-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, klOXRZxAtbO/Q6BAoFIfaDnUQxYoZ9k3od6YFpOlSQKZUeehaWj2mhPrbRQEE3yY 5XJ5atzir4DuPwyeJE11jQ== 0000044545-94-000008.txt : 19940810 0000044545-94-000008.hdr.sgml : 19940810 ACCESSION NUMBER: 0000044545-94-000008 CONFORMED SUBMISSION TYPE: 35-CERT PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 19940809 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GULF POWER CO CENTRAL INDEX KEY: 0000044545 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 590276810 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 35-CERT SEC ACT: 1935 Act SEC FILE NUMBER: 070-07294 FILM NUMBER: 94542353 BUSINESS ADDRESS: STREET 1: 500 BAYFRONT PKWY CITY: PENSACOLA STATE: FL ZIP: 32501 BUSINESS PHONE: 9044446111 35-CERT 1 FUELCO CERTIFICATE CERTIFICATE OF NOTIFICATION Filed by MISSISSIPPI POWER COMPANY Pursuant to supplemental order of the Securities and Exchange Commission dated April 6, 1994, in the matter of File No. 70- 7294. - - - - - - - - - - Mississippi Power Company ("MISSISSIPPI") hereby certifies to said Commission, pursuant to Rule 24, that the transactions were carried out in accordance with the terms and conditions of and for the purposes represented by the application, as amended, and of said order with respect thereto. Filed herewith are the following exhibits: Exhibit A-1 Loan Agreement between MISSISSIPPI and First Union National Bank of Georgia for $9,000,000 principal amount bearing interest at the rate of 4.87% per annum and maturing on December 30, 1994 (the "4.87% Note"). Exhibit A-2 Loan Agreement between MISSISSIPPI and First Union National Bank of Georgia for $9,000,000 principal amount bearing interest at the rate of 5.39% per annum and maturing on June 30, 1995 (the "5.39% Note"). Exhibit A-3 Loan Agreement between MISSISSIPPI and First Union National Bank of Georgia for $9,000,000 principal amount bearing interest at the rate of 5.72% per annum and maturing on December 29, 1995, (the "5.72% Note"). Exhibit B-1 The 4.87% Note from Fuelco, Inc. to MISSISSIPPI. Exhibit B-2 The 5.39% Note from Fuelco, Inc. to MISSISSIPPI. Exhibit B-3 The 5.72% Note from Fuelco, Inc. to MISSISSIPPI. -2- Exhibit C-1 Subordinate Land Deed of Trust by MISSISSIPPI relating to the 4.87% Note. Exhibit C-2 Subordinate Land Deed of Trust by MISSISSIPPI relating to the 5.39% Note. Exhibit C-3 Subordinate Land Deed of Trust by MISSISSIPPI relating to the 5.72% Note. Exhibit D Opinion of Eaton and Cottrell, counsel for MISSISSIPPI, dated August 8, 1994. Dated August 8, 1994 MISSISSIPPI POWER COMPANY By Wayne Boston Wayne Boston Assistant Secretary EX-99 2 LOAN AGREEMENT EXHIBIT A-1 LOAN AGREEMENT Dated as of April 22, 1994 By and Between MISSISSIPPI POWER COMPANY AND FIRST UNION NATIONAL BANK OF GEORGIA LOAN AGREEMENT THIS LOAN AGREEMENT, dated as of April 22, 1994 (the "Agreement"), by and between MISSISSIPPI POWER COMPANY, a corporation organized and existing under the laws of the State of Mississippi (the "Borrower"), and FIRST UNION NATIONAL BANK OF GEORGIA (the "Bank"). W I T N E S S E T H: WHEREAS, the Borrower has requested the Bank to extend the Loan (as hereinafter defined), and the Bank is willing to do so subject to and upon the terms and conditions set forth in this Agreement; NOW THEREFORE, for and in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Definitions. In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (such meanings to be equally applicable to both the singular and plural forms of the terms defined except where specifically defined): "Adjusted Funded Debt," with respect to any person, shall mean without duplication: (1) its liabilities for borrowed money, other than Current Debt; (2) liabilities, other than Current Debt, secured by any lien existing on property owned by such person (whether or not such liabilities have been assumed); (3) the present value of all payments due under any lease or under any other arrangement for retention of title (discounted at the implicit rate if known or 8% per annum otherwise) if such lease or other arrangement is in substance (a) a financing lease (including any lease under which (i) the lessee has or will have an option to purchase the property subject thereto at a nominal amount or an amount less than a reasonable estimate of the fair market value of such property at the date of such purchase, (ii) the lessor has filed a financing statement, or (iii) the term of the lease approximates or exceeds the expected useful life of the property subject thereto), (b) an arrangement for the retention of title for security purposes, or (c) an installment purchase; and (4) any other obligations (other than deferred taxes) which are required by generally accepted accounting principles to be shown as liabilities on its balance sheet and which are payable or remain unpaid more than one year from the creation thereof. The "Adjusted Funded Debt" of the Borrower shall mean all obligations described in the foregoing clauses in respect of which the Borrower is liable as obligor, guarantor or otherwise. "Business Day" shall mean a day on which commercial banks are not required or authorized to close in Atlanta, Georgia. "Capitalization," with respect to any person, shall mean the sum of (a) the aggregate of the capital stock (but excluding treasury stock and capital stock subscribed and unissued) and other equity accounts (including retained earnings and paid-in capital) of such person as the same appears on the balance sheet of such person prepared in accordance with generally accepted accounting principles as of the date of determination, and (b) the amount of Adjusted Funded Debt of such person as of the same date. "Current Debt," with respect to any person, shall mean all liabilities for borrowed money and all liabilities secured by any lien existing on property owned by such person whether or not such liabilities have been assumed, which, in either case, are payable on demand or within one year from the creation thereof, except: (1) any such liabilities which are renewable or extendible at the option of the debtor to a date more than one year from the date of creation thereof, and (2) any such liabilities which, although payable within one year, constitute payments required to be made on account of principal of indebtedness expressed to mature more than one year from the date of creation thereof. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as such Act may be amended. "First Mortgage Indenture" shall mean the Indenture, dated as of September 1, 1941, between the Borrower and Morgan Guaranty Trust Company of New York, as Trustee, as supplemented and amended to date, and as may hereafter be supplemented and amended by supplemental indentures. "Plan" shall mean any employee benefit plan or other plan 2 maintained for employees. "Significant Subsidiary," with respect to any person, shall mean any corporation of which such person owns a majority of the capital stock having voting powers, and which represents more than 25% of such person's assets on a consolidated basis. ARTICLE II AMOUNT AND TERMS OF LOAN SECTION 2.01. Loan and Note. Subject to and upon the terms and conditions set forth in this Agreement, the Bank agrees to lend to the Borrower Nine Million Dollars ($9,000,000) on the date of this Agreement (the "Loan"). The Loan shall be evidenced by a single Promissory Note payable to the Bank in the form of Exhibit A attached hereto (the "Note"). SECTION 2.02. Increased Costs. If (i) Regulation D of the Board of Governors of the Federal Reserve System, or (ii) after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency, (1) shall subject the Bank to any tax, duty or other charge with respect to the Loan or the Note, or shall change the basis of taxation of payments to the Bank of the principal of or interest on the Note or any other amounts due under this Agreement in respect of the Loan (except for changes in the rate of tax on the overall net income of the Bank imposed by the jurisdiction in which the Bank's principal executive office is located); or (2) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, the Bank; or (3) shall impose on the Bank any other condition affecting the Loan or the Note; and the result of any of the foregoing is to increase the cost to (or in the case of Regulation D referred to above, to impose a cost on) the Bank of extending or maintaining the Loan, or to reduce the amount of any sum received or receivable by the Bank 3 under this Agreement or under the Note with respect thereto, then within 15 days after demand by the Bank (which demand shall be accompanied by a statement setting forth the basis of such demand), the Borrower shall pay directly to the Bank such additional amount or amounts as will compensate the Bank for such increased cost or such reduction. The Bank shall promptly notify the Borrower of any event of which it has knowledge, occurring after the date hereof, which will entitle the Bank to compensation pursuant to this Section 2.02 and will take such reasonable action, if such action will avoid the need for, or reduce the amount of, such compensation and will not, in the sole judgment of the Bank, be otherwise disadvantageous to the Bank. SECTION 2.03. Capital Adequacy. If the Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by the Bank or any corporation controlling the Bank and that the amount of such capital is increased by or based upon the existence of the Bank's Loan hereunder and other commitments of this type, then, upon demand by the Bank, the Borrower shall pay to the Bank, from time to time as specified by the Bank, additional amounts sufficient to compensate the Bank or such corporation in the light of such circumstances, to the extent in each case that the Bank and the Borrower shall mutually agree in writing with respect thereto; provided, however, that in no event shall any such additional amount commence accruing earlier than ninety days after the date of any demand therefor. SECTION 2.04. Making of Payments. All payments of principal of, or interest on, the Note shall be made in immediately available funds to the Bank at its principal office in Atlanta, Georgia. All such payments shall be made not later than 1:00 p.m. Atlanta, Georgia time on the date specified for payment. ARTICLE III REPRESENTATIONS AND WARRANTIES SECTION 3.01. Representations and Warranties. The Borrower represents and warrants to the Bank as follows: (a) the Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Mississippi and each Significant Subsidiary, if any, of the Borrower is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation; 4 (b) the Borrower has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement and its obtaining the Loan; (c) each of this Agreement and the Note is the valid and binding obligation of the Borrower enforceable in accordance with its terms, except as such enforcement may be limited by any bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally or general principles of equity; (d) this Agreement, the Note and the Loan do not and will not violate any provisions of any applicable law or conflict with, result in a breach of, or constitute a default under, the Borrower's Charter or By-laws or any indenture or other agreement or instrument, or any legal restriction that the Borrower is a party to or bound by; (e) no approval or consent of, or other filing with or notice to, any governmental body is legally required for the issuance by the Borrower of the Note or the execution, delivery and performance by the Borrower of this Agreement and the Note except for an order or orders of the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, as amended, which order or orders have been obtained and are in effect; (f) other than in the ordinary course of business (including, without limitation, actions, suits or proceedings involving rates or licenses or permits for the construction or operation of generating or transmission facilities), there are no actions, suits or proceedings pending or to the Borrower's knowledge threatened against or directly involving the Borrower or its properties before any court, arbitrator or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, except (i) actions, suits or proceedings which will not effect a material adverse change in the Borrower's financial condition or operations and (ii) as disclosed in or contemplated by the Borrower's Annual Report on Form 10-K for the year ended December 31, 1993 (the "Exchange Act Document"); (g) to the best knowledge of the Borrower, no Reportable Event (as defined in Title IV of ERISA) has occurred and is continuing with respect to any Plan of the Borrower; 5 (h) the Borrower has not incurred any material accumulated funding deficiency within the meaning of ERISA and the Borrower has not incurred any material liability to the Pension Benefit Guaranty Corporation established under ERISA (or any successor thereto) in connection with any Plan of the Borrower; (i) no Event of Default (as defined in Section 5.01 hereof), or event which with the passage of time or giving of notice, or both, would constitute an Event of Default, has occurred and is continuing; (j) the Borrower has furnished to the Bank its balance sheet as of December 31, 1993, and related statements of income and cash flows for the twelve months then ended, in each case certified by Arthur Andersen & Co., independent certified public accountants; (k) such financial statements fairly present the Borrower's financial position as of December 31, 1993, and the results of its operations for the twelve months then ended, in conformity with generally accepted accounting principles consistently applied during such period (except as stated therein); (l) there has been no material adverse change in the financial condition or operations of the Borrower and it subsidiaries (taken as a whole) since December 31, 1993, except as reflected in or contemplated by the Exchange Act Document, it being understood and agreed that this exception is not intended to cover statements in the Exchange Act Document that are stated therein to be applicable to the electric utility industry generally unless they describe specific problems or types of problems which, at the date hereof, are affecting the Borrower's financial condition or operations or its prospects; and (m) the Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan are to be used to purchase or carry any margin stock or to extend credit to others for such purpose. As used in this Agreement, the term "material adverse change" shall mean an adverse change which significantly increases the risk that the Note or other obligations hereunder will not be repaid when due. The Bank recognizes and agrees that the Borrower is entering into this Agreement in part because it 6 foresees the possibility that from time to time during the term of this Agreement it may not be able to issue first mortgage bonds or preferred stock and that such inability shall not, in and of itself, constitute a material adverse change. The Bank further agrees that an unsuccessful or failed remarketing, auction or similar procedure with respect to any security subject to such procedure also shall not, in and of itself, constitute a material adverse change. ARTICLE IV AFFIRMATIVE COVENANTS SECTION 4.01. Certain Covenants. So long as the Note shall remain unpaid, the Borrower will, unless the Bank shall otherwise consent in writing: (a) pay and discharge all taxes, assessments and governmental charges or levies imposed upon the Borrower or upon its income or profits, or upon any properties belonging to the Borrower, prior to the date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a lien or charge upon any properties of the Borrower, provided it shall not be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings; (b) maintain insurance in accordance with Section 7.06 of the First Mortgage Indenture; (c) preserve and maintain its corporate existence in Mississippi, and qualify and remain qualified as a foreign corporation in each jurisdiction in which such qualification is necessary or desirable in view of its business and operations or the ownership of its properties; (d) comply with the requirements of all applicable laws, non-compliance with which would effect a material adverse change in its financial condition or operations except applicable laws being contested in good faith; (e) provide the Bank with prompt notice in writing of any Event of Default or any event which with the passage of time or giving of notice, or both, would constitute an Event of Default; and (f) comply with the provisions of the First Mortgage Indenture with respect to the maintenance and replacement of utility plant. 7 SECTION 4.02. Financial Statements. The Borrower, so long as any indebtedness under this Agreement is outstanding and unpaid, will furnish or cause to be furnished to the Bank (a) within 120 days after the end of each of its fiscal years, its consolidated balance sheet and related consolidated statements of income and cash flows, in each case certified by independent certified public accountants of nationally recognized standing, showing its financial position at the close of such year and the results of its operations and cash flows for such year; (b) within 55 days after the end of each of the first three quarters in each of its fiscal years, its unaudited condensed consolidated balance sheet and related condensed consolidated statements of income and cash flows, such balance sheets to be as of the end of such quarter and such statements of income and cash flows to be for the period from the beginning of the fiscal year to the end of such quarter, in each case in the forms included in its Quarterly Report on Form 10-Q for such quarter filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended, and subject to audit and year- end adjustments; and (c) such other information respecting the Borrower's business, properties or its condition or operations, financial or otherwise, as the Bank may from time to time reasonably request. ARTICLE V EVENTS OF DEFAULT AND REMEDIES SECTION 5.01. Events of Default. Any one or more of the following shall constitute an Event of Default hereunder: (a) the Borrower (or, in the case of an event described in (v) below, either the Borrower or any Significant Subsidiary of the Borrower) shall: (i) default in the payment when due of any principal of the Note, or default for 5 Business Days in the payment when due of any interest on the Note, (ii) default in the performance of any other agreement or covenant contained in this Agreement (other than a covenant or agreement a default in the performance of which is elsewhere in this paragraph specifically dealt with) and such default shall continue for a period of 30 days after the Bank has given the Borrower written notice thereof, (iii) default in the payment when due or within any applicable period of grace of any Adjusted 8 Funded Debt or Current Debt of the Borrower (other than Adjusted Funded Debt or Current Debt incurred under the Note and under agreements or instruments involving in the aggregate less than $500,000), (iv) default under the provisions of any instrument evidencing Adjusted Funded Debt or Current Debt of the Borrower (other than Adjusted Funded Debt or Current Debt incurred under the Note and under agreements or instruments involving in the aggregate less than $500,000), or of any agreement relating to any such Adjusted Funded Debt or Current Debt of the Borrower the effect of which default is to permit any party or parties to any such instrument or agreement to cause such Adjusted Funded Debt or Current Debt to become due prior to its stated maturity, or (v) (A) apply for or consent to the appointment of a receiver, trustee, liquidator or the like of the Borrower or any Significant Subsidiary of the Borrower, or of all or a substantial part of its or any such Significant Subsidiary's property, (B) be unable, or admit in writing inability, to pay debts generally as they mature, (C) make a general assignment for the benefit of creditors, (D) be adjudicated a bankrupt or insolvent, or (E) file a voluntary petition in bankruptcy or a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any insolvency law or an answer admitting the material allegations of a petition filed against it or any such Significant Subsidiary in any bankruptcy, reorganization or insolvency proceeding, or corporate action shall be taken by it or any such Significant Subsidiary for the purpose of effecting any of the foregoing, (b) any representation made by the Borrower hereunder shall prove incorrect in any material respect when made, or (c) an order, judgment or decree shall be entered, without the application, approval or consent of the Borrower or any Significant Subsidiary of the Borrower, by any court or governmental agency of competent jurisdiction, approving a petition seeking the Borrower's or Significant Subsidiary's reorganization, or appointing 9 a receiver, trustee, liquidator, or the like of it or any such Significant Subsidiary, or of all or a substantial part of its or any such Significant Subsidiary's assets, and such order, judgment or decree shall continue unstayed and in effect for any period of 60 consecutive days. SECTION 5.02. Remedies on Default. Upon the occurrence and continuation of an Event of Default, then, except in the case of an event described in clause (A), (C), (D), or (E) of Section 5.01 (a)(v) above or in Section 5.01 (c) above, the Bank may, upon written notice to the Borrower, declare the principal and interest on the Note to be immediately due and payable, whereupon the outstanding principal amount of the Note, accrued interest thereon, and all other amounts payable under this Agreement and the Note, shall be immediately due and payable. In the case of an event described in clause (A), (C), (D) or (E) of Section 5.01 (a)(v) above or in Section 5.01 (c) above, without any notice to the Borrower or declaration by the Bank, the outstanding principal amount of the Note, accrued interest thereon, and all other amounts payable by the Borrower under this Agreement and the Note shall be immediately due and payable. ARTICLE VI MISCELLANEOUS SECTION 6.01. No Waiver. The Bank's rights and remedies under this Agreement and the Note are cumulative and not exclusive of any rights or remedies which the Bank would otherwise have, and no failure or delay by the Bank in exercising any right shall operate as a waiver of it, nor shall any single or partial exercise of any power or right preclude its other or further exercise or the exercise of any other power or right. Any term, covenant, agreement or condition of this Agreement and the Note may be amended by a writing executed by the parties hereto or the Bank may waive compliance therewith in writing (either generally or any particular instance or retrospectively or prospectively) and upon execution of such waiver or amendment, the failure to observe, perform or discharge any such term, covenant, agreement or condition (whether such amendment is executed or such waiver is given before or after such failure) shall not be construed as a breach of such term, covenant, agreement or condition or an Event of Default to the extent so amended or waived. SECTION 6.02. Investment. The Bank represents that it is the present intention of the Bank to acquire the Note for its own account in the ordinary course of its banking business and not with a view to the distribution or sale thereof, subject, nevertheless, to the necessity that the Bank remain in control at 10 all times of the disposition of property held by it for its own account, it being understood that the foregoing representation shall not affect the character of the Loan as a commercial lending transaction nor the ability or right of the Bank to grant participations in its rights and obligations hereunder and under the Note as specified in Section 6.03 hereof. SECTION 6.03. Participations. The Bank may from time to time enter into participation agreements and pursuant thereto assign its rights under this Agreement and the Note. All amounts payable by the Borrower under this Agreement and the Note shall be determined as if the Bank had not entered into any such participation agreement. The Bank may furnish any information concerning the Borrower in the possession of the Bank from time to time to participants and prospective participants. SECTION 6.04. Notices. All notices and other communications under this Agreement shall be mailed, telegraphed, telexed, telecopied or delivered to each party at the address set forth below, unless such address shall have been changed by written notice to the other party of such change, in which event it shall be addressed to such changed address: If to the Bank, to it at: First Union National Bank of Georgia 999 Peachtree Street, Suite 640 Atlanta, Georgia 30309 Attention: Ms. Mara Holley Telecopy No.: (404) 225-4011 If to the Borrower, to it at: 2992 West Beach Gulfport, Mississippi 39501 Attention: Treasurer Telecopy No.: (601) 865-5658 All such notices and communications shall, when mailed, telegraphed, telexed or telecopied, be effective when deposited in the mails or delivered to the telegraph company or sent by telex or telecopy, respectively, addressed as aforesaid. SECTION 6.05. Governing Law. This Agreement and the Note shall be construed in accordance with and governed by the laws of the State of Georgia. SECTION 6.06. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute one and the same instrument. 11 WITNESS the hand and seal of the parties hereto through their duly authorized officers, as of the date first above written. MISSISSIPPI POWER COMPANY By: _______________________________ Title: ____________________________ [CORPORATE SEAL] FIRST UNION NATIONAL BANK OF GEORGIA By: _______________________________ Title: ____________________________ 12 EXHIBIT A MISSISSIPPI POWER COMPANY 2992 West Beach Gulfport, Mississippi 39501 April 22, 1994 FOR VALUE RECEIVED, the undersigned promises to pay to the order of First Union National Bank of Georgia (the "Bank") at its office at 999 Peachtree Street, N.E., Atlanta, Georgia 30309, the principal amount of Nine Million Dollars ($9,000,000) on December 30, 1994, and to pay interest (calculated on the basis of a year of 360 days, and the actual number of days elapsed) on the unpaid principal amount hereof at the rate of 4.87% per annum, such interest being payable in arrears on June 30 and September 30, 1994 and at the maturity hereof. Any principal not paid when due shall bear interest from maturity until paid in full at a floating rate per annum equal to 110% of that rate of interest from time to time announced by the Bank at its principal office as its base rate, such interest to be payable on demand and upon payment in full of such principal. All payments hereunder shall be made in lawful money of the United States of America in immediately available funds. If any payment hereunder shall be specified to be made on a day which is not a business day, it shall be made on the next succeeding day which is a business day and such extension of time shall in such case be included in computing interest, if any, in connection with such payment. The principal of this Note may not be prepaid by the undersigned. Demand for payment, protest and notice of dishonor are hereby waived by the undersigned. This Note evidences a loan made to the undersigned under and is entitled to the benefits of a certain Loan Agreement dated as of April 22, 1994, to which Loan Agreement reference is hereby made, and this Note may be accelerated as therein provided. 13 The undersigned promises to pay all out-of-pocket costs and expenses (including reasonable fees and out-of-pocket costs and expenses of legal counsel) which the Bank may incur in the enforcement against the undersigned of said Loan Agreement or this Note. MISSISSIPPI POWER COMPANY By:________________________________ [SEAL] Title:_____________________________ Attest: By:_________________________ Title:______________________ 14 EX-99 3 LOAN AGREEMENT EXHIBIT A-2 LOAN AGREEMENT Dated as of April 22, 1994 By and Between MISSISSIPPI POWER COMPANY AND FIRST UNION NATIONAL BANK OF GEORGIA LOAN AGREEMENT THIS LOAN AGREEMENT, dated as of April 22, 1994 (the "Agreement"), by and between MISSISSIPPI POWER COMPANY, a corporation organized and existing under the laws of the State of Mississippi (the "Borrower"), and FIRST UNION NATIONAL BANK OF GEORGIA (the "Bank"). W I T N E S S E T H: WHEREAS, the Borrower has requested the Bank to extend the Loan (as hereinafter defined), and the Bank is willing to do so subject to and upon the terms and conditions set forth in this Agreement; NOW THEREFORE, for and in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Definitions. In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (such meanings to be equally applicable to both the singular and plural forms of the terms defined except where specifically defined): "Adjusted Funded Debt," with respect to any person, shall mean without duplication: (1) its liabilities for borrowed money, other than Current Debt; (2) liabilities, other than Current Debt, secured by any lien existing on property owned by such person (whether or not such liabilities have been assumed); (3) the present value of all payments due under any lease or under any other arrangement for retention of title (discounted at the implicit rate if known or 8% per annum otherwise) if such lease or other arrangement is in substance (a) a financing lease (including any lease under which (i) the lessee has or will have an option to purchase the property subject thereto at a nominal amount or an amount less than a reasonable estimate of the fair market value of such property at the date of such purchase, (ii) the lessor has filed a financing statement, or (iii) the term of the lease approximates or exceeds the expected useful life of the property subject thereto), (b) an arrangement for the retention of title for security purposes, or (c) an installment purchase; and (4) any other obligations (other than deferred taxes) which are required by generally accepted accounting principles to be shown as liabilities on its balance sheet and which are payable or remain unpaid more than one year from the creation thereof. The "Adjusted Funded Debt" of the Borrower shall mean all obligations described in the foregoing clauses in respect of which the Borrower is liable as obligor, guarantor or otherwise. "Business Day" shall mean a day on which commercial banks are not required or authorized to close in Atlanta, Georgia. "Capitalization," with respect to any person, shall mean the sum of (a) the aggregate of the capital stock (but excluding treasury stock and capital stock subscribed and unissued) and other equity accounts (including retained earnings and paid-in capital) of such person as the same appears on the balance sheet of such person prepared in accordance with generally accepted accounting principles as of the date of determination, and (b) the amount of Adjusted Funded Debt of such person as of the same date. "Current Debt," with respect to any person, shall mean all liabilities for borrowed money and all liabilities secured by any lien existing on property owned by such person whether or not such liabilities have been assumed, which, in either case, are payable on demand or within one year from the creation thereof, except: (1) any such liabilities which are renewable or extendible at the option of the debtor to a date more than one year from the date of creation thereof, and (2) any such liabilities which, although payable within one year, constitute payments required to be made on account of principal of indebtedness expressed to mature more than one year from the date of creation thereof. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as such Act may be amended. "First Mortgage Indenture" shall mean the Indenture, dated as of September 1, 1941, between the Borrower and Morgan Guaranty Trust Company of New York, as Trustee, as supplemented and amended to date, and as may hereafter be supplemented and amended by supplemental indentures. "Plan" shall mean any employee benefit plan or other plan 2 maintained for employees. "Significant Subsidiary," with respect to any person, shall mean any corporation of which such person owns a majority of the capital stock having voting powers, and which represents more than 25% of such person's assets on a consolidated basis. ARTICLE II AMOUNT AND TERMS OF LOAN SECTION 2.01. Loan and Note. Subject to and upon the terms and conditions set forth in this Agreement, the Bank agrees to lend to the Borrower Nine Million Dollars ($9,000,000) on the date of this Agreement (the "Loan"). The Loan shall be evidenced by a single Promissory Note payable to the Bank in the form of Exhibit A attached hereto (the "Note"). SECTION 2.02. Increased Costs. If (i) Regulation D of the Board of Governors of the Federal Reserve System, or (ii) after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency, (1) shall subject the Bank to any tax, duty or other charge with respect to the Loan or the Note, or shall change the basis of taxation of payments to the Bank of the principal of or interest on the Note or any other amounts due under this Agreement in respect of the Loan (except for changes in the rate of tax on the overall net income of the Bank imposed by the jurisdiction in which the Bank's principal executive office is located); or (2) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, the Bank; or (3) shall impose on the Bank any other condition affecting the Loan or the Note; and the result of any of the foregoing is to increase the cost to (or in the case of Regulation D referred to above, to impose a cost on) the Bank of extending or maintaining the Loan, or to reduce the amount of any sum received or receivable by the Bank 3 under this Agreement or under the Note with respect thereto, then within 15 days after demand by the Bank (which demand shall be accompanied by a statement setting forth the basis of such demand), the Borrower shall pay directly to the Bank such additional amount or amounts as will compensate the Bank for such increased cost or such reduction. The Bank shall promptly notify the Borrower of any event of which it has knowledge, occurring after the date hereof, which will entitle the Bank to compensation pursuant to this Section 2.02 and will take such reasonable action, if such action will avoid the need for, or reduce the amount of, such compensation and will not, in the sole judgment of the Bank, be otherwise disadvantageous to the Bank. SECTION 2.03. Capital Adequacy. If the Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by the Bank or any corporation controlling the Bank and that the amount of such capital is increased by or based upon the existence of the Bank's Loan hereunder and other commitments of this type, then, upon demand by the Bank, the Borrower shall pay to the Bank, from time to time as specified by the Bank, additional amounts sufficient to compensate the Bank or such corporation in the light of such circumstances, to the extent in each case that the Bank and the Borrower shall mutually agree in writing with respect thereto; provided, however, that in no event shall any such additional amount commence accruing earlier than ninety days after the date of any demand therefor. SECTION 2.04. Making of Payments. All payments of principal of, or interest on, the Note shall be made in immediately available funds to the Bank at its principal office in Atlanta, Georgia. All such payments shall be made not later than 1:00 p.m. Atlanta, Georgia time on the date specified for payment. ARTICLE III REPRESENTATIONS AND WARRANTIES SECTION 3.01. Representations and Warranties. The Borrower represents and warrants to the Bank as follows: (a) the Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Mississippi and each Significant Subsidiary, if any, of the Borrower is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation; 4 (b) the Borrower has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement and its obtaining the Loan; (c) each of this Agreement and the Note is the valid and binding obligation of the Borrower enforceable in accordance with its terms, except as such enforcement may be limited by any bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally or general principles of equity; (d) this Agreement, the Note and the Loan do not and will not violate any provisions of any applicable law or conflict with, result in a breach of, or constitute a default under, the Borrower's Charter or By-laws or any indenture or other agreement or instrument, or any legal restriction that the Borrower is a party to or bound by; (e) no approval or consent of, or other filing with or notice to, any governmental body is legally required for the issuance by the Borrower of the Note or the execution, delivery and performance by the Borrower of this Agreement and the Note except for an order or orders of the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, as amended, which order or orders have been obtained and are in effect; (f) other than in the ordinary course of business (including, without limitation, actions, suits or proceedings involving rates or licenses or permits for the construction or operation of generating or transmission facilities), there are no actions, suits or proceedings pending or to the Borrower's knowledge threatened against or directly involving the Borrower or its properties before any court, arbitrator or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, except (i) actions, suits or proceedings which will not effect a material adverse change in the Borrower's financial condition or operations and (ii) as disclosed in or contemplated by the Borrower's Annual Report on Form 10-K for the year ended December 31, 1993 (the "Exchange Act Document"); (g) to the best knowledge of the Borrower, no Reportable Event (as defined in Title IV of ERISA) has occurred and is continuing with respect to any Plan of the Borrower; 5 (h) the Borrower has not incurred any material accumulated funding deficiency within the meaning of ERISA and the Borrower has not incurred any material liability to the Pension Benefit Guaranty Corporation established under ERISA (or any successor thereto) in connection with any Plan of the Borrower; (i) no Event of Default (as defined in Section 5.01 hereof), or event which with the passage of time or giving of notice, or both, would constitute an Event of Default, has occurred and is continuing; (j) the Borrower has furnished to the Bank its balance sheet as of December 31, 1993, and related statements of income and cash flows for the twelve months then ended, in each case certified by Arthur Andersen & Co., independent certified public accountants; (k) such financial statements fairly present the Borrower's financial position as of December 31, 1993, and the results of its operations for the twelve months then ended, in conformity with generally accepted accounting principles consistently applied during such period (except as stated therein); (l) there has been no material adverse change in the financial condition or operations of the Borrower and it subsidiaries (taken as a whole) since December 31, 1993, except as reflected in or contemplated by the Exchange Act Document, it being understood and agreed that this exception is not intended to cover statements in the Exchange Act Document that are stated therein to be applicable to the electric utility industry generally unless they describe specific problems or types of problems which, at the date hereof, are affecting the Borrower's financial condition or operations or its prospects; and (m) the Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan are to be used to purchase or carry any margin stock or to extend credit to others for such purpose. As used in this Agreement, the term "material adverse change" shall mean an adverse change which significantly increases the risk that the Note or other obligations hereunder will not be repaid when due. The Bank recognizes and agrees that the Borrower is entering into this Agreement in part because it 6 foresees the possibility that from time to time during the term of this Agreement it may not be able to issue first mortgage bonds or preferred stock and that such inability shall not, in and of itself, constitute a material adverse change. The Bank further agrees that an unsuccessful or failed remarketing, auction or similar procedure with respect to any security subject to such procedure also shall not, in and of itself, constitute a material adverse change. ARTICLE IV AFFIRMATIVE COVENANTS SECTION 4.01. Certain Covenants. So long as the Note shall remain unpaid, the Borrower will, unless the Bank shall otherwise consent in writing: (a) pay and discharge all taxes, assessments and governmental charges or levies imposed upon the Borrower or upon its income or profits, or upon any properties belonging to the Borrower, prior to the date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a lien or charge upon any properties of the Borrower, provided it shall not be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings; (b) maintain insurance in accordance with Section 7.06 of the First Mortgage Indenture; (c) preserve and maintain its corporate existence in Mississippi, and qualify and remain qualified as a foreign corporation in each jurisdiction in which such qualification is necessary or desirable in view of its business and operations or the ownership of its properties; (d) comply with the requirements of all applicable laws, non-compliance with which would effect a material adverse change in its financial condition or operations except applicable laws being contested in good faith; (e) provide the Bank with prompt notice in writing of any Event of Default or any event which with the passage of time or giving of notice, or both, would constitute an Event of Default; and (f) comply with the provisions of the First Mortgage Indenture with respect to the maintenance and replacement of utility plant. 7 SECTION 4.02. Financial Statements. The Borrower, so long as any indebtedness under this Agreement is outstanding and unpaid, will furnish or cause to be furnished to the Bank (a) within 120 days after the end of each of its fiscal years, its consolidated balance sheet and related consolidated statements of income and cash flows, in each case certified by independent certified public accountants of nationally recognized standing, showing its financial position at the close of such year and the results of its operations and cash flows for such year; (b) within 55 days after the end of each of the first three quarters in each of its fiscal years, its unaudited condensed consolidated balance sheet and related condensed consolidated statements of income and cash flows, such balance sheets to be as of the end of such quarter and such statements of income and cash flows to be for the period from the beginning of the fiscal year to the end of such quarter, in each case in the forms included in its Quarterly Report on Form 10-Q for such quarter filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended, and subject to audit and year- end adjustments; and (c) such other information respecting the Borrower's business, properties or its condition or operations, financial or otherwise, as the Bank may from time to time reasonably request. ARTICLE V EVENTS OF DEFAULT AND REMEDIES SECTION 5.01. Events of Default. Any one or more of the following shall constitute an Event of Default hereunder: (a) the Borrower (or, in the case of an event described in (v) below, either the Borrower or any Significant Subsidiary of the Borrower) shall: (i) default in the payment when due of any principal of the Note, or default for 5 Business Days in the payment when due of any interest on the Note, (ii) default in the performance of any other agreement or covenant contained in this Agreement (other than a covenant or agreement a default in the performance of which is elsewhere in this paragraph specifically dealt with) and such default shall continue for a period of 30 days after the Bank has given the Borrower written notice thereof, (iii) default in the payment when due or within any applicable period of grace of any Adjusted 8 Funded Debt or Current Debt of the Borrower (other than Adjusted Funded Debt or Current Debt incurred under the Note and under agreements or instruments involving in the aggregate less than $500,000), (iv) default under the provisions of any instrument evidencing Adjusted Funded Debt or Current Debt of the Borrower (other than Adjusted Funded Debt or Current Debt incurred under the Note and under agreements or instruments involving in the aggregate less than $500,000), or of any agreement relating to any such Adjusted Funded Debt or Current Debt of the Borrower the effect of which default is to permit any party or parties to any such instrument or agreement to cause such Adjusted Funded Debt or Current Debt to become due prior to its stated maturity, or (v) (A) apply for or consent to the appointment of a receiver, trustee, liquidator or the like of the Borrower or any Significant Subsidiary of the Borrower, or of all or a substantial part of its or any such Significant Subsidiary's property, (B) be unable, or admit in writing inability, to pay debts generally as they mature, (C) make a general assignment for the benefit of creditors, (D) be adjudicated a bankrupt or insolvent, or (E) file a voluntary petition in bankruptcy or a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any insolvency law or an answer admitting the material allegations of a petition filed against it or any such Significant Subsidiary in any bankruptcy, reorganization or insolvency proceeding, or corporate action shall be taken by it or any such Significant Subsidiary for the purpose of effecting any of the foregoing, (b) any representation made by the Borrower hereunder shall prove incorrect in any material respect when made, or (c) an order, judgment or decree shall be entered, without the application, approval or consent of the Borrower or any Significant Subsidiary of the Borrower, by any court or governmental agency of competent jurisdiction, approving a petition seeking the Borrower's or Significant Subsidiary's reorganization, or appointing 9 a receiver, trustee, liquidator, or the like of it or any such Significant Subsidiary, or of all or a substantial part of its or any such Significant Subsidiary's assets, and such order, judgment or decree shall continue unstayed and in effect for any period of 60 consecutive days. SECTION 5.02. Remedies on Default. Upon the occurrence and continuation of an Event of Default, then, except in the case of an event described in clause (A), (C), (D), or (E) of Section 5.01 (a)(v) above or in Section 5.01 (c) above, the Bank may, upon written notice to the Borrower, declare the principal and interest on the Note to be immediately due and payable, whereupon the outstanding principal amount of the Note, accrued interest thereon, and all other amounts payable under this Agreement and the Note, shall be immediately due and payable. In the case of an event described in clause (A), (C), (D) or (E) of Section 5.01 (a)(v) above or in Section 5.01 (c) above, without any notice to the Borrower or declaration by the Bank, the outstanding principal amount of the Note, accrued interest thereon, and all other amounts payable by the Borrower under this Agreement and the Note shall be immediately due and payable. ARTICLE VI MISCELLANEOUS SECTION 6.01. No Waiver. The Bank's rights and remedies under this Agreement and the Note are cumulative and not exclusive of any rights or remedies which the Bank would otherwise have, and no failure or delay by the Bank in exercising any right shall operate as a waiver of it, nor shall any single or partial exercise of any power or right preclude its other or further exercise or the exercise of any other power or right. Any term, covenant, agreement or condition of this Agreement and the Note may be amended by a writing executed by the parties hereto or the Bank may waive compliance therewith in writing (either generally or any particular instance or retrospectively or prospectively) and upon execution of such waiver or amendment, the failure to observe, perform or discharge any such term, covenant, agreement or condition (whether such amendment is executed or such waiver is given before or after such failure) shall not be construed as a breach of such term, covenant, agreement or condition or an Event of Default to the extent so amended or waived. SECTION 6.02. Investment. The Bank represents that it is the present intention of the Bank to acquire the Note for its own account in the ordinary course of its banking business and not with a view to the distribution or sale thereof, subject, nevertheless, to the necessity that the Bank remain in control at 10 all times of the disposition of property held by it for its own account, it being understood that the foregoing representation shall not affect the character of the Loan as a commercial lending transaction nor the ability or right of the Bank to grant participations in its rights and obligations hereunder and under the Note as specified in Section 6.03 hereof. SECTION 6.03. Participations. The Bank may from time to time enter into participation agreements and pursuant thereto assign its rights under this Agreement and the Note. All amounts payable by the Borrower under this Agreement and the Note shall be determined as if the Bank had not entered into any such participation agreement. The Bank may furnish any information concerning the Borrower in the possession of the Bank from time to time to participants and prospective participants. SECTION 6.04. Notices. All notices and other communications under this Agreement shall be mailed, telegraphed, telexed, telecopied or delivered to each party at the address set forth below, unless such address shall have been changed by written notice to the other party of such change, in which event it shall be addressed to such changed address: If to the Bank, to it at: First Union National Bank of Georgia 999 Peachtree Street, Suite 640 Atlanta, Georgia 30309 Attention: Ms. Mara Holley Telecopy No.: (404) 225-4011 If to the Borrower, to it at: 2992 West Beach Gulfport, Mississippi 39501 Attention: Treasurer Telecopy No.: (601) 865-5658 All such notices and communications shall, when mailed, telegraphed, telexed or telecopied, be effective when deposited in the mails or delivered to the telegraph company or sent by telex or telecopy, respectively, addressed as aforesaid. SECTION 6.05. Governing Law. This Agreement and the Note shall be construed in accordance with and governed by the laws of the State of Georgia. SECTION 6.06. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute one and the same instrument. 11 WITNESS the hand and seal of the parties hereto through their duly authorized officers, as of the date first above written. MISSISSIPPI POWER COMPANY By: _______________________________ Title: ____________________________ [CORPORATE SEAL] FIRST UNION NATIONAL BANK OF GEORGIA By: _______________________________ Title: ____________________________ 12 EXHIBIT A MISSISSIPPI POWER COMPANY 2992 West Beach Gulfport, Mississippi 39501 April 22, 1994 FOR VALUE RECEIVED, the undersigned promises to pay to the order of First Union National Bank of Georgia (the "Bank") at its office at 999 Peachtree Street, N.E., Atlanta, Georgia 30309, the principal amount of Nine Million Dollars ($9,000,000) on June 30, 1995, and to pay interest (calculated on the basis of a year of 360 days, and the actual number of days elapsed) on the unpaid principal amount hereof at the rate of 5.39% per annum, such interest being payable in arrears on March 31, June 30, September 30 and December 31 in each year and at the maturity hereof. Any principal not paid when due shall bear interest from maturity until paid in full at a floating rate per annum equal to 110% of that rate of interest from time to time announced by the Bank at its principal office as its base rate, such interest to be payable on demand and upon payment in full of such principal. All payments hereunder shall be made in lawful money of the United States of America in immediately available funds. If any payment hereunder shall be specified to be made on a day which is not a business day, it shall be made on the next succeeding day which is a business day and such extension of time shall in such case be included in computing interest, if any, in connection with such payment. The principal of this Note may not be prepaid by the undersigned. Demand for payment, protest and notice of dishonor are hereby waived by the undersigned. This Note evidences a loan made to the undersigned under and is entitled to the benefits of a certain Loan Agreement dated as of April 22, 1994, to which Loan Agreement reference is hereby made, and this Note may be accelerated as therein provided. 13 The undersigned promises to pay all out-of-pocket costs and expenses (including reasonable fees and out-of-pocket costs and expenses of legal counsel) which the Bank may incur in the enforcement against the undersigned of said Loan Agreement or this Note. MISSISSIPPI POWER COMPANY By:________________________________ [SEAL] Title:_____________________________ Attest: By:_________________________ Title:______________________ 14 EX-99 4 LOAN AGREEMENT EXHIBIT A-3 LOAN AGREEMENT Dated as of April 22, 1994 By and Between MISSISSIPPI POWER COMPANY AND FIRST UNION NATIONAL BANK OF GEORGIA LOAN AGREEMENT THIS LOAN AGREEMENT, dated as of April 22, 1994 (the "Agreement"), by and between MISSISSIPPI POWER COMPANY, a corporation organized and existing under the laws of the State of Mississippi (the "Borrower"), and FIRST UNION NATIONAL BANK OF GEORGIA (the "Bank"). W I T N E S S E T H: WHEREAS, the Borrower has requested the Bank to extend the Loan (as hereinafter defined), and the Bank is willing to do so subject to and upon the terms and conditions set forth in this Agreement; NOW THEREFORE, for and in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Definitions. In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (such meanings to be equally applicable to both the singular and plural forms of the terms defined except where specifically defined): "Adjusted Funded Debt," with respect to any person, shall mean without duplication: (1) its liabilities for borrowed money, other than Current Debt; (2) liabilities, other than Current Debt, secured by any lien existing on property owned by such person (whether or not such liabilities have been assumed); (3) the present value of all payments due under any lease or under any other arrangement for retention of title (discounted at the implicit rate if known or 8% per annum otherwise) if such lease or other arrangement is in substance (a) a financing lease (including any lease under which (i) the lessee has or will have an option to purchase the property subject thereto at a nominal amount or an amount less than a reasonable estimate of the fair market value of such property at the date of such purchase, (ii) the lessor has filed a financing statement, or (iii) the term of the lease approximates or exceeds the expected useful life of the property subject thereto), (b) an arrangement for the retention of title for security purposes, or (c) an installment purchase; and (4) any other obligations (other than deferred taxes) which are required by generally accepted accounting principles to be shown as liabilities on its balance sheet and which are payable or remain unpaid more than one year from the creation thereof. The "Adjusted Funded Debt" of the Borrower shall mean all obligations described in the foregoing clauses in respect of which the Borrower is liable as obligor, guarantor or otherwise. "Business Day" shall mean a day on which commercial banks are not required or authorized to close in Atlanta, Georgia. "Capitalization," with respect to any person, shall mean the sum of (a) the aggregate of the capital stock (but excluding treasury stock and capital stock subscribed and unissued) and other equity accounts (including retained earnings and paid-in capital) of such person as the same appears on the balance sheet of such person prepared in accordance with generally accepted accounting principles as of the date of determination, and (b) the amount of Adjusted Funded Debt of such person as of the same date. "Current Debt," with respect to any person, shall mean all liabilities for borrowed money and all liabilities secured by any lien existing on property owned by such person whether or not such liabilities have been assumed, which, in either case, are payable on demand or within one year from the creation thereof, except: (1) any such liabilities which are renewable or extendible at the option of the debtor to a date more than one year from the date of creation thereof, and (2) any such liabilities which, although payable within one year, constitute payments required to be made on account of principal of indebtedness expressed to mature more than one year from the date of creation thereof. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as such Act may be amended. "First Mortgage Indenture" shall mean the Indenture, dated as of September 1, 1941, between the Borrower and Morgan Guaranty Trust Company of New York, as Trustee, as supplemented and amended to date, and as may hereafter be supplemented and amended by supplemental indentures. "Plan" shall mean any employee benefit plan or other plan 2 maintained for employees. "Significant Subsidiary," with respect to any person, shall mean any corporation of which such person owns a majority of the capital stock having voting powers, and which represents more than 25% of such person's assets on a consolidated basis. ARTICLE II AMOUNT AND TERMS OF LOAN SECTION 2.01. Loan and Note. Subject to and upon the terms and conditions set forth in this Agreement, the Bank agrees to lend to the Borrower Nine Million Dollars ($9,000,000) on the date of this Agreement (the "Loan"). The Loan shall be evidenced by a single Promissory Note payable to the Bank in the form of Exhibit A attached hereto (the "Note"). SECTION 2.02. Increased Costs. If (i) Regulation D of the Board of Governors of the Federal Reserve System, or (ii) after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency, (1) shall subject the Bank to any tax, duty or other charge with respect to the Loan or the Note, or shall change the basis of taxation of payments to the Bank of the principal of or interest on the Note or any other amounts due under this Agreement in respect of the Loan (except for changes in the rate of tax on the overall net income of the Bank imposed by the jurisdiction in which the Bank's principal executive office is located); or (2) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, the Bank; or (3) shall impose on the Bank any other condition affecting the Loan or the Note; and the result of any of the foregoing is to increase the cost to (or in the case of Regulation D referred to above, to impose a cost on) the Bank of extending or maintaining the Loan, or to reduce the amount of any sum received or receivable by the Bank 3 under this Agreement or under the Note with respect thereto, then within 15 days after demand by the Bank (which demand shall be accompanied by a statement setting forth the basis of such demand), the Borrower shall pay directly to the Bank such additional amount or amounts as will compensate the Bank for such increased cost or such reduction. The Bank shall promptly notify the Borrower of any event of which it has knowledge, occurring after the date hereof, which will entitle the Bank to compensation pursuant to this Section 2.02 and will take such reasonable action, if such action will avoid the need for, or reduce the amount of, such compensation and will not, in the sole judgment of the Bank, be otherwise disadvantageous to the Bank. SECTION 2.03. Capital Adequacy. If the Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by the Bank or any corporation controlling the Bank and that the amount of such capital is increased by or based upon the existence of the Bank's Loan hereunder and other commitments of this type, then, upon demand by the Bank, the Borrower shall pay to the Bank, from time to time as specified by the Bank, additional amounts sufficient to compensate the Bank or such corporation in the light of such circumstances, to the extent in each case that the Bank and the Borrower shall mutually agree in writing with respect thereto; provided, however, that in no event shall any such additional amount commence accruing earlier than ninety days after the date of any demand therefor. SECTION 2.04. Making of Payments. All payments of principal of, or interest on, the Note shall be made in immediately available funds to the Bank at its principal office in Atlanta, Georgia. All such payments shall be made not later than 1:00 p.m. Atlanta, Georgia time on the date specified for payment. ARTICLE III REPRESENTATIONS AND WARRANTIES SECTION 3.01. Representations and Warranties. The Borrower represents and warrants to the Bank as follows: (a) the Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Mississippi and each Significant Subsidiary, if any, of the Borrower is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation; 4 (b) the Borrower has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement and its obtaining the Loan; (c) each of this Agreement and the Note is the valid and binding obligation of the Borrower enforceable in accordance with its terms, except as such enforcement may be limited by any bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally or general principles of equity; (d) this Agreement, the Note and the Loan do not and will not violate any provisions of any applicable law or conflict with, result in a breach of, or constitute a default under, the Borrower's Charter or By-laws or any indenture or other agreement or instrument, or any legal restriction that the Borrower is a party to or bound by; (e) no approval or consent of, or other filing with or notice to, any governmental body is legally required for the issuance by the Borrower of the Note or the execution, delivery and performance by the Borrower of this Agreement and the Note except for an order or orders of the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, as amended, which order or orders have been obtained and are in effect; (f) other than in the ordinary course of business (including, without limitation, actions, suits or proceedings involving rates or licenses or permits for the construction or operation of generating or transmission facilities), there are no actions, suits or proceedings pending or to the Borrower's knowledge threatened against or directly involving the Borrower or its properties before any court, arbitrator or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, except (i) actions, suits or proceedings which will not effect a material adverse change in the Borrower's financial condition or operations and (ii) as disclosed in or contemplated by the Borrower's Annual Report on Form 10-K for the year ended December 31, 1993 (the "Exchange Act Document"); (g) to the best knowledge of the Borrower, no Reportable Event (as defined in Title IV of ERISA) has occurred and is continuing with respect to any Plan of the Borrower; 5 (h) the Borrower has not incurred any material accumulated funding deficiency within the meaning of ERISA and the Borrower has not incurred any material liability to the Pension Benefit Guaranty Corporation established under ERISA (or any successor thereto) in connection with any Plan of the Borrower; (i) no Event of Default (as defined in Section 5.01 hereof), or event which with the passage of time or giving of notice, or both, would constitute an Event of Default, has occurred and is continuing; (j) the Borrower has furnished to the Bank its balance sheet as of December 31, 1993, and related statements of income and cash flows for the twelve months then ended, in each case certified by Arthur Andersen & Co., independent certified public accountants; (k) such financial statements fairly present the Borrower's financial position as of December 31, 1993, and the results of its operations for the twelve months then ended, in conformity with generally accepted accounting principles consistently applied during such period (except as stated therein); (l) there has been no material adverse change in the financial condition or operations of the Borrower and it subsidiaries (taken as a whole) since December 31, 1993, except as reflected in or contemplated by the Exchange Act Document, it being understood and agreed that this exception is not intended to cover statements in the Exchange Act Document that are stated therein to be applicable to the electric utility industry generally unless they describe specific problems or types of problems which, at the date hereof, are affecting the Borrower's financial condition or operations or its prospects; and (m) the Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan are to be used to purchase or carry any margin stock or to extend credit to others for such purpose. As used in this Agreement, the term "material adverse change" shall mean an adverse change which significantly increases the risk that the Note or other obligations hereunder will not be repaid when due. The Bank recognizes and agrees that the Borrower is entering into this Agreement in part because it 6 foresees the possibility that from time to time during the term of this Agreement it may not be able to issue first mortgage bonds or preferred stock and that such inability shall not, in and of itself, constitute a material adverse change. The Bank further agrees that an unsuccessful or failed remarketing, auction or similar procedure with respect to any security subject to such procedure also shall not, in and of itself, constitute a material adverse change. ARTICLE IV AFFIRMATIVE COVENANTS SECTION 4.01. Certain Covenants. So long as the Note shall remain unpaid, the Borrower will, unless the Bank shall otherwise consent in writing: (a) pay and discharge all taxes, assessments and governmental charges or levies imposed upon the Borrower or upon its income or profits, or upon any properties belonging to the Borrower, prior to the date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a lien or charge upon any properties of the Borrower, provided it shall not be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings; (b) maintain insurance in accordance with Section 7.06 of the First Mortgage Indenture; (c) preserve and maintain its corporate existence in Mississippi, and qualify and remain qualified as a foreign corporation in each jurisdiction in which such qualification is necessary or desirable in view of its business and operations or the ownership of its properties; (d) comply with the requirements of all applicable laws, non-compliance with which would effect a material adverse change in its financial condition or operations except applicable laws being contested in good faith; (e) provide the Bank with prompt notice in writing of any Event of Default or any event which with the passage of time or giving of notice, or both, would constitute an Event of Default; and (f) comply with the provisions of the First Mortgage Indenture with respect to the maintenance and replacement of utility plant. 7 SECTION 4.02. Financial Statements. The Borrower, so long as any indebtedness under this Agreement is outstanding and unpaid, will furnish or cause to be furnished to the Bank (a) within 120 days after the end of each of its fiscal years, its consolidated balance sheet and related consolidated statements of income and cash flows, in each case certified by independent certified public accountants of nationally recognized standing, showing its financial position at the close of such year and the results of its operations and cash flows for such year; (b) within 55 days after the end of each of the first three quarters in each of its fiscal years, its unaudited condensed consolidated balance sheet and related condensed consolidated statements of income and cash flows, such balance sheets to be as of the end of such quarter and such statements of income and cash flows to be for the period from the beginning of the fiscal year to the end of such quarter, in each case in the forms included in its Quarterly Report on Form 10-Q for such quarter filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended, and subject to audit and year- end adjustments; and (c) such other information respecting the Borrower's business, properties or its condition or operations, financial or otherwise, as the Bank may from time to time reasonably request. ARTICLE V EVENTS OF DEFAULT AND REMEDIES SECTION 5.01. Events of Default. Any one or more of the following shall constitute an Event of Default hereunder: (a) the Borrower (or, in the case of an event described in (v) below, either the Borrower or any Significant Subsidiary of the Borrower) shall: (i) default in the payment when due of any principal of the Note, or default for 5 Business Days in the payment when due of any interest on the Note, (ii) default in the performance of any other agreement or covenant contained in this Agreement (other than a covenant or agreement a default in the performance of which is elsewhere in this paragraph specifically dealt with) and such default shall continue for a period of 30 days after the Bank has given the Borrower written notice thereof, (iii) default in the payment when due or within any applicable period of grace of any Adjusted 8 Funded Debt or Current Debt of the Borrower (other than Adjusted Funded Debt or Current Debt incurred under the Note and under agreements or instruments involving in the aggregate less than $500,000), (iv) default under the provisions of any instrument evidencing Adjusted Funded Debt or Current Debt of the Borrower (other than Adjusted Funded Debt or Current Debt incurred under the Note and under agreements or instruments involving in the aggregate less than $500,000), or of any agreement relating to any such Adjusted Funded Debt or Current Debt of the Borrower the effect of which default is to permit any party or parties to any such instrument or agreement to cause such Adjusted Funded Debt or Current Debt to become due prior to its stated maturity, or (v) (A) apply for or consent to the appointment of a receiver, trustee, liquidator or the like of the Borrower or any Significant Subsidiary of the Borrower, or of all or a substantial part of its or any such Significant Subsidiary's property, (B) be unable, or admit in writing inability, to pay debts generally as they mature, (C) make a general assignment for the benefit of creditors, (D) be adjudicated a bankrupt or insolvent, or (E) file a voluntary petition in bankruptcy or a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any insolvency law or an answer admitting the material allegations of a petition filed against it or any such Significant Subsidiary in any bankruptcy, reorganization or insolvency proceeding, or corporate action shall be taken by it or any such Significant Subsidiary for the purpose of effecting any of the foregoing, (b) any representation made by the Borrower hereunder shall prove incorrect in any material respect when made, or (c) an order, judgment or decree shall be entered, without the application, approval or consent of the Borrower or any Significant Subsidiary of the Borrower, by any court or governmental agency of competent jurisdiction, approving a petition seeking the Borrower's or Significant Subsidiary's reorganization, or appointing 9 a receiver, trustee, liquidator, or the like of it or any such Significant Subsidiary, or of all or a substantial part of its or any such Significant Subsidiary's assets, and such order, judgment or decree shall continue unstayed and in effect for any period of 60 consecutive days. SECTION 5.02. Remedies on Default. Upon the occurrence and continuation of an Event of Default, then, except in the case of an event described in clause (A), (C), (D), or (E) of Section 5.01 (a)(v) above or in Section 5.01 (c) above, the Bank may, upon written notice to the Borrower, declare the principal and interest on the Note to be immediately due and payable, whereupon the outstanding principal amount of the Note, accrued interest thereon, and all other amounts payable under this Agreement and the Note, shall be immediately due and payable. In the case of an event described in clause (A), (C), (D) or (E) of Section 5.01 (a)(v) above or in Section 5.01 (c) above, without any notice to the Borrower or declaration by the Bank, the outstanding principal amount of the Note, accrued interest thereon, and all other amounts payable by the Borrower under this Agreement and the Note shall be immediately due and payable. ARTICLE VI MISCELLANEOUS SECTION 6.01. No Waiver. The Bank's rights and remedies under this Agreement and the Note are cumulative and not exclusive of any rights or remedies which the Bank would otherwise have, and no failure or delay by the Bank in exercising any right shall operate as a waiver of it, nor shall any single or partial exercise of any power or right preclude its other or further exercise or the exercise of any other power or right. Any term, covenant, agreement or condition of this Agreement and the Note may be amended by a writing executed by the parties hereto or the Bank may waive compliance therewith in writing (either generally or any particular instance or retrospectively or prospectively) and upon execution of such waiver or amendment, the failure to observe, perform or discharge any such term, covenant, agreement or condition (whether such amendment is executed or such waiver is given before or after such failure) shall not be construed as a breach of such term, covenant, agreement or condition or an Event of Default to the extent so amended or waived. SECTION 6.02. Investment. The Bank represents that it is the present intention of the Bank to acquire the Note for its own account in the ordinary course of its banking business and not with a view to the distribution or sale thereof, subject, nevertheless, to the necessity that the Bank remain in control at 10 all times of the disposition of property held by it for its own account, it being understood that the foregoing representation shall not affect the character of the Loan as a commercial lending transaction nor the ability or right of the Bank to grant participations in its rights and obligations hereunder and under the Note as specified in Section 6.03 hereof. SECTION 6.03. Participations. The Bank may from time to time enter into participation agreements and pursuant thereto assign its rights under this Agreement and the Note. All amounts payable by the Borrower under this Agreement and the Note shall be determined as if the Bank had not entered into any such participation agreement. The Bank may furnish any information concerning the Borrower in the possession of the Bank from time to time to participants and prospective participants. SECTION 6.04. Notices. All notices and other communications under this Agreement shall be mailed, telegraphed, telexed, telecopied or delivered to each party at the address set forth below, unless such address shall have been changed by written notice to the other party of such change, in which event it shall be addressed to such changed address: If to the Bank, to it at: First Union National Bank of Georgia 999 Peachtree Street, Suite 640 Atlanta, Georgia 30309 Attention: Ms. Mara Holley Telecopy No.: (404) 225-4011 If to the Borrower, to it at: 2992 West Beach Gulfport, Mississippi 39501 Attention: Treasurer Telecopy No.: (601) 865-5658 All such notices and communications shall, when mailed, telegraphed, telexed or telecopied, be effective when deposited in the mails or delivered to the telegraph company or sent by telex or telecopy, respectively, addressed as aforesaid. SECTION 6.05. Governing Law. This Agreement and the Note shall be construed in accordance with and governed by the laws of the State of Georgia. SECTION 6.06. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute one and the same instrument. 11 WITNESS the hand and seal of the parties hereto through their duly authorized officers, as of the date first above written. MISSISSIPPI POWER COMPANY By: _______________________________ Title: ____________________________ [CORPORATE SEAL] FIRST UNION NATIONAL BANK OF GEORGIA By: _______________________________ Title: ____________________________ 12 EXHIBIT A MISSISSIPPI POWER COMPANY 2992 West Beach Gulfport, Mississippi 39501 April 22, 1994 FOR VALUE RECEIVED, the undersigned promises to pay to the order of First Union National Bank of Georgia (the "Bank") at its office at 999 Peachtree Street, N.E., Atlanta, Georgia 30309, the principal amount of Nine Million Dollars ($9,000,000) on December 29, 1995, and to pay interest (calculated on the basis of a year of 360 days, and the actual number of days elapsed) on the unpaid principal amount hereof at the rate of 5.72% per annum, such interest being payable in arrears on March 31, June 30, September 30 and December 31 in each year and at the maturity hereof. Any principal not paid when due shall bear interest from maturity until paid in full at a floating rate per annum equal to 110% of that rate of interest from time to time announced by the Bank at its principal office as its base rate, such interest to be payable on demand and upon payment in full of such principal. All payments hereunder shall be made in lawful money of the United States of America in immediately available funds. If any payment hereunder shall be specified to be made on a day which is not a business day, it shall be made on the next succeeding day which is a business day and such extension of time shall in such case be included in computing interest, if any, in connection with such payment. The principal of this Note may not be prepaid by the undersigned. Demand for payment, protest and notice of dishonor are hereby waived by the undersigned. This Note evidences a loan made to the undersigned under and is entitled to the benefits of a certain Loan Agreement dated as of April 22, 1994, to which Loan Agreement reference is hereby made, and this Note may be accelerated as therein provided. 13 The undersigned promises to pay all out-of-pocket costs and expenses (including reasonable fees and out-of-pocket costs and expenses of legal counsel) which the Bank may incur in the enforcement against the undersigned of said Loan Agreement or this Note. MISSISSIPPI POWER COMPANY By:________________________________ [SEAL] Title:_____________________________ Attest: By:_________________________ Title:______________________ 14 EX-99 5 NOTE FROM FUELCO, INC. EXHIBIT B-1 FUELCO, INC. 1310 25TH AVENUE GULFPORT, MISSISSIPPI 39501 April 22, 1994 FOR VALUE RECEIVED, the undersigned promises to pay to the order of Mississippi Power Company ("MPC") at its office at 2992 West Beach Boulevard, Gulfport, MS 39501, the principal amount of NINE MILLION AND NO/100 ($9,000,000.00) DOLLARS on December 30, 1994, and to pay interest (calculated on the basis of a year of 360 days, and the actual number of days elapsed) on the unpaid principal amount hereof at the rate of 4.87% per annum, such interest being payable in arrears on June 30 and September 30 and at the maturity hereof. Any principal not paid when due shall bear interest from maturity until paid in full at a floating rate per annum equal to 110% of that rate of interest from time to time announced by the First Union Bank at its principal office as its base rate, such interest to be payable on demand and upon payment in full of such principal. All payments hereunder shall be made in lawful money of the United States of America in immediately available funds. If any payment hereunder shall be specified to be made on a day which is not a business day, it shall be made on the next succeeding day which is a business day and such extension of time shall in such case be included in computing interest, if any, in connection with such payment. The principal of this Note may not be prepaid by the undersigned. Demand for payment, protest and notice of dishonor are hereby waived by the undersigned. Upon any default in payment when due of any principal of this note or default for five (5) business days in the payment when due of any interest on the note, MPC or any holder may upon written notice to Borrower declare the principal and interest on the note to be immediately due and payable whereupon the outstanding principal amount of the Note, accrued Interest thereon, and all other amounts payable under this Note shall be immediately due and payable. FUELCO, INC. [SEAL] By: M. A. Ferrucci Title: President Attest: By: A. M. Horne Title: Secretary EX-99 6 NOTE FROM FUELCO, INC. EXHIBIT B-2 FUELCO, INC. 1310 25TH AVENUE GULFPORT, MISSISSIPPI 39501 April 22, 1994 FOR VALUE RECEIVED, the undersigned promises to pay to the order of Mississippi Power Company ("MPC") at its office at 2992 West Beach Boulevard, Gulfport, MS 39501, the principal amount of NINE MILLION AND NO/100 ($9,000,000.00) DOLLARS on June 30, 1995, and to pay interest (calculated on the basis of a year of 360 days, and the actual number of days elapsed) on the unpaid principal amount hereof at the rate of 5.39% per annum, such interest being payable in arrears on March 31, June 30, September 30 and December 31 in each year and at the maturity hereof. Any principal not paid when due shall bear interest from maturity until paid in full at a floating rate per annum equal to 110% of that rate of interest from time to time announced by the First Union Bank at its principal office as its base rate, such interest to be payable on demand and upon payment in full of such principal. All payments hereunder shall be made in lawful money of the United States of America in immediately available funds. If any payment hereunder shall be specified to be made on a day which is not a business day, it shall be made on the next succeeding day which is a business day and such extension of time shall in such case be included in computing interest, if any, in connection with such payment. The principal of this Note may not be prepaid by the undersigned. Demand for payment, protest and notice of dishonor are hereby waived by the undersigned. Upon any default in payment when due of any principal of this note or default for five (5) business days in the payment when due of any interest on the note, MPC or any holder may upon written notice to Borrower declare the principal and interest on the note to be immediately due and payable whereupon the outstanding principal amount of the Note, accrued Interest thereon, and all other amounts payable under this Note shall be immediately due and payable. FUELCO, INC. [SEAL] By: M. A. Ferrucci Title: President Attest: By: A. M. Horne Title: Secretary EX-99 7 NOTE FROM FUELCO, INC. EXHIBIT B-3 FUELCO, INC. 1310 25TH AVENUE GULFPORT, MISSISSIPPI 39501 April 22, 1994 FOR VALUE RECEIVED, the undersigned promises to pay to the order of Mississippi Power Company ("MPC") at its office at 2992 West Beach Boulevard, Gulfport, MS 39501, the principal amount of NINE MILLION AND NO/100 ($9,000,000.00) DOLLARS on December 29, 1995, and to pay interest (calculated on the basis of a year of 360 days, and the actual number of days elapsed) on the unpaid principal amount hereof at the rate of 5.72% per annum, such interest being payable in arrears on March 31, June 30, September 30 and December 31 in each year and at the maturity hereof. Any principal not paid when due shall bear interest from maturity until paid in full at a floating rate per annum equal to 110% of that rate of interest from time to time announced by the First Union Bank at its principal office as its base rate, such interest to be payable on demand and upon payment in full of such principal. All payments hereunder shall be made in lawful money of the United States of America in immediately available funds. If any payment hereunder shall be specified to be made on a day which is not a business day, it shall be made on the next succeeding day which is a business day and such extension of time shall in such case be included in computing interest, if any, in connection with such payment. The principal of this Note may not be prepaid by the undersigned. Demand for payment, protest and notice of dishonor are hereby waived by the undersigned. Upon any default in payment when due of any principal of this note or default for five (5) business days in the payment when due of any interest on the note, MPC or any holder may upon written notice to Borrower declare the principal and interest on the note to be immediately due and payable whereupon the outstanding principal amount of the Note, accrued Interest thereon, and all other amounts payable under this Note shall be immediately due and payable. FUELCO, INC. [SEAL] By: M. A. Ferrucci Title: President Attest: By: A. M. Horne Title: Secretary EX-99 8 DEED OF TRUST EXHIBIT C-1 STATE OF MISSISSIPPI COUNTY OF JACKSON $ 9,000,000.00 SUBORDINATE LAND DEED OF TRUST THIS INDENTURE, made and entered into this day by and among Mississippi Power Company whose address is 2992 W. Beach Boulevard, Gulfport, MS 39501, as Grantor (herein designated as "Debtor"), Ben H. Stone, as Trustee and First Union National Bank of Georgia, as beneficiary (herein designated as "Secured Party"), WITNESSETH: WHEREAS, Debtor is indebted to Secured Party in the full principal sum of Nine Million and 00/100 ($9,000,000.00) Dollars evidenced by Debtor's Promissory Note issued of even date herewith in favor of Secured Party (the "Note") pursuant to the Loan Agreement between Debtor and the Secured Party of even date herewith, said indebtedness bearing interest as specified in the Note which provides for payment of attorney's fees for collection if not paid according to the terms thereof and being due and payable as set forth in the above described Loan Agreement and Note. Unless sooner paid, the final maturity date of the indebtedness evidenced by the said Note is December 30, 1994. NOW, THEREFORE, in consideration of the Indebtedness and obligations herein recited, Debtor hereby conveys and warrants unto Trustee, a one third (1/3rd) undivided interest in Debtor's undivided one-half (1/2) interest in the land together with all improvements thereon described below situated in the County of Jackson, State of Mississippi: A steam plant site at or near Cumbest Bluff in Jackson County, Mississippi, or known as the Jackson County Steam Plant site ("Plant Victor J. Daniel") on land recorded in the office of the Chancery Clerk of Jackson County and described as follows: Section 15 Township 6 South Range 6 West Lots 1 and 2 as recorded in Book 416 Page 299 and Book 428 Page 259. Section 14 Township 6 South Range 6 West Beginning at the Northeast corner of Section 14, Township 6 South, Range 6 West, and run thence South along the East line of said Section 14 a distance of 2030 feet to a point, run thence West a distance of 380 feet to a point, thence South 3 degrees 30 minutes East a distance of 125 feet to a point, run thence West a distance of 730 feet to Clark Bayou, run thence Southwesterly along the meanderings of Clark Bayou 6,560 feet, more or less, to the Southwest corner of Section 14, thence North along the West section line of Section 14 to the Northwest corner of said section, thence run East along the North line of Section 14 a distance of 5251 feet, more or less, to the Northeast corner of said Section 14 and the Point of Beginning, less and except that part to Miss. State Highway Dept. recorded in Book 172 Page 585-6, all as recorded in Book 439 Page 467-70. Section 11 Township 6 South Range 6 West All that part of the SE 1/4 of SE 1/4 East of Mississippi State Highway 63; all of Section 11 West of Highway 63 all being recorded in Book 439 Page 467-70, Book 434 Page 601, Book 434 Page 664, Book 434 Page 600, Book 442 Page 155, and Book 441 Page 327. Section 10 Township 6 South Range 6 West All of the entire Section as recorded in Book 428 Page 259, Book 448 Page 288, Book 449 Page 418, Book 449 Page 507. Section 9 Township 6 South Range 6 West All that part East of Pascagoula River as recorded in Book 428 Page 259. Section 4 Township 6 South Range 6 West All that part East of Pascagoula River and South of Vaughn Bayou, as recorded in Book 428 Page 259. Section 37 Township 6 South Range 6 West All that part of Allen Goodwin Private Claim 37 that would have been the S 1/2 of Regular Section 3, if regularly surveyed, less and except that part lying Northwest of Vaughn Bayou as recorded in Book 428 Page 259. Section 2 Township 6 South Range 6 West All that part of the SW 1/4 of Section 2 lying West of Highway 63 as recorded in Book 417 Page 468, Book 419 Page 57, Book 444 Page 36, Book 414 Page 163, Book 419 Page 557, Book 423 Page 160, Book 448 Page 282, Book 455 Page 401 and Book 455 Page 400. A tract of land in the A. Goodwin Claim, Section Thirty-five (35) and the Kirkwood Claim, Section Forty-two (42), both in Township Five (5) South, Range Six (6) West, Jackson County, described as follows: Beginning at a point 75 feet West of the Southeast corner of the A. Goodwin Claim Section 35, Township 5 South, Range 6 West, on the West margin of the County Road known as "River Road" (Now Mississippi State Highway No. 63) and thence run West along the South boundary line of the aforesaid A. Goodwin Claim No. 35, 1575 feet; thence North 1609.50 feet; thence East 295 feet; thence South 69 degrees and 19 minutes East 885 feet to the West margin of the County Road known as "River Road" (Now Mississippi State Highway No. 63); thence Southerly along the West margin of said Road South 6 degrees and 24 minutes West 100 feet; thence South 1 degree and 34 minutes East 100 feet; thence South 7 degrees and 44 minutes East 100 feet; thence South 9 degrees and 33 minutes East 100 feet; thence South 12 degrees and 46 minutes East 200 feet; thence South 16 degrees and 30 minutes East 100 feet; thence South 25 degrees and 12 minutes East 100 feet; thence South 30 degrees and 45 minutes East 200 feet; thence South 34 degrees and 22 minutes East 300 feet; thence South 23 degrees and 20 minutes East 108.7 feet to the point of beginning. LESS AND EXCEPT those certain parcels sold to David Thomas Pinter and sold to Erbie Gene Bailey and wife all as recorded in Deed Book 250, Page 336 394 168 and 171 399 420 407 170 LESS AND EXCEPT any part of the above described land which lies East of the New Mississippi Highway No. 63 as now laid out and used. As recorded in Book 423, Page 157. together with all improvements and appurtenances now or hereafter erected on, and all fixtures of any and every description now or hereafter attached to, said land (all being herein referred to as the "Property"). Debtor reserves the right to execute with trustee (without the consent of Secured Party), an amendment to this instrument substituting for the property collateral having a value in the judgment of Debtor not less than the then unpaid amount of the Note. THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt performance by Debtor to Secured Party as described hereinabove under the provisions of this Deed of Trust. If Debtor shall discharge its obligation to Secured Party according to the tenor of the Loan Agreement and Note described hereinabove and shall perform all covenants made by Debtor to Secured Party herein, then this conveyance shall be void and of no effect. If Debtor shall be in default in the performance of its obligations under its Loan Agreement and Note described hereinabove, then, in that event, Trustee shall, at the request of Secured Party, sell the Property conveyed, or a sufficiency thereof, to satisfy the Indebtedness at public outcry to the highest bidder for cash. Sale of the property shall be advertised for three consecutive weeks preceding the sale in a newspaper published in the county where the Property is situated, or if none is so published, then in some newspaper having a general circulation therein, and by posting a notice for the same time at the courthouse of the same county. The notice and advertisement shall disclose the names of the original Debtor in this Deed of Trust. Secured Party shall have the same right to purchase the property at the foreclosure sale as would a purchaser who is not a party to this Deed of Trust. Debtor waives the provisions of Section 89-1-55 of the Mississippi Code of 1972 as amended, if any, as far as this section restricts the right of Trustee to offer at sale more than 160 acres at a time, and Trustee may offer the property herein as a whole, regardless of how it is described. From the proceeds of the sale Trustee shall first pay all costs of the sale including reasonable compensation to Trustee; then the Indebtedness due Secured Party by Debtor, including accrued interest and attorney's fees due for collection of the debt; and then, lastly, any balance remaining to other lienholders or to Debtor, as required by law. IT IS AGREED that this conveyance is made subject to the covenants, stipulations and conditions set forth below which shall be binding upon all parties hereto. 1. Debtor shall pay all taxes and assessments, general or special, levied against the Property or upon the interest of Trustee or Secured Party therein, during the term of this Deed of Trust before such taxes or assessments become delinquent, except to the extent the same may be contested. 2. Debtor shall keep the Property in good repair and shall not permit or commit waste, impairment or deterioration thereof. Debtor shall use the Property for lawful purposes only. 3. Debtor shall be in default under the provisions of this Deed of Trust if Debtor shall default in the performance according to the tenor of the Loan Agreement and Note described hereinabove. 4. Secured Party may by giving 30 days written notice to the original or any successor Trustee, and to Debtor, appoint another person or succession of persons to act as Trustee, and such appointee in the execution of this trust shall have all the powers vested in and obligations imposed upon Trustee. 5. This Deed of Trust and the rights of the Secured Party hereunder are subordinate in their entirety to the lien of that certain Mortgage Indenture dated as of September 1, 1941 and recorded in Book 23 at Page 465, et seq. of the Records of the Mortgages and Deeds of Trust on Land in Jackson County, Mississippi, executed by the Debtor named herein, with Morgan Guaranty Trust Company, New York, New York, (formerly Guaranty Trust Company of New York), as Trustees for the benefit of the holders of certain obligations of Debtor (the "Trust Indenture"). This Deed of Trust, and the rights of the Secured Party hereunder, are also subordinate to the rights of the Trustee named in the Trust Indenture and the parties secured thereby with respect to any future indebtedness issued by the Debtor and secured by the Trust Indenture as it is now constituted and as it may be subsequently supplemented and/or amended. In the event the Debtor shall elect to sell all or part of the property secured hereby and Debtor's obligations secured by the Trust Indenture shall not have been fully satisfied at the time of such sale, the entire proceeds from such a sale shall be paid over by Debtor to the Trustee under the Trust Indenture and the Secured Party named herein shall have no right to receive any part thereof unless and until all obligations then secured by the Trust Indenture shall be fully paid. A release by the Trustee named in the Trust Indenture, or any successor thereto, of all or of any of such property so sold shall constitute a release of the lien of this Deed of Trust by the Secured Party named herein; Secured Party, by accepting this Deed of Trust, hereby appoints the Trustee for the Trust Indenture as its agent and attorney-in-fact for the purpose of releasing from the lien of this Deed of Trust all or any parts of the property described herein in the event of a sale of all or any part thereof by the Debtor; and, in such event, Secured Party disclaims any right to receive any of the proceeds from any such sale unless Debtor shall, at the time be in default under the terms of its Note secured hereby; and then only to the extent that all of the obligations of the Debtor then secured by the Trust Indenture are first satisfied. 6. This Deed of Trust and the rights of the Secured Party hereunder are also subordinate in their entirety to the lien of a subordinate deed of trust dated December 18, 1986 executed by the Debtor named herein with The Prudential Insurance Company of America, Equitable Variable Life Insurance Company, Integrity Life Insurance Company, Aetna Life Insurance Company and The Travelers Insurance Corporation. 7. This Deed of Trust and the rights of the Secured Party hereunder are also subordinate in their entirety to the lien of a subordinate deed of trust dated December 18, 1986 executed by the Debtor named herein with Fuelco, Inc. 8. Notices required herein from Secured Party to Debtor shall be sent to the address of Debtor shown in this Deed of Trust. IN WITNESS WHEREOF, Debtor has executed this Deed of Trust on the 22nd day of April, 1994. ATTEST: MISSISSIPPI POWER COMPANY, Debtor By: Ann D. Estes By: H. E. Blakeslee Its: Asst. Corp. Secretary Its: Vice President (SEAL) STATE OF MISSISSIPPI COUNTY OF HARRISON PERSONALLY appeared before me, the undersigned authority in and for the said county and state, on this 22nd day of April , 1994, within my jurisdiction, the within named H. E. Blakeslee and Ann D. Estes , who acknowledged that they are the Vice President and Asst. Corp. Secy. respectively of Mississippi Power Company, a Mississippi corporation, and that for and on behalf of the said corporation, and as its act and deed they executed the above and foregoing instrument, after first having been duly authorized by said corporation so to do. Kim E. Necaise NOTARY PUBLIC My Commission Expires: My commission expires July 14, 1997 (SEAL) GRANTOR: MISSISSIPPI POWER COMPANY 2992 West Beach Boulevard Gulfport, MS 39501 SECURED PARTY: FIRST UNION NATIONAL BANK OF GEORGIA 999 Peachtree Street, N.E. Suite 640 Atlanta, Georgia 30309 INDEXING INSTRUCTIONS: All quarter quarter sections in Sections 15, 14, 11, 10, 9, 4, 37 and 2, all in Township 6 South, Range 6 West; and All quarter quarter sections in the A. Goodwin Claim, Section 35, and the Kirkwood Claim, Section 42, both in Township 5 South, Range 6 West, Jackson County, Mississippi. INSTRUMENT PREPARED BY: BRENDA VANOVER ZNACHKO Eaton & Cottrell, P.A. 1310 Twenty Fifth Avenue Gulfport, Mississippi 39501-7748 EX-99 9 DEED OF TRUST EXHIBIT C-2 STATE OF MISSISSIPPI COUNTY OF JACKSON $ 9,000,000.00 SUBORDINATE LAND DEED OF TRUST THIS INDENTURE, made and entered into this day by and among Mississippi Power Company whose address is 2992 W. Beach Boulevard, Gulfport, MS 39501, as Grantor (herein designated as "Debtor"), Ben H. Stone, as Trustee and First Union National Bank of Georgia, as beneficiary (herein designated as "Secured Party"), WITNESSETH: WHEREAS, Debtor is indebted to Secured Party in the full principal sum of Nine Million and 00/100 ($9,000,000.00) Dollars evidenced by Debtor's Promissory Note issued of even date herewith in favor of Secured Party (the "Note") pursuant to the Loan Agreement between Debtor and the Secured Party of even date herewith, said indebtedness bearing interest as specified in the Note which provides for payment of attorney's fees for collection if not paid according to the terms thereof and being due and payable as set forth in the above described Loan Agreement and Note. Unless sooner paid, the final maturity date of the indebtedness evidenced by the said Note is June 30, 1995. NOW, THEREFORE, in consideration of the Indebtedness and obligations herein recited, Debtor hereby conveys and warrants unto Trustee, a one third (1/3rd) undivided interest in Debtor's undivided one-half (1/2) interest in the land together with all improvements thereon described below situated in the County of Jackson, State of Mississippi: A steam plant site at or near Cumbest Bluff in Jackson County, Mississippi, or known as the Jackson County Steam Plant site ("Plant Victor J. Daniel") on land recorded in the office of the Chancery Clerk of Jackson County and described as follows: Section 15 Township 6 South Range 6 West Lots 1 and 2 as recorded in Book 416 Page 299 and Book 428 Page 259. Section 14 Township 6 South Range 6 West Beginning at the Northeast corner of Section 14, Township 6 South, Range 6 West, and run thence South along the East line of said Section 14 a distance of 2030 feet to a point, run thence West a distance of 380 feet to a point, thence South 3 degrees 30 minutes East a distance of 125 feet to a point, run thence West a distance of 730 feet to Clark Bayou, run thence Southwesterly along the meanderings of Clark Bayou 6,560 feet, more or less, to the Southwest corner of Section 14, thence North along the West section line of Section 14 to the Northwest corner of said section, thence run East along the North line of Section 14 a distance of 5251 feet, more or less, to the Northeast corner of said Section 14 and the Point of Beginning, less and except that part to Miss. State Highway Dept. recorded in Book 172 Page 585-6, all as recorded in Book 439 Page 467-70. Section 11 Township 6 South Range 6 West All that part of the SE 1/4 of SE 1/4 East of Mississippi State Highway 63; all of Section 11 West of Highway 63 all being recorded in Book 439 Page 467-70, Book 434 Page 601, Book 434 Page 664, Book 434 Page 600, Book 442 Page 155, and Book 441 Page 327. Section 10 Township 6 South Range 6 West All of the entire Section as recorded in Book 428 Page 259, Book 448 Page 288, Book 449 Page 418, Book 449 Page 507. Section 9 Township 6 South Range 6 West All that part East of Pascagoula River as recorded in Book 428 Page 259. Section 4 Township 6 South Range 6 West All that part East of Pascagoula River and South of Vaughn Bayou, as recorded in Book 428 Page 259. Section 37 Township 6 South Range 6 West All that part of Allen Goodwin Private Claim 37 that would have been the S 1/2 of Regular Section 3, if regularly surveyed, less and except that part lying Northwest of Vaughn Bayou as recorded in Book 428 Page 259. Section 2 Township 6 South Range 6 West All that part of the SW 1/4 of Section 2 lying West of Highway 63 as recorded in Book 417 Page 468, Book 419 Page 57, Book 444 Page 36, Book 414 Page 163, Book 419 Page 557, Book 423 Page 160, Book 448 Page 282, Book 455 Page 401 and Book 455 Page 400. A tract of land in the A. Goodwin Claim, Section Thirty-five (35) and the Kirkwood Claim, Section Forty-two (42), both in Township Five (5) South, Range Six (6) West, Jackson County, described as follows: Beginning at a point 75 feet West of the Southeast corner of the A. Goodwin Claim Section 35, Township 5 South, Range 6 West, on the West margin of the County Road known as "River Road" (Now Mississippi State Highway No. 63) and thence run West along the South boundary line of the aforesaid A. Goodwin Claim No. 35, 1575 feet; thence North 1609.50 feet; thence East 295 feet; thence South 69 degrees and 19 minutes East 885 feet to the West margin of the County Road known as "River Road" (Now Mississippi State Highway No. 63); thence Southerly along the West margin of said Road South 6 degrees and 24 minutes West 100 feet; thence South 1 degree and 34 minutes East 100 feet; thence South 7 degrees and 44 minutes East 100 feet; thence South 9 degrees and 33 minutes East 100 feet; thence South 12 degrees and 46 minutes East 200 feet; thence South 16 degrees and 30 minutes East 100 feet; thence South 25 degrees and 12 minutes East 100 feet; thence South 30 degrees and 45 minutes East 200 feet; thence South 34 degrees and 22 minutes East 300 feet; thence South 23 degrees and 20 minutes East 108.7 feet to the point of beginning. LESS AND EXCEPT those certain parcels sold to David Thomas Pinter and sold to Erbie Gene Bailey and wife all as recorded in Deed Book 250, Page 336 394 168 and 171 399 420 407 170 LESS AND EXCEPT any part of the above described land which lies East of the New Mississippi Highway No. 63 as now laid out and used. As recorded in Book 423, Page 157. together with all improvements and appurtenances now or hereafter erected on, and all fixtures of any and every description now or hereafter attached to, said land (all being herein referred to as the "Property"). Debtor reserves the right to execute with trustee (without the consent of Secured Party), an amendment to this instrument substituting for the property collateral having a value in the judgment of Debtor not less than the then unpaid amount of the Note. THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt performance by Debtor to Secured Party as described hereinabove under the provisions of this Deed of Trust. If Debtor shall discharge its obligation to Secured Party according to the tenor of the Loan Agreement and Note described hereinabove and shall perform all covenants made by Debtor to Secured Party herein, then this conveyance shall be void and of no effect. If Debtor shall be in default in the performance of its obligations under its Loan Agreement and Note described hereinabove, then, in that event, Trustee shall, at the request of Secured Party, sell the Property conveyed, or a sufficiency thereof, to satisfy the Indebtedness at public outcry to the highest bidder for cash. Sale of the property shall be advertised for three consecutive weeks preceding the sale in a newspaper published in the county where the Property is situated, or if none is so published, then in some newspaper having a general circulation therein, and by posting a notice for the same time at the courthouse of the same county. The notice and advertisement shall disclose the names of the original Debtor in this Deed of Trust. Secured Party shall have the same right to purchase the property at the foreclosure sale as would a purchaser who is not a party to this Deed of Trust. Debtor waives the provisions of Section 89-1-55 of the Mississippi Code of 1972 as amended, if any, as far as this section restricts the right of Trustee to offer at sale more than 160 acres at a time, and Trustee may offer the property herein as a whole, regardless of how it is described. From the proceeds of the sale Trustee shall first pay all costs of the sale including reasonable compensation to Trustee; then the Indebtedness due Secured Party by Debtor, including accrued interest and attorney's fees due for collection of the debt; and then, lastly, any balance remaining to other lienholders or to Debtor, as required by law. IT IS AGREED that this conveyance is made subject to the covenants, stipulations and conditions set forth below which shall be binding upon all parties hereto. 1. Debtor shall pay all taxes and assessments, general or special, levied against the Property or upon the interest of Trustee or Secured Party therein, during the term of this Deed of Trust before such taxes or assessments become delinquent, except to the extent the same may be contested. 2. Debtor shall keep the Property in good repair and shall not permit or commit waste, impairment or deterioration thereof. Debtor shall use the Property for lawful purposes only. 3. Debtor shall be in default under the provisions of this Deed of Trust if Debtor shall default in the performance according to the tenor of the Loan Agreement and Note described hereinabove. 4. Secured Party may by giving 30 days written notice to the original or any successor Trustee, and to Debtor, appoint another person or succession of persons to act as Trustee, and such appointee in the execution of this trust shall have all the powers vested in and obligations imposed upon Trustee. 5. This Deed of Trust and the rights of the Secured Party hereunder are subordinate in their entirety to the lien of that certain Mortgage Indenture dated as of September 1, 1941 and recorded in Book 23 at Page 465, et seq. of the Records of the Mortgages and Deeds of Trust on Land in Jackson County, Mississippi, executed by the Debtor named herein, with Morgan Guaranty Trust Company, New York, New York, (formerly Guaranty Trust Company of New York), as Trustees for the benefit of the holders of certain obligations of Debtor (the "Trust Indenture"). This Deed of Trust, and the rights of the Secured Party hereunder, are also subordinate to the rights of the Trustee named in the Trust Indenture and the parties secured thereby with respect to any future indebtedness issued by the Debtor and secured by the Trust Indenture as it is now constituted and as it may be subsequently supplemented and/or amended. In the event the Debtor shall elect to sell all or part of the property secured hereby and Debtor's obligations secured by the Trust Indenture shall not have been fully satisfied at the time of such sale, the entire proceeds from such a sale shall be paid over by Debtor to the Trustee under the Trust Indenture and the Secured Party named herein shall have no right to receive any part thereof unless and until all obligations then secured by the Trust Indenture shall be fully paid. A release by the Trustee named in the Trust Indenture, or any successor thereto, of all or of any of such property so sold shall constitute a release of the lien of this Deed of Trust by the Secured Party named herein; Secured Party, by accepting this Deed of Trust, hereby appoints the Trustee for the Trust Indenture as its agent and attorney-in-fact for the purpose of releasing from the lien of this Deed of Trust all or any parts of the property described herein in the event of a sale of all or any part thereof by the Debtor; and, in such event, Secured Party disclaims any right to receive any of the proceeds from any such sale unless Debtor shall, at the time be in default under the terms of its Note secured hereby; and then only to the extent that all of the obligations of the Debtor then secured by the Trust Indenture are first satisfied. 6. This Deed of Trust and the rights of the Secured Party hereunder are also subordinate in their entirety to the lien of a subordinate deed of trust dated December 18, 1986 executed by the Debtor named herein with The Prudential Insurance Company of America, Equitable Variable Life Insurance Company, Integrity Life Insurance Company, Aetna Life Insurance Company and The Travelers Insurance Corporation. 7. This Deed of Trust and the rights of the Secured Party hereunder are also subordinate in their entirety to the lien of a subordinate deed of trust dated December 18, 1986 executed by the Debtor named herein with Fuelco, Inc. 8. Notices required herein from Secured Party to Debtor shall be sent to the address of Debtor shown in this Deed of Trust. IN WITNESS WHEREOF, Debtor has executed this Deed of Trust on the 22nd day of April, 1994. ATTEST: MISSISSIPPI POWER COMPANY, Debtor By: Ann D. Estes By: H. E. Blakeslee Its: Asst. Corp. Secretary Its: Vice President (SEAL) STATE OF Mississippi COUNTY OF Harrison PERSONALLY appeared before me, the undersigned authority in and for the said county and state, on this 22nd day of April , 1994, within my jurisdiction, the within named H. E. Blakeslee and Ann D. Estes , who acknowledged that they are the Vice President and Asst. Corp. Secy. respectively of Mississippi Power Company, a Mississippi corporation, and that for and on behalf of the said corporation, and as its act and deed they executed the above and foregoing instrument, after first having been duly authorized by said corporation so to do. Kim E. Necaise NOTARY PUBLIC My Commission Expires: My commission Expires July 14, 1997. (SEAL) GRANTOR: MISSISSIPPI POWER COMPANY 2992 West Beach Boulevard Gulfport, MS 39501 SECURED PARTY: FIRST UNION NATIONAL BANK OF GEORGIA 999 Peachtree Street, N.E. Suite 640 Atlanta, Georgia 30309 INDEXING INSTRUCTIONS: All quarter quarter sections in Sections 15, 14, 11, 10, 9, 4, 37 and 2, all in Township 6 South, Range 6 West; and All quarter quarter sections in the A. Goodwin Claim, Section 35, and the Kirkwood Claim, Section 42, both in Township 5 South, Range 6 West, Jackson County, Mississippi. INSTRUMENT PREPARED BY: BRENDA VANOVER ZNACHKO Eaton & Cottrell, P.A. 1310 Twenty Fifth Avenue Gulfport, Mississippi 39501-7748 EX-99 10 DEED OF TRUST EXHIBIT C-3 STATE OF MISSISSIPPI COUNTY OF JACKSON $ 9,000,000.00 SUBORDINATE LAND DEED OF TRUST THIS INDENTURE, made and entered into this day by and among Mississippi Power Company whose address is 2992 W. Beach Boulevard, Gulfport, MS 39501, as Grantor (herein designated as "Debtor"), Ben H. Stone, as Trustee and First Union National Bank of Georgia, as beneficiary (herein designated as "Secured Party"), WITNESSETH: WHEREAS, Debtor is indebted to Secured Party in the full principal sum of Nine Million and 00/100 ($9,000,000.00) Dollars evidenced by Debtor's Promissory Note issued of even date herewith in favor of Secured Party (the "Note") pursuant to the Loan Agreement between Debtor and the Secured Party of even date herewith, said indebtedness bearing interest as specified in the Note which provides for payment of attorney's fees for collection if not paid according to the terms thereof and being due and payable as set forth in the above described Loan Agreement and Note. Unless sooner paid, the final maturity date of the indebtedness evidenced by the said Note is December 29, 1995. NOW, THEREFORE, in consideration of the Indebtedness and obligations herein recited, Debtor hereby conveys and warrants unto Trustee, a one third (1/3rd) undivided interest in Debtor's undivided one-half (1/2) interest in the land together with all improvements thereon described below situated in the County of Jackson, State of Mississippi: A steam plant site at or near Cumbest Bluff in Jackson County, Mississippi, or known as the Jackson County Steam Plant site ("Plant Victor J. Daniel") on land recorded in the office of the Chancery Clerk of Jackson County and described as follows: Section 15 Township 6 South Range 6 West Lots 1 and 2 as recorded in Book 416 Page 299 and Book 428 Page 259. Section 14 Township 6 South Range 6 West Beginning at the Northeast corner of Section 14, Township 6 South, Range 6 West, and run thence South along the East line of said Section 14 a distance of 2030 feet to a point, run thence West a distance of 380 feet to a point, thence South 3 degrees 30 minutes East a distance of 125 feet to a point, run thence West a distance of 730 feet to Clark Bayou, run thence Southwesterly along the meanderings of Clark Bayou 6,560 feet, more or less, to the Southwest corner of Section 14, thence North along the West section line of Section 14 to the Northwest corner of said section, thence run East along the North line of Section 14 a distance of 5251 feet, more or less, to the Northeast corner of said Section 14 and the Point of Beginning, less and except that part to Miss. State Highway Dept. recorded in Book 172 Page 585-6, all as recorded in Book 439 Page 467-70. Section 11 Township 6 South Range 6 West All that part of the SE 1/4 of SE 1/4 East of Mississippi State Highway 63; all of Section 11 West of Highway 63 all being recorded in Book 439 Page 467-70, Book 434 Page 601, Book 434 Page 664, Book 434 Page 600, Book 442 Page 155, and Book 441 Page 327. Section 10 Township 6 South Range 6 West All of the entire Section as recorded in Book 428 Page 259, Book 448 Page 288, Book 449 Page 418, Book 449 Page 507. Section 9 Township 6 South Range 6 West All that part East of Pascagoula River as recorded in Book 428 Page 259. Section 4 Township 6 South Range 6 West All that part East of Pascagoula River and South of Vaughn Bayou, as recorded in Book 428 Page 259. Section 37 Township 6 South Range 6 West All that part of Allen Goodwin Private Claim 37 that would have been the S 1/2 of Regular Section 3, if regularly surveyed, less and except that part lying Northwest of Vaughn Bayou as recorded in Book 428 Page 259. Section 2 Township 6 South Range 6 West All that part of the SW 1/4 of Section 2 lying West of Highway 63 as recorded in Book 417 Page 468, Book 419 Page 57, Book 444 Page 36, Book 414 Page 163, Book 419 Page 557, Book 423 Page 160, Book 448 Page 282, Book 455 Page 401 and Book 455 Page 400. A tract of land in the A. Goodwin Claim, Section Thirty-five (35) and the Kirkwood Claim, Section Forty-two (42), both in Township Five (5) South, Range Six (6) West, Jackson County, described as follows: Beginning at a point 75 feet West of the Southeast corner of the A. Goodwin Claim Section 35, Township 5 South, Range 6 West, on the West margin of the County Road known as "River Road" (Now Mississippi State Highway No. 63) and thence run West along the South boundary line of the aforesaid A. Goodwin Claim No. 35, 1575 feet; thence North 1609.50 feet; thence East 295 feet; thence South 69 degrees and 19 minutes East 885 feet to the West margin of the County Road known as "River Road" (Now Mississippi State Highway No. 63); thence Southerly along the West margin of said Road South 6 degrees and 24 minutes West 100 feet; thence South 1 degree and 34 minutes East 100 feet; thence South 7 degrees and 44 minutes East 100 feet; thence South 9 degrees and 33 minutes East 100 feet; thence South 12 degrees and 46 minutes East 200 feet; thence South 16 degrees and 30 minutes East 100 feet; thence South 25 degrees and 12 minutes East 100 feet; thence South 30 degrees and 45 minutes East 200 feet; thence South 34 degrees and 22 minutes East 300 feet; thence South 23 degrees and 20 minutes East 108.7 feet to the point of beginning. LESS AND EXCEPT those certain parcels sold to David Thomas Pinter and sold to Erbie Gene Bailey and wife all as recorded in Deed Book 250, Page 336 394 168 and 171 399 420 407 170 LESS AND EXCEPT any part of the above described land which lies East of the New Mississippi Highway No. 63 as now laid out and used. As recorded in Book 423, Page 157. together with all improvements and appurtenances now or hereafter erected on, and all fixtures of any and every description now or hereafter attached to, said land (all being herein referred to as the "Property"). Debtor reserves the right to execute with trustee (without the consent of Secured Party), an amendment to this instrument substituting for the property collateral having a value in the judgment of Debtor not less than the then unpaid amount of the Note. THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt performance by Debtor to Secured Party as described hereinabove under the provisions of this Deed of Trust. If Debtor shall discharge its obligation to Secured Party according to the tenor of the Loan Agreement and Note described hereinabove and shall perform all covenants made by Debtor to Secured Party herein, then this conveyance shall be void and of no effect. If Debtor shall be in default in the performance of its obligations under its Loan Agreement and Note described hereinabove, then, in that event, Trustee shall, at the request of Secured Party, sell the Property conveyed, or a sufficiency thereof, to satisfy the Indebtedness at public outcry to the highest bidder for cash. Sale of the property shall be advertised for three consecutive weeks preceding the sale in a newspaper published in the county where the Property is situated, or if none is so published, then in some newspaper having a general circulation therein, and by posting a notice for the same time at the courthouse of the same county. The notice and advertisement shall disclose the names of the original Debtor in this Deed of Trust. Secured Party shall have the same right to purchase the property at the foreclosure sale as would a purchaser who is not a party to this Deed of Trust. Debtor waives the provisions of Section 89-1-55 of the Mississippi Code of 1972 as amended, if any, as far as this section restricts the right of Trustee to offer at sale more than 160 acres at a time, and Trustee may offer the property herein as a whole, regardless of how it is described. From the proceeds of the sale Trustee shall first pay all costs of the sale including reasonable compensation to Trustee; then the Indebtedness due Secured Party by Debtor, including accrued interest and attorney's fees due for collection of the debt; and then, lastly, any balance remaining to other lienholders or to Debtor, as required by law. IT IS AGREED that this conveyance is made subject to the covenants, stipulations and conditions set forth below which shall be binding upon all parties hereto. 1. Debtor shall pay all taxes and assessments, general or special, levied against the Property or upon the interest of Trustee or Secured Party therein, during the term of this Deed of Trust before such taxes or assessments become delinquent, except to the extent the same may be contested. 2. Debtor shall keep the Property in good repair and shall not permit or commit waste, impairment or deterioration thereof. Debtor shall use the Property for lawful purposes only. 3. Debtor shall be in default under the provisions of this Deed of Trust if Debtor shall default in the performance according to the tenor of the Loan Agreement and Note described hereinabove. 4. Secured Party may by giving 30 days written notice to the original or any successor Trustee, and to Debtor, appoint another person or succession of persons to act as Trustee, and such appointee in the execution of this trust shall have all the powers vested in and obligations imposed upon Trustee. 5. This Deed of Trust and the rights of the Secured Party hereunder are subordinate in their entirety to the lien of that certain Mortgage Indenture dated as of September 1, 1941 and recorded in Book 23 at Page 465, et seq. of the Records of the Mortgages and Deeds of Trust on Land in Jackson County, Mississippi, executed by the Debtor named herein, with Morgan Guaranty Trust Company, New York, New York, (formerly Guaranty Trust Company of New York), as Trustees for the benefit of the holders of certain obligations of Debtor (the "Trust Indenture"). This Deed of Trust, and the rights of the Secured Party hereunder, are also subordinate to the rights of the Trustee named in the Trust Indenture and the parties secured thereby with respect to any future indebtedness issued by the Debtor and secured by the Trust Indenture as it is now constituted and as it may be subsequently supplemented and/or amended. In the event the Debtor shall elect to sell all or part of the property secured hereby and Debtor's obligations secured by the Trust Indenture shall not have been fully satisfied at the time of such sale, the entire proceeds from such a sale shall be paid over by Debtor to the Trustee under the Trust Indenture and the Secured Party named herein shall have no right to receive any part thereof unless and until all obligations then secured by the Trust Indenture shall be fully paid. A release by the Trustee named in the Trust Indenture, or any successor thereto, of all or of any of such property so sold shall constitute a release of the lien of this Deed of Trust by the Secured Party named herein; Secured Party, by accepting this Deed of Trust, hereby appoints the Trustee for the Trust Indenture as its agent and attorney-in-fact for the purpose of releasing from the lien of this Deed of Trust all or any parts of the property described herein in the event of a sale of all or any part thereof by the Debtor; and, in such event, Secured Party disclaims any right to receive any of the proceeds from any such sale unless Debtor shall, at the time be in default under the terms of its Note secured hereby; and then only to the extent that all of the obligations of the Debtor then secured by the Trust Indenture are first satisfied. 6. This Deed of Trust and the rights of the Secured Party hereunder are also subordinate in their entirety to the lien of a subordinate deed of trust dated December 18, 1986 executed by the Debtor named herein with The Prudential Insurance Company of America, Equitable Variable Life Insurance Company, Integrity Life Insurance Company, Aetna Life Insurance Company and The Travelers Insurance Corporation. 7. This Deed of Trust and the rights of the Secured Party hereunder are also subordinate in their entirety to the lien of a subordinate deed of trust dated December 18, 1986 executed by the Debtor named herein with Fuelco, Inc. 8. Notices required herein from Secured Party to Debtor shall be sent to the address of Debtor shown in this Deed of Trust. IN WITNESS WHEREOF, Debtor has executed this Deed of Trust on the 22nd day of April, 1994. ATTEST: MISSISSIPPI POWER COMPANY, Debtor By: Ann D. Estes By: H. E. Blakeslee Its: Asst. Corp. Secretary Its: Vice President (SEAL) STATE OF Mississippi COUNTY OF Harrison PERSONALLY appeared before me, the undersigned authority in and for the said county and state, on this 22nd day of April , 1994, within my jurisdiction, the within named H. E. Blakeslee and Ann D. Estes , who acknowledged that they are the Vice President and Asst. Corp. Secy. respectively of Mississippi Power Company, a Mississippi corporation, and that for and on behalf of the said corporation, and as its act and deed they executed the above and foregoing instrument, after first having been duly authorized by said corporation so to do. Kim E. Necaise NOTARY PUBLIC My Commission Expires: My Commission Expires Juny 14, 1997 (SEAL) GRANTOR: MISSISSIPPI POWER COMPANY 2992 West Beach Boulevard Gulfport, MS 39501 SECURED PARTY: FIRST UNION NATIONAL BANK OF GEORGIA 999 Peachtree Street, N.E. Suite 640 Atlanta, Georgia 30309 INDEXING INSTRUCTIONS: All quarter quarter sections in Sections 15, 14, 11, 10, 9, 4, 37 and 2, all in Township 6 South, Range 6 West; and All quarter quarter sections in the A. Goodwin Claim, Section 35, and the Kirkwood Claim, Section 42, both in Township 5 South, Range 6 West, Jackson County, Mississippi. INSTRUMENT PREPARED BY: BRENDA VANOVER ZNACHKO Eaton & Cottrell, P.A. 1310 Twenty Fifth Avenue Gulfport, Mississippi 39501-7748 EX-99 11 EATON AND COTTRELL OPINION EXHIBIT D EXHIBIT D EATON AND COTTRELL, P. A. 1310 Twenty Fifth Avenue Gulfport, MS 39501 August 8, 1994 Securities and Exchange Commission Washington, D. C. 20549 Re: Statement on Form U-1 of Mississippi Power Company (herein called the "Company") File No. 70-7294 Ladies and Gentlemen: We have read the statement on Form U-1, as amended, referred to above which relates to the transactions contemplated in Amendment No. 4 (Post-Effective No. 2) to such statement. We are of the opinion that: (a) the Company is validly organized and duly existing as a corporation under the laws of the State of Mississippi and is duly admitted to do business under the laws of the State of Alabama; (b) the transactions have been consummated in accordance with such statement on Form U-1, as amended; (c) all state laws applicable to the transactions have been complied with; (d) the Loan Agreements, Notes and Subordinate Deeds of Trust are valid and binding obligations of the Company in accordance with their terms; and (e) the consummation of the transactions did not violate the legal rights of the holders of any securities issued by the Company or any associate company thereof. Securities and Exchange Commission August 5, 1994 Page 2 We hereby give our written consent to the use of this opinion in connection with the above-mentioned statement on Form U-1 and to the filing thereof with the Commission at the time of the filing of the certificate pursuant to Rule 24. Very truly yours, Eaton and Cottrell, P. A. -----END PRIVACY-ENHANCED MESSAGE-----