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 New Orleans
Public Service Inc.'s Mortgage and
Deed of Trust, dated as of May 1, 1987
FIFTH SUPPLEMENTAL INDENTURE
Providing among other things for
General and Refunding Mortgage Bonds,
8.67% Series due April 1, 2005
(Eighth Series)
Dated as of April 1, 1995
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, dated as of April 1, 1995,
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 and its Fourth Supplemental
Indenture dated as of September 1, 1993, 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 Fifth
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 $45,000,000
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
; 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 Fifth
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 FIFTH 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
Fifth 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 Fifth 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 Fifth
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 Fifth 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 Fifth Supplemental Indenture, and the words "herein",
"hereof", "hereby", "hereunder" and words of similar import refer
to this Fifth 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 EIGHTH SERIES
Section 2.01 Bonds of the Eighth Series. There shall be a
series of bonds designated 8.67% Series due April 1, 2005 (herein
sometimes referred to as "Eighth 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 Eighth Series shall be
substantially in the form of Exhibit A hereto. Bonds of the
Eighth Series shall mature on April 1, 2005, 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 Eighth Series
shall bear interest at the rate of eight and sixty-seven one-
hundredths per centum (8.67%) per annum (except as hereinafter
provided), payable semi-annually on April 1 and October 1 of each
year, and at maturity, the first interest payment to be made on
October 1, 1995 for the period from April 1, 1995 to October 1,
1995; 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 Eighth 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 Eighth Series shall bear
interest (before and after judgment) at the rate of nine and
sixty-seven one-hundredths per centum (9.67%) per annum.
Interest on the bonds of the Eighth Series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
Interest on the bonds of the Eighth 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 Eighth 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 Eighth
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 Eighth Series
shall not be redeemable prior to April 1, 1998. On and after
April 1, 1998, bonds of the Eighth 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 April 1, 1998, bonds of the Eighth 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 Eighth Series are also redeemable after
April 1, 1998 as provided in Section 4.11 of the First
Supplemental Indenture, as amended.
Bonds of the Eighth 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 Eighth 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 Eighth 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 Eighth
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 Eighth
Series.
Section 2.04 Dating of Bonds and Interest Payments. (a)
Each bond of the Eighth 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 Eighth Series dated prior
to October 1, 1995 shall bear interest from April 1, 1995; and
provided, further, that if any bond of the Eighth 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 Eighth 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 April 1, 1995,
if no interest shall have been paid on the bonds of the Eighth
Series.
(b) Notwithstanding the foregoing, bonds of the Eighth
Series shall be dated so that the person in whose name any bond
of the Eighth 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 Eighth
Series are registered on the day immediately preceding the date
of payment of such defaulted interest. Any bond of the Eighth
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
Eighth 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 Fourth Supplemental Indenture":
"shall (as to the New LP&L Bonds being exchanged
for bonds of the Eighth Series) be subject to
redemption at the option of the Company on terms
similar to those provided in the Fifth Supplemental
Indenture,"
The redemption prices for any bonds of the Eighth
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
Eighth 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 Eighth 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 Eighth 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
Eighth 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 Eighth 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 March 31, 1995 (other
than any dividend declared by the Company on or before March 31,
1995) 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 March 31,
1995, 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 March 31, 1995, 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 March 31, 1995.
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 Fifth 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 Fifth
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 Fifth
Supplemental Indenture.
Section 5.02 Effect of Fifth 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 Fifth 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 Fifth 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
Eighth 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
Eighth 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 Fifth Supplemental Indenture shall not be
deemed to be any part hereof.
Section 5.05 Counterparts. This Fifth 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 Fifth Supplemental Indenture and the
bonds of the Eighth 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: _____________________________
Lee W. Randall
Vice President
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:
_________________________________
_________________________________
STATE OF LOUISIANA )
) SS.:
PARISH OF ORLEANS )
On this 24th day of April, 1995, before me appeared LEE W.
RANDALL, to me personally known, who, being duly sworn, did say
that he is a Vice President 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 LEE W. RANDALL acknowledged said
instrument to be the free act and deed of said corporation.
On the 24th day of April, in the year 1995, before me
personally came LEE W. RANDALL, to me known, who, being by me
duly sworn, did depose and say that he resides at 170 Walnut
Street, New Orleans, Louisiana 70118; that he is a Vice President
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.
________________________________
Alan H. Katz
Notary Public
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 21st day of April, 1995, 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 April, in the year 1995, 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.
________________________________
Maureen Radigan
Notary Public, State of New York
No. 31-4971219
Qualified in New York County
Commission Expires August 27, 1996
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 21st day of April, 1995, 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 April, 1995, 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.
__________________________________
Maureen Radigan
Notary Public, State of New York
No. 31-4971219
Qualified in New York County
Commission Expires August 27, 1996
EXHIBIT A
[FORM OF BOND OF THE EIGHTH SERIES]
(See legend at the end of this bond for
restrictions on transferability and change of form)
GENERAL AND REFUNDING MORTGAGE BOND
8.67% Series due April 1, 2005
CUSIP No. _________
No. __________________ $30,000,000
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 $30,000,000 on April 1, 2005, 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 April 1, 1995, if the date of this bond is prior to
October 1, 1995, or, if the date of this bond is on or after
October 1, 1995, from the October 1 or April 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 and sixty-seven one-hundredths per centum (8.67%) per annum
in like coin or currency on April 1 and October 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 and sixty-seven one-
hundredths per centum (9.67%) 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, ____% Series due
April 1, 2005 (herein called bonds of the Eighth 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 Eighth 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.
Dated: April 27, 1995
NEW ORLEANS PUBLIC SERVICE INC.
By:
______________________________
Lee W. Randall
Vice President
Attest:
_____________________________
Title
[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).