Exhibit 4.9-B
TRUST AGREEMENT
THIS TRUST AGREEMENT is made as of August 15, 2003, by and between
Mississippi Power Company, a Mississippi corporation, as Depositor (the
"Depositor"), and Deutsche Bank Trust Company Delaware, as Trustee (the
"Trustee"). The Depositor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Mississippi Power
Capital Trust IV", in which name the Trustee, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and ▇▇▇ and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a statutory trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Statutory Trust Act"),
and that this document constitute the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State substantially in the form attached
hereto or in such other form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and
restated Trust Agreement satisfactory to each such party and substantially in
the form included as an exhibit to the Registration Statement on Form S-3 (the
"1933 Act Registration Statement") referred to below, or in such other form as
the Trustee and the Depositor may approve, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustee shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. However, notwithstanding the foregoing,
the Trustee may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Depositor, on behalf of the Trust, is hereby authorized, in its
discretion, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in the case of the 1933 Act Registration Statement
and 1934 Act Registration Statement (as herein defined), on behalf of the Trust,
(a) the 1933 Act Registration Statement including pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the Preferred Securities of the Trust, (b) any preliminary prospectus or
prospectus or supplement thereto relating to the Preferred Securities required
to be filed pursuant to Rule 424 under the 1933 Act, and (c) a Registration
Statement on Form 8-A or other appropriate form (the "1934 Act Registration
Statement") (including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities of the Trust under
Section 12(b) of the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange and execute on behalf of the Trust a listing
application and all other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the New York Stock Exchange; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to execute, deliver and perform on behalf of the Trust an
underwriting agreement with the Depositor and the underwriter or underwriters of
the Preferred Securities of the Trust. The Depositor and the Trustee further
hereby ratify and approve all actions having previously been taken with respect
to the foregoing. In the event that any filing referred to in clauses (i)-(iii)
above is required by the rules and regulations of the Commission, the New York
Stock Exchange or state securities or Blue Sky laws to be executed on behalf of
the Trust by the Trustee, Deutsche Bank Trust Company Delaware, in its capacity
as Trustee of the Trust, is hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that Deutsche Bank Trust Company Delaware in its capacity as
Trustee of the Trust shall not be required to join in any such filing or execute
on behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or Blue Sky laws.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Statutory Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware. Subject to the
foregoing the Depositor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty days' prior notice to
the Depositor.
7. This Trust Agreement shall be construed in accordance with
and governed by the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
MISSISSIPPI POWER COMPANY,
as Depositor
By:
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Name: ▇▇▇▇▇ Boston
Title: Assistant Secretary
DEUTSCHE BANK TRUST COMPANY
DELAWARE,
as Trustee
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President