Exhibit 1
NEW ORLEANS PUBLIC SERVICE INC.
$30,000,000
General and Refunding Mortgage Bonds
8.67% Series due April 1, 2005
UNDERWRITING AGREEMENT
April 20, 1995
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
The undersigned, New Orleans Public Service Inc., a
Louisiana corporation (the "Company"), proposes to issue and sell
to you, as Underwriter, an aggregate of $30,000,000 principal
amount of the Company's General and Refunding Mortgage Bonds,
8.67% Series due April 1, 2005 (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 you, and you shall purchase from the Company,
at the time and place herein specified, the Bonds at 99.35% of
the principal amount of the Bonds plus accrued interest thereon
from April 1, 1995, to the Closing Date (as defined herein).
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, and Mark F. McLaughlin (successor
to Z. George Klodnicki), as Co-Trustee (the Co-Trustee, together
with the Corporate Trustee, are hereinafter called the
"Trustees"), as supplemented and as the same shall be further
supplemented by the Fifth Supplemental Indenture, dated as of
April 1, 1995 (the "Supplemental Indenture"). Said Mortgage and
Deed of Trust, as supplemented and as the same shall be further
supplemented by the Supplemental Indenture, is hereinafter
referred to as the "Mortgage". The Bonds and the Supplemental
Indenture shall have the terms and provisions described in the
Prospectus hereinafter referred to, provided that subsequent to
the date hereof and prior to the Closing Date the form of the
Supplemental Indenture may be amended by mutual agreement between
the Company and you.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to you 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 which it is described in
the Prospectus (hereinafter defined) as conducting and to
own and operate the properties owned and operated by it in
such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a Registration
Statement (as defined below) on Form S-3 (File No. 33-57926)
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 Registration Statement has become effective. The
prospectus forming a part of the Registration Statement at
the time the Registration Statement became effective,
including all documents incorporated by reference therein at
that time pursuant to Item 12 of Form S-3, is hereinafter
referred to as the "Basic Prospectus". In the event that
the Basic Prospectus shall have been amended, revised or
supplemented (but excluding any amendments, revisions or
supplements to the Basic Prospectus relating solely to
General and Refunding Mortgage Bonds other than the Bonds)
prior to the time of effectiveness of this Underwriting
Agreement, and with respect to any documents filed by the
Company pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the time the Registration Statement became
effective and up to the time of effectiveness of this
Underwriting Agreement (but excluding documents incorporated
therein by reference relating solely to General and
Refunding Mortgage Bonds other than the Bonds), which
documents are deemed to be incorporated by reference in the
Basic Prospectus, the term "Basic Prospectus" as used herein
shall also mean such prospectus as so amended, revised or
supplemented. The Registration Statement in the form in
which it became effective and as it may have been amended by
any amendment thereto included in the Basic Prospectus
(including for these purposes as an amendment any document
incorporated by reference in the Basic Prospectus), and the
Basic Prospectus as it shall be supplemented to reflect the
terms of offering and sale of the Bonds by a prospectus
supplement (a "Prospectus Supplement") to be filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 under the Securities Act ("Rule 424"), are hereinafter
referred to as the "Registration Statement" and the
"Prospectus," respectively.
(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
Registration Statement (except any amendment relating solely
to General and Refunding Mortgage Bonds other than the
Bonds) or supplement to the Prospectus 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
(including the Prospectus Supplement) to, the Basic
Prospectus, in either case, without prior notice to you and
to Winthrop, Stimson, Putnam & Roberts ("Counsel for the
Underwriter"), and (iii) within either of the time periods
specified in clauses (i) or (ii), the Company will not file
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 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 Registration Statement, in the form in which
it became effective, and the Mortgage, at such effective
time, fully complied, and the Prospectus, when filed with,
or transmitted for filing to, the Commission pursuant to
Rule 424 and at the Closing Date (hereinafter defined), as
it may then be amended or supplemented, will fully comply,
in all material respects with the applicable provisions of
the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder or pursuant to said
rules and regulations are or will be deemed to comply
therewith. The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, on the date such
documents were first filed with the Commission pursuant to
the Exchange Act, fully complied or will fully comply in all
material respects with the applicable provisions of the
Exchange Act and the rules and regulations of the Commission
thereunder or pursuant to said rules and regulations are or
will be deemed to comply therewith. On the later of (i) the
date the Registration Statement was declared effective by
the Commission under the Securities Act or (ii) the date
that the Company's most recent Annual Report on Form 10-K
was filed with the Commission under the Exchange Act (the
date described in either clause (i) or (ii) is hereinafter
referred to as the "Effective Date"), the Registration
Statement did not, and on the date that any post-effective
amendment to 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 Registration Statement, as
amended by any such post-effective amendment, did not or
will not, as the case may be, contain an untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading. At the time the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant
to Rule 424 and at the Closing Date, the Prospectus as it
may be amended or supplemented will not include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made,
not misleading, and on said dates and at such times the
documents then incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, when read together with the
Prospectus, or the Prospectus as it may then be amended or
supplemented, will not include an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
are made, not misleading. The foregoing representations and
warranties in this paragraph (c) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by you or on your behalf specifically for use in connection
with the preparation of the Registration Statement or the
Prospectus, as they may be amended or supplemented, or to
any statements in, or omissions from, the statements of
eligibility, as either may be amended, under the Trust
Indenture Act, of the Trustees under the Mortgage.
(d) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any term or provision of, or
constitute a default under, the Mortgage or any other
financing agreement or instrument to which the Company is
now a party.
(e) Except as set forth or contemplated in the
Prospectus as it may be amended or supplemented, the Company
possesses adequate franchises, licenses, permits, and other
rights to conduct its business and operations as now
conducted, without any known conflicts with the rights of
others which could have a material adverse effect on the
Company.
SECTION 4. Offering. The Company is advised by you
that you propose to make a public offering of the Bonds as soon
after the time of effectiveness of this Underwriting Agreement as
in your judgment is advisable. The Company is further advised by
you that the Bonds will be offered to the public at the initial
public offering price specified in the Prospectus Supplement plus
accrued interest thereon from April 1, 1995 to 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 April 27, 1995, or at such other
time on the same or such other day as shall be agreed upon by the
Company and you. The hour and date of such delivery and payment
are herein called the "Closing Date".
The Bonds shall be delivered to you 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 you
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 between you and the Company, or at such other time
and/or date as may be agreed upon between you and the Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with you that:
(a) Not later than the Closing Date, the Company will
deliver to you a copy of the Registration Statement, as
originally filed with the Commission, and of all amendments
thereto relating to the Bonds, certified by an officer of
the Company to be in the form filed.
(b) The Company will deliver to you as many copies of
the Prospectus (and any amendments or supplements thereto)
as you 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 you
promptly of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the
Company shall have received notice. The Company will use
its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement shall have become effective as you are required by
law to deliver a prospectus, if any event relating to or
affecting the Company, or of which the Company shall be
advised by you in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchaser of the Bonds, the Company will
amend or supplement, or cause to be amended or supplemented,
the Prospectus by either (i) preparing and filing with the
Commission and furnishing to you 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 include an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading. Unless such event relates solely
to your activities (in which case you 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
date of the Prospectus, and such expenses shall be borne by
you thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner, so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act
and Rule 158 promulgated under the Securities Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required and otherwise will cooperate in qualifying
the Bonds for offer and sale under the "blue sky" laws of
such jurisdictions as you may reasonably designate, provided
that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, to file any
consents to service of process under the laws of any
jurisdiction, or to meet any other requirements deemed by it
to be unduly burdensome.
(g) The Company will, except as herein provided, pay
or cause to be paid all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and filing of
the Registration Statement and any post-effective amendments
thereto, (ii) the printing, issuance and delivery of the
Bonds and the preparation, execution, printing and
recordation of the Supplemental Indenture, (iii) legal fees
and expenses relating to the qualification of the Bonds
under the "blue sky" laws of various jurisdictions and the
determination of the eligibility of the Bonds for investment
under the laws of various jurisdictions in an amount not to
exceed $3,500, (iv) the printing and delivery to you of
reasonable quantities of copies of the Registration
Statement, the Preliminary (and any Supplemental) Blue Sky
Survey and the Prospectus and any amendment or supplement
thereto, except as otherwise provided in paragraph (d) of
this Section 6, (v) fees of the rating agencies in
connection with the rating of the Bonds, and (vi) fees (if
any) of the National Association of Securities Dealers, Inc.
in connection with its review of the terms of the offering.
Except as provided above, the Company shall not be required
to pay any amount for any of your expenses, except that, if
this Underwriting Agreement shall be terminated in
accordance with the provisions of Section 7, 8 or 11, the
Company will reimburse you for (i) the fees and expenses of
Counsel for the Underwriter, whose fees and expenses you
agree to pay in any other event, and (ii) reasonable
out-of-pocket expenses, in an amount not exceeding in the
aggregate $15,000, incurred in contemplation of the
performance of this Underwriting Agreement. The Company
shall not in any event be liable to you for damages on
account of loss of anticipated profits.
(h) The Company will not sell any additional General
and Refunding Mortgage Bonds without your consent until the
earlier to occur of (i) the Closing Date or (ii) the date of
the termination of the fixed price offering restrictions
applicable to you. You agree to notify the Company of such
termination if it occurs prior to the Closing Date.
(i) As soon as practicable after the Closing Date, the
Company will make all recordings, registrations and filings
necessary to perfect and preserve the lien of the Mortgage
and the rights under the Supplemental Indenture, and the
Company will use its best efforts to cause to be furnished
to you a supplemental opinion of counsel for the Company,
addressed to you, stating that all such recordings,
registrations and filings have been made.
SECTION 7. Conditions of Underwriter's Obligations.
Your obligations to purchase and pay for the Bonds shall be
subject to the accuracy on the date hereof and on the Closing
Date of the representations and warranties made herein on the
part of the Company and of any certificates furnished by the
Company and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and you.
(b) No stop order suspending the effectiveness of 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 your knowledge or the knowledge of
the Company, threatened by, the Commission on the Closing
Date; and you shall have received a certificate of the
Company, dated the Closing Date and signed by the President
or a Vice President of the Company, to the effect that no
such stop order has been or is in effect and that no
proceedings for such purpose are pending before, or, to the
knowledge of the Company, threatened by, the Commission.
(c) Prior to 6:00 P.M., New York time, on the second
business day after the effective date of the Underwriting
Agreement, or at such later time and date as may be approved
by you, 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 of the City of New Orleans,
Louisiana, authorizing the issuance and sale of the Bonds.
(d) At the Closing Date, you shall have received from
Monroe & Lemann (A Professional Corporation) and Reid &
Priest LLP, each counsel to the Company, 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 you with
the approval of Counsel for the Underwriter, and (ii) if the
Prospectus shall be supplemented after being furnished to
you for use in offering the Bonds, with changes therein to
reflect such supplementation.
(e) At the Closing Date, you shall have received from
Counsel for the Underwriter, 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, you 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 you to the effect that (i) they are
independent certified public accountants with respect to the
Company, within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii)
in their opinion, the financial statements and financial
statement schedules audited by them and included or
incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act, and
the related published rules and regulations thereunder;
(iii) 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,
and the stockholder(s) of the Company, since December 31,
1994 to a specified date not more than five days prior to
the date of such letter or letters, and inquiries of
officers of the Company who have responsibility for
financial and accounting matters (it being understood that
the foregoing procedures do not constitute an examination
made in accordance with generally accepted auditing
standards and that they would not necessarily reveal matters
of significance with respect to the comments made in such
letter and, accordingly, that the Accountants make no
representations as to the sufficiency of such procedures for
your purposes), nothing has come to their attention which
caused them to believe that, to the extent applicable, (A)
unaudited financial statements of the Company included or
incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder; (B) any material
modifications should be made to said unaudited financial
statements for them to be in conformity with generally
accepted accounting principles; and (C) at a specified date
not more than five business days prior to the date of the
letter, there was any change in the capital stock or
long-term debt of the Company, or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur,
for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or
purchase of preferred stock for sinking fund purposes, for
any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial
development revenue bonds, or for changes or decreases as
set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they
have compared specific dollar amounts, percentages of
revenues and earnings and other financial information
pertaining to the Company set forth in the Prospectus and
specified in Exhibit D hereto to the extent that such
amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, you shall have received a
certificate of the Company, dated the Closing Date and
signed by the President or a Vice President of the Company,
to the effect that (i) the representations and warranties of
the Company contained herein are true and correct, (ii) the
Company has performed and complied with all agreements and
conditions in this Underwriting Agreement to be performed or
complied with by the Company at or prior to the Closing
Date, and (iii) since the most recent date as of which
information is given in the Prospectus, as it may be amended
or supplemented, there has not been any material adverse
change in the business, property or financial condition of
the Company, and there has not been any material transaction
entered into by the Company, other than transactions in the
ordinary course of business, in each case other than as
referred to in, or contemplated by, such Prospectus, as it
may be amended or supplemented.
(h) At the Closing Date, you shall have received duly
executed counterparts of the Supplemental Indenture.
(i) At the Closing Date, you shall have received from
the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five business days
prior to the Closing Date, the statements contained in the
letter delivered pursuant to Section 7(f) hereof.
(j) At the Closing Date, you shall have received from
Deloitte & Touche LLP a letter, dated the Closing Date, with
respect to certain financial information contained in the
Prospectus, as mutually agreed to by you and the Company.
(k) 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.
(l) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard and
Poor's Ratings Group shall have lowered its rating of the
Company's outstanding General and Refunding Mortgage Bonds
or First Mortgage Bonds in any respect.
(m) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, which, in your reasonable opinion,
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 Underwriter.
(o) The Company will furnish you with additional
conformed copies of such opinions, certificates, letters and
documents as you may reasonably request.
If any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by you upon notice thereof to the Company. Any such
termination shall be without liability of any party to any other
party, except as otherwise provided in paragraph (g) of Section 6
and in Section 10.
SECTION 8. Conditions of the Company's Obligations.
The obligations of the Company hereunder shall be subject to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date determined by the
Company and approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the
Closing Date.
(c) Prior to 6:00 P.M., New York time, on the second
business day after the effective date of the Underwriting
Agreement, or at such later time and date as may be approved
by you, 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 of the City of New Orleans,
Louisiana, authorizing the issuance and sale of the Bonds.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to you, provided
that, in the case of paragraph (a) above, the Company shall have
used its best efforts to comply with the requirements of Rule
424(b). Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless you and each person who controls you 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 you or any of them may
become subject under the Securities Act or any other statute or
common law and shall reimburse you 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
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424), or the Prospectus, as amended
or supplemented (if any amendments or supplements thereto shall
have been made), or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished herein or in writing to the Company by you specifically
for use in connection with the preparation of the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424) or the Registration Statement or the Prospectus or any
amendment or supplement to any thereof or arising out of, or
based upon, statements in or omissions from that part of the
Registration Statement which shall constitute the statements of
eligibility under the Trust Indenture Act of the Trustees; and
provided further, that the indemnity agreement contained in this
subsection shall not inure to your benefit or to the benefit of
any person controlling you on account of any such losses, claims,
damages, liabilities, expenses or actions arising from the sale
of Bonds to any person in respect of the Basic Prospectus or the
Prospectus, as supplemented or amended furnished by you 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 pursuant to Item 12 of Form S-
3), insofar as such indemnity relates to any untrue or misleading
statement or omission made in the Basic Prospectus or the
Prospectus but eliminated or remedied prior to the consummation
of such sale in the Prospectus, or any amendment or supplement
thereto furnished pursuant to Section 6(d) hereof, respectively,
unless a copy of the Prospectus (in the case of such a statement
or omission made in the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating to any General and Refunding
Mortgage Bonds other than the Bonds and any document incorporated
or deemed incorporated by reference in the Prospectus or such
amendment or supplement) is furnished by you to such person (i)
with or prior to the written confirmation of the sale involved or
(ii) as soon as available after such written confirmation.
(b) You shall indemnify, defend and hold harmless the
Company, its directors and officers and each person who controls
any of the foregoing within the meaning of Section 15 of the
Securities Act and 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 Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact necessary to make the statements therein
not misleading, or upon an untrue statement or alleged untrue
statement of a material fact contained in, the Basic Prospectus
(if used prior to the date the Prospectus is filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b)), or the Prospectus, as amended or supplemented (if any
amendments or supplements thereto shall have been furnished), or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, in each case, if (but only if) such
statement or omission was made in reliance upon and in conformity
with information furnished herein or in writing to the Company by
you specifically for use in connection with the preparation of
the Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424(b)) or of the Registration Statement or the
Prospectus or any amendment or supplement thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party or parties in respect of which indemnity may be sought
pursuant to any of the preceding paragraphs, such party or
parties (hereinafter called the indemnified party) shall promptly
notify the party or parties against whom indemnity shall be
sought hereunder (hereinafter called the indemnifying party) in
writing, and the indemnifying party shall have the right to
participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying
party) the defense thereof, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment
of all fees and expenses. If the indemnifying party shall elect
not to assume the defense of any such action, the indemnifying
party shall reimburse the indemnified party for the reasonable
fees and expenses of any counsel retained by such indemnified
party. Such indemnified party shall have the right to employ
separate counsel in any such action in which the defense has been
assumed by the indemnifying party and participate in the defense
thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the employment
of counsel has been specifically authorized by the indemnifying
party or (ii) the named parties to any such action (including any
impleaded parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and you 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 you 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 you 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 you, 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 you 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 you and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and you 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), you
shall not be required to contribute any amount in excess of the
amount by which the total price at which the Bonds underwritten
by you and distributed to the public were offered to the public
exceeds the amount of any damages which you have 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.
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 your behalf 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. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from you 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 your judgment, 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 your reasonable judgment, impracticable to market
the Bonds. This Underwriting Agreement shall also be subject to
termination, upon notice by you as provided above, if, in your
judgment, 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 your activity 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 11, 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 12. Miscellaneous. THIS UNDERWRITING
AGREEMENT SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND
INTERPRETATION SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. This Underwriting Agreement may be executed in any number
of separate counterparts, each of which, when so executed and
delivered, shall be deemed to be an original and all of which,
taken together, shall constitute but one and the same agreement.
This Underwriting Agreement shall become effective at the time a
fully-executed copy thereof is delivered to the Company and to
you. This Underwriting Agreement shall inure to the benefit of
each of the Company, you 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 you.
SECTION 13. Notices. All communications hereunder
shall be in writing and, if to you, shall be mailed or delivered
to you to the attention of your General Counsel at the address
set forth at the beginning of this Underwriting Agreement or, if
to the Company, shall be mailed or delivered to it at 639 Loyola
Avenue, New Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
NEW ORLEANS PUBLIC SERVICE INC.
By:/s/ Lee W. Randall
Name: Lee W. Randall
Title: Vice President
Accepted as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
By:/s/ Bradford Hart
Name: Bradford Hart
Title: Vice President
EXHIBIT A
[Letterhead of Monroe & Lemann]
April __, 1995
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
We are counsel for New Orleans Public Service Inc. (the
"Company") and have acted in that capacity in connection with the
issuance and sale by the Company to you, pursuant to the
agreement effective April __, 1995 (the "Underwriting
Agreement"), between the Company and you, of $30,000,000 in
aggregate principal amount of its General and Refunding Mortgage
Bonds, ____% Series due April 1, 2005 (the "Bonds"), issued
pursuant to the Company's Mortgage and Deed of Trust, dated as of
May 1, 1987, as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the Fifth Supplemental Indenture (the "Supplemental Indenture")
dated as of April 1, 1995 (the Mortgage and Deed of Trust as so
amended and supplemented being hereinafter referred to as the
"Mortgage"). This opinion is rendered to you at the request of
the Company.
We are familiar with the organization of the Company,
the Restatement of Articles of Incorporation and By-Laws of the
Company, both as amended, and the records of various corporate
and other proceedings relating to the authorization, issuance and
sale of the Bonds. We have participated in the preparation of or
have examined and are familiar with (a) the Mortgage; (b) the
Underwriting Agreement; (c) the Registration Statement and the
Prospectus filed under the Securities Act; and (d) the
application or applications made to the Council of the City of
New Orleans, Louisiana, in connection with the issuance and sale
of the Bonds (the "Application").
We have examined the order of the Commission (or
appropriate evidence thereof) relating to the effectiveness of
the Registration Statement, the qualification of the Mortgage
under the Trust Indenture Act and the Application. We have also
examined such other documents and satisfied ourselves as to such
other matters as we have deemed necessary in order to render this
opinion. In such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies. We
have not examined the Bonds, except a specimen thereof, and we
have relied upon a certificate of Bank of Montreal Trust Company
as to the authentication and delivery thereof. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
Upon the basis of our familiarity with the foregoing
and with the Company's properties and affairs generally, and
subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Company is a corporation duly organized
and validly existing under the laws of the State of
Louisiana.
(2) The Company is duly authorized by its
Restatement of Articles of Incorporation, as amended, to
conduct the utility business which it is described in the
Prospectus as conducting, and possesses adequate, valid and
subsisting franchises, certificates of public convenience
and necessity, licenses and permits in order to, and is duly
qualified to, conduct such business in the State of
Louisiana.
(3) The Company has good and sufficient title to
the properties described as owned by it in and as subject to
the lien of the Mortgage (except properties released under
the terms of the Mortgage), subject only to Excepted
Encumbrances as defined in the Mortgage and to minor defects
and encumbrances customarily found in properties of like
size and character that do not 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; subject to
paragraph (4) 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.
(4) 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 (3) hereof.
(5) The Mortgage has been duly and validly
authorized by all necessary corporate action on the part of
the Company, has been duly and validly executed and
delivered by the Company, is a legal, valid and binding
instrument enforceable against the Company in accordance
with its terms, except (i) as the same may be limited by the
laws of the 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 our opinion, make inadequate remedies
necessary for the realization of the benefits of such
security, and (ii) as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and is qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(6) The Bonds are legal, valid and binding
obligations of the Company enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and are entitled to the benefit of the
security afforded by the Mortgage.
(7) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the
New G&R Bonds" and "Description of the New Bonds,"
respectively, insofar as they purport to constitute
summaries of the documents referred to therein, or of the
benefits purported to be afforded by such documents
(including, without limitation, the lien of the Mortgage),
constitute accurate summaries of the terms of such documents
and of such benefits in all material respects.
(8) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(9) Except as to the financial statements and
other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the
Registration Statement, at the time it became effective, and
the Prospectus, at the time first filed with the Commission
pursuant to Rule 424 under the Securities Act, complied as
to form in all material respects with the applicable
requirements of the Securities Act and (except with respect
to the parts of the Registration Statement that constitute
the statements of eligibility of the Trustees, upon which we
are not passing) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with
respect to the documents or portions thereof filed with the
Commission pursuant to the Exchange Act, and incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date first filed
with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act,
and the applicable instructions, rules and regulations of
the Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
Registration Statement has become and is effective under the
Securities Act; and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
(10) An appropriate resolution or resolutions
have been entered by the Council of the City of New Orleans,
Louisiana, authorizing the issuance and sale of the Bonds;
to the best of our knowledge, said resolution or resolutions
are in full force and effect and are not subject to any
pending appeal or request for rehearing or reconsideration;
such resolution or resolutions are sufficient to authorize
the issuance and sale of the Bonds by the Company pursuant
to the Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental
body (other than in connection or compliance with the
provisions of the securities or "blue sky" laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Bonds by the Company pursuant to the
Underwriting Agreement.
(11) The issuance and sale by the Company of the
Bonds and the execution, delivery and performance by the
Company of the Underwriting Agreement and the Mortgage (a)
will not violate any provision of the Company's Restatement
of Articles of Incorporation or By-laws, each as amended,
(b) will not violate any provisions of, or constitute a
default under, or result in the creation or imposition of
any lien, charge or encumbrance on or security interest in
(except as contemplated by the Mortgage) any of the assets
of the Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
us (having made due inquiry with respect thereto) to which
the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not
violate any provision of any Louisiana law or regulation
applicable to the Company (other than the Louisiana
securities or "blue sky" laws, upon which we are not
passing) or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order,
writ, judgment or decree of any governmental instrumentality
applicable to the Company.
In passing upon the forms of the 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
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in Paragraph 7 above. In connection with
the preparation by the Company of the Registration Statement and
the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, with the independent certified public accountants of
the Company who audited or reviewed the financial statements
included or incorporated by reference in the Registration
Statement, and with your representatives. Our review of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with the Commission pursuant
to Rule 424 under the Securities Act and at the date hereof,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus, as to the parts of the
Registration Statement that constitute the statements of
eligibility of the Trustees or as to the information contained in
the Prospectus Supplement under the caption "Description of the
New Bonds - Book-Entry G&R Bonds".
We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct. We have also examined the opinions of
even date herewith rendered to you by Reid & Priest LLP and
Winthrop, Stimson, Putnam & Roberts, and we concur in the
conclusions expressed therein insofar as they involve questions
of Louisiana law.
We are members of the Louisiana Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of New York law, we 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 addressee of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder, it is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Bonds, 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 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,
MONROE & LEMANN
EXHIBIT B
[Letterhead of Reid & Priest LLP]
April __, 1995
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
With reference to the issuance and sale by New Orleans
Public Service Inc. (the "Company") to you, pursuant to the
agreement effective April __, 1995 (the "Underwriting
Agreement"), between the Company and you, of $30,000,000 in
aggregate principal amount of its General and Refunding Mortgage
Bonds, ____% Series due April 1, 2005 (the "Bonds"), issued under
the Company's Mortgage and Deed of Trust, dated as of May 1,
1987, as heretofore amended and supplemented by all indentures
amendatory thereof and supplemental thereto, including the Fifth
Supplemental Indenture dated as of April 1, 1995 (the Mortgage
and Deed of Trust as so supplemented being hereinafter called the
"Mortgage"), we advise you that we are of counsel to the Company
and in that capacity have participated in the preparation of or
have examined and are familiar with (1) the Mortgage; (2) the
Registration Statement and the Prospectus filed under the
Securities Act; and (3) the Underwriting Agreement. This opinion
is rendered to you at the request of the Company.
We have participated in the preparation of or reviewed
the corporate proceedings with respect to the issuance and sale
of the Bonds. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed
necessary to enable us to render this opinion. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
and the conformity to originals of the documents submitted to us
as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a
certificate of Bank of Montreal Trust Company as to the
authentication and delivery thereof. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
Based upon the foregoing, and subject to the foregoing
and to the further exceptions and qualifications set forth below,
we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except (i) as the same may
be limited by the laws of the 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 afforded by the Mortgage.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
G&R Bonds" and "Description of the New Bonds," respectively,
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 Registration
Statement, at the time it became effective, and the Prospectus,
at the time first filed with the Commission pursuant to Rule 424
under the Securities Act, complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the parts of the Registration
Statement that constitute the statements of eligibility of the
Trustees, upon which we are not passing) the Trust Indenture Act,
and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and is effective
under the Securities Act; and, to the best of our knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop order
with respect thereto are pending or threatened under Section 8(d)
of the Securities Act.
(6) An appropriate resolution or resolutions have been
entered by the Council of the City of New Orleans, Louisiana,
authorizing the issuance and sale of the Bonds; to the best of
our knowledge, said resolution or resolutions are in full force
and effect; such resolution or resolutions are sufficient to
authorize the issuance and sale of the Bonds by the Company
pursuant to the Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental body
(other than in connection or compliance with the provisions of
the securities or "blue sky" laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Company pursuant to the Underwriting Agreement.
In passing upon the forms of the 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
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 Registration Statement and
the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, with the independent certified public accountants of
the Company who audited or reviewed the financial statements
included or incorporated by reference in the Registration
Statement, and with your representatives. Our review of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with the Commission pursuant
to Rule 424 under the Securities Act and at the date hereof,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the parts of the Registration Statement that constitute the
statements of eligibility of the Trustees or as to the
information contained in the Prospectus Supplement under the
caption "Description of the New Bonds - Book-Entry G&R Bonds".
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Louisiana law, we have relied upon the opinion of
even date herewith addressed to you by Monroe & Lemann (A
Professional Corporation), of New Orleans, Louisiana, 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 addressee of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder, it is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Bonds, 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 Monroe &
Lemann, may rely on this opinion as to all matters of New York
law in rendering its opinion required to be delivered under the
Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
April __, 1995
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
We have acted as counsel for you as the underwriter of
$30,000,000 in aggregate principal amount of General and
Refunding Mortgage Bonds, ____% Series due April 1, 2005 (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, as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the Fifth Supplemental Indenture dated as of April 1, 1995 (said
Mortgage and Deed of Trust as so amended and supplemented being
hereinafter referred to as the "Mortgage"), pursuant to the
agreement between you and the Company effective April __, 1995
(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 Monroe & Lemann
(A Professional Corporation), of New Orleans, Louisiana, 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 Registration
Statement. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to
us as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies. We
have not examined the Bonds, except a specimen thereof, and we
have relied upon a certificate of Bank of Montreal Trust Company
as to the authentication and delivery thereof. We have not
examined into, and are expressing no opinion or belief as to
matters relating to, incorporation of the Company, titles to
property, franchises or the lien of the Mortgage. Capitalized
terms used herein and not otherwise defined have the meanings
ascribed to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except (i) as the same may
be limited by the laws of the 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
G&R Bonds" and "Description of the New Bonds," respectively,
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 or resolutions have been
entered by the Council of the City of New Orleans, Louisiana,
authorizing the issuance and sale of the Bonds; to the best of
our knowledge, said resolution or resolutions are in full force
and effect; such resolution or resolutions are sufficient to
authorize the issuance and sale of the Bonds by the Company
pursuant to the Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental body
(other than in connection or compliance with the provisions of
the securities or "blue sky" laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Company pursuant to the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time first filed with the Commission pursuant to Rule 424
under the Securities Act, complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the parts of the Registration
Statement that constitute the statements of eligibility of the
Trustees, upon which we are not passing) the Trust Indenture Act,
and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and is effective
under the Securities Act; and, to the best of our knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop order
with respect thereto are pending or threatened under Section 8(d)
of the Securities Act.
In passing upon the forms of the 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
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 Registration Statement and
the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with counsel for the
Company, with the independent certified public accountants of the
Company who audited or reviewed the financial statements included
or incorporated by reference in the Registration Statement, and
with your representatives. Our review of the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information that gives us reason to believe that the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with the Commission pursuant to Rule 424
under the Securities Act and at the date hereof, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus, as to the parts of the
Registration Statement that constitute the statements of
eligibility of the Trustees or as to the information contained in
the Prospectus Supplement under the caption "Description of the
New Bonds - Book-Entry G&R Bonds".
This opinion is solely for the benefit of the addressee
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
EXHIBIT D
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
FORM 10-K FOR THE YEAR
ENDED DECEMBER 31,
1994:
MANAGEMENT'S FINANCIAL 285 The amount of additional G&R Bonds
DISCUSSION AND or additional preferred stock
ANALYSIS--LIQUIDITY issuable by the Company as of
AND CAPITAL RESOURCES- December 31, 1994 based upon the
- -NOPSI most restrictive applicable tests
and assuming an annual interest or
dividend rate of 9.25%.
SELECTED FINANCIAL 308 The amounts of operating revenues
DATA--FIVE YEAR by source for 1994.
COMPARISON--NOPSI