriter to
purchase and pay for the respective principal amount of Bonds
that it had severally agreed to purchase hereunder, and, in
addition, the principal amount of Bonds that the defaulting
Underwriter shall have so failed to purchase up to a principal
amount thereof equal to one-ninth of the respective principal
amount of Bonds that such non-defaulting Underwriter had
otherwise agreed to purchase hereunder, and/or (b) to procure one
or more others, members of the NASD (or, if not members of the
NASD, who are foreign banks, dealers or institutions not
registered under the Exchange Act and who agree in making sales
to comply with the NASD's Rules of Fair Practice), to purchase,
upon the terms herein set forth, the principal amount of Bonds
that such defaulting Underwriter had agreed to purchase, or that
portion thereof that the remaining Underwriter shall not be
obligated to purchase pursuant to the foregoing clause (a). In
the event the Company shall exercise its rights under clause (a)
and/or (b) above, the Company shall give written notice thereof
to the Underwriters within 24 hours (excluding any Saturday,
Sunday, or legal holiday) of the time when the Company learns of
the failure or refusal of any Underwriter to purchase and pay for
its respective principal amount of Bonds, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriter, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement shall
be subject to termination by notice given by written notice from
[Lead Underwriter] to the Company, if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended on the New
York Stock Exchange by the New York Stock Exchange, Inc., the
Commission or other governmental authority, (ii) minimum or
maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the New York Stock Exchange,
Inc., the Commission or other governmental authority, (iii) a
general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis
that, in the judgment of the Underwriters, is material and
adverse and (b) in the case of any of the events specified in
clauses (a) (i) through (iv), such event singly or together with
any other such event makes it, in the reasonable judgment of the
Underwriters, impracticable to market the Bonds. This
Underwriting Agreement shall also be subject to termination, upon
notice by [Lead Underwriter] as provided above, if, in the
judgment of the Underwriters, the subject matter of any amendment
or supplement (prepared by the Company) to the Prospectus (except
for information relating solely to the manner of public offering
of the Bonds or to the activity of any Underwriter or
Underwriters or to the terms of any series of General and
Refunding Mortgage Bonds not included in the Bonds or to shares
of the Preferred Stock) filed or issued after the effectiveness
of this Underwriting Agreement by the Company shall have
materially impaired the marketability of the Bonds. Any
termination hereof, pursuant to this Section 12, shall be without
liability of any party to any other party, except as otherwise
provided in paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement may be executed in any number of separate
counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which, taken
together, shall constitute but one and the same agreement. This
Underwriting Agreement shall become effective at the time a fully-
executed copy thereof is delivered to the Company and to [Lead
Underwriter]. This Underwriting Agreement shall inure to the
benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Bonds from the Underwriters.
SECTION 14. Notices. All communications hereunder shall be
in writing and, if to the Underwriters, shall be mailed or
delivered to [Lead Underwriter] (to the attention of its General
Counsel) at the address set forth at the beginning of this
Underwriting Agreement or, if to the Company, shall be mailed or
delivered to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Secretary or, if to Entergy Services, Inc.,
shall be mailed or delivered to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
Very truly yours,
MISSISSIPPI POWER & LIGHT COMPANY
By:
Name:
Title:
Accepted as of the date first above written:
[UNDERWRITERS]
By: [LEAD UNDERWRITER]
By:
Name:
Title:
SCHEDULE I
Mississippi Power & Light Company
$_____________________
General and Refunding Mortgage Bonds
______% Series due ______ __, _____
Name Amount
[LEAD UNDERWRITER] $______________
[LEAD UNDERWRITER]
$______________
_______________
Total $______________
EXHIBIT A
[Letterhead of ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇]
_____ __, _____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We are General Counsel for Mississippi Power & Light Company
(the "Company") and have acted in that capacity in connection
with the issuance and sale by the Company to you, pursuant to the
agreement effective ______ __, _____ (the "Underwriting
Agreement"), between the Company and you, of $________ in
aggregate principal amount of its General and Refunding Mortgage
Bonds, ____% Series due _____________ _____, ______ (the
"Bonds"), issued pursuant to the Company's Mortgage and Deed of
Trust, dated as of February 1, 1988, as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, including the _____ Supplemental Indenture
(the "Supplemental Indenture") dated as of __________ ____,
_____, (the Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage").
This opinion is rendered to you at the request of the Company.
We are familiar with the organization of the Company, the
Restated Articles of Incorporation and By-Laws of the Company,
both as amended, and the records of various corporate and other
proceedings relating to the authorization, issuance and sale of
the Bonds. We have participated in the preparation of or have
examined and are familiar with (a) the Mortgage; (b) the
Underwriting Agreement; (c) the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement and the Prospectus filed under the
Securities Act; and (d) the application-declaration, and all
amendments thereto, filed by the Company with the Commission
under the 1935 Act, with respect to the issuance and sale of the
Bonds (the application-declaration, as amended by all such
amendments, being hereinafter referred to as the "Application-
Declaration").
We have examined the orders of the Commission (or
appropriate evidence thereof) relating to the effectiveness of
the First 1992 Registration Statement, the Second 1992
Registration Statement, and the Registration Statement, the
qualification of the Mortgage under the Trust Indenture Act and
the Application-Declaration. We have also examined such other
documents and satisfied ourselves as to such other matters as we
have deemed necessary in order to render this opinion. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
and the conformity to the originals of the documents submitted to
us as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a
certificate of Bank of Montreal Trust Company as to the
authentication and delivery thereof. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
Upon the basis of our familiarity with the foregoing and
with the Company's properties and affairs generally, and subject
to the foregoing and to the further exceptions and qualifications
set forth below, we are of the opinion that:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Mississippi.
(2) The Company is duly authorized by its Restated
Articles of Incorporation, as amended, to conduct the
utility business which it is described in the Prospectus as
conducting, and possesses adequate, valid and subsisting
franchises, certificates of public convenience and
necessity, licenses and permits in order to, and is duly
qualified to, conduct such business in the States of
Mississippi and Arkansas.
(3) The Company has good and sufficient title to the
properties described as owned by it in and as subject to the
lien of the Mortgage (except properties released under the
terms of the Mortgage), subject only to Excepted
Encumbrances as defined in the Mortgage and to minor defects
and encumbrances customarily found in properties of like
size and character that do not, in our opinion, materially
impair the use of such properties affected thereby in the
conduct of the business of the Company. All permanent
physical properties and franchises (other than those
expressly excepted) acquired by the Company after the date
of the Supplemental Indenture, will, upon such acquisition,
become subject to the lien of the Mortgage, subject,
however, to Excepted Encumbrances and to liens, if any,
existing or placed thereon at the time of the acquisition
thereof by the Company and except as limited by bankruptcy
law.
(4) The Mortgage constitutes a valid and direct lien
on all of the Mortgaged and Pledged Property (as defined in
the Mortgage), subject only to minor defects of the
character aforesaid and Excepted Encumbrances. The
description of the Mortgaged and Pledged Property set forth
in the Mortgage is adequate to constitute the Mortgage a
lien on the Mortgaged and Pledged Property. The filing for
recording of the Mortgage in the offices of the Chancery
Clerks of each County in Mississippi in which the Company
holds real property, and the recording of the Mortgage in
the office of the Circuit Clerk of Independence County,
Arkansas, which filings or recordings will be duly effected,
and the filing of Uniform Commercial Code Financing
Statements covering the personal property and fixtures
described in the Mortgage as subject to the lien thereof in
the offices of the Secretary of State of the State of
Mississippi, the Secretary of State of the State of
Arkansas, and the Secretary of State of the State of
Wyoming, which filings will be duly effected, are the only
recordings, filings, rerecordings and refilings required by
law in order to protect and maintain the lien of the
Mortgage on any of the property described therein and
subject thereto.
(5) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, except (i) as the same may be limited by the laws of
the States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein,
which laws do not, in our opinion, make inadequate remedies
necessary for the realization of the benefits of such
security, and (ii) as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and is qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(6) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and are entitled to the benefit of the security
afforded by the Mortgage.
(7) The statements made in the Prospectus under the
captions ["Description of the New G&R Bonds,"] insofar as
they purport to constitute summaries of the documents
referred to therein, or of the benefits purported to be
afforded by such documents (including, without limitation,
the lien of the Mortgage), constitute accurate summaries of
the terms of such documents and of such benefits in all
material respects.
(8) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(9) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, at the respective
times of their effectiveness, and the Prospectus, at the
time first filed with the Commission pursuant to Rule 424
under the Securities Act, complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the parts of the
Second 1992 Registration Statement and the Registration
Statement that constitute the statements of eligibility of
the Trustees under the Mortgage, upon which we are not
passing) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with
respect to the documents or portions thereof filed with the
Commission pursuant to the Exchange Act, and incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date first filed
with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act,
and the applicable instructions, rules and regulations of
the Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
First 1992 Registration Statement, the Second 1992
Registration Statement and the Registration Statement have
become and are effective under the Securities Act; and, to
the best of our knowledge, no stop order suspending the
effectiveness of the First 1992 Registration Statement, the
Second 1992 Registration Statement or the Registration
Statement has been issued and no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
(10) An appropriate order has been entered by the
Commission under the 1935 Act granting and permitting to
become effective the Application-Declaration with respect to
the issuance and sale of the Bonds; to the best of our
knowledge, said order is in full force and effect; such
order is sufficient to authorize the issuance and sale of
the Bonds by the Company pursuant to the Underwriting
Agreement; and no further approval, authorization, consent
or other order of any governmental body (other than in
connection or compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction) is
legally required to permit the issuance and sale of the
Bonds by the Company pursuant to the Underwriting Agreement.
(11) The issuance and sale by the Company of the Bonds
and the execution, delivery and performance by the Company
of the Underwriting Agreement and the Mortgage (a) will not
violate any provision of the Company's Restated Articles of
Incorporation or By-laws, each as amended, (b) will not
violate any provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in (except as
contemplated by the Mortgage) any of the assets of the
Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
us (having made due inquiry with respect thereto) to which
the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not
violate any provision of any Mississippi law or regulation
applicable to the Company (other than the Mississippi
securities or "blue sky" laws, upon which we are not
passing) or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order,
writ, judgment or decree of any governmental instrumentality
applicable to the Company.
In passing upon the forms of the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement and the Prospectus, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information included or incorporated by
reference in the First 1992 Registration Statement, the Second
1992 Registration Statement, the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in Paragraph 7
above. In connection with the preparation by the Company of the
First 1992 Registration Statement, the Second 1992 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with other counsel for the Company, with the
independent certified public accountants of the Company who
audited or reviewed the financial statements included or
incorporated by reference in the First 1992 Registration
Statement, the Second 1992 Registration Statement and the
Registration Statement, and with your representatives. Our
review of the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information which gives us reason to believe that the First 1992
Registration Statement, the Second 1992 Registration Statement
or the Registration Statement, at the Effective Date, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with the Commission pursuant to Rule 424
under the Securities Act and at the date hereof, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the First 1992
Registration Statement, the Second 1992 Registration Statement,
the Registration Statement or the Prospectus, as to the parts of
the Second 1992 Registration Statement and the Registration
Statement that constitute the statements of eligibility of the
Trustees under the Mortgage or as to the information contained in
the Prospectus under the caption ["Description of the New G&R
Bonds - Book-Entry G&R Bonds".]
We have examined the portions of the information contained
in the First 1992 Registration Statement, the Second 1992
Registration Statement and the Registration Statement that are
stated therein to have been made on our authority, and we believe
such information to be correct. We have also examined the
opinions of even date herewith rendered to you by ▇▇▇▇ & Priest
LLP and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, and we concur in the
conclusions expressed therein insofar as they involve questions
of Mississippi law.
We are members of the Mississippi Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Arkansas, Wyoming and New York law, we have
relied, with your approval, in the case of Arkansas law, upon the
opinion of even date herewith addressed to us and to you of
Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ of Little Rock, Arkansas, in the case of
Wyoming law, upon the opinion of even date herewith addressed to
us and to the Company of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, of Cheyenne, Wyoming,
and, in the case of New York law, upon the opinion of even date
herewith of ▇▇▇▇ & Priest LLP of New York, New York.
The opinion set forth above is solely for the benefit of the
addressees of this letter in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose, without our prior written consent, except that
▇▇▇▇ & Priest LLP and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may
rely on this opinion as to all matters of Mississippi and Wyoming
law in rendering their opinions required to be delivered under
the Underwriting Agreement.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇▇ CHILD & ▇▇▇▇▇▇▇
Professional Association
By:________________________
EXHIBIT B
[Letterhead of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇]
_____ __, _____
▇▇▇▇ ▇▇▇▇▇▇ CHILD & ▇▇▇▇▇▇▇
Professional Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
In connection with the issuance and sale by Mississippi
Power & Light Company ("Company") of $_______ in aggregate
principal amount of its General and Refunding Mortgage Bonds,
____% Series due ______ __, ______ (the "Bonds"), pursuant to the
Company's Mortgage and Deed of Trust dated as of February 1,
1988, as heretofore amended and supplemented by all indentures
amendatory thereof and supplemental thereto including the _______
Supplemental Indenture, dated as of _____ __, ______ (the
Mortgage and Deed of Trust as so amended and supplemented being
hereinafter referred to as the "Mortgage"), we, as special
Arkansas counsel to the Company, have examined such documents,
records and certificates and have reviewed such questions of law
as we have deemed necessary and appropriate for the purpose of
this opinion. This opinion is rendered to you at the request of
the Company.
In order to render this opinion, we have assumed that the
Company does not own any real or personal property or other
facilities in the State of Arkansas, except for an undivided
twenty-five percent (25%) ownership interest in the Independence
Steam Electric Station at Newark, Arkansas, and that the Company
does not maintain any service territory or serve any retail
customers in the State of Arkansas. We have also assumed that
the issuance and sale of the Bonds have had significant contacts
with the State of New York.
Based upon the foregoing and subject to the foregoing and to
the further exceptions and qualifications set forth below, we are
of the opinion that:
1. The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws
of the State of Arkansas and holds adequate and subsisting
franchises, certificates of public convenience and
necessity, licenses and permits to permit it to conduct its
business as presently conducted in Arkansas.
2. The courts of Arkansas will enforce any provision
in the Mortgage, the Bonds and the Underwriting Agreement,
stipulating that the laws of the State of New York shall
govern the Mortgage, the Bonds and the Underwriting
Agreement, except to the extent that the validity or
perfection of the lien of the Mortgage, or remedies
thereunder, are governed by the laws of a jurisdiction other
than the State of New York, except, with respect to
enforcement of the Mortgage, as the same may be limited by
the laws of the State of Arkansas affecting the remedies for
the enforcement of the security provided for therein, which
laws do not, in our opinion, make inadequate remedies
necessary for the realization of the benefits of such
security.
3. There are no authorizations, approvals, consents or
orders of any governmental authority in the State of
Arkansas (other than in connection or compliance with the
provisions of the securities or "blue sky" laws as to which
no opinion is expressed herein) legally required for the
execution, delivery and performance by the Company of the
Underwriting Agreement or to permit the issuance and sale by
the Company of the Bonds pursuant to the Underwriting
Agreement.
4. Substantially all physical properties located in
the State of Arkansas (other than those expressly excepted)
which have been or hereafter may be acquired by the Company
have been or, upon such acquisition, will become subject to
the lien of the Mortgage, subject, however, to Excepted
Encumbrances (as defined in the Mortgage) and to liens,
defects, and encumbrances, if any, existing or placed
thereon at the time of the acquisition thereof by the
Company and except as limited by bankruptcy law.
5. The Company has good and sufficient legal right,
title and interest in and to the Mortgaged and Pledged
Property (as defined in the Mortgage) located in the State
of Arkansas free and clear of any lien or encumbrance except
for the lien of the Mortgage and for Excepted Encumbrances
(as defined in the Mortgage), and except for minor defects
and encumbrances customarily found in physical properties of
like size and character which do not, in our opinion,
materially impair the use of such properties affected
thereby in the conduct of the business of the Company. Our
opinion in the first sentence of this paragraph 5 is subject
to the following:
We have, with your consent, performed the following
procedures and relied upon the following:
(a) a Limited Title Search performed by
Independence County Abstract Company, Inc., covering
the period from September 10, 1981 to _____ __, _____;
(b) a review by Independence County Abstract Company,
Inc. of the Grantor/Grantee indices of volumes in the
real estate records of Independence County, Arkansas in
which transactions that would affect the Company's
title to its property located in such County would be
recorded; (c) a review of the Plaintiff/Defendant
indices of official records of the Circuit Court and
Chancery Court of Independence County, Arkansas and of
the United States District Court for the Eastern
District of the State of Arkansas, in each case for
civil suits currently pending therein; and (d) a
certificate of the Secretary of State of the State of
Arkansas reflecting the results of a search of the
records maintained by such official pursuant to Act 375
of the Acts of Arkansas of 1965 (the Arkansas
Transmitting Utility Act).
6. The description of the Mortgaged and Pledged
Property (as defined in the Mortgage) which is located in
the State of Arkansas, as set forth in the Mortgage, is
adequate to constitute a lien on such Mortgaged and Pledged
Property. The recording of the Mortgage among the land
records in the office of the Circuit Clerk of Independence
County, Arkansas, which recording will be duly effected, and
the filing of Uniform Commercial Code financing statements
covering the personal property and fixtures described in the
Mortgage subject to the lien thereof in the office of the
Secretary of State of the State of Arkansas, which filing
will be duly effected, are the only recordings, filings, re-
recordings or refilings required by Arkansas law in order to
protect and maintain the lien of the Mortgage on any
Arkansas property described therein and subject thereto.
We are members of the Arkansas Bar, and we express no
opinion on the laws of any jurisdiction other than the State of
Arkansas.
The opinion set forth above is solely for the benefit of the
addressees of this letter in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose, without our prior written consent, except that
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇ & Priest LLP may
rely on this opinion as to all matters of Arkansas law.
Sincerely,
FRIDAY, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
EXHIBIT C
[Letterhead of ▇▇▇▇ & Priest LLP]
_____ __, _____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
With reference to the issuance and sale by Mississippi Power
& Light Company (the "Company") to you, pursuant to the agreement
effective _____ __, _____ (the "Underwriting Agreement"), between
the Company and you, of $__________ in aggregate principal amount
of its General and Refunding Mortgage Bonds, ____% Series due
_____ __, _____ (the "Bonds"), issued under the Company's
Mortgage and Deed of Trust, dated as of February 1, 1988, as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, including the ______
Supplemental Indenture dated as of _____ __, _____________ (the
Mortgage and Deed of Trust as so supplemented being hereinafter
called the "Mortgage"), we advise you that we are of counsel to
the Company and in that capacity have participated in the
preparation of or have examined and are familiar with (1) the
Mortgage; (2) the First 1992 Registration Statement, the Second
1992 Registration Statement, the Registration Statement and the
Prospectus filed under the Securities Act; (3) the Underwriting
Agreement; and (4) the application-declaration, and all
amendments thereto, filed by the Company with the Commission
under the 1935 Act, with respect to the issuance and sale of the
Bonds (such application-declaration, as amended by all such
amendments, being hereinafter referred to as the "Application-
Declaration"). This opinion is rendered to you at the request of
the Company.
We have participated in the preparation of or reviewed the
corporate proceedings with respect to the issuance and sale of
the Bonds. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed
necessary to enable us to render this opinion. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
and the conformity to originals of the documents submitted to us
as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a
certificate of Bank of Montreal Trust Company as to the
authentication and delivery thereof. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
Based upon the foregoing, and subject to the foregoing and
to the further exceptions and qualifications set forth below, we
are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, except (i) as the same may be limited by the laws of
the States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein,
and (ii) as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and is qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the
Commission.
(2) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security
afforded by the Mortgage.
(3) The statements made in the Prospectus under the
captions ["Description of the New G&R Bonds,"] insofar as
they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, at the respective
times of their effectiveness, and the Prospectus, at the
time first filed with the Commission pursuant to Rule 424
under the Securities Act, complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the parts of the
Second 1992 Registration Statement and the Registration
Statement that constitute the statements of eligibility of
the Trustees under the Mortgage, upon which we are not
passing) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with
respect to the documents or portions thereof filed with the
Commission pursuant to the Exchange Act, and incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date first filed
with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act,
and the applicable instructions, rules and regulations of
the Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
First 1992 Registration Statement, the Second 1992
Registration Statement and the Registration Statement have
become and are effective under the Securities Act; and, to
the best of our knowledge, no stop order suspending the
effectiveness of the First 1992 Registration Statement, the
Second 1992 Registration Statement or the Registration
Statement has been issued and no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
(6) An appropriate order has been entered by the
Commission under the 1935 Act granting and permitting to
become effective the Application-Declaration with respect to
the issuance and sale of the Bonds; to the best of our
knowledge, said order is in full force and effect; such
order is sufficient to authorize the issuance and sale of
the Bonds by the Company pursuant to the Underwriting
Agreement; and no further approval, authorization, consent
or other order of any governmental body (other than in
connection or compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction) is
legally required to permit the issuance and sale of the
Bonds by the Company pursuant to the Underwriting Agreement.
In passing upon the forms of the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement and the Prospectus, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information contained or incorporated by
reference in the First 1992 Registration Statement, the Second
1992 Registration Statement, the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in Paragraph 3
above. In connection with the preparation by the Company of the
First 1992 Registration Statement, the Second 1992 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with other counsel for the Company, with the
independent certified public accountants of the Company who
audited or reviewed the financial statements included or
incorporated by reference in the First 1992 Registration
Statement, the Second 1992 Registration Statement and the
Registration Statement, and with your representatives. Our
review of the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information which gives us reason to believe that the First 1992
Registration Statement, the Second 1992 Registration Statement or
the Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with the Commission pursuant to Rule 424
under the Securities Act and at the date hereof, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
First 1992 Registration Statement, the Second 1992 Registration
Statement, the Registration Statement or the Prospectus, as to
the parts of the Second 1992 Registration Statement and the
Registration Statement that constitute the statements of
eligibility of the Trustees under the Mortgage or as to the
information contained in the Prospectus under the caption
["Description of the New G&R Bonds - Book-Entry G&R Bonds".]
We are members of the New York Bar and do not hold ourselves
out as experts on the laws of any other state. As to all matters
of Mississippi and Wyoming law, we have relied upon the opinion
of even date herewith addressed to you by ▇▇▇▇ ▇▇▇▇▇▇ Child &
▇▇▇▇▇▇▇, Professional Association, of Jackson, Mississippi, the
Company's General Counsel, and as to all matters of Arkansas law,
we have relied upon the opinion of even date herewith addressed
to you by Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special Arkansas counsel to
the Company. We have not examined into and are not passing upon
matters relating to incorporation of the Company, titles to
property, franchises or the lien of the Mortgage.
The opinion set forth above is solely for the benefit of the
addressees of this letter in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose, without our prior written consent, except that
▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional Association, may rely
on this opinion as to all matters of New York law in rendering
its opinion required to be delivered under the Underwriting
Agreement.
Very truly yours,
▇▇▇▇ & PRIEST LLP
EXHIBIT D
[Letterhead of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
_____ __, _____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We have acted as counsel for you as the several underwriters
of $________ in aggregate principal amount of General and
Refunding Mortgage Bonds, ____% Series due _____ ___, _____ (the
"Bonds"), issued by Mississippi Power & Light Company (the
"Company") under the Company's Mortgage and Deed of Trust, dated
as of February 1, 1988, as heretofore amended and supplemented by
all indentures amendatory thereof and supplemental thereto,
including the _____ Supplemental Indenture dated as of _____ __,
____ (said Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage"),
pursuant to the agreement between you and the Company effective
_____ __, _____ (the "Underwriting Agreement").
We are members of the New York bar and, for purposes of this
opinion, do not hold ourselves out as experts on the laws of any
jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you by ▇▇▇▇ ▇▇▇▇▇▇
Child & ▇▇▇▇▇▇▇, Professional Association, of Jackson,
Mississippi, General Counsel for the Company, as to the matters
covered in such opinion relating to Mississippi and Wyoming law,
and an opinion of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, of Little Rock,
Arkansas, special Arkansas counsel to the Company, as to the
matters covered in such opinion relating to Arkansas law. We
have reviewed said opinions and believe that they are
satisfactory. We have also reviewed the opinion of ▇▇▇▇ & Priest
LLP required by Section 7(d) of the Underwriting Agreement, and
we believe said opinion to be satisfactory.
We have also examined such documents and satisfied ourselves
as to such other matters as we have deemed necessary in order to
enable us to express this opinion. As to various questions of
fact material to this opinion, we have relied upon
representations of the Company and statements in the First 1992
Registration Statement, the Second 1992 Registration Statement
and the Registration Statement. In such examination, we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, and the conformity to
the originals of the documents submitted to us as certified or
photostatic copies. We have not examined the Bonds, except a
specimen thereof, and we have relied upon a certificate of Bank
of Montreal Trust Company as to the authentication and delivery
thereof. We have not examined into, and are expressing no
opinion or belief as to matters relating to, incorporation of the
Company, titles to property, franchises or the lien of the
Mortgage. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, except (i) as the same may be limited by the laws of
the States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein and
(ii) as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and is qualified under the Trust Indenture
Act, and no proceedings to suspend such qualification have
been instituted or, to our knowledge, threatened by the
Commission.
(2) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security
purported to be afforded by the Mortgage.
(3) The statements made in the Prospectus under the
captions ["Description of the New G&R Bonds,"] insofar as
they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) An appropriate order has been entered by the
Commission under the 1935 Act, granting and permitting to
become effective the application-declaration, as amended,
filed by the Company with the Commission under the 1935 Act
with respect to the issuance and sale of the Bonds; to the
best of our knowledge, said order is in full force and
effect; such order is sufficient to authorize the issuance
and sale of the Bonds by the Company pursuant to the
Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental
body (other than in connection or compliance with the
provisions of the securities or "blue sky" laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Bonds by the Company pursuant to the
Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or
incorporated by reference therein, upon which we do not
pass, the First 1992 Registration Statement, the Second 1992
Registration Statement and the Registration Statement, at
the respective times of their effectiveness, and the
Prospectus, at the time first filed with the Commission
pursuant to Rule 424 under the Securities Act, complied as
to form in all material respects with the applicable
requirements of the Securities Act and (except with respect
to the parts of the Second 1992 Registration Statement and
the Registration Statement that constitute the statements of
eligibility of the Trustees under the Mortgage, upon which
we are not passing) the Trust Indenture Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; and,
with respect to the documents or portions thereof filed with
the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, such documents or portions thereof, on the
date first filed with the Commission, complied as to form in
all material respects with the applicable provisions of the
Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the First 1992 Registration Statement, the Second
1992 Registration Statement and the Registration Statement
have become and are effective under the Securities Act; and,
to the best of our knowledge, no stop order suspending the
effectiveness of the First 1992 Registration Statement, the
Second 1992 Registration Statement or the Registration
Statement has been issued and no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
In passing upon the forms of the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement and the Prospectus, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information included or incorporated by
reference in the First 1992 Registration Statement, the Second
1992 Registration Statement, the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph 3
above. In connection with the preparation by the Company of the
First 1992 Registration Statement, the Second 1992 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with counsel for the Company, with the
independent certified public accountants of the Company who
audited or reviewed the financial statements included or
incorporated by reference in the First 1992 Registration
Statement, the Second 1992 Registration Statement and the
Registration Statement, and with your representatives. Our
review of the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information that gives us reason to believe that the First 1992
Registration Statement, the Second 1992 Registration Statement or
the Registration Statement or the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time first filed with the Commission
pursuant to Rule 424 under the Securities Act and at the date
hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any opinion or belief as to the financial statements
or other financial or statistical data included or incorporated
by reference in the First 1992 Registration Statement, the Second
1992 Registration Statement, the Registration Statement or the
Prospectus, as to the parts of the Second 1992 Registration
Statement and the Registration Statement that constitute the
statements of eligibility of the Trustees under the Mortgage or
as to the information contained in the Prospectus under the
caption ["Description of the New G&R Bonds - Book-Entry G&R
Bonds".]
This opinion is solely for the benefit of the addressees
hereof in connection with the Underwriting Agreement and the
transactions contemplated thereunder and may not be relied upon
in any manner by any other person or for any other purpose,
without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
EXHIBIT E
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
CAPTION PAGES ITEMS
