SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date earliest event reported) March 20, 1996
Commission Registrant, State of Incorporation, I.R.S. Employer
File Number Address and Telephone Number Identification No.
0-5807 NEW ORLEANS PUBLIC SERVICE INC. 72-0273040
(a Louisiana corporation)
639 Loyola Avenue
New Orleans, Louisiana 70113
Telephone (504) 569-4000
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Form 8-K Page 1
New Orleans Public Service, Inc.
Item 5. Other Events
On March 20, 1996, New Orleans Public Service Inc. (the
"Company") entered into an Underwriting Agreement with Salomon
Brothers Inc and Bear, Stearns & Co. Inc. as Underwriters, for
the sale of $40,000,000 aggregate principal amount of the
Company's General and Refunding Mortgage Bonds, 8% Series due
March 1, 2006. Such series represents the balance (being
$15,000,000) of the $145,000,000 aggregate principal amount of
General and Refunding Mortgage Bonds of the Company registered
under Rule 415 pursuant to the Securities Act of 1933 by a
Registration Statement on Form S-3 filed on February 4, 1993
(File No. 33-57926) and a $25,000,000 portion of the $65,000,000
aggregate principal amount of General and Refunding Mortgage
Bonds of the Company registered under Rule 415 pursuant to the
Securities Act of 1933 by a Registration Statement on Form S-3
filed on January 17, 1996 (File No. 333-00255). This report on
Form 8-K is being filed to incorporate by reference the documents
in definitive form referred to below as Exhibits to the
aforementioned Registration Statements.
Exhibits:
1. Underwriting Agreement, dated March 20, 1996,
between the Company and Salomon Brothers Inc. and
Bear, Sterns & Co., Inc. as Underwriters.
4. (a) Sixth Supplemental Indenture, dated as of March
1, 1996, to the Mortgage and Deed of Trust,
dated as of May 1, 1987, between the Company
and Bank of Montreal Trust Company and Z.
George Klodnicki (Mark F. McLaughlin,
successor) Trustees.
(b) Form of General and Refunding Mortgage Bond, 8%
Series due
March 1, 2006.
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Form 8-K Page 2
New Orleans Public Service Inc.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
NEW ORLEANS PUBLIC SERVICE INC.
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer
Dated: March 22, 1996
Exhibit 1
New Orleans Public Service Inc.
$40,000,000
General and Refunding Mortgage Bonds
8% Series due March 1, 2006
UNDERWRITING AGREEMENT
March 20, 1996
Salomon Brothers Inc
Bear, Stearns & Co. Inc.
c/o Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Ladies and Gentlemen:
The undersigned, New Orleans Public Service Inc., a
Louisiana corporation (the "Company"), proposes to issue and sell
severally to you, as underwriters (the "Underwriters," which
term, when the context permits, shall also include any
underwriters substituted as hereinafter in Section 11 provided),
an aggregate of $40,000,000 principal amount of the Company's
General and Refunding Mortgage Bonds, 8% Series due March 1, 2006
(the "Bonds"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Bonds set forth opposite the name of such
Underwriter in Schedule I attached hereto at 99.022% of the
principal amount of the Bonds.
SECTION 2. Description of Bonds. The Bonds shall be
issued under and pursuant to the Company's Mortgage and Deed of
Trust, dated as of May 1, 1987, with Bank of Montreal Trust
Company, as Corporate Trustee (the "Corporate Trustee"), and Mark
F. McLaughlin (successor to Z. George Klodnicki), as Co-Trustee
(the "Co-Trustee" and, together with the Corporate Trustee, the
"Trustees"), as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the Sixth Supplemental Indenture, dated as of March 1, 1996 (the
"Supplemental Indenture"). Said Mortgage and Deed of Trust as so
amended and supplemented is hereinafter referred to as the
"Mortgage". The Bonds and the Supplemental Indenture shall have
the terms and provisions described in the Prospectus (as defined
herein), provided that subsequent to the date hereof and prior to
the Closing Date (as defined herein) the form of the Supplemental
Indenture may be amended by mutual agreement between the Company
and the Underwriters.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to the several
Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Louisiana and has the necessary corporate power and
authority to conduct the business that it is described in
the Prospectus as conducting and to own and operate the
properties owned and operated by it in such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 33-57926), as amended (the
"1993 Registration Statement"), for the registration of
$145,000,000 aggregate principal amount of the Company's
General and Refunding Mortgage Bonds (the "General and
Refunding Mortgage Bonds") under the Securities Act of 1933,
as amended (the "Securities Act"), and the 1993 Registration
Statement has become effective. While $15,000,000 aggregate
principal amount of General and Refunding Mortgage Bonds
remained unsold under the 1993 Registration Statement, the
Company also filed with the Commission a registration
statement (File No. 333-00255)(the "1996 Registration
Statement") for the registration of an additional
$65,000,000 aggregate principal amount of General and
Refunding Mortgage Bonds under the Securities Act, and the
1996 Registration Statement has become effective. The
Company qualifies for use of Form S-3 for the registration
of the Bonds, and the Bonds are registered under the
Securities Act. The combined prospectus forming a part of
the 1996 Registration Statement and relating, pursuant to
Rule 429 under the Securities Act, to $80,000,000 aggregate
principal amount of the General and Refunding Mortgage Bonds
(all of which General and Refunding Mortgage Bonds remain
unsold), including the Bonds, at the time the 1996
Registration Statement (or the most recent amendment thereto
filed prior to the time of effectiveness of this
Underwriting Agreement) became effective, including all
documents incorporated by reference therein at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus". In the event that (i) the Basic
Prospectus shall have been amended, revised or supplemented
(but excluding any supplements to the Basic Prospectus
relating solely to General and Refunding Mortgage Bonds
other than the Bonds) prior to the time of effectiveness of
this Underwriting Agreement, including without limitation by
any preliminary prospectus supplement relating to the Bonds
or (ii) the Company shall have filed documents pursuant to
Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the time the
1996 Registration Statement became effective and prior to
the time of effectiveness of this Underwriting Agreement
(but excluding documents incorporated therein by reference
relating solely to General and Refunding Mortgage Bonds
other than the Bonds), which are deemed to be incorporated
by reference in the Basic Prospectus pursuant to Item 12 of
Form S-3, the term "Basic Prospectus" as used herein shall
also mean such prospectus as so amended, revised or
supplemented and reflecting such incorporation by reference.
The 1996 Registration Statement in the form in which it
became effective and as it may have been amended by all
amendments thereto as of the time of effectiveness of this
Underwriting Agreement (including, for these purposes, as an
amendment any document incorporated by reference in the
Basic Prospectus), and the Basic Prospectus as it shall be
supplemented to reflect the terms of the offering and sale
of the Bonds by a prospectus supplement (a "Prospectus
Supplement") to be filed with, or transmitted for filing to,
the Commission pursuant to Rule 424(b) under the Securities
Act ("Rule 424(b)"), are hereinafter referred to as the
"Registration Statement" and the "Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in
Section 6(d), the Company will not file any amendment to the
1993 Registration Statement, the Registration Statement or
any supplement to the Prospectus (except any amendment or
supplement relating solely to General and Refunding Mortgage
Bonds other than the Bonds), and (ii) between the time of
effectiveness of this Underwriting Agreement and the Closing
Date, the Company will not file any document that is to be
incorporated by reference in, or any supplement to, the
Basic Prospectus, in either case, without prior notice to
the Underwriters and to Winthrop, Stimson, Putnam & Roberts
("Counsel for the Underwriters"), or any such amendment or
supplement to which said Counsel shall reasonably object on
legal grounds in writing. For purposes of this Underwriting
Agreement, any document that is filed with the Commission
after the time of effectiveness of this Underwriting
Agreement and is incorporated by reference in the Prospectus
(except documents incorporated by reference relating solely
to General and Refunding Mortgage Bonds other than the
Bonds) pursuant to Item 12 of Form S-3 shall be deemed a
supplement to the Prospectus.
(d) The 1993 Registration Statement and the
Registration Statement, in the forms in which they (or the
latest post-effective amendment thereto) became effective,
and the Mortgage, at such times, fully complied, and the
Prospectus, when delivered to the Underwriters for their use
in making confirmations of sales of the Bonds and at the
Closing Date, as it may then be amended or supplemented,
will fully comply, in all material respects with the
applicable provisions of the Securities Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission
thereunder or pursuant to said rules and regulations did or
will be deemed to comply therewith. The documents
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, on the date first filed with the Commission
pursuant to the Exchange Act, fully complied or will fully
comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations
of the Commission thereunder or pursuant to said rules and
regulations did or will be deemed to comply therewith. On
the later of (i) the date the Registration Statement was
declared effective by the Commission under the Securities
Act and (ii) the date that the Company's most recent Annual
Report on Form 10-K was filed with the Commission under the
Exchange Act (the date described in either clause (i) or
(ii) is hereinafter referred to as the "Effective Date"),
the 1993 Registration Statement and the Registration
Statement did not, and on the date that any post-effective
amendment to the 1993 Registration Statement and the
Registration Statement became or becomes effective (but
excluding any post-effective amendment relating solely to
General and Refunding Mortgage Bonds other than the Bonds),
the 1993 Registration Statement and the Registration
Statement, as amended by any such post-effective amendment,
did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the time the
Prospectus is delivered to the Underwriters for their use in
making confirmations of sales of the Bonds and at the
Closing Date, the Prospectus, as it may then be amended or
supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they are made, not misleading and,
on said dates and at such times, the documents then
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, when read together with the Prospectus, or
the Prospectus, as it may then be amended or supplemented,
will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this paragraph (d) shall
not apply to statements or omissions made in reliance upon
and in conformity with written information furnished to the
Company by the Underwriters or on behalf of any Underwriter
specifically for use in connection with the preparation of
the 1993 Registration Statement, the Registration Statement
or the Prospectus, as they may be then amended or
supplemented, or to any statements in or omissions from the
statements of eligibility of the Trustees on Form T-1 and
Form T-2, as they may then be amended, under the Trust
Indenture Act filed as exhibits to the 1993 Registration
Statement and the Registration Statement.
(e) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, the Mortgage or any indenture
or other agreement or instrument to which the Company is now
a party.
(f) Except as set forth or contemplated in the
Prospectus, as it may be then amended or supplemented, the
Company possesses adequate franchises, licenses, permits,
and other rights to conduct its business and operations as
now conducted, without any known conflicts with the rights
of others that could have a material adverse effect on the
Company.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds as soon after the effectiveness
of this Underwriting Agreement as in their judgment is advisable.
The Company is further advised by the Underwriters that the Bonds
will be offered to the public at the initial public offering
price specified in the Prospectus Supplement plus accrued
interest thereon, if any, from the Closing Date.
SECTION 5. Time and Place of Closing. Delivery of the
Bonds and payment of the purchase price therefor by wire transfer
of immediately available funds shall be made at the offices of
Reid & Priest LLP, 40 West 57th Street, New York, New York, at
10:00 A.M., New York time, on March 26, 1996, or at such other
time on the same or such other day as shall be agreed upon by the
Company and Salomon Brothers Inc, or as may be established in
accordance with Section 11 hereof. The hour and date of such
delivery and payment are herein called the "Closing Date."
The Bonds shall be delivered to the Underwriters in
book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the Bonds
shall be in the form of one or more typewritten bonds in fully
registered form, in the aggregate principal amount of the Bonds,
and registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon among the
Underwriters and the Company, or at such other time and/or date
as may be agreed upon among the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the 1993 Registration
Statement and the Registration Statement, each as originally
filed with the Commission, and of all amendments or
supplements thereto relating to the Bonds, or a conformed
copy thereof, certified by an officer of the Company to be
in the form filed.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or
supplements thereto) as the Underwriters may reasonably
request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant
to and in compliance with Rule 424(b) and will advise
Salomon Brothers Inc promptly of the issuance of any stop
order under the Securities Act with respect to the 1993
Registration Statement or the Registration Statement or the
institution of any proceedings therefor of which the Company
shall have received notice. The Company will use its best
efforts to prevent the issuance of any such stop order and
to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this
Underwriting Agreement has become effective, if any event
relating to or affecting the Company, or of which the
Company shall be advised by the Underwriters in writing,
shall occur which in the Company's opinion should be set
forth in a supplement or amendment to the Prospectus in
order to make the Prospectus not misleading in the light of
the circumstances when it is delivered to a purchaser of the
Bonds, the Company will amend or supplement the Prospectus
by either (i) preparing and filing with the Commission and
furnishing to the Underwriters a reasonable number of copies
of a supplement or supplements or an amendment or amendments
to the Prospectus, or (ii) making an appropriate filing
pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus, so that, as
supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. Unless such event
relates solely to the activities of the Underwriters (in
which case the Underwriters shall assume the expense of
preparing any such amendment or supplement), the expenses of
complying with this Section 6(d) shall be borne by the
Company until the expiration of nine months from the time of
effectiveness of this Underwriting Agreement, and such
expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner, as to meet the requirements of the
last paragraph of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required, and will otherwise cooperate in
qualifying the Bonds for offer and sale, under the blue sky
laws of such jurisdictions as the Underwriters may
reasonably designate, provided that the Company shall not be
required to qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under
the laws of any jurisdiction, or to meet any other
requirements deemed by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes (except transfer taxes) in
connection with (i) the preparation and filing of the 1993
Registration Statement, the Registration Statement and any
post-effective amendments thereto, (ii) the printing,
issuance and delivery of the Bonds and the preparation,
execution, printing and recordation of the Supplemental
Indenture, (iii) legal counsel relating to the qualification
of the Bonds under the blue sky laws of various
jurisdictions in an amount not to exceed $3,500, (iv) the
printing and delivery to the Underwriters of reasonable
quantities of copies of the 1993 Registration Statement and
the Registration Statement, the preliminary (and any
supplemental) blue sky survey, any preliminary prospectus
supplement relating to the Bonds and the Prospectus and any
amendment or supplement thereto, except as otherwise
provided in paragraph (d) of this Section 6, (v) the rating
of the Bonds by one or more nationally recognized
statistical rating agencies and (vi) filings or other
notices (if any) with or to, as the case may be, the
National Association of Securities Dealers, Inc. (the
"NASD") in connection with its review of the terms of the
offering. Except as provided above, the Company shall not
be required to pay any expenses of the Underwriters, except
that, if this Underwriting Agreement shall be terminated in
accordance with the provisions of Section 7, 8 or 12 hereof,
the Company will reimburse the Underwriters for (A) the
reasonable fees and expenses of Counsel for the
Underwriters, whose fees and expenses the Underwriters agree
to pay in any other event, and (B) reasonable out-of-pocket
expenses in an aggregate amount not exceeding $15,000,
incurred in contemplation of the performance of this
Underwriting Agreement. The Company shall not in any event
be liable to the Underwriters for damages on account of loss
of anticipated profits.
(h) The Company will not sell any additional General
and Refunding Mortgage Bonds without the consent of the
Underwriters until the earlier to occur of (i) the Closing
Date and (ii) the date of the termination of the fixed price
offering restrictions applicable to the Underwriters. The
Underwriters agree to notify the Company of such termination
if it occurs prior to the Closing Date.
(i) If not effected prior to the Closing Date, as soon
as practicable after the Closing Date, the Company will make
all recordings, registrations and filings necessary to
perfect and preserve the lien of the Mortgage and the rights
under the Supplemental Indenture, and the Company will use
its best efforts to cause to be furnished to the
Underwriters a supplemental opinion of counsel for the
Company, addressed to the Underwriters, stating that all
such recordings, registrations and filings have been made.
SECTION 7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Bonds shall be subject to the accuracy on the date hereof and on
the Closing Date of the representations and warranties made
herein on the part of the Company and of any certificates
furnished by the Company on the Closing Date and to the following
conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
1993 Registration Statement or the Registration Statement
shall be in effect at or prior to the Closing Date; no
proceedings for such purpose shall be pending before, or, to
the knowledge of the Company or the Underwriters, threatened
by, the Commission on the Closing Date; and the Underwriters
shall have received a certificate, dated the Closing Date
and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company, to the effect that
no such stop order has been or is in effect and that no
proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, a
resolution or resolutions of the Council of the City of New
Orleans, Louisiana (the "Council"), authorizing the issuance
and sale of the Bonds on the terms set forth in, or
contemplated by, this Underwriting Agreement, the
Supplemental Indenture and the Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from Laurence M. Hamric, Esq., General Attorney--
Corporate and Securities of Entergy Services, Inc., and Reid
& Priest LLP, opinions, dated the Closing Date,
substantially in the forms set forth in Exhibits A and B
hereto, respectively, (i) with such changes therein as may
be agreed upon by the Company and the Underwriters with the
approval of Counsel for the Underwriters, and (ii) if the
Prospectus shall be supplemented after being furnished to
the Underwriters for use in offering the Bonds, with changes
therein to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters an opinion, dated
the Closing Date, substantially in the form set forth in
Exhibit C hereto, with such changes therein as may be
necessary to reflect any supplementation of the Prospectus
prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received
from Coopers & Lybrand L.L.P., the Company's independent
certified public accountants (the "Accountants"), a letter
dated the date hereof and addressed to the Underwriters to
the effect that (i) they are independent certified public
accountants with respect to the Company within the meaning
of the Securities Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the financial
statements and financial statement schedules examined by
them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Securities Act
and the Exchange Act and the applicable published rules and
regulations thereunder; (iii) on the basis of performing the
procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements,
if any, included or incorporated by reference in the
Prospectus, a reading of the latest available interim
unaudited financial statements of the Company, the minutes
of the meetings of the Board of Directors of the Company,
the Executive Committee thereof, if any, and the stockholder
of the Company, since December 31, 1995 to a specified date
not more than five days prior to the date of such letter,
and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily
reveal matters of significance with respect to the comments
made in such letter and, accordingly, that the Accountants
make no representations as to the sufficiency of such
procedures for the purposes of the Underwriters), nothing
has come to their attention which caused them to believe
that, to the extent applicable, (A) the unaudited financial
statements of the Company (if any) included or incorporated
by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder; (B)
any material modifications should be made to said unaudited
financial statements for them to be in conformity with
generally accepted accounting principles; and (C) at a
specified date not more than five days prior to the date of
the letter, there was any change in the capital stock or
long-term debt of the Company, or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur,
for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or
purchase of preferred stock for sinking fund purposes, for
any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial
development revenue bonds, or for changes or decreases as
set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they
have compared specific dollar amounts, percentages of
revenues and earnings and other financial information
pertaining to the Company (x) set forth in the Prospectus,
and (y) set forth in documents filed by the Company pursuant
to Section 13, 14 or 15(d) of the Exchange Act as specified
in Exhibit D hereto, in each case, to the extent that such
amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by
the President, a Vice President, the Treasurer or an
Assistant Treasurer of the Company, to the effect that (i)
the representations and warranties of the Company contained
herein are true and correct, (ii) the Company has performed
and complied with all agreements and conditions in this
Underwriting Agreement to be performed or complied with by
the Company at or prior to the Closing Date and (iii) since
the most recent date as of which information is given in the
Prospectus, as it may then be amended or supplemented, there
has not been any material adverse change in the business,
property or financial condition of the Company and there has
not been any material transaction entered into by the
Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended
or supplemented.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Supplemental
Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five days prior
to the Closing Date, the statements contained in the letter
delivered pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under
the Mortgage shall have occurred.
(k) Prior to the Closing Date, Salomon Brothers Inc
shall have received from the Company evidence reasonably
satisfactory to Salomon Brothers Inc that the Bonds have
received ratings of Baa2 or better from Moody's Investors
Service, Inc. and BBB or better from Standard & Poor's
Ratings Group.
(l) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard &
Poor's Ratings Group shall have lowered its rating of any of
the Company's outstanding First Mortgage Bonds or General
and Refunding Mortgage Bonds in any respect.
(m) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise
affecting the Company, which, in the reasonable opinion of
the Underwriters, materially impairs the investment quality
of the Bonds.
(n) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriters.
(o) The Company will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
1993 Registration Statement or the Registration Statement
shall be in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date.
(b) There shall have been issued and, at the Closing
Date, there shall be in full force and effect a resolution
or resolutions of the Council authorizing the issuance and
sale of the Bonds on the terms set forth in, or contemplated
by, this Underwriting Agreement, the Supplemental Indenture
and the Prospectus.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company upon notice thereof to Salomon
Brothers Inc. Any such termination shall be without liability of
any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the 1993
Registration Statement or the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)), or in the Prospectus, as
each may be amended or supplemented, or the omission or alleged
omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that the indemnity agreement contained in this paragraph shall
not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was
made in reliance upon and in conformity with information
furnished herein or in writing to the Company by any Underwriter
specifically for use in connection with the preparation of the
1993 Registration Statement, the Registration Statement, the
Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424(b)) or the Prospectus or any amendment or supplement
to any thereof or arising out of, or based upon, statements in or
omissions from the statements of eligibility of the Trustees on
Form T-1 and Form T-2, as they may be then amended, under the
Trust Indenture Act filed as exhibits to the 1993 Registration
Statement and the Registration Statement; and provided further,
that the indemnity agreement contained in this subsection shall
not inure to the benefit of any Underwriter or to the benefit of
any person controlling any Underwriter on account of any such
losses, claims, damages, liabilities, expenses or actions arising
from the sale of the Bonds to any person in respect of the Basic
Prospectus or the Prospectus as supplemented or amended,
furnished by any Underwriter to a person to whom any of the Bonds
were sold (excluding in both cases, however, any document then
incorporated or deemed incorporated by reference therein),
insofar as such indemnity relates to any untrue or misleading
statement or omission made in the Basic Prospectus or the
Prospectus but eliminated or remedied prior to the consummation
of such sale in the Prospectus, or any amendment or supplement
thereto, furnished on a timely basis by the Company to the
Underwriters pursuant to Section 6(d) hereof, respectively,
unless a copy of the Prospectus (in the case of such a statement
or omission made in the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating to any General and Refunding
Mortgage Bonds other than the Bonds and any document then
incorporated or deemed incorporated by reference in the
Prospectus or such amendment or supplement) is furnished by such
Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the 1993 Registration Statement or the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or upon any untrue statement or alleged
untrue statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)), or in the Prospectus, as amended or supplemented,
or the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, in each case, if, but only if, such statement or
omission was made in reliance upon and in conformity with
information furnished herein or in writing to the Company by any
Underwriter specifically for use in connection with the
preparation of the 1993 Registration Statement or the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424(b)) or the Prospectus, or
any amendment or supplement thereto.
(c) In case any action shall be brought, based upon
the 1993 Registration Statement, the Registration Statement, the
Basic Prospectus or the Prospectus (including amendments or
supplements thereto), against any party in respect of which
indemnity may be sought pursuant to any of the preceding
paragraphs, such party (hereinafter called the indemnified party)
shall promptly notify the party or parties against whom indemnity
shall be sought hereunder (hereinafter called the indemnifying
party) in writing, and the indemnifying party shall have the
right to participate at its own expense in the defense or, if it
so elects, to assume (in conjunction with any other indemnifying
party) the defense thereof, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment
of all fees and expenses. If the indemnifying party shall elect
not to assume the defense of any such action, the indemnifying
party shall reimburse the indemnified party for the reasonable
fees and expenses of any counsel retained by such indemnified
party. Such indemnified party shall have the right to employ
separate counsel in any such action in which the defense has been
assumed by the indemnifying party and participate in the defense
thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the employment
of counsel has been specifically authorized by the indemnifying
party or (ii) the named parties to any such action (including any
impleaded parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action,
suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Bonds or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from
the offering (after deducting underwriting discounts and
commissions but before deducting expenses) to the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and such
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Bonds that it has
agreed to purchase and pay for hereunder, and the aggregate
principal amount of Bonds that such defaulting Underwriter agreed
but failed or refused to purchase is not more than one-tenth of
the aggregate principal amount of the Bonds, the other
Underwriters shall be obligated to purchase the Bonds that such
defaulting Underwriter agreed but failed or refused to purchase;
provided that in no event shall the principal amount of Bonds
that any Underwriter has agreed to purchase pursuant to Schedule
I hereof be increased pursuant to this Section 11 by an amount in
excess of one-ninth of such principal amount of Bonds without
written consent of such Underwriter. If any Underwriter shall
fail or refuse to purchase Bonds and the aggregate principal
amount of Bonds with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of the Bonds,
the Company shall have the right (a) to require the non-
defaulting Underwriters to purchase and pay for the respective
principal amount of Bonds that it had severally agreed to
purchase hereunder, and, in addition, the principal amount of
Bonds that the defaulting Underwriter shall have so failed to
purchase up to a principal amount thereof equal to one-ninth of
the respective principal amount of Bonds that such non-defaulting
Underwriters have otherwise agreed to purchase hereunder, and/or
(b) to procure one or more others, members of the NASD (or, if
not members of the NASD, who are foreign banks, dealers or
institutions not registered under the Exchange Act and who agree
in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
principal amount of Bonds that such defaulting Underwriter had
agreed to purchase, or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a). In the event the Company shall exercise
its rights under clause (a) and/or (b) above, the Company shall
give written notice thereof to the Underwriters within 24 hours
(excluding any Saturday, Sunday, or legal holiday) of the time
when the Company learns of the failure or refusal of any
Underwriter to purchase and pay for its respective principal
amount of Bonds, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as
the Company shall determine. In the event the Company shall be
entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), the
Company shall be deemed to have elected to terminate this
Underwriting Agreement. In the absence of such election by the
Company, this Underwriting Agreement will, unless otherwise
agreed by the Company and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
SECTION 12. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from Salomon Brothers Inc to the Company, if (a) after the
execution and delivery of this Underwriting Agreement and prior
to the Closing Date (i) trading generally shall have been
suspended on the New York Stock Exchange by The New York Stock
Exchange, Inc., the Commission or other governmental authority,
(ii) minimum or maximum ranges for prices shall have been
generally established on the New York Stock Exchange by The New
York Stock Exchange, Inc., the Commission or other governmental
authority, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal
or New York State authorities, or (iv) there shall have occurred
any material outbreak or escalation of hostilities or any
calamity or crisis that, in the judgment of Salomon Brothers Inc,
is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in the reasonable
judgment of Salomon Brothers Inc, impracticable to market the
Bonds. This Underwriting Agreement shall also be subject to
termination, upon notice by Salomon Brothers Inc as provided
above, if, in the judgment of Salomon Brothers Inc, the subject
matter of any amendment or supplement (prepared by the Company)
to the Prospectus (except for information relating solely to the
manner of public offering of the Bonds or to the activity of the
Underwriters or to the terms of any series of General and
Refunding Mortgage Bonds not included in the Bonds) filed or
issued after the effectiveness of this Underwriting Agreement by
the Company shall have materially impaired the marketability of
the Bonds. Any termination hereof, pursuant to this Section 12,
shall be without liability of any party to any other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING
AGREEMENT SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND
INTERPRETATION SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. This Underwriting Agreement shall become effective when a
fully executed copy thereof is delivered to the Company and to
Salomon Brothers Inc. This Underwriting Agreement may be
executed in any number of separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original
and all of which, taken together, shall constitute but one and
the same agreement. This Underwriting Agreement shall inure to
the benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Bonds from the Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to Salomon Brothers Inc at the address set forth at
the beginning of this Underwriting Agreement to the attention of
its General Counsel or, if to the Company, shall be mailed or
delivered to it at 639 Loyola Avenue, New Orleans, Louisiana
70113, Attention: Treasurer, or, if to Entergy Services, Inc.,
shall be mailed or delivered to it at 639 Loyola Avenue, New
Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
New Orleans Public Service Inc.
By:
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
Accepted as of the date first above written:
Salomon Brothers Inc
Bear, Stearns & Co. Inc.
By: Salomon Brothers Inc
By:
Name:
Title:
<PAGE>
SCHEDULE I
New Orleans Public Service Inc.
$40,000,000 General and Refunding Mortgage Bonds
8% Series due March 1, 2006
Name Amount
Salomon Brothers Inc $20,000,000
Bear, Stearns & Co. Inc. $20,000,000
___________
Total $40,000,000
<PAGE>
EXHIBIT A
[Letterhead of Entergy Services, Inc.]
March __, 1996
Salomon Brothers Inc
Bear, Stearns & Co. Inc.
c/o Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Ladies and Gentlemen:
I, together with Reid & Priest LLP, of New York, New
York, have acted as counsel for New Orleans Public Service Inc.
(the "Company") in connection with the issuance and sale to you,
pursuant to the Underwriting Agreement effective March __, 1996
(the "Underwriting Agreement"), between the Company and you, of
$40,000,000 aggregate principal amount of its General and
Refunding Mortgage Bonds ____% Series due March 1, 2006 (the
"Bonds"), issued pursuant to the Company's Mortgage and Deed of
Trust, dated as of May 1, 1987, with Bank of Montreal Trust
Company, as Corporate Trustee (the "Corporate Trustee"), and Mark
F. McLaughlin (successor to Z. George Klodnicki), as Co-Trustee
(the "Co-Trustee" and, together with the Corporate Trustee, the
"Trustees"), as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the Sixth Supplemental Indenture, dated as of March 1, 1996 (the
"Supplemental Indenture") (the Mortgage and Deed of Trust as so
amended and supplemented being hereinafter referred to as the
"Mortgage"). This opinion is rendered to you at the request of
the Company. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In my capacity as such counsel, I have either
participated in the preparation of or have examined and am
familiar with: (a) the Company's Restatement of Articles of
Incorporation and Bylaws, each as amended; (b) the Underwriting
Agreement; (c) the Mortgage; (d) the 1993 Registration Statement,
the Registration Statement and Prospectus filed under the
Securities Act; (e) the records of various corporate proceedings
relating to the authorization, issuance and sale of the Bonds by
the Company and the execution and delivery by the Company of the
Supplemental Indenture and the Underwriting Agreement; and (f)
the application made to and the resolution adopted by the Council
relating to the issuance and sale of the Bonds by the Company. I
have also examined or caused to be examined such other documents
and have satisfied myself as to such other matters as I have
deemed necessary in order to render this opinion. I have not
examined the Bonds, except a specimen thereof, and I have relied
upon a certificate of the Corporate Trustee as to the
authentication and delivery thereof.
In my examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me
as originals, the legal capacity of natural persons and the
conformity with the originals of all documents submitted to me as
copies. In making my examination of documents and instruments
executed or to be executed by persons other than the Company, I
have assumed that each such other person had the requisite power
and authority to enter into and perform fully its obligations
thereunder, the due authorization by each such other person for
the execution, delivery and performance thereof by such person,
and the due execution and delivery by or on behalf of such person
of each such document and instrument. In the case of any such
other person that is not a natural person, I have also assumed,
insofar as it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which such
other person was created, and is duly qualified and in good
standing in each other jurisdiction where the failure to be so
qualified could reasonably be expected to have a material effect
upon the ability of such other person to execute, deliver and/or
perform such other person's obligations under any such document
or instrument. I have further assumed that each document,
instrument, agreement, record and certificate reviewed by me for
purposes of rendering the opinions expressed below has not been
amended by oral agreement, conduct or course of dealing of the
parties thereto, although I have no knowledge of any facts or
circumstances that could give rise to such amendment.
As to questions of fact material to the opinions
expressed herein, I have relied upon certificates and
representations of officers of the Company (including but not
limited to those contained in the Underwriting Agreement, the
Supplemental Indenture and certificates delivered at the closing
of the sale of the Bonds) and appropriate public officials
without independent verification of such matters except as
otherwise described herein.
Whenever my opinions herein with respect to the
existence or absence of facts are stated to be to my knowledge or
awareness, I intend to signify that no information has come to my
attention or the attention of any other attorneys acting for or
on behalf of the Company or any of its affiliates that have
participated in the negotiation of the transactions contemplated
by the Underwriting Agreement and the Supplemental Indenture, in
the preparation of the Registration Statement and the Prospectus
or in the preparation of this opinion letter that would give me,
or them, actual knowledge that would contradict such opinions.
However, except to the extent necessary in order to give the
opinions hereinafter expressed, neither I nor they have
undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to
knowledge of the existence or absence of such facts (except to
the extent necessary in order to give the opinions hereinafter
expressed) should be assumed.
In rendering the opinions set forth in paragraph (2)
below, I have relied upon reports and/or opinions by counsel who
historically acted on behalf of the Company in real estate
transactions and transactions involving the Mortgage and in whom
I have confidence, title reports prepared in connection with the
procurement of title insurance policies on certain property of
the Company, and information from officers of the Company
responsible for the acquisition of real property and maintenance
of records with respect thereto, which I believe to be
satisfactory in form and scope and which I have no reason to
believe are inaccurate in any material respect. I have not, for
purposes of rendering such opinion, conducted an independent
examination or investigation of official title records (or
abstracts thereof) with respect to property (i) acquired by the
Company prior to the date of the most recent report and/or
opinions of counsel, (ii) as to which title insurance has been
obtained or (iii) the aggregate purchase price of which was not
material.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, I am of the opinion that:
(1) The Company is duly organized and validly
existing as a corporation in good standing under the laws of
the State of Louisiana, has due corporate power and
authority to conduct the business that it is described as
conducting in the Prospectus and to own and operate the
properties owned and operated by it in such business and is
duly qualified to conduct such business in the State of
Louisiana.
(2) The Company has good and sufficient title to
the properties described as owned by it in and as subject to
the lien of the Mortgage (except properties released under
the terms of the Mortgage), subject only to Excepted
Encumbrances as defined in the Mortgage and to minor defects
and encumbrances customarily found in properties of like
size and character that do not materially impair the use of
such properties by the Company. The description of such
properties set forth in the Mortgage is adequate to
constitute the Mortgage as a lien thereon; and, subject to
paragraph (3) hereof, the Mortgage, subject only to such
minor defects and Excepted Encumbrances, constitutes a valid
and direct lien upon said properties, which include
substantially all of the permanent physical properties and
franchises of the Company (other than those expressly
excepted). All permanent physical properties and franchises
(other than those expressly excepted) acquired by the
Company after the date of the Supplemental Indenture will,
upon such acquisition, become subject to the lien of the
Mortgage, subject, however, to such Excepted Encumbrances
and to liens, if any, existing or placed thereon at the time
of the acquisition thereof by the Company and except as
limited by bankruptcy law.
(3) [The Supplemental Indenture has been recorded
in Orleans and St. Bernard Parishes in Louisiana and a
Louisiana Form UCC-3 amending UCC File No. 36-72304 to
include the Supplemental Indenture has been filed with the
Recorder of Mortgages for the Parish of Orleans, Louisiana.
No other recordings, registrations or filings of the
Supplemental Indenture or any financing statements or other
instruments are necessary to make the liens created by the
Supplemental Indenture effective as to and enforceable
against third parties.]
or
(3) [It will be necessary to record the
Supplemental Indenture in Orleans and St. Bernard Parishes
in Louisiana and to file with the Recorder of Mortgages for
the Parish of Orleans, Louisiana, a Louisiana Form UCC-3
amending UCC File No. 36-72304 to include the Supplemental
Indenture before the liens created by the Supplemental
Indenture become effective as to and enforceable against
third parties. However, all permanent physical properties
and franchises of the Company (other than those expressly
excepted in the Mortgage) presently owned by the Company are
subject to the lien of the Mortgage, subject to minor
defects and Excepted Encumbrances of the character referred
to in paragraph (2) hereof.]
(4) The Mortgage has been duly and validly
authorized by all necessary corporate action on the part of
the Company, has been duly and validly executed and
delivered by the Company, is a legal, valid and binding
instrument of the Company enforceable against the Company in
accordance with its terms, except (i) as the same may be
limited by the laws of the State of Louisiana, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein,
which laws do not, in my opinion, make inadequate remedies
necessary for the realization of the benefits of such
security, and (ii) as the same may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and general
equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and is qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been
instituted or, to my knowledge, threatened by the
Commission.
(5) The Bonds are legal, valid and binding
obligations of the Company enforceable in accordance with
their terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and are entitled to the
benefit of the security afforded by the Mortgage.
(6) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the
New Bonds," insofar as they purport to constitute summaries
of the documents referred to therein, or of the benefits
purported to be afforded by such documents (including,
without limitation, the lien of the Mortgage), constitute
accurate summaries of the terms of such documents and of
such benefits in all material respects.
(7) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(8) Except as to the financial statements and
other financial or statistical data included or incorporated
by reference therein, upon which I do not pass, the 1993
Registration Statement and the Registration Statement, at
the respective times of their effectiveness, and the
Prospectus, at the time it was filed with, or transmitted
for filing to, the Commission pursuant to Rule 424(b),
complied as to form in all material respects with the
applicable requirements of the Securities Act and (except
with respect to the statements of eligibility of the
Trustees on Form T-1 and Form T-2 filed as exhibits to the
1993 Registration Statement and the Registration Statement,
upon which I do not pass) the Trust Indenture Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; and,
with respect to the documents or portions thereof filed with
the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, such documents or portions thereof, on the
date first filed with the Commission, complied as to form in
all material respects with the applicable provisions of the
Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the 1993 Registration Statement and the
Registration Statement have become, and on the date hereof
are, effective under the Securities Act; and, to the best of
my knowledge, no stop order suspending the effectiveness of
the 1993 Registration Statement or the Registration
Statement has been issued and no proceedings for that
purpose are pending or threatened under Section 8(d) of the
Securities Act.
(9) An appropriate resolution has been adopted by
the Council authorizing the issuance and sale of the Bonds
by the Company; to the best of my knowledge, said resolution
is in full force and effect and is not subject to any
pending appeal or request for rehearing or reconsideration;
no further approval, authorization, consent or other order
of any governmental body (other than under the Securities
Act, which has been duly obtained, or in connection or
compliance with the provisions of the securities or blue sky
laws of any jurisdiction) is legally required to permit the
issuance and sale of the Bonds by the Company pursuant to
the Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental
body is legally required to permit the performance by the
Company of its obligations with respect to the Bonds or
under the Mortgage and the Underwriting Agreement.
(10) The issuance and sale by the Company of the
Bonds and the execution, delivery and performance by the
Company of the Underwriting Agreement and the Mortgage (a)
will not violate any provision of the Company's Restatement
of Articles of Incorporation or Bylaws, each as amended, (b)
will not violate any provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance on or security interest in (except as
contemplated by the Mortgage) any of the assets of the
Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
me (having made due inquiry with respect thereto) to which
the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not
violate any provision of any law or regulation applicable to
the Company or, to the best of my knowledge (having made due
inquiry with respect thereto), any provision of any order,
writ, judgment or decree of any governmental instrumentality
applicable to the Company (except that various consents of,
and filings with, governmental authorities may be required
to be obtained or made, as the case may be, in connection or
compliance with the provisions of the securities or blue sky
laws of any jurisdiction).
In connection with the preparation by the Company of
the 1993 Registration Statement, the Registration Statement and
the Prospectus, I have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, and with the independent certified public
accountants of the Company who examined certain of the financial
statements included or incorporated by reference in the 1993
Registration Statement and the Registration Statement. My
examination of the 1993 Registration Statement, the Registration
Statement and the Prospectus and my discussions did not disclose
to me any information which gives me reason to believe that the
1993 Registration Statement or the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time first filed with, or transmitted
for filing to, the Commission pursuant to Rule 424(b) and at the
date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
I do not express any opinion or belief as to the financial
statements or other financial or statistical data included or
incorporated by reference in the 1993 Registration Statement, the
Registration Statement or the Prospectus, as to the statements of
eligibility on Form T-1 and Form T-2 of the Trustees filed as
exhibits to the 1993 Registration Statement and the Registration
Statement or as to the information contained in the Prospectus
under the caption "Description of the New Bonds--Book-Entry
System--G&R Bonds."
I have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on my authority, and I believe such information
to be correct. I have examined the opinions of even date
herewith rendered to you by Reid & Priest LLP and Winthrop,
Stimson, Putnam & Roberts, and concur in the conclusions
expressed therein insofar as they involve questions of Louisiana
law.
I am a member of the Louisiana Bar and do not hold
myself out as an expert on the laws of any other state. As to
all matters of New York law, I have relied, with your approval,
upon the opinion of even date herewith addressed to you by Reid &
Priest LLP of New York, New York.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without my prior written
consent, except that Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts may rely on this opinion as to all matters of
Louisiana law in rendering their opinions required to be
delivered under the Underwriting Agreement.
Very truly yours,
________________
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
March __, 1996
Salomon Brothers Inc
Bear, Stearns & Co. Inc.
c/o Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Ladies and Gentlemen:
We, together with Laurence M. Hamric, Esq., General
Attorney--Corporate and Securities of Entergy Services, Inc.,
have acted as counsel for New Orleans Public Service Inc. (the
"Company") in connection with the issuance and sale to you
pursuant to the Underwriting Agreement, effective March __, 1996
(the "Underwriting Agreement"), between the Company and you, of
$40,000,000 aggregate principal amount of its General and
Refunding Mortgage Bonds, _____% Series due March 1, 2006 (the
"Bonds") issued pursuant to the Company's Mortgage and Deed of
Trust, dated as of May 1, 1987, with Bank of Montreal Trust
Company, as Corporate Trustee (the "Corporate Trustee"), and Mark
F. McLaughlin (successor to Z. George Klodnicki), as Co-Trustee
(the "Co-Trustee" and, together with the Corporate Trustee, the
"Trustees"), as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the Sixth Supplemental Indenture, dated as of March 1, 1996 (the
"Supplemental Indenture") (the Mortgage and Deed of Trust as so
amended and supplemented being hereinafter referred to as the
"Mortgage"). This opinion is being rendered to you at the
request of the Company. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restatement of Articles of
Incorporation and Bylaws, each as amended; (b) the Underwriting
Agreement; (c) the Mortgage; (d) the 1993 Registration Statement,
the Registration Statement and Prospectus filed under the
Securities Act; (e) the records of various corporate proceedings
relating to the authorization, issuance and sale of the Bonds by
the Company and the execution and delivery by the Company of the
Supplemental Indenture and the Underwriting Agreement; and (f)
the application made to and the resolution adopted by the Council
relating to the issuance and sale of the Bonds by the Company.
We have also examined or caused to be examined such other
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to render this opinion. In
such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, and the conformity to the originals of the documents
submitted to us as certified or photostatic copies. We have not
examined the Bonds, except a specimen thereof, and we have relied
upon a certificate of the Corporate Trustee as to the
authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except (i) as
the same may be limited by the laws of the State of Louisiana,
where the property covered thereby is located, affecting the
remedies for the enforcement of the security provided for
therein, and (ii) as the same may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and is qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(2) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and by
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and are entitled to the benefit of the security afforded by the
Mortgage.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
Bonds," insofar as they purport to constitute summaries of the
documents referred to therein, constitute accurate summaries of
the terms of such documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the 1993
Registration Statement and the Registration Statement, at the
respective times of their effectiveness, and the Prospectus, at
the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b), complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the statements of
eligibility of the Trustees on Form T-1 and Form T-2 filed as
exhibits to the 1993 Registration Statement and the Registration
Statement, upon which we do not pass) the Trust Indenture Act,
and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the 1993 Registration Statement and the Registration
Statement have become, and on the date hereof are, effective
under the Securities Act; and, to the best of our knowledge, no
stop order suspending the effectiveness of the 1993 Registration
Statement and the Registration Statement has been issued and no
proceedings for that purpose are pending or threatened under
Section 8(d) of the Securities Act.
(6) An appropriate resolution has been adopted by the
Council authorizing the issuance and sale of the Bonds by the
Company; to the best of our knowledge, said resolution is in full
force and effect; no further approval, authorization, consent or
order of any governmental body (other than under the Securities
Act, which has been duly obtained, or in connection or compliance
with the provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and sale
of the Bonds by the Company pursuant to the Underwriting
Agreement; and no further approval, authorization, consent or
order of any governmental body is legally required to permit the
performance by the Company of its obligations with respect to the
Bonds or under the Mortgage and the Underwriting Agreement.
In passing upon the forms of the 1993 Registration
Statement, the Registration Statement and the Prospectus, we
necessarily assume the correctness, completeness and fairness of
the statements made by the Company and information included or
incorporated by reference in the 1993 Registration Statement, the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In connection
with the preparation by the Company of the 1993 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements included or
incorporated by reference in the 1993 Registration Statement and
the Registration Statement. Our examination of the 1993
Registration Statement, the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information which gives us reason to believe that the 1993
Registration Statement or the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time first filed with, or transmitted
for filing to, the Commission pursuant to Rule 424(b) and at the
date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to the financial
statements or other financial or statistical data included or
incorporated by reference in the 1993 Registration Statement, the
Registration Statement or the Prospectus, as to the statements of
eligibility on Form T-1 and Form T-2 of the Trustees filed as
exhibits to the 1993 Registration Statement and the Registration
Statement or as to the information contained in the Prospectus
under the caption "Description of the New Bonds--Book-Entry
System--G&R Bonds."
We have examined the portions of the information
contained in the 1993 Registration Statement and the Registration
Statement that are stated therein to have been made on our
authority, and we believe such information to be correct. We are
members of the New York Bar and do not hold ourselves out as
experts on the laws of any other state. As to all matters of
Louisiana law, we have relied upon the opinion of even date
herewith addressed to you by Laurence M. Hamric, Esq., General
Attorney--Corporate and Securities of Entergy Services, Inc.,
counsel for the Company. We have not examined into and are not
passing upon matters relating to incorporation of the Company,
titles to property, franchises or the lien of the Mortgage.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without our prior written
consent, except that Laurence M. Hamric, Esq., General Attorney--
Corporate and Securities of Entergy Services, Inc. may rely on
this opinion as to all matters of New York law in rendering his
opinion required to be delivered under the Underwriting
Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
March __, 1996
Salomon Brothers Inc
Bear, Stearns & Co. Inc.
c/o Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $40,000,000 in aggregate principal amount of
General and Refunding Mortgage Bonds, ____% Series due March 1,
2006 (the "Bonds"), issued by New Orleans Public Service Inc.
(the "Company") under the Company's Mortgage and Deed of Trust,
dated as of May 1, 1987, with Bank of Montreal Trust Company, as
Corporate Trustee (the "Corporate Trustee"), and Mark F.
McLaughlin (successor to Z. George Klodnicki), as Co-Trustee (the
"Co-Trustee" and, together with the Corporate Trustee, the
"Trustees"), as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the Sixth Supplemental Indenture, dated as of March 1, 1996 (the
"Supplemental Indenture") (the Mortgage and Deed of Trust as so
amended and supplemented being hereinafter referred to as the
"Mortgage"), pursuant to the Underwriting Agreement between you
and the Company effective March , 1996 (the "Underwriting
Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you by Laurence M.
Hamric, Esq., General Attorney--Corporate and Securities of
Entergy Services, Inc., counsel for the Company, as to the
matters covered in such opinion relating to Louisiana law. We
have reviewed said opinion and believe that it is satisfactory.
We have also reviewed the opinion of Reid & Priest LLP required
by Section 7(d) of the Underwriting Agreement, and we believe
said opinion to be satisfactory.
We have also examined such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and statements in the 1993
Registration Statement and the Registration Statement hereinafter
mentioned. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to
us as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies. We
have not examined the Bonds, except a specimen thereof, and we
have relied upon a certificate of the Corporate Trustee as to the
authentication and delivery thereof. We have not examined into,
and are expressing no opinion or belief as to matters relating
to, incorporation of the Company, titles to property, franchises
or the lien of the Mortgage. Capitalized terms used herein and
not otherwise defined have the meanings ascribed to such terms in
the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except (i) as
the same may be limited by the laws of the State of Louisiana,
where the property covered thereby is located, affecting the
remedies for the enforcement of the security provided for
therein, and (ii) as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and is qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(2) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and are entitled
to the benefit of the security purported to be afforded by the
Mortgage.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
Bonds," insofar as they purport to constitute summaries of the
documents referred to therein, constitute accurate summaries of
the terms of such documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) An appropriate resolution has been adopted by the
Council authorizing the issuance and sale of the Bonds by the
Company and to the best of our knowledge, such resolution is in
full force and effect; and no further approval, authorization,
consent or order of any governmental body (other than under the
Securities Act, which has been duly obtained, or in connection or
compliance with the provisions of the securities or blue sky laws
of any jurisdiction) is legally required to permit the issuance
and sale of the Bonds by the Company pursuant to the Underwriting
Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the 1993
Registration Statement and the Registration Statement, at the
respective times of their effectiveness, and the Prospectus, at
the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b), complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the statements of
eligibility of the Trustees on Form T-1 and Form T-2 filed as
exhibits to the 1993 Registration Statement and the Registration
Statement, upon which we do not pass) the Trust Indenture Act,
and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; the 1993 Registration
Statement and the Registration Statement and, with respect to the
documents or portions thereof filed with the Commission pursuant
to the Exchange Act, and incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the 1993 Registration Statement and the Registration
Statement have become, and on the date hereof are, effective
under the Securities Act; and, to the best of our knowledge, no
stop order suspending the effectiveness of the 1993 Registration
Statement and the Registration Statement has been issued and no
proceedings for that purpose are pending or threatened under
Section 8(d) of the Securities Act.
In passing upon the forms of the 1993 Registration
Statement and the Registration Statement and the form of the
Prospectus, we necessarily assume the correctness, completeness
and fairness of the statements made by the Company and
information included or incorporated by reference in the 1993
Registration Statement and the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph (3)
above. In connection with the preparation by the Company of the
1993 Registration Statement, the Registration Statement and the
Prospectus, we have had discussions with certain officers,
employees and representatives of the Company and Entergy Services
Inc., with counsel for the Company and with your representatives.
Our review of the 1993 Registration Statement, the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information that gives us reason to believe that the
1993 Registration Statement and the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424(b) and at the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. We do not express any opinion or belief as to the
financial statements or other financial or statistical data
included or incorporated by reference in the 1993 Registration
Statement and the Registration Statement or the Prospectus, as to
the statements of eligibility on Form T-1 and Form T-2 of the
Trustees filed as exhibits to the 1993 Registration Statement and
the Registration Statement or as to the information contained in
the Prospectus under the caption "Description of the New Bonds--
Book-Entry System--G&R Bonds."
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT D
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS
PURSUANT TO SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT
FOR INCLUSION IN THE LETTER OF THE ACCOUNTANTS
REFERRED TO THEREIN
Caption Page Items
Annual Report on Form 10-
K for the year ended
December 31, 1995
"INDUSTRY SEGMENTS - 34 The percentages of gas operating
Narrative Description of revenues (by source) for the
NOPSI Industry Segments- twelve month period ended
- -Natural Gas Service" December 31, 1995.
"MANAGEMENT'S FINANCIAL 47 The amounts of first mortgage
DISCUSSION AND ANALYSIS, bonds and preferred stock
LIQUIDITY AND CAPITAL issuable by the Company at
RESOURCES" December 31, 1995 based upon the
Company's most restrictive
applicable tests and the assumed
annual interest and dividend
rates stated therein.
"SELECTED FINANCIAL DATA 115 The amounts of electric operating
- - FIVE YEAR COMPARISON" revenues (by source) for the
twelve month periods ended
December 31, 1995 and 1994.
Exhibit 4(a)
NEW ORLEANS PUBLIC SERVICE INC.
TO
BANK OF MONTREAL TRUST COMPANY
And
MARK F. McLAUGHLIN
(successor to Z. George Klodnicki)
As Trustees under the Mortgage and
Deed of Trust, dated as of May 1, 1987
SIXTH SUPPLEMENTAL INDENTURE
Providing among other things for
General and Refunding Mortgage Bonds,
8% Series due March 1, 2006
(Ninth Series)
Dated as of March 1, 1996
<PAGE>
SIXTH SUPPLEMENTAL INDENTURE
SIXTH SUPPLEMENTAL INDENTURE, dated as of March 1, 1996,
between NEW ORLEANS PUBLIC SERVICE INC., a corporation of the
State of Louisiana, whose post office address is 639 Loyola
Avenue, New Orleans, Louisiana 70113 and BANK OF MONTREAL TRUST
COMPANY, a corporation of the State of New York, whose principal
office is located at 77 Water Street, New York, New York 10005
and MARK F. McLAUGHLIN (successor to Z. George Klodnicki), whose
post office address is 44 Norwood Avenue, Allenhurst, New Jersey
07711, as trustees under the Mortgage and Deed of Trust, dated as
of May 1, 1987, executed and delivered by the Company (herein
called the "Original Indenture"; the Original Indenture and any
and all indentures and instruments supplemental thereto being
herein called the "Indenture");
WHEREAS, the Original Indenture has been duly recorded and
filed as required in the State of Louisiana simultaneously with
the recording and filing of the First Supplemental Indenture
thereto, dated as of May 1, 1987, between the Company and BANK OF
MONTREAL TRUST COMPANY and Z. GEORGE KLODNICKI (Mark F.
McLaughlin, successor), as trustees (herein called the "First
Supplemental Indenture"); and
WHEREAS, the Original Indenture was recorded in various
Parishes in the State of Louisiana; and
WHEREAS, the Company executed and delivered to the Trustees
(as such term and all other defined terms used herein and not
defined herein having the respective definitions to which
reference is made in Article I below) its Second Supplemental
Indenture, dated as of January 1, 1988, its Third Supplemental
Indenture, dated as of March 1, 1993, its Fourth Supplemental
Indenture dated as of September 1, 1993, and its Fifth
Supplemental Indenture, dated as of April 1, 1995, each as a
supplement to the Original Indenture, which Supplemental
Indentures have been duly recorded in various Parishes in the
State of Louisiana, which Parishes are the same Parishes in which
this Sixth Supplemental Indenture is to be recorded; and
WHEREAS, the Company has heretofore issued, in accordance
with the provisions of the Indenture, the following series of
bonds;
Principal Principal
Series Amount Amount
Issued Outstanding
10.95% Series due May 1, 1997 $75,000,000 $30,000,000
13.20% Series due February 1, 1991 1,400,000 None
13.60% Series due February 1, 1993 29,400,000 None
13.90% Series due February 1, 1995 9,200,000 None
7% Series due March 1, 2003 25,000,000 25,000,000
8% Series due March 1, 2023 45,000,000 45,000,000
7.55% Series due September 1, 2023 30,000,000 30,000,000
8.67% Series due April 1, 2005 30,000,000 30,000,000
; and
WHEREAS, Section 19.04 of the Original Indenture provides,
among other things, that any power, privilege or right expressly
or impliedly reserved to or in any way conferred upon the Company
by any provision of the Indenture, whether such power, privilege
or right is in any way restricted or is unrestricted, may be in
whole or in part waived or surrendered or subjected to any
restriction if at the time unrestricted, or to additional
restriction if already restricted, and the Company may enter into
any further covenants, limitations, restrictions or provisions
for the benefit of any one or more series of bonds issued
thereunder, or the Company may establish the terms and provisions
of any series of bonds by an instrument in writing executed and
acknowledged by the Company in such manner as would be necessary
to entitle a conveyance of real estate to be recorded in all of
the states in which any property at the time subject to the Lien
of the Indenture shall be situated; and
WHEREAS, the Company desires to create a new series of
bonds under the Indenture and to add to its covenants and
agreements contained in the Indenture certain other covenants and
agreements to be observed by it; and
WHEREAS, all things necessary to make this Sixth
Supplemental Indenture a valid, binding and legal instrument have
been performed, and the issue of said series of bonds, subject to
the terms of the Indenture, has been in all respects duly
authorized;
NOW, THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE
WITNESSETH: That NEW ORLEANS PUBLIC SERVICE INC., in
consideration of the premises and of Ten Dollars ($10) to it duly
paid by the Trustee at or before the ensealing and delivery of
these presents, the receipt whereof is hereby acknowledged, and
in order to secure the payment of both the principal of and
interest and premium, if any, on the bonds from time to time
issued under the Indenture, according to their tenor and effect
and the performance of all provisions of the Indenture (including
any modification made as in the Indenture provided) and of said
bonds, hath granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over and confirmed and granted a security interest
in, and by these presents doth grant, bargain, sell, release,
convey, assign, transfer, mortgage, hypothecate, affect, pledge,
set over and confirm and grant a security interest in (subject,
however, to Excepted Encumbrances as defined in Section 1.06 of
the Original Indenture), unto MARK F. McLAUGHLIN and (to the
extent of its legal capacity to hold the same for the purposes
hereof) to BANK OF MONTREAL TRUST COMPANY, as Trustees, and to
their successor or successors in said trust, and to said Trustees
and their successors and assigns forever (1) all rights, legal
and equitable, of the Company (whether in accordance with
Paragraph 32 of that certain Resolution No. R-86-112, adopted by
the Council of the City of New Orleans on March 20, 1986 and
accepted by the Company on March 25, 1986, as superseded by
Resolution No. R-91-157, effective October 4, 1991, or pursuant
to other regulatory authorization or by operation of law or
otherwise), in the event of the purchase and acquisition by the
City of New Orleans (or any other governmental authority or
instrumentality or designee thereof) of properties and assets of
the Company, to recover and receive payment and compensation from
the City (or from such other governmental authority or
instrumentality or designee thereof or any other person) of an
amount equal to the aggregate uncollected balance of (A) the
deferrals of Grand Gulf I Costs (as defined in the Original
Indenture) and the deferred carrying charges accrued thereon that
have accumulated prior to the City or such other entity providing
official notice to the Company of the City's or such other
entity's intent to effect such purchase and acquisition and (B)
if and to the extent that the City or such other entity and the
Company agree that the City or such other entity is liable for
all or a portion of the aggregate uncollected balance of such
deferrals accumulating thereafter or a court of final resort so
holds, such deferrals that have accumulated subsequent to such
notice (said rights of the Company, together with the proceeds
and products thereof, being defined in the Original Indenture as
the "Municipalization Interest"); and (2) all properties of the
Company, real, personal and mixed, of the kind or nature
described or mentioned in the Original Indenture; and (3) all
properties of the Company specifically described in Article VI
hereof and all other properties of the Company, real, personal
and mixed, of the kind or nature specifically mentioned in the
Original Indenture or of any other kind or nature acquired by the
Company on or after the date of the execution and delivery of the
Original Indenture (except any herein or in the Original
Indenture, as heretofore supplemented, expressly excepted), now
owned or, subject to the provisions of Section 15.03 of the
Original Indenture, hereafter acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) and wheresoever situated, including (without
in anywise limiting or impairing by the enumeration of the same,
the scope and intent of the foregoing or of any general
description contained herein or in the Original Indenture, as
heretofore supplemented), all real estate, lands, easements,
servitudes, licenses, permits, franchises, privileges, rights of
way and other rights in or relating to real estate or the
occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams,
dam sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto; all telephone, radio and television systems, air-
conditioning systems, and equipment incidental thereto, water
wheels, water works, water systems, steam heat and hot water
plants, substations, electric, gas and water lines, service and
supply systems, bridges, culverts, tracks, ice or refrigeration
plants and equipment, offices, buildings and other structures and
the equipment thereof; all machinery, engines, boilers, dynamos,
turbines, electric, gas and other machines, prime movers,
regulators, meters, transformers, generators (including, but not
limited to, engine driven generators and turbogenerator units),
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, gas, steam heat or water
for any purpose including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection therewith
and (except as herein or in the Original Indenture, as heretofore
supplemented, expressly excepted) all the rights, title and
interest of the Company in and to all other property of any kind
or nature appertaining to and/or used and/or occupied and/or
enjoyed in connection with any property herein or in the Original
Indenture, as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 11.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property, rights and franchises
and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 15.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Original Indenture, as heretofore supplemented, expressly
excepted, shall be and are as fully granted and conveyed hereby
and as fully embraced within the Lien of the Original Indenture
and the Lien hereof as if such property, rights and franchises
were now owned by the Company and were specifically described
herein and granted and conveyed hereby.
PROVIDED that, except as provided herein and in the
Original Indenture with respect to the Municipalization Interest,
the following are not and are not intended to be now or hereafter
granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed hereunder, nor is a security interest therein hereby
or by the Original Indenture, as heretofore supplemented, granted
or intended to be granted, and the same are hereby expressly
excepted from the Lien of the Indenture and the operation of this
Sixth Supplemental Indenture, viz.: (1) cash, shares of stock,
bonds, notes and other obligations and other securities not
heretofore or hereafter specifically pledged, paid, deposited,
delivered or held hereunder or covenanted so to be; (2)
merchandise, equipment, apparatus, materials or supplies held for
the purpose of sale or other disposition in the usual course of
business or for the purpose of repairing or replacing (in whole
or part) any rolling stock, buses, motor coaches, automobiles and
other vehicles or aircraft or boats, ships, or other vessels and
any fuel, oil and similar materials and supplies consumable in
the operation of any of the properties of the Company; rolling
stock, buses, motor coaches, automobiles and other vehicles and
all aircraft; boats, ships and other vessels; all timber,
minerals, mineral rights and royalties; (3) bills, notes and
other instruments and accounts receivable, judgments, demands,
general intangibles and choses in action, and all contracts,
leases and operating agreements not specifically pledged
hereunder or under the Original Indenture or covenanted so to be;
(4) the last day of the term of any lease or leasehold which may
hereafter become subject to the Lien of the Indenture; (5)
electric energy, gas, water, steam, ice, and other materials or
products generated, manufactured, produced or purchased by the
Company for sale, distribution or use in the ordinary course of
its business; (6) any natural gas wells or natural gas leases or
natural gas transportation lines or other works or property used
primarily and principally in the production of natural gas or its
transportation, primarily for the purpose of sale to natural gas
customers or to a natural gas distribution or pipeline company,
up to the point of connection with any distribution system; and
(7) the Company's franchise to be a corporation; provided,
however, that the property and rights expressly excepted from the
lien and operation of the Indenture in the above subdivisions (2)
and (3) shall (to the extent permitted by law) cease to be so
excepted in the event and as of the date that either or both of
the Trustees or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner
provided in Article XII of the Original Indenture by reason of
the occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed or in which a security interest has been granted by
the Company as aforesaid, or intended so to be (subject, however,
to Excepted Encumbrances as defined in Section 1.06 of the
Original Indenture), unto MARK F. McLAUGHLIN and (to the extent
of its legal capacity to hold the same for the purposes hereof)
to BANK OF MONTREAL TRUST COMPANY, and their successors and
assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Original
Indenture, as heretofore supplemented, this Sixth Supplemental
Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Original Indenture, as heretofore supplemented, shall
affect and apply to the property hereinbefore and hereinafter
described and conveyed and to the estate, rights, obligations and
duties of the Company and the Trustees and the beneficiaries of
the trust with respect to said property, and to the Trustees and
their successors as Trustees of said property in the same manner
and with the same effect as if the said property had been owned
by the Company at the time of the execution of the Original
Indenture and had been specifically and at length described in
and conveyed to said Trustees by the Original Indenture as a part
of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustees and their successor or successors in said trust under
the Indenture, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01 Terms From the Original Indenture and First
Supplemental Indenture. All defined terms used in this Sixth
Supplemental Indenture and not otherwise defined herein shall
have the respective meanings ascribed to them in the Original
Indenture or the First Supplemental Indenture, as the case may
be.
Section 1.02 References are to Sixth Supplemental
Indenture. Unless the context otherwise requires, all references
herein to "Articles", "Sections" and other subdivisions refer to
the corresponding Articles, Sections and other subdivisions of
this Sixth Supplemental Indenture, and the words "herein",
"hereof", "hereby", "hereunder" and words of similar import refer
to this Sixth Supplemental Indenture as a whole and not to any
particular Article, Section or other subdivision hereof or to the
Original Indenture or any other supplemental indenture thereto.
ARTICLE II
THE NINTH SERIES
Section 2.01 Bonds of the Ninth Series. There shall be a
series of bonds designated 8% Series due March 1, 2006 (herein
sometimes referred to as "Ninth Series"), each of which shall
also bear the descriptive title "General and Refunding Mortgage
Bond" unless subsequent to the issuance of such bonds a different
descriptive title is permitted by Section 2.01 of the Original
Indenture. The form of bonds of the Ninth Series shall be
substantially in the form of Exhibit A hereto. Bonds of the
Ninth Series shall mature on March 1, 2006, and shall be issued
only as fully registered bonds in denominations of One Thousand
Dollars and, at the option of the Company, in any multiple or
multiples thereof (the exercise of such option to be evidenced by
the execution and delivery thereof). Bonds of the Ninth Series
shall bear interest at the rate of eight per centum (8%) per
annum (except as hereinafter provided), payable semi-annually on
March 1 and September 1 of each year, and at maturity, the first
interest payment to be made on September 1, 1996 for the period
from March 26, 1996 to September 1, 1996; the principal and
interest on each said bond to be payable at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
New York, payable in such coin or currency of the United States
of America as at the time of payment is legal tender for public
and private debts. Interest on the bonds of the Ninth Series may
at the option of the Company be paid by check mailed to the
registered owners thereof. Overdue principal and (to the extent
permitted by law) overdue interest in respect of the bonds of the
Ninth Series shall bear interest (before and after judgment) at
the rate of nine per centum (9%) per annum. Interest on the
bonds of the Ninth Series shall be computed on the basis of a 360-
day year consisting of twelve 30-day months. Interest on the
bonds of the Ninth Series in respect of a portion of a month
shall be calculated based on the actual number of days elapsed.
The Company reserves the right to establish at any time, by
Resolution of the Board of Directors of the Company, a form of
coupon bond, and of appurtenant coupons, for the Ninth Series and
to provide for exchangeability of such coupon bonds with the
bonds of said Series issued hereunder in fully registered form
and to make all appropriate provisions for such purpose.
Section 2.02 Optional Redemption of Bonds of the Ninth
Series. (a) Except as provided in Section 9.13 of the Original
Indenture and Section 3.04 of the First Supplemental Indenture,
as heretofore and hereby amended, bonds of the Ninth Series shall
not be redeemable prior to March 1, 2001. On and after March 1,
2001, bonds of the Ninth Series shall be redeemable, at the
option of the Company, in whole at any time, or in part from time
to time, prior to maturity, upon notice mailed to each registered
owner at his last address appearing on the registry books not
less than 30 days prior to the date fixed for redemption, at the
general redemption price of 100.00%, expressed as a percentage of
the principal amount of the bonds to be redeemed, together with
accrued interest to the date fixed for redemption.
On and after March 1, 2001, bonds of the Ninth Series shall
also be redeemable in whole at any time, or in part from time to
time, prior to maturity, upon like notice, by the application
(either at the option of the Company or pursuant to the
requirements of the Original Indenture) of cash delivered to or
deposited with the Trustee pursuant to the provisions of
Section 9.05 of the Original Indenture or subject to the
provisions of Section 11.05 of the Original Indenture at the
special redemption price of 100.00%, expressed as a percentage of
the principal amount of the bonds to be redeemed, together with
accrued interest to the date fixed for redemption.
Bonds of the Ninth Series are also redeemable after
March 1, 2001 as provided in Section 4.11 of the First
Supplemental Indenture, as amended.
Bonds of the Ninth Series are also redeemable, at the
option of the holders thereof, at any time as provided in Section
9.13 of the Original Indenture and Section 3.04 of the First
Supplemental Indenture, as heretofore and hereby amended.
Section 2.03 Transfer and Exchange. At the option of the
registered owner, any bonds of the Ninth Series, upon surrender
thereof for cancellation at the office or agency of the Company
in the Borough of Manhattan, The City of New York, New York,
shall be exchangeable for a like aggregate principal amount of
bonds of the same series of other authorized denominations.
Bonds of the Ninth Series shall be transferable, upon the
surrender thereof for cancellation, together with a written
instrument of transfer in form approved by the registrar duly
executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York, New York.
Upon any such exchange or transfer of bonds of the Ninth
Series, the Company may make a charge therefor sufficient to
reimburse it for any tax or taxes or other governmental charge,
as provided in Section 2.05 of the Original Indenture, but the
Company hereby waives any right to make a charge in addition
thereto for any such exchange or transfer of bonds of the Ninth
Series.
Section 2.04 Dating of Bonds and Interest Payments. (a)
Each bond of the Ninth Series shall be dated as of the date of
authentication and shall bear interest from the last preceding
interest payment date to which interest shall have been paid
(unless the date of such bond is an interest payment date to
which interest is paid, in which case from the date of such
bond); provided that each bond of the Ninth Series dated prior to
September 1, 1996 shall bear interest from March 26, 1996; and
provided, further, that if any bond of the Ninth Series shall be
authenticated and delivered upon a transfer of, or in exchange
for or in lieu of, any other bond or bonds of the Ninth Series
upon which interest is in default, it shall be dated so that such
bond shall bear interest from the last preceding date to which
interest shall have been paid on the bond or bonds in respect of
which such bond shall have been delivered or from March 26, 1996,
if no interest shall have been paid on the bonds of the Ninth
Series.
(b) Notwithstanding the foregoing, bonds of the Ninth Series
shall be dated so that the person in whose name any bond of the
Ninth Series is registered at the close of business on the day
(whether or not a business day) immediately preceding an interest
payment date shall be entitled to receive the interest payable on
the interest payment date notwithstanding the cancellation of
such bond upon any transfer or exchange thereof subsequent to
such close of business and prior to such interest payment date,
except if, and to the extent that, the Company shall default in
the payment of interest due on such interest payment date, in
which case such defaulted interest shall be paid to the persons
in whose names Outstanding bonds of the Ninth Series are
registered on the day immediately preceding the date of payment
of such defaulted interest. Any bond of the Ninth Series issued
upon any transfer or exchange subsequent to such close of
business and prior to such interest payment date shall bear
interest from such interest payment date. In the event there
shall be more than one registered owner of bonds of the Ninth
Series, then the Company shall not be required to make transfers
or exchanges of bonds of said series for a period of fifteen (15)
days next preceding any interest payment date of said series.
ARTICLE III
OTHER PROVISIONS FOR RETIREMENT OF BONDS
Section 3.01 Redemption at the Option of the Owner upon
Consolidation or Merger.
The second sentence of subsection (a) of Section 3.04
of the First Supplemental Indenture, as amended, is hereby
further amended to insert the following words immediately after
the words "the Fifth Supplemental Indenture":
"shall (as to the New LP&L Bonds being exchanged
for bonds of the Ninth Series) be subject to
redemption at the option of the Company on terms
similar to those provided in the Sixth Supplemental
Indenture,"
The redemption prices for any bonds of the Ninth
Series redeemed pursuant to subsection (b) of Section 3.04
of the First Supplemental Indenture shall be determined as
follows:
(1) If at the time the Exchange Notice is given, the
Outstanding bonds secured by the Indenture are rated by at
least two nationally recognized statistical rating
organizations, and the New LP&L Bonds are, or will be,
rated by the same rating organizations higher than, or in
the same generic rating categories as, the Outstanding
bonds secured by the Indenture (such ratings to be
evidenced by an Officers' Certificate), the redemption
price shall be equal to the principal amount of the bonds
to be redeemed, together with accrued interest to the date
fixed for redemption. The New LP&L Bonds and the
Outstanding bonds secured by the Indenture shall be deemed
to be rated in the same generic rating category if their
respective ratings are both (i) within the same generic
rating level (e.g., "BBB" or "baa") and (ii) within one
numerical or "plus" or "minus" modifier of each other.
(2) If at the time the Exchange Notice is given the
conditions of clause (1) are not satisfied, the redemption
prices shall be the general redemption prices set forth in
Section 2.02(a) hereof together with accrued interest to
the date fixed for redemption.
Subclause (B) of clause (i) of subsection (b) of
Section 4.11 of the First Supplemental Indenture, as
amended, is hereby further amended to insert the following
words immediately before the words "in each case":
"at a redemption price, in the case of bonds of the
Ninth Series, equal to 100% of the principal amount of the
bonds to be redeemed,"
ARTICLE IV
COVENANTS
Section 4.01 Maintenance of Paying Agency. So long as any
bonds of the Ninth Series are Outstanding, the Company covenants
that the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, where the principal of
or interest on any bonds of the Ninth Series shall be payable,
shall also be an office or agency where any such bonds may be
transferred or exchanged and where notices, presentations or
demands to or upon the Company in respect of such bonds or in
respect of the Indenture may be given or made.
Section 4.02 Further Assurances. From time to time
whenever reasonably requested by the Trustee or the holders of
not less than a majority in principal amount of bonds of the
Ninth Series then Outstanding, the Company will make, execute and
deliver or cause to be made, executed and delivered any and all
such further and other instruments and assurances as may be
reasonably necessary or proper to carry out the intention of or
to facilitate the performance of the terms of the Indenture or to
secure the rights and remedies of the holders of such bonds.
Section 4.03 Limitation on Restricted Payments. (a) So
long as any bonds of the Ninth Series are Outstanding, the
Company covenants that it will not declare any dividends on its
common stock (other than (1) a dividend payable solely in shares
of its common stock or (2) a dividend payable in cash in cases
where, concurrently with the payment of such dividend, an amount
in cash equal to such dividend is received by the Company as a
capital contribution or as the proceeds of the issue and sale of
shares of its common stock) or make any distribution on
outstanding shares of its common stock or purchase or otherwise
acquire for value any outstanding shares of its common stock
(otherwise than in exchange for or out of the proceeds from the
sale of other shares of its common stock) unless after such
dividend, distribution, purchase or acquisition, the aggregate
amount of such dividends, distributions, purchases and
acquisitions paid or made subsequent to February 29, 1996 (other
than any dividend declared by the Company on or before February
29, 1996) does not exceed (without giving effect to (1) any such
dividends, distributions, purchases or acquisitions, or (2) any
net transfers from earned surplus to stated capital accounts) the
sum of (A) the aggregate amount credited subsequent to February
29, 1996, to earned surplus, (B) $150,000,000 and (C) such
additional amounts as shall be authorized or approved, upon
application by the Company and, after notice, by the SEC under
the Holding Company Act.
For the purpose of this Section 4.03, the aggregate
amount credited subsequent to February 29, 1996, to earned
surplus shall be determined in accordance with applicable
generally accepted accounting principles and practices (or, if in
the opinion of the Company's independent public accountants
(delivered to the Trustee) there is an absence of any such
generally accepted accounting principles and practices as to the
determination in question, then in accordance with sound
accounting practices) and after making provision for dividends
upon any preferred stock of the Company, accumulated subsequent
to such date, and in addition there shall be deducted from earned
surplus all amounts (without duplication) of losses, write-offs,
write-downs or amortization of property, whether extraordinary or
otherwise, recorded in and applicable to a period or periods
subsequent to February 29, 1996.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Acceptance of Trusts. The Trustees hereby
accept the trusts herein declared, provided, created or
supplemented and agree to perform the same upon the terms and
conditions herein and in the Original Indenture, as heretofore
supplemented, set forth and upon the following terms and
conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency
of this Sixth Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are
solely made by the Company. In general, each and every
term and condition contained in Article XVI of the Original
Indenture shall apply to and form part of this Sixth
Supplemental Indenture with the same force and effect as if
the same were herein set forth in full with such omissions,
variations and insertions, if any, as may be appropriate to
make the same conform to the provisions of this Sixth
Supplemental Indenture.
Section 5.02 Effect of Sixth Supplemental Indenture under
Louisiana Law. It is the intention and it is hereby agreed that
so far as concerns that portion of the Mortgaged and Pledged
Property situated within the State of Louisiana, the general
language of conveyance contained in this Sixth Supplemental
Indenture is intended and shall be construed as words of
hypothecation and not of conveyance, and that so far as the said
Louisiana property is concerned, this Sixth Supplemental
Indenture shall be considered as an act of mortgage and pledge
and granting of a security interest under the laws of the State
of Louisiana, and the Trustees herein named are named as
mortgagee and pledgee and secured parties in trust for the
benefit of themselves and of all present and future holders of
bonds issued under the Indenture and any coupons thereto issued
hereunder, and are irrevocably appointed special agents and
representatives of the holders of such bonds and coupons and
vested with full power in their behalf to effect and enforce the
mortgage and pledge and a security interest hereby constituted
for their benefit, or otherwise to act as herein provided for.
Section 5.03 Record Date. The holders of the bonds of the
Ninth Series shall be deemed to have consented and agreed that
the Company may, but shall not be obligated to, fix a record date
for the purpose of determining the holders of the bonds of the
Ninth Series entitled to consent, if any such consent is
required, to any amendment or supplement to the Indenture or the
waiver of any provision thereof or any act to be performed
thereunder. If a record date is fixed, those persons who were
holders at such record date (or their duly designated proxies),
and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be
holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
Section 5.04 Titles. The titles of the several Articles
and Sections of this Sixth Supplemental Indenture shall not be
deemed to be any part hereof.
Section 5.05 Counterparts. This Sixth Supplemental
Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one
and the same instrument.
Section 5.06 Governing Law. The laws of the State of
New York shall govern this Sixth Supplemental Indenture and the
bonds of the Ninth Series, except to the extent that the validity
or perfection of the Lien of the Indenture, or remedies
thereunder, are governed by the laws of a jurisdiction other than
the State of New York.
ARTICLE VI
SPECIFIC DESCRIPTION OF PROPERTY
PARAGRAPH ONE
The Electric Generating Plants, Plant Sites and Stations of
the Company, including all electric works, power houses,
buildings, pipelines and structures owned by the Company and all
land of the Company on which the same are situated and all of the
Company's lands, together with the buildings and improvements
thereon, and all rights, ways, servitudes, prescriptions, and
easements, rights-of-way, permits, privileges, licenses, poles,
wires, machinery, implements, switchyards, electric lines,
equipment and appurtenances, forming a part of said plants, sites
or stations, or any of them, or used or enjoyed, or capable of
being used or enjoyed in conjunction with any of said power
plants, sites, stations, lands and property.
PARAGRAPH TWO
The Electric Substations, Switching Stations, Microwave
installations and UHF-VHF installations of the Company, and the
Sites therefor, including all buildings, structures, towers,
poles, all equipment, appliances and devices for transforming,
converting, switching, transmitting and distributing electric
energy, and for communications, and the lands of the Company on
which the same are situated, and all of the Company's lands,
rights, ways, servitudes, prescriptions, easements, rights-of-
way, machinery, equipment, appliances, devices, licenses and
appurtenances forming a part of said substations, switching
stations, microwave installations or UHF-VHF installations, or
any of them, or used or enjoyed or capable of being used or
enjoyed in conjunction with any of them.
PARAGRAPH THREE
All and singular the Miscellaneous Lands and Real Estate or
Rights and Interests therein of the Company, and buildings and
improvements thereon, now owned, or, subject to the provisions of
Section 15.03 of the Original Indenture, hereafter acquired
during the existence of this trust.
PARAGRAPH FOUR
The Electric Transmission Lines of the Company, including
the structures, towers, poles, wires, cables, switch racks,
conductors, transformers, insulators, pipes, conduits, electric
submarine cables, and all appliances, devices and equipment used
or useful in connection with said transmission lines and systems,
and all other property, real, personal or mixed, forming a part
thereof or appertaining thereto, together with all rights-of-way,
easements, prescriptions, servitudes, permits, privileges,
licenses, consents, immunities and rights for or relating to the
construction, maintenance or operation thereof, through, over,
across, under or upon any public streets or highways or other
lands, public or private.
PARAGRAPH FIVE
The Electric Distribution Lines and Systems of the Company,
including the structures, towers, poles, wires, insulators and
appurtenances, appliances, conductors, conduits, cables,
transformers, meters, regulator stations and regulators,
accessories, devices and equipment and all of the Company's other
property, real, personal or mixed, forming a part of or used,
occupied or enjoyed in connection with or in anywise appertaining
to said distribution lines and systems, together with all of the
Company's rights-of-way, easements, permits, prescriptions,
privileges, municipal or other franchises, licenses, consents,
immunities and rights for or relating to the construction,
maintenance or operation thereof, through, over, across, under,
or upon any public streets or highways or other lands or
property, public or private.
PARAGRAPH SIX
The Gas Distributing Systems of the Company, whether now
owned or, subject to the provisions of Section 15.03 of the
Original Indenture, hereafter acquired, including gas regulator
stations, gas main crossings, odorizing equipment, gas metering
stations, shops, service buildings, office buildings, expansion
tanks, conduits, gas mains and pipes, mechanical storage sheds,
boilers, service pipes, fittings, city gates, pipelines, booster
stations, reducer stations, valves, valve platforms, connections,
meters and all appurtenances, appliances, devices and equipment
and all the Company's other property, real, personal or mixed
forming a part of or used, occupied or enjoyed in connection with
or in anywise appertaining to said distributing systems, or any
of them, together with all of the Company's rights-of-way,
easements, prescriptions, servitudes, privileges, immunities,
permits and franchises, licenses, consents and rights for or
relating to the construction, maintenance or operation thereof,
in, on, through, across or under any public streets or highways
or other lands or property, public or private.
PARAGRAPH SEVEN
All of the franchises, privileges, permits, grants and
consents for the construction, operation and maintenance of
electric and gas systems in, on and under streets, alleys,
highways, roads, public grounds and rights-of-way and all rights
incident thereto which were granted by the governing and
regulatory bodies of the City of New Orleans, State of Louisiana.
Also all other franchises, privileges, permits, grants and
consents owned or hereafter acquired by the Company for the
construction, operation and maintenance of electric and gas
systems in, on or under the streets, alleys, highways, roads, and
public grounds, areas and rights-of-way and/or for the supply and
sale of electricity or natural gas and all rights incident
thereto, subject, however, to the provisions of Section 15.03 of
the Original Indenture.
IN WITNESS WHEREOF, NEW ORLEANS PUBLIC SERVICE INC. has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board,
Chief Executive Officer, President or one of its Vice Presidents,
and its corporate seal to be attested by its Secretary or one of
its Assistant Secretaries for and in its behalf, and BANK OF
MONTREAL TRUST COMPANY has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by
one of its Vice Presidents or Assistant Vice Presidents and its
corporate seal to be attested by one of its Assistant Vice
Presidents or Assistant Secretaries, and MARK F. McLAUGHLIN has
hereunto set his hand and affixed his seal, all as of the day and
year first above written.
NEW ORLEANS PUBLIC SERVICE INC.
By: _____________________________
William J. Regan, Jr.
Vice President and Treasurer
Attest:
______________________________
Christopher T. Screen
Assistant Secretary
Executed, sealed and delivered by
NEW ORLEANS PUBLIC SERVICE INC.
in the presence of :
_______________________________
_______________________________
BANK OF MONTREAL TRUST COMPANY
As Trustee
By:_____________________________
THERESE GABALLAH
Vice President
Attest:
____________________________
FRANCES RUSAKOWSKY
Assistant Secretary
____________________________[L.S.]
MARK F. McLAUGHLIN,
As Co-Trustee
Executed, sealed and
delivered by
BANK OF MONTREAL TRUST COMPANY
and MARK F. McLAUGHLIN
in the presence of:
_________________________________
_________________________________
<PAGE>
STATE OF LOUISIANA )
) SS.:
PARISH OF ORLEANS )
On this 19th day of March, 1996, before me appeared WILLIAM
J. REGAN, JR., to me personally known, who, being duly sworn, did
say that he is a Vice President and Treasurer of NEW ORLEANS
PUBLIC SERVICE INC., and that the seal affixed to said instrument
is the corporate seal of said corporation and that the foregoing
instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors, and said WILLIAM J. REGAN,
JR. acknowledged said instrument to be the free act and deed of
said corporation.
On the 19th day of March, in the year 1996, before me
personally came WILLIAM J. REGAN, JR., to me known, who, being by
me duly sworn, did depose and say that he resides at 108 English
Turn Drive, New Orleans, Louisiana 70113; that he is a Vice
President and Treasurer of NEW ORLEANS PUBLIC SERVICE INC., one
of the parties described in and which executed the above
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
________________________________
Denise Redmann Krouse
Notary Public
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 21st day of March, 1996, before me appeared THERESE
GABALLAH, to me personally known, who, being duly sworn, did say
that she is a Vice President of BANK OF MONTREAL TRUST COMPANY,
and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation and that said instrument was
signed and sealed in behalf of said corporation by authority of
its Board of Directors, and said THERESE GABALLAH acknowledged
said instrument to be the free act and deed of said corporation.
On the 21st day of March, in the year 1996, before me
personally came THERESE GABALLAH, to me known, who, being by me
duly sworn, did depose and say that she resides at 41-26 68th
Street, Woodside, New York 11377; that she is a Vice President of
BANK OF MONTREAL TRUST COMPANY, one of the parties described in
and which executed the above instrument; that she knows the seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that she signed her name
thereto by like order.
________________________________
Lee T. Barnum
Notary Public, State of New York
No. 01BA5037193
Qualified in New York County
Commission Expires December 19,1996
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 21st day of March, 1996, before me personally
appeared MARK F. McLAUGHLIN, to me known to be the person
described in and who executed the foregoing instrument, and
acknowledged that he executed the same as his free act and deed.
On the 21st day of March, 1996, before me personally came
MARK F. McLAUGHLIN, to me known to be the person described in and
who executed the foregoing instrument, and acknowledged that he
executed the same.
__________________________________
Lee T. Barnum
Notary Public, State of New York
No. 01BA5037193
Qualified in New York County
Commission Expires December 19,1996
<PAGE>
EXHIBIT A
[FORM OF BOND OF THE NINTH SERIES]
(See legend at the end of this bond for
restrictions on transferability and change of form)
GENERAL AND REFUNDING MORTGAGE BOND
8% Series due March 1, 2006
CUSIP No. _________
$40,000,000
No. R-1
NEW ORLEANS PUBLIC SERVICE INC., a corporation duly
organized and existing under the laws of the State of Louisiana
(hereinafter called the Company), for value received, hereby
promises to pay to Cede & Co., or registered assigns, at the
office or agency of the Company in The City of New York, New
York, the principal sum of Forty Million Dollars ($40,000,000) on
March 1, 2006, in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay in like manner to the registered owner
hereof interest thereon from March 26, 1996, if the date of this
bond is prior to September 1, 1996, or, if the date of this bond
is on or after September 1, 1996, from the September 1 or March 1
next preceding the date of this bond to which interest has been
paid (unless the date hereof is an interest payment date to which
interest has been paid, in which case from the date hereof), at
the rate of eight per centum (8%) per annum in like coin or
currency on March 1 and September 1 in each year and at maturity
until the principal of this bond shall have become due and been
duly paid or provided for, and to pay interest (before and after
judgment) on any overdue principal, premium, if any, and (to the
extent permitted by law) on any overdue interest at the rate of
nine (9%) per annum. Interest on this bond shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
Interest on this bond in respect of a portion of a month shall be
calculated based on the actual number of days elapsed.
The interest so payable on any interest payment date will,
subject to certain exceptions provided in the Mortgage
hereinafter referred to, be paid to the person in whose name this
bond is registered at the close of business on the day (whether
or not a business day) immediately preceding such interest
payment date. At the option of the Company, interest may be paid
by check mailed on or prior to such interest payment date to the
address of the person entitled thereto as such address shall
appear on the register of the Company.
This bond shall not become obligatory until Bank of Montreal
Trust Company, the Trustee under the Mortgage, or its successor
thereunder, shall have signed the form of authentication
certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, 8% Series due March
1, 2006 (herein called bonds of the Ninth Series), all bonds of
all series issued under and equally secured by a Mortgage and
Deed of Trust (herein, together with any indenture supplemental
thereto, called the Mortgage), dated as of May 1, 1987, duly
executed by the Company to Bank of Montreal Trust Company and Z.
George Klodnicki (Mark F. McLaughlin, successor), as Trustees.
Reference is made to the Mortgage for a description of the
mortgaged and pledged property, assets and rights, the nature and
extent of the lien and security, the respective rights,
limitations of rights, covenants, obligations, duties and
immunities thereunder of the Company, the holders of bonds and
the Trustees and the terms and conditions upon which the bonds
are, and are to be, secured, the circumstances under which
additional bonds may be issued and the definition of certain
terms herein used, to all of which, by its acceptance of this
bond, the holder of this bond agrees.
The principal hereof may be declared or may become due prior
to the maturity date hereinbefore named on the conditions, in the
manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions, such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company and
the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the Ninth Series and/or the terms and provisions
of the Mortgage may be modified or altered by such affirmative
vote or votes of the holders of bonds then Outstanding as are
specified in the Mortgage.
Any consent or waiver by the holder of this bond (unless
effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of this
bond or of the Mortgage shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this bond in
the manner, at the respective times, at the rate and in the
currency herein prescribed.
The bonds are issuable as registered bonds without coupons
in the denominations of $1,000 and integral multiples thereof.
At the office or agency to be maintained by the Company in The
City of New York, New York, and in the manner and subject to the
provisions of the Mortgage, bonds may be exchanged for a like
aggregate principal amount of bonds of other authorized
denominations, without payment of any charge other than a sum
sufficient to reimburse the Company for any tax or other
governmental charge incident thereto. This bond is transferable
as prescribed in the Mortgage by the registered owner hereof in
person, or by his duly authorized attorney, at the office or
agency of the Company in The City of New York, New York, upon
surrender of this bond, and upon payment, if the Company shall
require it, of the transfer charges provided for in the Mortgage,
and, thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the transferee in
exchange hereof as provided in the Mortgage. The Company and the
Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
This bond is redeemable at the option of the Company under
certain circumstances in the manner and at such redemption prices
as are provided in the Mortgage. This bond is also redeemable at
the option of the owner upon the events, in the manner and at
such redemption prices as are specified in the Mortgage.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder,
officer or director of the Company or of any predecessor or
successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any
rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors being released
by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
As provided in the Mortgage, this bond shall be governed by
and construed in accordance with the laws of the State of New
York.
IN WITNESS WHEREOF, New Orleans Public Service Inc. has
caused this bond to be signed in its corporate name by its
Chairman of the Board, Chief Executive Officer, President or one
of its Vice Presidents by his signature or a facsimile thereof,
and its corporate seal to be impressed or imprinted hereon and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
March 26, 1996
NEW ORLEANS PUBLIC SERVICE INC.
BY: _________________________
William J. Regan, Jr.
Vice President and Treasurer
Attest:
________________________
Title: Assistant Secretary
<PAGE>
[FORM OF TRUSTEE'S
AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein designated,
described or provided for in the within-mentioned mortgage.
BANK OF MONTREAL TRUST COMPANY,
as Trustee,
By: __________________________
Authorized Signature
LEGEND
Unless and until this bond is exchanged in whole or in part for
certificated bonds registered in the names of the various beneficial
holders hereof as then certified to the Trustee by The Depository Trust
Company or its successor (the "Depositary"), this bond may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative
of the Depositary to the Company or its agent for registration of
transfer, exchange or payment, and any certificate to be issued is
registered in the name of Cede & Co., or such other name as requested
by an authorized representative of the Depositary and any amount payable
thereunder is made payable to Cede & Co., or such other name, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered in the
names of the various beneficial owners hereof if (a) the Depositary is
at any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the
Company elects to issue certificated bonds to beneficial owners (as
certified to the Company by the Depositary).
Exhibit 4(b)
GENERAL AND REFUNDING MORTGAGE BOND
8% Series due March 1, 2006
(See legend at the end of this bond for
restrictions on transferability and change of form)
CUSIP No. 647770 AR 7
$40,000,000
No. R-1
NEW ORLEANS PUBLIC SERVICE INC., a corporation duly
organized and existing under the laws of the State of Louisiana
(hereinafter called the Company), for value received, hereby
promises to pay to Cede & Co., or registered assigns, at the
office or agency of the Company in The City of New York, New
York, the principal sum of Forty Million Dollars ($40,000,000) on
March 1, 2006, in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay in like manner to the registered owner
hereof interest thereon from March 26, 1996, if the date of this
bond is prior to September 1, 1996, or, if the date of this bond
is on or after September 1, 1996, from the September 1 or March 1
next preceding the date of this bond to which interest has been
paid (unless the date hereof is an interest payment date to which
interest has been paid, in which case from the date hereof), at
the rate of eight per centum (8%) per annum in like coin or
currency on March 1 and September 1 in each year and at maturity
until the principal of this bond shall have become due and been
duly paid or provided for, and to pay interest (before and after
judgment) on any overdue principal, premium, if any, and (to the
extent permitted by law) on any overdue interest at the rate of
nine (9%) per annum. Interest on this bond shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
Interest on this bond in respect of a portion of a month shall be
calculated based on the actual number of days elapsed.
The interest so payable on any interest payment date will,
subject to certain exceptions provided in the Mortgage
hereinafter referred to, be paid to the person in whose name this
bond is registered at the close of business on the day (whether
or not a business day) immediately preceding such interest
payment date. At the option of the Company, interest may be paid
by check mailed on or prior to such interest payment date to the
address of the person entitled thereto as such address shall
appear on the register of the Company.
This bond shall not become obligatory until Bank of Montreal
Trust Company, the Trustee under the Mortgage, or its successor
thereunder, shall have signed the form of authentication
certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, 8% Series due March
1, 2006 (herein called bonds of the Ninth Series), all bonds of
all series issued under and equally secured by a Mortgage and
Deed of Trust (herein, together with any indenture supplemental
thereto, called the Mortgage), dated as of May 1, 1987, duly
executed by the Company to Bank of Montreal Trust Company and Z.
George Klodnicki (Mark F. McLaughlin, successor), as Trustees.
Reference is made to the Mortgage for a description of the
mortgaged and pledged property, assets and rights, the nature and
extent of the lien and security, the respective rights,
limitations of rights, covenants, obligations, duties and
immunities thereunder of the Company, the holders of bonds and
the Trustees and the terms and conditions upon which the bonds
are, and are to be, secured, the circumstances under which
additional bonds may be issued and the definition of certain
terms herein used, to all of which, by its acceptance of this
bond, the holder of this bond agrees.
The principal hereof may be declared or may become due prior
to the maturity date hereinbefore named on the conditions, in the
manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions, such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company and
the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the Ninth Series and/or the terms and provisions
of the Mortgage may be modified or altered by such affirmative
vote or votes of the holders of bonds then Outstanding as are
specified in the Mortgage.
Any consent or waiver by the holder of this bond (unless
effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of this
bond or of the Mortgage shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this bond in
the manner, at the respective times, at the rate and in the
currency herein prescribed.
The bonds are issuable as registered bonds without coupons
in the denominations of $1,000 and integral multiples thereof.
At the office or agency to be maintained by the Company in The
City of New York, New York, and in the manner and subject to the
provisions of the Mortgage, bonds may be exchanged for a like
aggregate principal amount of bonds of other authorized
denominations, without payment of any charge other than a sum
sufficient to reimburse the Company for any tax or other
governmental charge incident thereto. This bond is transferable
as prescribed in the Mortgage by the registered owner hereof in
person, or by his duly authorized attorney, at the office or
agency of the Company in The City of New York, New York, upon
surrender of this bond, and upon payment, if the Company shall
require it, of the transfer charges provided for in the Mortgage,
and, thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the transferee in
exchange hereof as provided in the Mortgage. The Company and the
Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
This bond is redeemable at the option of the Company under
certain circumstances in the manner and at such redemption prices
as are provided in the Mortgage. This bond is also redeemable at
the option of the owner upon the events, in the manner and at
such redemption prices as are specified in the Mortgage.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder,
officer or director of the Company or of any predecessor or
successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any
rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors being released
by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
As provided in the Mortgage, this bond shall be governed by
and construed in accordance with the laws of the State of New
York.
IN WITNESS WHEREOF, New Orleans Public Service Inc. has
caused this bond to be signed in its corporate name by its
Chairman of the Board, Chief Executive Officer, President or one
of its Vice Presidents by his signature or a facsimile thereof,
and its corporate seal to be impressed or imprinted hereon and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
March 26, 1996
NEW ORLEANS PUBLIC SERVICE INC.
BY: _________________________
William J. Regan, Jr.
Vice President and Treasurer
Attest:
________________________
Title: Assistant Secretary
<PAGE>
[FORM OF TRUSTEE'S
AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein designated,
described or provided for in the within-mentioned mortgage.
BANK OF MONTREAL TRUST COMPANY,
as Trustee,
By: __________________________
Authorized Signature
LEGEND
Unless and until this bond is exchanged in whole or in part for
certificated bonds registered in the names of the various beneficial
holders hereof as then certified to the Trustee by The Depository Trust
Company or its successor (the "Depositary"), this bond may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative
of the Depositary to the Company or its agent for registration of
transfer, exchange or payment, and any certificate to be issued is
registered in the name of Cede & Co., or such other name as requested
by an authorized representative of the Depositary and any amount payable
thereunder is made payable to Cede & Co., or such other name, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered in the
names of the various beneficial owners hereof if (a) the Depositary is
at any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the
Company elects to issue certificated bonds to beneficial owners (as
certified to the Company by the Depositary).
