UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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:
In the Matter of : CERTIFICATE PURSUANT TO
: RULE 24
LOUISIANA POWER & LIGHT COMPANY :
:
File No. 70-8487 :
:
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(Public Utility Holding Company Act of 1935) :
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This is to certify, pursuant to Rule 24 under the Public Utility Holding Company Act of 1935, as amended, that the transactions described below, which were proposed by Louisiana Power & Light Company ("Company") in its Application-Declaration, as amended, in the above file, have been carried out in accordance with the terms and conditions of and for the purposes represented by said Application-Declaration, as amended, and pursuant to the order of the Securities and Exchange Commission with respect thereto dated October 3, 1995.
On March 27, 1996, the Company issued and sold, by negotiated public offering, to Bear, Stearns & Co. Inc., Goldman, Sachs & Co. and Salomon Brothers Inc, as underwriters, $115,000,000 in aggregate principal amount of the Company's First Mortgage Bonds, 8 3/4% Series due March 1, 2026 ("Bonds"), issued pursuant to the Fifty-first Supplemental Indenture to the Company's Mortgage and Deed of Trust, as supplemented.
Attached hereto and incorporated by reference are:
Exhibit A-2(a) - Execution form of Fifty-first Supplemental Indenture relating to the Bonds.
Exhibit B-2(a) - Execution form of Underwriting Agreement relating to the Bonds.
Exhibit C-4(a) - Copy of the Prospectus being used in connection with the sale of the Bonds (previously filed in Registration No. 33- 50937 and incorporated herein by reference).
Exhibit F-1(b) - Post-effective opinion of Denise C.
Redmann, Senior Attorney - Corporate and
Securities of Entergy Services, Inc., counsel for the Company.
Exhibit F-3(b) - Post-effective opinion of Reid & Priest LLP, counsel for the Company.
IN WITNESS WHEREOF, Louisiana Power & Light Company has caused this certificate to be executed this 4th day of April, 1996.
LOUISIANA POWER & LIGHT COMPANY
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President
and Treasurer
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Exhibit A-2(a)
LOUISIANA POWER & LIGHT COMPANY
TO
BANK OF MONTREAL TRUST COMPANY
(successor to The Chase Manhattan Bank (National Association))
AND
MARK F. McLAUGHLIN
(successor to Z. George Klodnicki)
As Trustees under Louisiana Power & Light
Company's Mortgage and Deed of Trust,
dated as of April 1, 1944
Fifty-first Supplemental Indenture
Providing among other things for
First Mortgage Bonds, 8_% Series due March 1, 2026
(Fifty-seventh Series)
Dated as of March 1, 1996
FIFTY-FIRST SUPPLEMENTAL INDENTURE
INDENTURE, dated as of March 1, 1996, between LOUISIANA POWER & LIGHT COMPANY, a corporation of the State of Louisiana (successor by merger to LOUISIANA POWER & LIGHT COMPANY, a corporation of the State of Florida), whose post office address is 639 Loyola Avenue, New Orleans, Louisiana 70113 (hereinafter sometimes called the "Company"), and BANK OF MONTREAL TRUST COMPANY, a New York corporation (successor to THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)), whose principal office is located at 77 Water Street, New York, New York 10005 (hereinafter sometimes called the "Corporate Trustee"), and MARK F. McLAUGHLIN (successor to Z. GEORGE KLODNICKI), whose post office address is 44 Norwood Avenue, Westwood, New Jersey 07711 (said MARK F. McLAUGHLIN being hereinafter sometimes called the "Co-Trustee" and the Corporate Trustee and the Co-Trustee being hereinafter together sometimes called the "Trustees"), as Trustees under the Mortgage and Deed of Trust, dated as of April 1, 1944 (hereinafter called the "Mortgage"), which Mortgage was executed and delivered by Louisiana Power & Light Company, a corporation of the State of Florida (hereinafter sometimes called the "Florida Company"), to secure the payment of bonds issued or to be issued under and in accordance with the provisions of the Mortgage, reference to which Mortgage is hereby made, this Indenture (hereinafter called the "Fifty-first Supplemental Indenture") being supplemental thereto;
WHEREAS, the Mortgage was recorded in various Parishes in the State of Louisiana, which Parishes are the same Parishes in which this Fifty-first Supplemental Indenture is to be recorded; and
WHEREAS, by the Mortgage, the Florida Company covenanted that it would execute and deliver such supplemental indenture or indentures and such further instruments and do such further acts as might be necessary or proper to carry out more effectually the purposes of the Mortgage and to make subject to the lien of the Mortgage any property thereafter acquired and intended to be subject to the lien thereof; and
WHEREAS, the Florida Company executed and delivered the following supplemental indentures:
Designation Dated as of
First Supplemental Indenture March 1, 1948
Second Supplemental Indenture November 1, 1950
Third Supplemental Indenture September 1, 1953
Fourth Supplemental Indenture October 1, 1954
Fifth Supplemental Indenture January 1, 1957
Sixth Supplemental Indenture April 1, 1960
Seventh Supplemental Indenture June 1, 1964
Eighth Supplemental Indenture March 1, 1966
Ninth Supplemental Indenture February 1, 1967
Tenth Supplemental Indenture September 1, 1967
Eleventh Supplemental Indenture March 1, 1968
Twelfth Supplemental Indenture June 1, 1969
Thirteenth Supplemental Indenture December 1, 1969
Fourteenth Supplemental Indenture November 1, 1970
Fifteenth Supplemental Indenture April 1, 1971
Sixteenth Supplemental Indenture January 1, 1972
Seventeenth Supplemental Indenture November 1, 1972
Eighteenth Supplemental Indenture June 1, 1973
Nineteenth Supplemental Indenture March 1, 1974
Twentieth Supplemental Indenture November 1, 1974
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which supplemental indentures were recorded in various Parishes in the State of Louisiana; and
WHEREAS, the Florida Company was merged into the Company on February 28, 1975, and the Company thereupon executed and delivered a Twenty-first Supplemental Indenture, dated as of March 1, 1975, pursuant to which the Company, among other things, assumed and agreed duly and punctually to pay the principal of and interest on the bonds at the time issued and outstanding under the Mortgage, as then supplemented, in accordance with the provisions of said bonds and of any appurtenant coupons and of the Mortgage as so supplemented, and duly and punctually to observe, perform and fulfill all of the covenants and conditions of the Mortgage, as so supplemented, to be kept or performed by the Florida Company, and said Twenty-first Supplemental Indenture was recorded in various Parishes in the State of Louisiana; and
WHEREAS, the Company has succeeded to and has been substituted for the Florida Company under the Mortgage with the same effect as if it had been named as mortgagor corporation therein; and
WHEREAS, the Company executed and delivered the following supplemental indentures:
Designation Dated as of
Twenty-second Supplemental Indenture September 1, 1975
Twenty-third Supplemental Indenture December 1, 1976
Twenty-fourth Supplemental Indenture January 1, 1978
Twenty-fifth Supplemental Indenture July 1, 1978
Twenty-sixth Supplemental Indenture May 1, 1979
Twenty-seventh Supplemental Indenture November 1, 1979
Twenty-eighth Supplemental Indenture December 1, 1980
Twenty-ninth Supplemental Indenture April 1, 1981
Thirtieth Supplemental Indenture December 1, 1981
Thirty-first Supplemental Indenture March 1, 1983
Thirty-second Supplemental Indenture September 1, 1983
Thirty-third Supplemental Indenture August 1, 1984
Thirty-fourth Supplemental Indenture November 1, 1984
Thirty-fifth Supplemental Indenture December 1, 1984
Thirty-sixth Supplemental Indenture December 1, 1985
Thirty-seventh Supplemental Indenture April 1, 1986
Thirty-eighth Supplemental Indenture November 1, 1986
Thirty-ninth Supplemental Indenture May 1, 1988
Fortieth Supplemental Indenture December 1, 1988
Forty-first Supplemental Indenture April 1, 1990
Forty-second Supplemental Indenture June 1, 1991
Forty-third Supplemental Indenture April 1, 1992
Forty-fourth Supplemental Indenture July 1, 1992
Forty-fifth Supplemental Indenture December 1, 1992
Forty-sixth Supplemental Indenture March 1, 1993
Forty-seventh Supplemental Indenture May 1, 1993
Forty-eighth Supplemental Indenture December 1, 1993
Forty-ninth Supplemental Indenture July 1, 1994
Fiftieth Supplemental Indenture September 1, 1994
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which supplemental indentures were recorded in various Parishes in the State of Louisiana; and
WHEREAS, in addition to the property described in the Mortgage, as supplemented, the Company has acquired certain other property, rights and interests in property; and
WHEREAS, the Florida Company or the Company has heretofore issued, in accordance with the provisions of the Mortgage, as supplemented, the following series of First Mortgage Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
3% Series due 1974 $ 17,000,000 None
3 1/8% Series due 1978 10,000,000 None
3% Series due 1980 10,000,000 None
4% Series due 1983 12,000,000 None
3 1/8% Series due 1984 18,000,000 None
4 3/4% Series due 1987 20,000,000 None
5% Series due 1990 20,000,000 None
4 5/8% Series due 1994 25,000,000 None
5 3/4% Series due 1996 35,000,000 None
5 5/8% Series due 1997 16,000,000 $16,000,000
6 1/2% Series due September 1, 1997 18,000,000 18,000,000
7 1/8% Series due 1998 35,000,000 35,000,000
9 3/8% Series due 1999 25,000,000 None
9 3/8% Series due 2000 20,000,000 None
7 7/8% Series due 2001 25,000,000 18,700,000
7 1/2% Series due 2002 25,000,000 23,000,000
7 1/2% Series due November 1, 2002 25,000,000 15,259,000
8% Series due 2003 45,000,000 25,561,000
8 3/4% Series due 2004 45,000,000 None
9 1/2% Series due November 1, 1981 50,000,000 None
9 3/8% Series due September 1, 1983 50,000,000 None
8 3/4% Series due December 1, 2006 40,000,000 None
9% Series due January 1, 1986 75,000,000 None
10% Series due July 1, 2008 60,000,000 None
10 7/8% Series due May 1, 1989 45,000,000 None
13 1/2% Series due November 1, 2009 55,000,000 None
15 3/4% Series due December 1, 1988 50,000,000 None
16% Series due April 1, 1991 75,000,000 None
16 1/4% Series due December 1, 1991 100,000,000 None
12% Series due March 1, 1993 100,000,000 None
13 1/4% Series due March 1, 2013 100,000,000 None
13% Series due September 1, 2013 50,000,000 None
16% Series due August 1, 1994 100,000,000 None
14 3/4% Series due November 1, 2014 55,000,000 None
15 1/4% Series due December 1, 2014 35,000,000 None
14% Series due December 1, 1992 60,000,000 None
14 1/4% Series due December 1, 1995 15,000,000 None
10 1/2% Series due April 1, 1993 200,000,000 None
10 3/8% Series due November 1, 2016 280,000,000 None
Series 1988A due September 30, 1988 13,334,000 None
Series 1988B due September 30, 1988 10,000,000 None
Series 1988C due September 30, 1988 6,667,000 None
10.36% Series due December 1, 1995 75,000,000 None
10 1/8% Series due April 1, 2020 100,000,000 95,000,000
Environmental Series A due June 1, 2021 52,500,000 52,500,000
Environmental Series B due April 1, 2022 20,940,000 20,940,000
7.74% Series due July 1, 2002 179,000,000 179,000,000
8 1/2% Series due July 1, 2022 90,000,000 90,000,000
Environmental Series C due December 1, 2022 25,120,000 25,120,000
6.00% Series due March 1, 2000 100,000,000 100,000,000
Environmental Series D due May 1, 2023 34,364,000 34,364,000
Environmental Series E due December 1, 2023 25,991,667 25,991,667
Environmental Series F due July 1, 2024 21,335,000 21,335,000
Collateral Series 1994-A, due July 2, 2017 117,805,000 117,805,000
Collateral Series 1994-B, due July 2, 2017 58,865,000 58,865,000
Collateral Series 1994-C, due July 2, 2017 31,575,000 31,575,000
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which bonds are also hereinafter sometimes called bonds of the First through Fifty-sixth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each series of bonds (other than the First Series) issued thereunder and of the coupons to be attached to coupon bonds of such series shall be established by Resolution of the Board of Directors of the Company and that the form of such series, as established by said Board of Directors, shall specify the descriptive title of the bonds and various other terms thereof, and may also contain such provisions not inconsistent with the provisions of the Mortgage as the Board of Directors may, in its discretion, cause to be inserted therein expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage 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 Mortgage, 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 restrictions if already restricted, and the Company may enter into any further covenants, limitations or restrictions for the benefit of any one or more series of bonds issued thereunder, or the Company may cure any ambiguity contained therein, or in any supplemental indenture, or may establish the terms and provisions of any series of bonds (other than the First Series) 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 record in all of the states in which any property at the time subject to the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create a new series of bonds and to add to its covenants and agreements contained in the Mortgage, as heretofore supplemented, certain other covenants and agreements to be observed by it and to alter and amend in certain respects the covenants and provisions contained in the Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this Fifty-first Supplemental Indenture, and the terms of the bonds of the Fifty-seventh Series, hereinafter referred to, have been duly authorized by the Board of Directors of the Company by appropriate Resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One Dollar to it duly paid by the Trustees at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in further evidence of assurance of the estate, title and rights of the Trustees and in order further to secure the payment both of the principal of and interest and premium, if any, on the bonds from time to time issued under the Mortgage, according to their tenor and effect and the performance of all the provisions of the Mortgage (including any instruments supplemental thereto and any modification made as in the Mortgage provided) and of said bonds, hereby grants, bargains, sells, releases, conveys, assigns, transfers, mortgages, hypothecates, affects, pledges, sets over and confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of the Mortgage) 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 under the Mortgage, and to their successor or successors in said trust, and to said Trustees and their successors and assigns forever, all of the property now owned by the Company and specifically described in the Mortgage, as supplemented, and all the following described properties of the Company, whether now owned or hereafter acquired, namely:
PARAGRAPH ONE
The Electric Generating Plants, Plant Sites and Stations, and all ownership interests therein, of the Company, including all electric works, power houses, buildings, pipe lines 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, 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 now owned, or, subject to the provisions of Section 87 of the Mortgage, 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, pole type substations, insulators 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, under or upon any public streets or highways or other lands, public or private.
PARAGRAPH FIVE
The Electric Submarine Cables of the Company, including the wires, cables, switch racks, conductors, conduits, transformers, substations, insulators and all appliances, devices and equipment used or useful in connection with said submarine cables, 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.
And also all extensions, replacements, branches, taps, developments and improvements of said submarine cables, or any of them, and all other submarine cables owned by the Company wherever situated, whether now owned or hereafter acquired and/or constructed, as well as all of the Company's rights-of-way, easements, permits, privileges, licenses, consents, immunities and rights for or relating to the construction, maintenance or operation thereof, subject, however, to the provisions of Section 87 of the Mortgage.
PARAGRAPH SIX
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, under, or upon any public streets or highways, public or private lands, including all additions, improvements or replacements to all of the distribution systems located in the municipalities and parishes set forth in the Mortgage and in the First through Fiftieth Supplemental Indentures.
And also all branches, extensions, improvements and
developments of or appertaining to or connected with said
distribution lines, systems or any of them, and all other
distribution systems of the Company and parts and portions
thereof, wherever situated, whether connected or not connected
with any of the foregoing systems and whether now owned or
hereafter acquired, as well as all of the Company's rights-of-
way, easements, privileges, prescriptions, permits, municipal or
other franchises, consents and rights for or relating to the
construction, maintenance or operation thereof or any part or
portion thereof, through, over, under or upon any public streets
or highways or public or private lands, whether now owned or
hereafter acquired, subject, however, to the provisions of
Section 87 of the Mortgage.
PARAGRAPH SEVEN
The certain franchises, privileges, permits, grants and consents for the construction, operation and maintenance of electric systems in, on and under streets, alleys, highways, roads, and public grounds, areas and rights-of-way, and/or for the supply and sale of electricity, and all rights incident thereto, which were granted by the governing bodies of the respective municipalities, parishes and public authorities in the 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 systems in, on or under streets, alleys, highways, roads, and public grounds, areas and rights-of-way and/or for the supply and sale of electricity and all rights incident thereto, subject, however, to the provisions of Section 87 of the Mortgage.
All other property, real, personal and mixed, acquired by the Company after the date of the execution and delivery of the Mortgage, in addition to property covered by the First through Forty-fifth Supplemental Indentures (except any herein or in the Mortgage or in said Supplemental Indentures expressly excepted), now owned or, subject to the provisions of Section 87 of the Mortgage, 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 in this Fifty-first Supplemental Indenture) all lands, power sites, flowage rights, water rights, water locations, water appropriations, ditches, flumes, reservoirs, reservoir sites, canals, raceways, 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, telephone, radio and television systems, air-conditioning systems and equipment incidental thereto, water works, water systems, steam heat and hot water plants, substations, 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, electric, gas and other machines, regulators, meters, transformers, generators, 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, wires, cables, tools, implements, apparatus, furniture and chattels; 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; 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 and (except as herein or in the Mortgage, as heretofore supplemented, expressly excepted) all the right, 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 hereinbefore or in the Mortgage, as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments, prescriptions, servitudes and appurtenances belonging or in any wise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders and (subject to the provisions of Section 57 of the Mortgage) 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 and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of Section 87 of the Mortgage, 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 Mortgage, as heretofore supplemented, expressly excepted), shall be and are as fully granted and conveyed hereby and as fully embraced within the lien hereof and the lien of the Mortgage, as if such property, rights and franchises were now owned by the Company and were specifically described herein and conveyed hereby.
PROVIDED THAT 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 and are hereby expressly
excepted from the lien and operation of this Fifty-first
Supplemental Indenture and from the lien and operation of the
Mortgage, namely: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereafter specifically
pledged, paid, deposited, delivered or held under the Mortgage or
covenanted so to be; (2) merchandise, equipment, materials or
supplies held for the purpose of sale in the usual course of
business and fuel, oil and similar materials and supplies
consumable in the operation of any properties of the Company;
rolling stock, buses, motor coaches, automobiles and other
vehicles and all aircraft; (3) bills, notes and accounts
receivable, judgments, demands and choses in action, and all
contracts, leases and operating agreements not specifically
pledged under the Mortgage 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 Mortgage; (5) electric energy,
gas, 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; all
timber, minerals, mineral rights and royalties; (6) the Company's
franchise to be a corporation; and (7) any property heretofore
released pursuant to any provisions of the Mortgage and not
heretofore disposed of by the Company; provided, however, that
the property and rights expressly excepted from the lien and
operation of the Mortgage 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 their successor or successors in said trust or a receiver or
trustee shall enter upon and take possession of the Mortgaged and
Pledged Property in the manner provided in Article XIII of the
Mortgage by reason of the occurrence of a Default as defined in
Section 65 thereof.
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 by the Company as aforesaid, or intended so to be, 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 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 Mortgage, as supplemented, this Fifty-first 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 Mortgage, as supplemented, shall affect and apply to the property hereinbefore 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 said property had been owned by the Company at the time of the execution of the Mortgage, and had been specifically and at length described in and conveyed to said Trustees by the Mortgage 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 Mortgage as follows:
ARTICLE I
FIFTY-SEVENTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "8_% Series due March 1, 2026" (herein sometimes called the "Fifty- seventh Series"), each of which shall also bear the descriptive title "First Mortgage Bond", and the form thereof, which shall be established by Resolution of the Board of Directors of the Company, shall contain suitable provisions with respect to the matters hereinafter in this Section specified. Bonds of the Fifty- seventh Series (which shall be initially issued in the aggregate principal amount of $115,000,000) shall be dated as in Section 10 of the Mortgage provided, shall mature on March 1, 2026, shall be issued as fully registered bonds in any integral multiple or multiples of One Thousand Dollars, and shall bear interest at the rate of 8_% per annum, payable from March 27, 1996, if the date of said bonds is prior to September 1, 1996, or if the date of said bonds is after September 1, 1996, from the March 1 or September 1 next preceding the date of said bonds, and thereafter semi-annually on March 1 and September 1 of each year, the principal of 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, 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.
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 Fifty-seventh 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.
(I) Bonds of the Fifty-seventh Series shall not be redeemable prior to March 1, 2001. On and after March 1, 2001, bonds of the Fifty-seventh 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, as provided in Section 52 of the Mortgage, mailed at least 30 days prior to the date fixed for redemption, at the following general redemption prices, expressed in percentages of the principal amount of the bonds to be redeemed:
GENERAL REDEMPTION PRICES
If redeemed during 12 months period ending the last day of February,
2002 106.563% 2015 100.875% 2003 106.125% 2016 100.438% 2004 105.688% 2017 100.000% 2005 105.250% 2018 100.000% 2006 104.813% 2019 100.000% 2007 104.375% 2020 100.000% 2008 103.938% 2021 100.000% 2009 103.500% 2022 100.000% 2010 103.063% 2023 100.000% 2011 102.625% 2024 100.000% 2012 102.188% 2025 100.000% 2013 101.750% 2026 100.000% 2014 101.313% |
together, in each case, with accrued interest to the date fixed for redemption.
(II) On and after March 1, 2001, bonds of the Fifty-seventh
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 Mortgage) of cash deposited with the
Corporate Trustee pursuant to the provisions of Section 39 or
Section 64 of the Mortgage or with the Proceeds of Released
Property at the special redemption price of 100% of the principal
amount of the bonds to be redeemed together with accrued interest
to the date fixed for redemption.
(III) At the option of the registered owner, any bonds of the Fifty-seventh Series, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, shall be exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations.
Bonds of the Fifty-seventh 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.
Upon any exchange or transfer of bonds of the Fifty-seventh 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 12 of the Mortgage, but the Company hereby waives any right to make a charge in addition thereto for any exchange or transfer of bonds of said Series.
ARTICLE II
DIVIDEND COVENANT
SECTION 2. The Company covenants that, so long as any of the bonds of the Fifty-seventh Series are Outstanding, it will not declare any dividends on its Common Stock (other than (a) a dividend payable solely in shares of its Common Stock, or (b) 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) if, after such dividend, distribution, purchase or acquisition, the aggregate amount of such dividends, distributions, purchases and acquisitions paid or made subsequent to February 29, 1996 (other than any dividend declared by the Company on or before February 29, 1996 for payment on or before April 15, 1996) exceeds (without giving effect to (i) any of such dividends, distributions, purchases or acquisitions, or (ii) any net transfers from earned surplus to stated capital accounts) the sum of (a) the aggregate amount credited subsequent to February 29, 1996, to earned surplus, (b) $345,000,000 and (c) such additional amounts as shall be authorized or approved, upon application by the Company, by the Securities and Exchange Commission, or by any successor commission thereto, under the Public Utility Holding Company Act of 1935.
For the purposes of this Section 2, the aggregate amount credited subsequent to February 29, 1996 to earned surplus shall be determined in accordance with generally accepted accounting principles and practices after making provision for dividends upon any preferred stock of the Company accumulated subsequent to such date, but in such determination there shall not be considered charges to earned surplus applicable to the period prior to March 1, 1996 including, but not limited to, charges to earned surplus for write-offs or write-downs of book values of assets owned by the Company on February 29, 1996.
ARTICLE III
THE COMPANY RESERVES THE RIGHT TO AMEND
CERTAIN PROVISIONS OF THE MORTGAGE
SECTION 3. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend clause (c) of subdivision (4) of Section 59 of the Mortgage to read substantially as follows:
"(c) the principal amount of each bond or fraction of
bond to the authentication and delivery of which the Company
shall be entitled under the provisions of Section 26 or X%,
as hereinafter defined, of the principal amount of each bond
or fraction of bond to the authentication and delivery of
which the Company shall be entitled under the provisions of
Section 29 hereof, by virtue of compliance with all
applicable provisions of said Section 26 or Section 29, as
the case may be (except as hereinafter in this Section
otherwise provided); provided, however, that (except as
hereinafter in this Section otherwise provided) the
application for such release shall operate as a waiver by
the Company of such right to the authentication and delivery
of each such bond or fraction thereof on the basis of which
right such property is released and to such extent no such
bond or fraction thereof may thereafter be authenticated and
delivered hereunder, and any Corresponding Retired Bonds or
Corresponding Qualified Lien Bonds, as hereinafter defined,
shall be deemed to have been made the basis of the release
of such property; for purposes of this clause (c), the
following definitions shall apply:
The term "X%" shall mean the reciprocal of the percentage appearing in Section 25 of the Mortgage at the time that the Corresponding Retired Bond, as hereinafter defined, was originally authenticated and delivered; provided that if Section 5 of the Mortgage is amended as provided in Section 6 of this Supplemental Indenture, then X% shall mean 10/8;
The term "Corresponding Retired Bond" shall mean the bond or fraction of a bond selected by the Company to serve as the basis under the provisions of Section 29 of the Mortgage for such right to the authentication and delivery of bond(s) or fraction of a bond so waived; and
The term "Corresponding Qualified Lien Bond" shall mean the Qualified Lien Bond selected by the Company to serve as the basis under the provisions of Section 26 of the Mortgage for such right to the authentication and delivery of bond(s) or fraction of a bond so waived."
SECTION 4. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend Section 60 of the Mortgage by inserting "(I)" before the word "Unless" in the first line thereof, and by adding a subsection (II) at the end of Section 60 to read substantially as follows:
"(II) Unless the Company is in default in the payment
of the interest on any bonds then Outstanding hereunder or
one or more of the Defaults defined in Section 65 hereof
shall have occurred and be continuing, the Company may
obtain the release of any of the Mortgaged and Pledged
Property that is not Funded Property, except cash then held
by the Corporate Trustee (provided, however, that Qualified
Lien Bonds deposited with the Corporate Trustee shall not be
released or surrendered except as provided in Article IX
hereof and obligations secured by purchase money mortgage
deposited with the Corporate Trustee shall not be released
except as provided in Section 61 hereof), and the Corporate
Trustee shall release all its right, title and interest in
and to the same from the Lien hereof upon application of the
Company and receipt by the Corporate Trustee of the
following (in lieu of complying with the requirements of
Section 59 hereof):
(1) an Officers' Certificate complying with the requirements of Section 121 hereof and describing in reasonable detail the property to be released and requesting such release, and stating:
(a) that the Company is not in default in the payment of interest on any bonds then Outstanding hereunder and that no Default has occurred and is continuing;
(b) that the Company has decided to release from the Lien hereof the property to be released;
(c) that the property to be released is not Funded Property;
(d) that (except in any case where a governmental body or agency has exercised a right to order the Company to divest itself of such property) such release is in the opinion of the signers desirable in the conduct of the business of the Company; and
(e) the amount of cash and/or principal amount of obligations secured by purchase money mortgage received or to be received for any portion of said property sold to any Federal, State, County, Municipal or other governmental bodies or agencies or public or semi- public corporations, districts, or authorities;
(2) an Engineer's Certificate, made and dated not more than ninety (90) days prior to the date of such application, stating:
(a) the fair value, in the opinion of the signers, of the property (or securities) to be released;
(b) that in the opinion of the signers such release will not impair the security under this Indenture in contravention of the provisions hereof; and
(c) that the Company has Property
Additions constituting property that is not Funded
Property (not including the Property Additions
then being released) of a Cost or fair value to
the Company (whichever is less) of not less than
one dollar ($1) (after making any deductions and
any additions pursuant to the provisions of
Section 4 hereof) after deducting the Cost of the
property then being released;
(3) an Opinion of Counsel complying with the requirements of Section 121 hereof and stating that all conditions precedent provided for in this Indenture relating to the release of the property in question have been complied with; and
(4) in case the Corporate Trustee is requested to release any franchise, an Opinion of Counsel complying with the requirements of Section 121 hereof and stating that in his or their opinion such release will not impair to any material extent the right of the Company to operate any of its remaining properties."
To amend clause (a) of subdivision (3) of Section 59 to read substantially as follows:
"(a) that the Company has decided to release from the Lien hereof the property to be released;"
To amend clause (b) of subdivision (4) of Section 59 to delete the words "that no such application for release may be based in whole or in part upon Property Additions acquired, made or constructed more than five years prior to the last day of the calendar month immediately preceding the date of such application, and provided, further,"
SECTION 5. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend Article XIX of the Mortgage to read substantially as follows:
"ARTICLE XIX.
Meetings and Consents of Bondholders.
SECTION 107. Modifications and alterations of this Indenture and/or of any indenture supplemental hereto and/or of the rights and obligations of the Company and/or of the rights of the holders of bonds and coupons issued hereunder may be made as provided in this Article XIX.
SECTION 108. The Corporate Trustee may at any time call a meeting of the holders of bonds of one or more, or all, series and it shall call such a meeting on written request of the Company, given pursuant to a Resolution of its Board of Directors, or a resolution of the holders of a majority or more in principal amount of the bonds of such series Outstanding hereunder, considered as one class, at the time of such request. In the event of the Corporate Trustee's failing for ten (10) days to call a meeting after being thereunto requested by the Company or bondholders as above set forth, holders of Outstanding bonds in the amount above specified in this Section or the Company, pursuant to Resolution of its Board of Directors, may call such meeting. Every such meeting called by and at the instance of the Corporate Trustee shall be held in the Borough of Manhattan, The City of New York, or with the written approval of the Company, at any other place in the United States of America, and written notice thereof, stating the place and time thereof and in general terms the business to be submitted, shall be mailed by the Corporate Trustee not less than thirty (30) days before such meeting (a) to each registered holder of bonds of the series in respect of which such meeting is being called then Outstanding hereunder addressed to him at his address appearing on the registry books, (b) to all other holders of bonds of such series then Outstanding hereunder the names and addresses of whom are preserved by the Corporate Trustee as required by the provisions of Section 43 hereof and (c) to the Company addressed to it at _____________________ (or at such other address as may be designated by the Company from time to time), and, if any bonds of such series shall not be in fully registered form, shall be published by the Corporate Trustee at least once a week for four (4) successive calen dar weeks immediately preceding the meeting, upon any secular day of each such calendar week, which need not be the same day of each week, in a Daily Newspaper, printed in the English language, and published and of general circulation in The City of New York; provided, however, that, if such notice by publication shall have been given, the mailing of such notice to any bondholders shall in no case be a condition precedent to the validity of any action taken at such meeting. Any meeting of holders of the bonds of one or more, or all, series shall be valid without notice if the holders of all bonds of such series then Outstanding hereunder are present in person or by proxy and if the Company and the Corporate Trustee are present by duly authorized representatives, or if notice is waived in writing before or after the meeting by the Company, the holders of all bonds of such series Outstanding hereunder and by the Corporate Trustee, or by such of them as are not present in person or by proxy.
SECTION 109. Officers and nominees of the Corporate
Trustee and of the Company and of the Co-Trustee or their or
its nominees may attend such meeting, but shall not as such
be entitled to vote thereat. Attendance by bondholders may
be in person or by proxy. In order that the holder of any
bond payable to bearer and his proxy may attend and vote
without producing his bond, the Corporate Trustee, with
respect to any such meeting, may make and from time to time
vary such regulations as it shall think fit for deposit of
bonds with, (i) any bank or trust or insurance company, or
(ii) any trustee, secretary, administrator or other proper
officer of any pension, welfare, hospitalization, or similar
fund or funds, or (iii) the United States of America, any
Territory thereof, the District of Columbia, any State of
the United States, any municipality in any State of the
United States or any public instrumentality of the United
States, any State or Territory, or (iv) any other person or
corporation satisfactory to the Corporate Trustee, and for
the issue to the persons depositing the same of certificates
by such depositaries entitling the holders thereof to be
present and vote at any such meeting and to appoint proxies
to represent them and vote for them at any such meeting in
the same way as if the persons so present and voting, either
personally or by proxy, were the actual bearers of the bonds
in respect of which such certificates shall have been issued
and any regulations so made shall be binding and effective.
In lieu of or in addition to providing for such deposit, the
Corporate Trustee may, in its discretion, permit such
institutions to issue certificates stating that bonds were
exhibited to them, which certificates shall entitle the
holders thereof to vote at any meeting only if the bonds
with respect to which they are issued are not produced at
the meeting by any other person and are not at the time of
the meeting registered in the name of any other person.
Each such certificate shall state the date on which the bond
or bonds in respect of which such certificate shall have
been issued were deposited with or exhibited to such
institution and the series, maturities and serial numbers of
such bonds. A bondholder in any of the foregoing categories
may sign such a certificate in his own behalf. In the event
that two or more such certificates shall be issued with
respect to any bond or bonds, the certificate bearing the
latest date shall be recognized and be deemed to supersede
any certificate or certificates previously issued with
respect to such bond or bonds. If any such meeting shall
have been called under the provisions of Section 108 hereof,
by bondholders or by the Company, and the Corporate Trustee
shall fail to make regulations as above authorized, then
regulations to like effect for such deposit, or exhibition
of bonds and the issue of certificates by (i) any bank or
trust or insurance company, or (ii) any trustee, secretary,
administrator or other proper officer of any pension,
welfare, hospitalization, or similar fund or funds, or (iii)
by the United States of America, any Territory thereof, the
District of Columbia, any State of the United States, any
municipality in any State of the United States or any public
instrumentality of the United States, any State or Territory
shall be similarly binding and effective for all purposes
hereof if adopted or approved by the bondholders calling
such meeting or by the Board of Directors of the Company, if
such meeting shall have been called by the Company, provided
that in either such case copies of such regulations shall be
filed with the Corporate Trustee. A bondholder in any of
the foregoing categories may sign such a certificate in his
own behalf.
SECTION 110. Subject to the restrictions specified in Sections 109 and 113 hereof, any registered holder of bonds Outstanding hereunder and any holder of a certificate (not superseded) provided for in Section 109 hereof relating to bonds Outstanding hereunder, in either case of the series in respect of which a meeting shall have been called, shall be entitled in person or by proxy to attend and vote at such meeting as a holder of the bonds registered or certified in the name of such holder without producing such bonds. All others seeking to attend or vote at such meeting in person or by proxy must, if required by any authorized representative of the Corporate Trustee or the Company or by any other bondholder, produce the bonds claimed to be owned or represented at such meeting and every one seeking to attend or vote shall, if required as aforesaid, produce such further proof of bond ownership or personal identity as shall be satisfactory to the authorized representative of the Corporate Trustee, or if none be present then to the Inspectors of Votes hereinafter provided for. Proxies shall be witnessed or in the alternative may (a) have the signature guaranteed by a bank or trust company or a registered dealer in securities participating in a recognized signature guarantee medallion program, (b) be acknowledged before a Notary Public or other officer authorized to take acknowledgements, or (c) have their gen uineness otherwise established to the satisfaction of the Inspector of Votes. All proxies and certificates presented at any meeting shall be delivered to said Inspectors of Votes and filed with the Corporate Trustee.
SECTION 111. Persons nominated by the Corporate Trustee if it is represented at the meeting shall act as temporary Chairman and Secretary, respectively, of the meeting, but if the Corporate Trustee shall not be represented or shall fail to nominate such persons or if any person so nominated shall not be present, the bondholders and proxies present shall by a majority vote of bonds represented elect another person or other persons from those present to act as temporary Chairman and/or Secretary. A permanent Chairman and a permanent Secretary of such meeting shall be elected from those present by the bondholders and proxies present by a majority vote of bonds represented. The Corporate Trustee, if represented at the meeting, shall appoint two Inspectors of Votes who shall decide as to the right of anyone to vote and shall count all votes cast at such meeting, except votes on the election of a Chairman and Secretary, both temporary and permanent, as aforesaid, and who shall make and file with the permanent Secretary of the meeting their verified written report in duplicate of all such votes so cast at said meeting. If the Corporate Trustee shall not be represented at the meeting or shall fail to nominate such Inspectors of Votes or if either Inspector of Votes fails to attend the meeting, the vacancy shall be filled by appointment by the permanent Chairman of the meeting.
SECTION 112. The holders of a majority in aggregate principal amount of the bonds Outstanding hereunder of the series with respect to which a meeting shall have been called as hereinbefore provided, considered as one class, shall constitute a quorum for a meeting of holders of bonds of such series; provided, that if any action is to be taken at such meeting which this Indenture expressly provides may be taken by the holders of a specified percentage which is less than a majority in principal amount of the bonds of such series Outstanding hereunder, considered as one class, then the holders of such specified percentage in principal amount of the bonds of such series Outstanding hereunder, considered as one class, shall constitute a quorum. In the absence of a quorum within one hour of the time appointed for any such meeting, the meeting shall, if convened at the request of holders of bonds of such series, be dissolved. In any other case the meeting may be adjourned for such period or periods as may be determined and announced by the chairman of the meeting prior to the adjournment thereof.
SECTION 113. Any modification or alteration of this Indenture and/or of any indenture supplemental hereto and/or of the rights and obligations of the Company and/or the rights of the holders of bonds and/or coupons issued hereunder in any particular may be made at a meeting of bondholders duly convened and held in accordance with the provisions of this Article, but only by resolution duly adopted by the affirmative vote of the holders of a majority in principal amount of the bonds Outstanding hereunder, considered as one class (or, if such modification or alteration shall directly affect the holders of bonds of one or more, but less than all, series then Outstanding hereunder, then the affirmative vote only of the holders of a majority in aggregate principal amount of the bonds of the series directly affected then Outstanding hereunder, considered as one class), when such meeting is held, and in every case approved by Resolution of the Board of Directors of the Company as hereinafter specified; provided, however, that no such modification or alteration shall, without the consent of the holder of any bond issued hereunder affected thereby, permit (1) the extension of the maturity of the principal of, or interest on, such bond, or (2) the reduction in such principal or the rate of interest thereon or any other modification in the terms of payment of such principal or interest, or (3) the creation of any lien rank ing prior to, or on a parity with, the Lien of this Indenture with respect to any of the Mortgaged and Pledged Property, or (4) the deprivation of any non-assenting bondholder of a lien upon the Mortgaged and Pledged Property for the security of his bonds (subject only to Excepted Encumbrances) or (5) the reduction of the percentage required by the provisions of this Section for the taking of any action under this Section with respect to any bond Outstanding hereunder. For all purposes of this Article, the Trustees shall be entitled to rely upon an Opinion of Counsel with respect to the extent, if any, as to which any action taken at such meeting affects the rights under this Indenture or under any indenture supplemental hereto of any holders of bonds then Outstanding hereunder.
Bonds owned and/or held by and/or for account of and/or for the benefit or interest of the Company, or any corporation of which the Company shall own twenty-five per centum (25%) or more of the outstanding voting stock, shall not be deemed Outstanding for the purpose of any vote or of any calculation of bonds Outstanding in Article XVI hereof or in this Article XVIII or for the purpose of the quorum provided for in Section 112 of this Article; provided, however, that bonds so owned or held which have been pledged in good faith may be regarded as Outstanding for purposes of this paragraph if the pledgee establishes to the satisfaction of the Corporate Trustee the pledgee's right to vote or give consents with respect to such bonds and that the pledgee is not the Company or a corporation of which the Company shall own twenty-five per centum (25%) or more of the outstanding voting stock. For all purposes of this Indenture, the Corporate Trustee, the Chairman and Secretary of any meeting held pursuant to the provisions of this Article XIX and the Inspectors of Votes at any such meeting shall (unless the fact is challenged at such meeting by any holder of bonds Outstanding hereunder entitled to vote at such meeting and a contrary fact is established) be entitled conclusively to rely upon a notification in writing by an officer of the Company, specifying the principal amount of bonds Outstanding hereunder owned by or held by or for the account of or for the benefit or interest of the Company or any corporation of which the Company shall own twenty-five per centum (25%) or more of the outstanding voting stock, or stating that no such bonds are so owned or held. In case the meeting shall have been called otherwise than on the written request of the Company, the Corporate Trustee shall be entitled conclusively to assume that none of the bonds Outstanding hereunder is so owned or held unless a notification by the Company is furnished as in this paragraph provided or unless the fact is challenged at such meeting by any holder of bonds Outstanding hereunder and a contrary fact is established.
SECTION 114. A record in duplicate of the proceedings of each meeting of bondholders shall be prepared by the permanent Secretary of the meeting and shall have attached thereto the original reports of the Inspectors of Votes, and affidavits by one or more persons having knowledge of the facts showing a copy of the notice of the meeting, and showing that said notice was mailed and published as provided in Section 108 hereof. Such record shall be signed and verified by the affidavit of the permanent Chairman and the permanent Secretary of the meeting, and one duplicate thereof shall be delivered to the Company and the other to the Corporate Trustee for preservation by the Corporate Trustee. Any record so signed and verified shall be proof of the matters therein stated, and if such record shall also be signed and verified by the affidavit of a duly authorized representative of the Corporate Trustee, such meeting shall be deemed conclusively to have been duly convened and held and such record shall be conclusive, and any resolution or proceeding stated in such record to have been adopted or taken, shall be deemed conclusively to have been duly adopted or taken by such meeting. A true copy of any resolution adopted by such meeting shall be mailed by the Corporate Trustee (a) to each registered holder of bonds of the series directly affected by such resolution then Outstanding addressed to him at his address appearing on the registry books and (b) to all other holders of bonds then Outstanding hereunder, the names and addresses of whom are then preserved by the Corporate Trustee pursuant to the provisions of Section 43 hereof, and proof of such mailing by the affidavit of some person having knowledge of the fact shall be filed with the Corporate Trustee, but failure to mail copies of such resolution as aforesaid shall not affect the validity thereof. No such resolution shall be binding until and unless such resolution is approved by Resolution of the Board of Directors of the Company, of which such Resolution of approval, if any, it shall be the duty of the Company to file a copy certified by the Secretary or an Assistant Secretary of the Company with the Corporate Trustee, but if such Resolution of the Board of Directors of the Company is adopted and a certified copy thereof is filed with the Corporate Trustee, the resolution so adopted by such meeting shall (to the extent permitted by law) be deemed conclusively to be binding upon the Company, the Trustees and the holders of all bonds and coupons issued hereunder, at the expiration of sixty (60) days after such filing, except in the event of a final decree of a court of competent jurisdiction setting aside such resolution, or annulling the action taken thereby in a legal action or equitable proceeding for such purposes commenced within such sixty (60) day period; provided, however, that no such resolution of the bondholders, or of the Company, shall in any manner be so construed as to change or modify any of the rights, immunities, or obligations of the Trustees or either of them without their, its or his written assent thereto.
SECTION 115. Bonds authenticated and delivered after the date of any bondholders' meeting may bear a notation in form approved by the Corporate Trustee as to the action taken at meetings of bondholders theretofore held, and upon demand of the holder of any bond Outstanding at the date of any such meeting and presentation of his bond for the purpose at the principal office of the Corporate Trustee, the Company shall cause suitable notation to be made on such bond by endorsement or otherwise as to any action taken at any meeting of bondholders theretofore held. If the Company or the Corporate Trustee shall so determine, new bonds so modified as in the opinion of the Corporate Trustee and the Board of Directors of the Company to conform to such bondholders' resolution shall be prepared, authenticated and delivered, and upon demand of the holder of any bond then Outstanding and affected thereby shall be exchanged without cost to such bondholders for bonds then Outstanding hereunder upon surrender of such bonds with all unmatured coupons, if any, appertaining thereto. The Company or the Corporate Trustee may require bonds Outstanding to be presented for notation or exchange as aforesaid if either shall see fit to do so. Instruments supplemental to this Indenture embodying any modification or alteration of this Indenture or of any indenture supplemental hereto made at any bondholders' meeting and approved by Resolution of the Board of Directors of the Company, as aforesaid, may be executed by the Trustees and the Company and upon demand of the Corporate Trustee, or if so specified in any resolution adopted by any such bondholders' meeting, shall be executed by the Company and the Trustees.
Any instrument supplemental to this Indenture executed pursuant to the provisions of this Section or otherwise, shall comply with all applicable provisions of the Trust Indenture Act of 1939 as in force on the date of the execution of such supplemental indenture.
SECTION 116. (A) Anything in this Article XIX contained to the contrary notwithstanding, the Corporate Trustee shall receive the written consent (in any number of instruments of similar tenor executed by bondholders or by their attorneys appointed in writing or in the supplemental indenture or supplemental indentures creating such series of bonds) of the holders of a majority in principal amount of the bonds Outstanding hereunder, considered as one class (or, if any action proposed to be taken shall directly affect the holders of bonds of one or more, but less than all, series then Outstanding hereunder, then the consent only of the holders of a majority in aggregate principal amount of bonds of the series so directly affected then Outstanding hereunder, considered as one class), at the time the last such needed consent is delivered to the Corporate Trustee, in lieu of the holding of a meeting pursuant to this Article XIX and in lieu of all action at such a meeting and with the same force and effect as a resolution duly adopted in accordance with the provisions of Section 113 hereof.
(B) Instruments of consent shall be witnessed or in the alternative may (a) have the signature guaranteed by a bank or trust company or a registered dealer in securities participating in a recognized signature guarantee medallion program, (b) be acknowledged before a Notary Public or other officer authorized to take acknowledgments, or (c) have their genuineness otherwise established to the satisfaction of the Corporate Trustee.
The amount of bonds payable to bearer, and the series and serial numbers thereof, held by a person executing an instrument of consent (or whose attorney has executed an instrument of consent in his behalf), and the date of his holding the same, may be proved by exhibiting the bonds to and obtaining a certificate executed by (i) any bank or trust or insurance company organized under the laws of the United States of America or of any State thereof, or (ii) any trustee, secretary, administrator or other proper officer of any pension, welfare, hospitalization or similar fund or funds, or (iii) the United States of America, any Territory thereof, the District of Columbia, any State of the United States, any municipality in any State of the United States or any public instrumentality of the United States, or of any State or of any Territory, or (iv) any other person or corporation satisfactory to the Corporate Trustee. A bondholder in any of the foregoing categories may sign a certificate in his own behalf.
Each such certificate shall be dated and shall state in effect that as of the date thereof a coupon bond or bonds bearing a specified serial number or numbers was exhibited to the signer of such certificate. The holding by the person named in any such certificate of any bonds specified therein shall be presumed to continue unless (1) any certificate bearing a later date issued in respect of the same bond shall be produced, (2) the bond specified in such certificate (or any bond or bonds issued in exchange or substitution for such bond) shall be produced, or (3) the bond specified in such certificate shall be registered as to principal in the name of another holder or shall have been surrendered in exchange or a fully registered bond registered in the name of another holder. The Corporate Trustee may nevertheless in its discretion require further proof in cases where it deems further proof desirable. The ownership of registered bonds shall be proved by the registry books.
(C) Until such time as the Corporate Trustee shall receive the written consent of the necessary per centum in principal amount of the bonds required by the provisions of subsection (A) above for action contemplated by such consent, any holder of a bond, the serial number of which is shown by the evidence to be included in the bonds the holders of which have consented to such action, may, by filing written notice with the Corporate Trustee at its principal office and upon proof of holding as provided in subsection (B) above, revoke such consent so far as it con cerns such bond unless such consent states that it shall be irrevocable or is set forth in the supplemental indenture creating such series of bonds. Except as aforesaid, any such action taken by the holder of any bond shall be con clusive and binding upon such holder and upon all future holders of such bond (and any bond issued in lieu thereof or exchanged therefor), irrespective of whether or not any notation of such consent is made upon such bond, and in any event any action taken by the holders of the percentage in aggregate principal amount of the bonds specified in subsection (A) above in connection with such action shall be conclusively binding upon the Company, the Corporate Trustee and the holders of all the bonds."
SECTION 6. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend Section 5 of the Mortgage to replace the first two paragraphs thereof with three paragraphs reading substantially as follows:
"The term "Funded Property Certificate" shall mean an Independent Engineer's Certificate delivered to the Corporate Trustee, within ninety days after the date thereof,
(A) stating the aggregate principal amount of bonds then Outstanding under this Indenture;
(B) stating the aggregate principal amount of bonds which the Company is then entitled to have authenticated and delivered by compliance with the provisions of Section 29 hereof;
(C) stating an amount equal to 10/8 of the sum of the amounts stated in clauses (A) and (B) above;
(D) describing all or any portion of the Mortgaged and Pledged Property which, in the opinion of the signers, has an aggregate Fair Value not less than the amount stated in clause (C) above.
The term "Funded Property" shall mean:
(1) all Mortgaged and Pledged Property described in the most recent Funded Property Certificate delivered to the Corporate Trustee;
(2) all Property Additions to the extent that the same shall have been made the basis of the authentication and delivery of bonds under this Indenture after the date of the most recent Funded Property Certificate delivered to the Corporate Trustee;
(3) all Property Additions to the extent that the same shall have been made the basis of the release of property from the Lien of this Indenture after the date of the most recent Funded Property Certificate delivered to the Corporate Trustee, subject, however, to the provisions of Section 59 hereof;
(4) all Property Additions to the extent that the same shall have been substituted (otherwise than under the release or cash withdrawal provisions hereof) for Funded Property retired after the date of the most recent Funded Property Certificate delivered to the Corporate Trustee; and
(5) all Property Additions to the extent that the same shall have been made the basis of the withdrawal of any Funded Cash as hereinafter defined after the date of the most recent Funded Property Certificate delivered to the Corporate Trustee, except to the extent that any such Property Additions shall no longer be deemed to be Funded Property in accordance with the provisions of other Sections of this Indenture.
In the event that in any certificate filed with the Corporate Trustee in connection with any of the transactions referred to in clauses (2), (3) and (5) of this Section only a part of the Cost or fair value of the Property Additions described in such certificate shall be required for the purposes of such certificate, then such Property Additions shall be deemed to be Funded Property only to the extent so required for the purpose of such certificate."
The foregoing amendment shall not become effective until the Company shall have delivered a Funded Property Certificate to the Corporate Trustee.
SECTION 7. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend Section 25 of the Mortgage to change the words "sixty per centum (60%)" to "eighty per centum (80%)."
SECTION 8. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend subparagraph (A) of the first paragraph of Section 7 of the Mortgage to substitute the words "eighteen (18)" for the words "fifteen (15)" in the second line.
To amend clause (1) of clause (A) of Section 7 of the Mortgage to add after the word "revenues" substantially the following text:
"(which may include revenues subject when collected or accrued to possible refund at a future date)"
To amend clause (8) of subparagraph (A) of the first paragraph of Section 7 of the Mortgage to add after the word "(net)" substantially the following text:
", which may include any portion of the allowance for funds used during construction or any portion of the allowance for funds used for conservation expenditures (or any analogous amount), in either case, which is not included in "other income" (or any analogous item) in the Company's books of account"
To amend the second paragraph in Section 7 of the Mortgage (which begins with the words "In calculating such Adjusted Net Earnings ..." to add at the end of the first sentence thereof substantially the following text:
"and provided further that no deduction from revenues or income shall be made for expenses or provisions for any non- recurring charge to income of whatever kind or nature (including without limitation the recognition of expense due to the non-recoverability of investment), whether or not recorded as an extraordinary item in the Company's books of account, and no deduction from revenues or income shall be made for provisions for any refund of revenues previously collected or accrued subject to possible refund."
To add a new paragraph at the end of Section 7 of the Mortgage to read substantially as follows:
"In calculating such Annual Interest Requirements (A) if any bonds issued hereunder, Qualified Lien Bonds and/or other indebtedness bear interest at a variable rate or rates, the Annual Interest Requirements thereon shall be determined by reference to the rate or rates in effect on the date next preceding the date of the initial authentication and delivery of the bonds then applied for in the application in connection with which the Net Earning Certificate is made, (B) if such bonds then applied for and/or any bonds applied for in any other pending application are to bear interest at a variable rate or rates, the Annual Interest Requirements thereon shall be determined by reference to the rate or rates to be in effect at the time of the initial authentication and delivery thereof, and (C) the Annual Interest Requirements on bonds issued or to be issued hereunder, Qualified Lien Bonds and any other indebtedness shall be determined by reference to the rate or rates at which such obligations are stated by their terms to bear simple interest, without regard to the effective interest cost to the Company of such obligations and without regard to the stated interest rate or rates upon, or the effective cost to the Company of, other obligations for which such obligations are or are to be pledged or otherwise delivered as security."
SECTION 9. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend Section 86 of the Mortgage to add a new paragraph at the end reading substantially as follows:
"In case the Company, as permitted by Section 85 hereof, shall convey or transfer, subject to the Lien of this Indenture, all or substantially all of the Mortgaged and Pledged Property as an entirety to a successor corporation, the indenture described above in this Section may also provide for the release and discharge of the Company from all obligations under this Indenture or any bonds issued hereunder which are assumed by such successor corporation."
SECTION 10. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend Section 120 of the Mortgage to read substantially as follows:
"SECTION 120. Anything in this Indenture to the contrary notwithstanding, without the consent of any holders of bonds, the Company and the Trustees, at any time and from time to time, may enter into one or more indentures supple mental hereto, in form satisfactory to the Trustees, for any of the following purposes:
(a) to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company herein and in the bonds, all as provided in Article XVI hereof, or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all
holders of the bonds or for the benefit of the holders
of, or to remain in effect only so long as there shall
be Outstanding, bonds of one or more specified series,
and to make the occurrence of a default in the
performance of any of such additional covenants an
additional "Default" under Section 65 permitting the
enforcement of all or any of the several remedies
provided in this Indenture, as herein set forth; pro
vided, however, that in respect of any such additional
covenant, such supplemental indenture may provide for a
particular period of grace after default (which period
may be shorter or longer than those allowed in the case
of other defaults) or may provide for an immediate
enforcement upon such default, or may (subject to the
provisions of applicable law) limit the remedies
available to the Trustees upon such default; or to
provide that the occurrence of one or more specified
events shall constitute additional "Defaults" under
Section 65 as if set forth therein, or to surrender any
right or power herein conferred upon the Company, which
additional "Default" or surrender may be limited so as
to remain in effect only so long as bonds of one or
more specified series shall remain Outstanding; or
(c) to correct or amplify the description of any property at any time subject to the Lien of this Indenture, or better to assure, convey and confirm unto the Trustees any property subject or required to be subjected to the Lien of this Indenture, or to subject to the Lien of this Indenture additional property; or
(d) to change or eliminate any provision of this Indenture or to add any new provision to this Indenture; provided, however, that no such change, elimination or addition shall adversely affect the interests of the holders of bonds of any series in any material respect; or
(e) to establish the form or terms of bonds of any series as contemplated by Article II; or
(f) to provide for the procedures required to permit the Company to utilize, at its option, a non- certificated system of registration for all or any series of bonds; or
(g) to change any place or places (within the United States of America) where (1) the principal of and premium, if any, and interest, if any, on all or any series of bonds shall be payable, (2) all or any series of bonds may be surrendered for registration of transfer, (3) all or any series of bonds may be surrendered for exchange and (4) notices and demands to or upon the Company in respect of all or any series of bonds and this Indenture may be served; or
(h) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein; or to make any other changes to the provisions hereof or to add other provisions with respect to matters or ques tions arising under this Indenture, provided that such other changes or additions shall not adversely affect the interests of the holders of bonds of any series in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture Act of 1939, as in effect at any time and from time to time,
(x) shall require one or more changes to any provisions hereof or the inclusion herein of any additional provisions, or shall by operation of law be deemed to effect such changes or incorporate such provisions by reference or otherwise, this Indenture shall be deemed to have been amended so as to conform to the Trust Indenture Act of 1939 as then in effect, and the Company and the Trustees may, without the consent of any holders of bonds, enter into an indenture supplemental hereto to evidence such amendment hereof; or
(y) shall permit one or more changes to, or the elimination of, any provisions hereof which shall theretofore have been required by the Trust Indenture Act of 1939 to be contained herein or are contained herein to reflect any pro visions of the Trust Indenture Act of 1939, this Indenture shall be deemed to have been amended to effect such changes or elimination, and the Company and the Trustees may, without the consent of any holders of bonds, enter into an indenture supplemental hereto to evidence such amendment hereof."
SECTION 11. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To amend Section 59 of the Mortgage to delete the clause at the end of subdivision (4) beginning with the words "provided, however, that (i) no obligations ...." and ending with the words "... at such time Outstanding under this Indenture" and substituting therefor substantially the following:
"provided, however, that no obligations secured by a purchase money mortgage upon any property being released from the Lien hereof shall be used as a credit in any application for such release unless the Company shall deliver to the Trustee a certificate or opinion of an engineer, appraiser or other expert as to the fair value of such purchase money mortgage obligations to the Company, and provided further, that if the fair value to the Company of such purchase money mortgage obligations and of all other securities (other than bonds authenticated and delivered hereunder) made the basis of any authentication and delivery of bonds hereunder, the withdrawal of any cash constituting part of the trust estate hereunder, or the release of any property or securities from the Lien hereof since the commencement of the then calendar year, as set forth in the certificates or opinions required by this clause, is ten per centum (10%) or more of the aggregate principal amount of the bonds at the time Outstanding under this Indenture, such certificate or opinion shall be made by an independent engineer, appraiser, or other expert; but such a certificate of an independent engineer, appraiser, or other expert shall not be required with respect to any purchase money mortgage obligations so deposited, if the fair value thereof to the Company as set forth in the certificate or opinion required by this clause is less than twenty-five thousand Dollars ($25,000) or less than one per centum (1%) of the aggregate principal amount of bonds at the time Outstanding under this Indenture."
SECTION 12. The Company reserves the right, without any consent, vote or other action by holders of bonds of the Fifty- seventh Series, or of any subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as follows:
To delete subdivisions I and II of Section 39 of the Mortgage and all references thereto.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 13. The Company hereby exercises the right, reserved in Section 5 of the Fourteenth Supplemental Indenture to the Mortgage, to make the amendments described in such section, viz. to restate Sections 107 through 116 of Article XIX ("Meetings and Consents of Bondholders") of the Mortgage, as supplemented, effective when all bonds of the First through Thirteenth Series are no longer Outstanding.
SECTION 14. Pursuant to Section 120 of the Mortgage, the amount "$117,805,00" contained in the first sentence of the first paragraph of subsection (I) of Section 1 of the Fiftieth Supplemental Indenture, dated as of September 1, 1994, is hereby replaced with the amount "$117,805,000".
SECTION 15. The holders of the bonds of the Fifty-seventh 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 Fifty- seventh Series entitled to consent to any amendment or supplement to the Mortgage 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 16. Subject to any amendments provided for in this Fifty-first Supplemental Indenture, the terms defined in the Mortgage, as heretofore supplemented, shall, for all purposes of this Fifty-first Supplemental Indenture, have the meanings specified in the Mortgage, as heretofore supplemented.
SECTION 17. So long as any bonds of the Fifty-seventh Series shall remain Outstanding, in each Net Earning Certificate made pursuant to Section 7 of the Mortgage there shall be included in operating expenses for the twelve (12) months period with respect to which such certificate is made an amount, if any (not otherwise included), equal to the provisions for amortization of any amounts included in utility plant acquisition adjustment accounts for such period.
SECTION 18. So long as any bonds of the Fifty-seventh Series shall remain Outstanding, subdivision (2) of Section 7 of the Mortgage is hereby amended by adding thereto the following words "provided, further, that the amount so included in such operating expenses in lieu of the amounts actually appropriated out of income for retirement of the Mortgaged and Pledged Property used primarily and principally in the electric, gas, steam and/or hot water utility business and the Company's automotive equipment used in the operation of such property shall not be less than the amounts so actually appropriated out of income".
SECTION 19. 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 Mortgage, as heretofore amended, 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 Fifty-first Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition contained in Article XVII of the Mortgage, as heretofore amended, shall apply to and form part of this Fifty- first 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 Fifty-first Supplemental Indenture.
SECTION 20. Whenever in this Fifty-first Supplemental Indenture either of the parties hereto is named or referred to, this shall, subject to the provisions of Articles XVI and XVII of the Mortgage, as heretofore amended, be deemed to include the successors and assigns of such party, and all covenants and agreements in this Fifty-first Supplemental Indenture contained by or on behalf of the Company, or by or on behalf of the Trustees, or either of them, shall, subject as aforesaid, bind and inure to the respective benefits of the respective successors and assigns of such parties, whether so expressed or not.
SECTION 21. Nothing in this Fifty-first Supplemental Indenture, expressed or implied, is intended, or shall be construed, to confer upon, or give to, any person, firm or corporation, other than the parties hereto and the holders of the bonds and coupons Outstanding under the Mortgage, any right, remedy or claim under or by reason of this Fifty-first Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this Fifty-first Supplemental Indenture contained by or on behalf of the Company shall be for the sole and exclusive benefit of the parties hereto, and of the holders of the bonds and coupons Outstanding under the Mortgage.
SECTION 22. 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 Fifty-first 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 Fifty-first Supplemental Indenture shall be considered as an act of mortgage and pledge under the laws of the State of Louisiana, and the Trustees herein named are named as mortgagee and pledgee in trust for the benefit of themselves and of all present and future holders of bonds and coupons issued and to be issued under the Mortgage, and are irrevocably appointed special agents and representatives of the holders of the bonds and coupons issued and to be issued under the Mortgage and vested with full power in their behalf to effect and enforce the mortgage and pledge hereby constituted for their benefit, or otherwise to act as herein provided for.
SECTION 23. This Fifty-first Supplemental Indenture shall be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, LOUISIANA POWER & LIGHT COMPANY has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by its 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, in token of its acceptance of the trust hereby created, 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 Secretaries and MARK F. McLAUGHLIN, in token of his acceptance of the trust hereby created, has hereunto set his hand and affixed his seal, all as of the day and year first above written.
[SEAL] LOUISIANA POWER & LIGHT COMPANY
By/s/ William J. Regan, Jr.
Vice President
Attest:
/s/ Christopher T. Screen
Assistant Secretary
|
Executed, sealed and delivered by
LOUISIANA POWER & LIGHT COMPANY
in the presence of:
/s/ Frank Williford /s/ Martin Malloy |
[SEAL] BANK OF MONTREAL TRUST COMPANY,
As Corporate Trustee
By/s/ Therese Gaballah
Therese Gaballah
Vice President
Attest:
/s/ Frances Rusakowsky
Frances Rusakowsky
Assistant Secretary
/s/ Mark F. McLaughlin [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:
/s/ Maryann Luisi /s/ Louie Abitante |
STATE OF LOUISIANA
} ss.:
PARISH OF ORLEANS
On this 20th day of March, 1996, before me appeared WILLIAM
J. REGAN, JR., to me personally known, who, being by me duly
sworn, did say that he is Vice President and Treasurer of
LOUISIANA POWER & LIGHT COMPANY, and that the seal affixed to the
above 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
WILLIAM J. REGAN, JR. acknowledged said instrument to be the free
act and deed of said corporation.
On the 20th day of March, in the year 1996, before me personally came WILLIAM J. REGAN, JR., to me known, who, being by me duly sworn, did depose and say that he resides at 104 English Turn, New Orleans, Louisiana 70131; that he is Vice President and Treasurer of LOUISIANA POWER & LIGHT COMPANY, one of the corporations 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.
[SEAL] /s/ Denise Redmann Krouse
Denise Redmann Krouse
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 March, 1996, before me appeared THERESE GABALLAH, to me personally known, who, being by me duly sworn, did say that she is a Vice President of BANK OF MONTREAL TRUST COMPANY, and that the seal affixed to the above instrument is the corporate seal of said corporation and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors, and said THERESE GABALLAH acknowledged said instrument to be the free act and deed of said corporation.
On the 21st day of March in the year 1996, before me personally came THERESE GABALLAH, to me known, who, being by me duly sworn, did depose and say that she resides at 41-26 68th Street, Woodside, New York 11377; that she is a Vice President of BANK OF MONTREAL TRUST COMPANY, one of the corporations 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.
[SEAL] /s/ Lee T. Barnum
Lee T. Barnum
Notary Public, State of New York
No. 01BA5037193
Qualified in New York County
Commission Expires December 19, 1996
|
STATE OF NEW YORK
} ss.:
COUNTY OF NEW YORK
On this 21st day of March, 1996, before me appeared MARK F. McLAUGHLIN, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed.
On the 21st day of March, 1996, before me personally came MARK F. McLAUGHLIN, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same.
[SEAL]
/s/ Lee T. Barnum
Lee T. Barnum
Notary Public, State of New York
No. 01BA5037193
Qualified in New York County
Commission Expires December 19, 1996
|
Exhibit B-2(a)
Louisiana Power & Light Company
$115,000,000
First Mortgage Bonds
8 3/4% Series due March 1, 2026
UNDERWRITING AGREEMENT
March 20, 1996
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Salomon Brothers Inc
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
The undersigned, Louisiana Power & Light Company, a Louisiana corporation (the "Company"), proposes to issue and sell severally to you, as underwriters (the "Underwriters," which term, when the context permits, shall also include any underwriters substituted as hereinafter in Section 11 provided), an aggregate of $115,000,000 principal amount of the Company's First Mortgage Bonds, 8 _% Series due March 1, 2026 (the "Bonds"), as follows:
SECTION 1. Purchase and Sale. On the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Company shall issue and sell to each of the Underwriters, and each Underwriter shall purchase from the Company, at the time and place herein specified, severally and not jointly, the respective principal amounts of the Bonds set forth opposite the name of such Underwriter in Schedule I attached hereto at 99.125% of the principal amount of the Bonds.
SECTION 2. Description of Bonds. The Bonds shall be issued under and pursuant to the Company's Mortgage and Deed of Trust, dated as of April 1, 1944, with Bank of Montreal Trust Company (successor to The Chase Manhattan Bank (National Association)), as Corporate Trustee (the "Corporate Trustee"), and Mark F. McLaughlin (successor to Z. George Klodnicki), as Co-Trustee (the "Co-Trustee" and, together with the Corporate Trustee, the "Trustees"), as heretofore amended and supplemented by all indentures amendatory thereof and supplemental thereto, including the Fifty-first Supplemental Indenture, dated as of March 1, 1996 (the "Supplemental Indenture"). Said Mortgage and Deed of Trust as so amended and supplemented is hereinafter referred to as the "Mortgage". The Bonds and the Supplemental Indenture shall have the terms and provisions described in the Prospectus (as defined herein), provided that subsequent to the date hereof and prior to the Closing Date (as defined herein) the form of the Supplemental Indenture may be amended by mutual agreement between the Company and the Underwriters.
SECTION 3. Representations and Warranties of the Company. The Company represents and warrants to the several Underwriters, and covenants and agrees with the several Underwriters, that:
(a) The Company is duly organized and validly existing as a corporation in good standing under the laws of the State of Louisiana and has the necessary corporate power and authority to conduct the business that it is described in the Prospectus as conducting and to own and operate the properties owned and operated by it in such business.
(b) The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (File No. 33-39221) (the "1991 Registration Statement") for the registration of $200,000,000 aggregate par value of the Company's Preferred Stock, Cumulative, $25 Par Value, and the Company's Preferred Stock, Cumulative, $100 Par Value (collectively, the "Preferred Stock") under the Securities Act of 1933, as amended (the "Securities Act"), and the 1991 Registration Statement has become effective. The Company has also filed with the Commission a registration statement (File No. 33-46085) (the "1992 Registration Statement") for the registration of $325,000,000 aggregate principal amount of the Company's First Mortgage Bonds (the "First Mortgage Bonds") under the Securities Act (relating to $500,000,000 aggregate principal amount of First Mortgage Bonds), and the 1992 Registration Statement has become effective. While $28,000,000 aggregate par value of Preferred Stock remained unsold under the 1991 Registration Statement and $131,000,000 aggregate principal amount of First Mortgage Bonds remained unsold under the 1992 Registration Statement, the Company also filed with the Commission a registration statement on Form S-3 (File No. 33- 50937) (the "1993 Registration Statement") for the registration of $210,000,000 aggregate par value and/or aggregate principal amount of the Preferred Stock and/or First Mortgage Bonds under the Securities Act, and the 1993 Registration Statement has become effective. The Company qualifies for use of Form S-3 for the registration of the Bonds, and the Bonds are registered under the Securities Act. The combined prospectus forming a part of the 1993 Registration Statement and relating, pursuant to Rule 429 under the Securities Act, to $369,000,000 aggregate par value and/or aggregate principal amount of the Preferred Stock and/or First Mortgage Bonds (all of which Preferred Stock and/or First Mortgage Bonds remain unsold), including the Bonds, at the time the 1993 Registration Statement (or the most recent amendment thereto filed prior to the time of effectiveness of this Underwriting Agreement) became effective, including all documents incorporated by reference therein at that time pursuant to Item 12 of Form S-3, is hereinafter referred to as the "Basic Prospectus". In the event that (i) the Basic Prospectus shall have been amended, revised or supplemented (but excluding any supplements to the Basic Prospectus relating solely to First Mortgage Bonds other than the Bonds or relating solely to shares of Preferred Stock) prior to the time of effectiveness of this Underwriting Agreement, including without limitation by any preliminary prospectus supplement relating to the Bonds or (ii) the Company shall have filed documents pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the time the 1993 Registration Statement became effective and prior to the time of effectiveness of this Underwriting Agreement (but excluding documents incorporated therein by reference relating solely to First Mortgage Bonds other than the Bonds or relating solely to shares of Preferred Stock), which are deemed to be incorporated by reference in the Basic Prospectus pursuant to Item 12 of Form S-3, the term "Basic Prospectus" as used herein shall also mean such prospectus as so amended, revised or supplemented and reflecting such incorporation by reference. The 1993 Registration Statement in the form in which it became effective and as it may have been amended by all amendments thereto as of the time of effectiveness of this Underwriting Agreement (including, for these purposes, as an amendment any document incorporated by reference in the Basic Prospectus), and the Basic Prospectus as it shall be supplemented to reflect the terms of the offering and sale of the Bonds by a prospectus supplement (a "Prospectus Supplement") to be filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b) under the Securities Act ("Rule 424(b)"), are hereinafter referred to as the "Registration Statement" and the "Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the 1991
Registration Statement, the 1992 Registration Statement or the
Registration Statement or any supplement to the Prospectus (except
any amendment or supplement relating solely to First Mortgage
Bonds other than the Bonds or relating solely to shares of
Preferred Stock), and (ii) between the time of effectiveness of
this Underwriting Agreement and the Closing Date, the Company will
not file any document that is to be incorporated by reference in,
or any supplement to, the Basic Prospectus, in either case,
without prior notice to the Underwriters and to Winthrop, Stimson,
Putnam & Roberts ("Counsel for the Underwriters"), or any such
amendment or supplement to which said Counsel shall reasonably
object on legal grounds in writing. For purposes of this
Underwriting Agreement, any document that is filed with the
Commission after the time of effectiveness of this Underwriting
Agreement and is incorporated by reference in the Prospectus
(except documents incorporated by reference relating solely to
First Mortgage Bonds other than the Bonds or relating solely to
shares of Preferred Stock) pursuant to Item 12 of Form S-3 shall
be deemed a supplement to the Prospectus.
(d) The 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, in the forms in which they (or the latest post-effective amendment thereto) became effective, and the Mortgage, at such times, fully complied, and the Prospectus, when delivered to the Underwriters for their use in making confirmations of sales of the Bonds and at the Closing Date, as it may then be amended or supplemented, will fully comply, in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission thereunder or pursuant to said rules and regulations did or will be deemed to comply therewith. The documents incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, on the date first filed with the Commission pursuant to the Exchange Act, fully complied or will fully comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the Commission thereunder or pursuant to said rules and regulations did or will be deemed to comply therewith. On the later of (i) the date the Registration Statement was declared effective by the Commission under the Securities Act and (ii) the date that the Company's most recent Annual Report on Form 10-K was filed with the Commission under the Exchange Act (the date described in either clause (i) or (ii) is hereinafter referred to as the "Effective Date"), the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement did not, and on the date that any post- effective amendment to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement became or becomes effective (but excluding any post-effective amendment relating solely to First Mortgage Bonds other than the Bonds or relating solely to shares of Preferred Stock), the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, as amended by any such post-effective amendment, did not or will not, as the case may be, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the time the Prospectus is delivered to the Underwriters for their use in making confirmations of sales of the Bonds and at the Closing Date, the Prospectus, as it may then be amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading and, on said dates and at such times, the documents then incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, when read together with the Prospectus, or the Prospectus, as it may then be amended or supplemented, will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. The foregoing representations and warranties in this paragraph (d) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by the Underwriters or on behalf of any Underwriter specifically for use in connection with the preparation of the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement or the Prospectus, as they may be then amended or supplemented, or to any statements in or omissions from the statements of eligibility of the Trustees on Form T-1 and Form T-2, as they may then be amended, under the Trust Indenture Act filed as exhibits to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement.
(e) The issuance and sale of the Bonds and the fulfillment of the terms of this Underwriting Agreement will not result in a breach of any of the terms or provisions of, or constitute a default under, the Mortgage or any indenture or other agreement or instrument to which the Company is now a party.
(f) Except as set forth or contemplated in the Prospectus, as it may then 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 the Underwriters that they propose to make a public offering of their respective portions of the Bonds as soon after the effectiveness of this Underwriting Agreement as in their judgment is advisable. The Company is further advised by the Underwriters that the Bonds will be offered to the public at the initial public offering price specified in the Prospectus Supplement plus accrued interest thereon, if any, from the Closing Date.
SECTION 5. Time and Place of Closing. Delivery of the Bonds and payment of the purchase price therefor by wire transfer of immediately available funds shall be made at the offices of Reid & Priest LLP, 40 West 57th Street, New York, New York, at 10:00 A.M., New York time, on March 27, 1996, or at such other time on the same or such other day as shall be agreed upon by the Company and Bear, Stearns & Co. Inc., or as may be established in accordance with Section 11 hereof. The hour and date of such delivery and payment are herein called the "Closing Date."
The Bonds shall be delivered to the Underwriters in book- entry form through the facilities of The Depository Trust Company in New York, New York. The certificates for the Bonds shall be in the form of one or more typewritten bonds in fully registered form, in the aggregate principal amount of the Bonds, and registered in the name of Cede & Co., as nominee of The Depository Trust Company. The Company agrees to make the Bonds available to the Underwriters for checking not later than 2:30 P.M., New York time, on the last business day preceding the Closing Date at such place as may be agreed upon among the Underwriters and the Company, or at such other time and/or date as may be agreed upon among the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will deliver to the Underwriters a copy of the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, each as originally filed with the Commission, and of all amendments or supplements thereto relating to the Bonds, or a conformed copy thereof, certified by an officer of the Company to be in the form filed.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise Bear, Stearns & Co. Inc. promptly of the issuance of any stop order under the Securities Act with respect to the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement or the institution of any proceedings therefor of which the Company shall have received notice. The Company will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company, or of which the Company shall be advised by
the Underwriters in writing, shall occur which in the Company's
opinion should be set forth in a supplement or amendment to the
Prospectus in order to make the Prospectus not misleading in the
light of the circumstances when it is delivered to a purchaser of
the Bonds, the Company will amend or supplement the Prospectus by
either (i) preparing and filing with the Commission and furnishing
to the Underwriters a reasonable number of copies of a supplement
or supplements or an amendment or amendments to the Prospectus, or
(ii) making an appropriate filing pursuant to Section 13, 14 or
15(d) of the Exchange Act which will supplement or amend the
Prospectus, so that, as supplemented or amended, it will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading. Unless such event relates solely
to the activities of the Underwriters (in which case the
Underwriters shall assume the expense of preparing any such
amendment or supplement), the expenses of complying with this
Section 6(d) shall be borne by the Company until the expiration of
nine months from the time of effectiveness of this Underwriting
Agreement, and such expenses shall be borne by the Underwriters
thereafter.
(e) The Company will make generally available to its security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Company will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Bonds for offer and sale, under the blue sky laws of such jurisdictions as the Underwriters may reasonably designate, provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay all
fees, expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing of the 1991 Registration
Statement, the 1992 Registration Statement, the Registration
Statement and any post-effective amendments thereto, (ii) the
printing, issuance and delivery of the Bonds and the preparation,
execution, printing and recordation of the Supplemental Indenture,
(iii) legal counsel relating to the qualification of the Bonds
under the blue sky laws of various jurisdictions in an amount not
to exceed $3,500, (iv) the printing and delivery to the
Underwriters of reasonable quantities of copies of the 1991
Registration Statement, the 1992 Registration Statement and the
Registration Statement, the preliminary (and any supplemental)
blue sky survey, any preliminary prospectus supplement relating to
the Bonds and the Prospectus and any amendment or supplement
thereto, except as otherwise provided in paragraph (d) of this
Section 6, (v) the rating of the Bonds by one or more nationally
recognized statistical rating agencies and (vi) filings or other
notices (if any) with or to, as the case may be, the National
Association of Securities Dealers, Inc. (the "NASD") in connection
with its review of the terms of the offering. Except as provided
above, the Company shall not be required to pay any expenses of
the Underwriters, except that, if this Underwriting Agreement
shall be terminated in accordance with the provisions of
Section 7, 8 or 12 hereof, the Company will reimburse the
Underwriters for (A) the reasonable fees and expenses of Counsel
for the Underwriters, whose fees and expenses the Underwriters
agree to pay in any other event, and (B) reasonable out-of-pocket
expenses in an aggregate amount not exceeding $15,000, incurred in
contemplation of the performance of this Underwriting Agreement.
The Company shall not in any event be liable to the Underwriters
for damages on account of loss of anticipated profits.
(h) The Company will not sell any additional First Mortgage Bonds without the consent of the Underwriters until the earlier to occur of (i) the Closing Date and (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters. The Underwriters agree to notify the Company of such termination if it occurs prior to the Closing Date.
(i) As soon as practicable after the Closing Date, the Company will make all recordings, registrations and filings necessary to perfect and preserve the lien of the Mortgage and the rights under the Supplemental Indenture, and the Company will use its best efforts to cause to be furnished to the Underwriters a supplemental opinion of counsel for the Company, addressed to the Underwriters, stating that all such recordings, registrations and filings have been made.
SECTION 7. Conditions of Underwriters' Obligations. The obligations of the Underwriters to purchase and pay for the Bonds shall be subject to the accuracy on the date hereof and on the Closing Date of the representations and warranties made herein on the part of the Company and of any certificates furnished by the Company on the Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b) prior to 5:30 P.M., New York time, on the second business day following the date of this Underwriting Agreement, or such other time and date as may be agreed upon by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement shall be in effect at or prior to the Closing Date; no proceedings for such purpose shall be pending before, or, to the knowledge of the Company or the Underwriters, threatened by, the Commission on the Closing Date; and the Underwriters shall have received a certificate, dated the Closing Date and signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that no such stop order has been or is in effect and that no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission.
(c) At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Underwriting Agreement, the Supplemental Indenture and the Prospectus.
(d) At the Closing Date, the Underwriters shall have received from Denise C. Redmann, Esq., Senior Attorney--Corporate and Securities of Entergy Services, Inc., and Reid & Priest LLP, opinions, dated the Closing Date, substantially in the forms set forth in Exhibits A and B hereto, respectively, (i) with such changes therein as may be agreed upon by the Company and the Underwriters with the approval of Counsel for the Underwriters, and (ii) if the Prospectus shall be supplemented after being furnished to the Underwriters for use in offering the Bonds, with changes therein to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have received from Counsel for the Underwriters an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this Underwriting Agreement, the Underwriters shall have received from Coopers & Lybrand L.L.P., the Company's independent certified public accountants (the "Accountants"), a letter dated the date hereof and addressed to the Underwriters to the effect that (i) they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder; (ii) in their opinion, the financial statements and financial statement schedules examined by them and included or incorporated by reference in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 1995 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Underwriters), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock or long-term debt of the Company, or decrease in its net assets, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Prospectus, except in all instances for changes or decreases which the Prospectus discloses have occurred or may occur, for declarations of dividends, for the repayment or redemption of long-term debt, for the amortization of premium or discount on long-term debt, for the redemption or purchase of preferred stock for sinking fund purposes, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Prospectus, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(g) At the Closing Date, the Underwriters shall have received a certificate, dated the Closing Date and signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Underwriting Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Prospectus, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Prospectus, as it may then be amended or supplemented.
(h) At the Closing Date, the Underwriters shall have received duly executed counterparts of the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have received from the Accountants a letter, dated the Closing Date, confirming, as of a date not more than five days prior to the Closing Date, the statements contained in the letter delivered pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no Default (or an event which, with the giving of notice or the passage of time or both, would constitute a Default) under the Mortgage shall have occurred.
(k) Prior to the Closing Date, Bear, Stearns & Co. Inc. shall have received from the Company evidence reasonably satisfactory to Bear, Stearns & Co. Inc. that the Bonds have received ratings of Baa2 or better from Moody's Investors Service, Inc. and BBB or better from Standard & Poor's Ratings Group.
(l) Between the date hereof and the Closing Date, neither Moody's Investors Service, Inc. nor Standard & Poor's Ratings Group shall have lowered its rating of any of the Company's outstanding First Mortgage Bonds in any respect.
(m) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of the Underwriters, materially impairs the investment quality of the Bonds.
(n) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance to Counsel for the Underwriters.
(o) The Company will furnish the Underwriters with additional conformed copies of such opinions, certificates, letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7 shall
not have been fulfilled, this Underwriting Agreement may be terminated
by the Underwriters upon notice thereof to the Company. Any such
termination shall be without liability of any party to any other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 10.
SECTION 8. Conditions of Company's Obligations. The obligations of the Company hereunder shall be subject to the following conditions:
(a) No stop order suspending the effectiveness of the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement shall be in effect at or prior to the Closing Date, and no proceedings for that purpose shall be pending before, or threatened by, the Commission on the Closing Date.
(b) There shall have been issued and, at the Closing Date, there shall be in full force and effect an order of the Commission under the 1935 Act authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Underwriting Agreement, the Supplemental Indenture and the Prospectus.
In case any of the conditions specified in this Section 8
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to Bear, Stearns & Co.
Inc. Any such termination shall be without liability of any party to
any other party, except as otherwise provided in paragraph (g) of
Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each Underwriter and each person who controls each Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages or liabilities, joint or several, to which each Underwriter or any or all of them may become subject under the Securities Act or any other statute or common law and shall reimburse each Underwriter and any such controlling person for any legal or other expenses (including to the extent hereinafter provided, reasonable counsel fees) incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement, as amended or supplemented, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or upon any untrue statement or alleged untrue statement of a material fact contained in the Basic Prospectus (if used prior to the date the Prospectus is filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b)), or in the Prospectus, as each may be amended or supplemented, or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the indemnity agreement contained in this paragraph shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon and in conformity with information furnished herein or in writing to the Company by any Underwriter specifically for use in connection with the preparation of the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement, the Basic Prospectus (if used prior to the date the Prospectus is filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b)) or the Prospectus or any amendment or supplement to any thereof or arising out of, or based upon, statements in or omissions from the statements of eligibility of the Trustees on Form T-1 and Form T-2, as they may be then amended, under the Trust Indenture Act filed as exhibits to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement; and provided further, that the indemnity agreement contained in this subsection shall not inure to the benefit of any Underwriter or to the benefit of any person controlling any Underwriter on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of the Bonds to any person in respect of the Basic Prospectus or the Prospectus as supplemented or amended, furnished by any Underwriter to a person to whom any of the Bonds were sold (excluding in both cases, however, any document then incorporated or deemed incorporated by reference therein), insofar as such indemnity relates to any untrue or misleading statement or omission made in the Basic Prospectus or the Prospectus but eliminated or remedied prior to the consummation of such sale in the Prospectus, or any amendment or supplement thereto, furnished on a timely basis by the Company to the Underwriters pursuant to Section 6(d) hereof, respectively, unless a copy of the Prospectus (in the case of such a statement or omission made in the Basic Prospectus) or such amendment or supplement (in the case of such a statement or omission made in the Prospectus) (excluding, however, any amendment or supplement to the Basic Prospectus relating to any First Mortgage Bonds other than the Bonds or to Preferred Stock and any document then incorporated or deemed incorporated by reference in the Prospectus or such amendment or supplement) is furnished by such Underwriter to such person (i) with or prior to the written confirmation of the sale involved or (ii) as soon as available after such written confirmation (if it is made available to the Underwriters prior to settlement of such sale).
(b) Each Underwriter shall indemnify, defend and hold harmless the Company, its directors and officers and each person who controls the foregoing within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and shall reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any action, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement, as amended or supplemented, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or upon any untrue statement or alleged untrue statement of a material fact contained in the Basic Prospectus (if used prior to the date the Prospectus is filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b)), or in the Prospectus, as amended or supplemented, or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case, if, but only if, such statement or omission was made in reliance upon and in conformity with information furnished herein or in writing to the Company by any Underwriter specifically for use in connection with the preparation of the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement, the Basic Prospectus (if used prior to the date the Prospectus is filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b)) or the Prospectus, or any amendment or supplement thereto.
(c) In case any action shall be brought, based upon the 1991
Registration Statement, the 1992 Registration Statement, the
Registration Statement, the Basic Prospectus or the Prospectus
(including amendments or supplements thereto), against any party in
respect of which indemnity may be sought pursuant to any of the
preceding paragraphs, such party (hereinafter called the indemnified
party) shall promptly notify the party or parties against whom
indemnity shall be sought hereunder (hereinafter called the
indemnifying party) in writing, and the indemnifying party shall have
the right to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying party)
the defense thereof, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all fees and
expenses. If the indemnifying party shall elect not to assume the
defense of any such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any counsel
retained by such indemnified party. Such indemnified party shall have
the right to employ separate counsel in any such action in which the
defense has been assumed by the indemnifying party and participate in
the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of
counsel has been specifically authorized by the indemnifying party or
(ii) the named parties to any such action (including any impleaded
parties) include each of such indemnified party and the indemnifying
party and such indemnified party shall have been advised by such
counsel that a conflict of interest between the indemnifying party and
such indemnified party may arise and for this reason it is not
desirable for the same counsel to represent both the indemnifying party
and the indemnified party (it being understood, however, that the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys for such indemnified party (plus
any local counsel retained by such indemnified party in its reasonable
judgment). The indemnified party shall be reimbursed for all such fees
and expenses as they are incurred. The indemnifying party shall not be
liable for any settlement of any such action effected without its
consent, but if any such action is settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless the indemnified party from and against any loss or liability
by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party
and indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such action, suit or proceeding.
(d) If the indemnification provided for under subsections
(a), (b) or (c) in this Section 9 is unavailable to an indemnified
party in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Underwriters from the
offering of the Bonds or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to the Company
bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or
by any of the Underwriters and such parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Bonds underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 9(d) are several in proportion to their respective underwriting obligations and not joint.
SECTION 10. Survival of Certain Representations and Obligations. Any other provision of this Underwriting Agreement to the contrary notwithstanding, (a) the indemnity and contribution agreements contained in Section 9 of, and the representations and warranties and other agreements of the Company contained in, this Underwriting Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or by or on behalf of the Company or its directors or officers, or any of the other persons referred to in Section 9 hereof and (ii) acceptance of and payment for the Bonds and (b) the indemnity and contribution agreements contained in Section 9 shall remain operative and in full force and effect regardless of any termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any Underwriter
shall fail or refuse (otherwise than for some reason sufficient to
justify, in accordance with the terms hereof, the cancellation or
termination of its obligations hereunder) to purchase and pay for the
principal amount of Bonds that it has agreed to purchase and pay for
hereunder, and the aggregate principal amount of Bonds that such
defaulting Underwriter agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Bonds, the
other Underwriters shall be obligated to purchase the Bonds that such
defaulting Underwriter agreed but failed or refused to purchase;
provided that in no event shall the principal amount of Bonds that any
Underwriter has agreed to purchase pursuant to Schedule I hereof be
increased pursuant to this Section 11 by an amount in excess of one-
ninth of such principal amount of Bonds without written consent of such
Underwriter. If any Underwriter shall fail or refuse to purchase Bonds
and the aggregate principal amount of Bonds with respect to which such
default occurs is more than one-tenth of the aggregate principal amount
of the Bonds, the Company shall have the right (a) to require the non-
defaulting Underwriters to purchase and pay for the respective
principal amount of Bonds that it had severally agreed to purchase
hereunder, and, in addition, the principal amount of Bonds that the
defaulting Underwriter shall have so failed to purchase up to a
principal amount thereof equal to one-ninth of the respective principal
amount of Bonds that such non-defaulting Underwriters have otherwise
agreed to purchase hereunder, and/or (b) to procure one or more others,
members of the NASD (or, if not members of the NASD, who are foreign
banks, dealers or institutions not registered under the Exchange Act
and who agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the principal
amount of Bonds that such defaulting Underwriter had agreed to
purchase, or that portion thereof that the remaining Underwriters shall
not be obligated to purchase pursuant to the foregoing clause (a). In
the event the Company shall exercise its rights under clause (a) and/or
(b) above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday, or legal
holiday) of the time when the Company learns of the failure or refusal
of any Underwriter to purchase and pay for its respective principal
amount of Bonds, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company shall
determine. In the event the Company shall be entitled to but shall not
elect (within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence of
such election by the Company, this Underwriting Agreement will, unless
otherwise agreed by the Company and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting party
except as otherwise provided in paragraph (g) of Section 6 and in
Section 10. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of its default
under this Underwriting Agreement.
SECTION 12. Termination. This Underwriting Agreement shall
be subject to termination by notice given by written notice from Bear,
Stearns & Co. Inc. to the Company, if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing Date
(i) trading generally shall have been suspended on the New York Stock
Exchange by The New York Stock Exchange, Inc., the Commission or other
governmental authority, (ii) minimum or maximum ranges for prices shall
have been generally established on the New York Stock Exchange by The
New York Stock Exchange, Inc., the Commission or other governmental
authority, (iii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis that,
in the judgment of Bear, Stearns & Co. Inc., is material and adverse
and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event
makes it, in the reasonable judgment of Bear, Stearns & Co. Inc.,
impracticable to market the Bonds. This Underwriting Agreement shall
also be subject to termination, upon notice by Bear, Stearns & Co. Inc.
as provided above, if, in the judgment of Bear, Stearns & Co. Inc., the
subject matter of any amendment or supplement (prepared by the Company)
to the Prospectus (except for information relating solely to the manner
of public offering of the Bonds or to the activity of the Underwriters
or to the terms of any series of First Mortgage Bonds not included in
the Bonds or to shares of the Preferred Stock) filed or issued after
the effectiveness of this Underwriting Agreement by the Company shall
have materially impaired the marketability of the Bonds. Any
termination hereof, pursuant to this Section 12, shall be without
liability of any party to any other party, except as otherwise provided
in paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This Underwriting Agreement shall become effective when a fully executed copy thereof is delivered to the Company and to Bear, Stearns & Co. Inc. This Underwriting Agreement may be executed in any number of separate counterparts, each of which, when so executed and delivered, shall be deemed to be an original and all of which, taken together, shall constitute but one and the same agreement. This Underwriting Agreement shall inure to the benefit of each of the Company, the Underwriters and, with respect to the provisions of Section 9, each director, officer and other persons referred to in Section 9, and their respective successors. Should any part of this Underwriting Agreement for any reason be declared invalid, such declaration shall not affect the validity of any remaining portion, which remaining portion shall remain in full force and effect as if this Underwriting Agreement had been executed with the invalid portion thereof eliminated. Nothing herein is intended or shall be construed to give to any other person, firm or corporation any legal or equitable right, remedy or claim under or in respect of any provision in this Underwriting Agreement. The term "successor" as used in this Underwriting Agreement shall not include any purchaser, as such purchaser, of any Bonds from the Underwriters.
SECTION 14. Notices. All communications hereunder shall be in writing and, if to the Underwriters, shall be mailed or delivered to Bear, Stearns & Co. Inc. at the address set forth at the beginning of this Underwriting Agreement to the attention of its General Counsel or, if to the Company, shall be mailed or delivered to it at 639 Loyola Avenue, New Orleans, Louisiana 70113, Attention: Treasurer, or, if to Entergy Services, Inc., shall be mailed or delivered to it at 639 Loyola Avenue, New Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
Louisiana Power & Light Company
By:
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
Accepted as of the date first above written:
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Salomon Brothers Inc
By: Bear, Stearns & Co. Inc.
By:
Name:
Title:
SCHEDULE I
Louisiana Power & Light Company
$115,000,000 First Mortgage Bonds
8 _% Series due March 1, 2026
Name Amount
Bear, Stearns & Co. Inc. $58,000,000
Goldman, Sachs & Co. $40,000,000
Salomon Brothers Inc $17,000,000
___________
Total $115,000,000
|
EXHIBIT A
|
[Letterhead of Entergy Services, Inc.]
March , 1996
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Salomon Brothers Inc
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
I, together with Reid & Priest LLP, of New York, New York, have acted as counsel for Louisiana Power & Light Company (the "Company") in connection with the issuance and sale to you, pursuant to the Underwriting Agreement effective March, __, 1996 (the "Underwriting Agreement"), between the Company and you, of $115,000,000 aggregate principal amount of its First Mortgage Bonds ____% Series due March 1, 2026 (the "Bonds"), issued pursuant to the Company's Mortgage and Deed of Trust, dated as of April 1, 1944, with Bank of Montreal Trust Company (successor to The Chase Manhattan Bank (National Association)), as Corporate Trustee (the "Corporate Trustee"), and Mark F. McLaughlin (successor to Z. George Klodnicki), as Co-Trustee (the "Co-Trustee" and, together with the Corporate Trustee, the "Trustees"), as heretofore amended and supplemented by all indentures amendatory thereof and supplemental thereto, including the Fifty-first Supplemental Indenture, dated as of March 1, 1996 (the "Supplemental Indenture") (the Mortgage and Deed of Trust as so amended and supplemented being hereinafter referred to as the "Mortgage"). This opinion is rendered to you at the request of the Company. Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in the Underwriting Agreement.
In my capacity as such counsel, I have either participated in
the preparation of or have examined and am familiar with: (a) the
Company's Restated Articles of Incorporation and By-Laws, each as
amended; (b) the Underwriting Agreement; (c) the Mortgage; (d) the 1991
Registration Statement, the 1992 Registration Statement, the
Registration Statement and Prospectus filed under the Securities Act;
(e) the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company and the
execution and delivery by the Company of the Supplemental Indenture and
the Underwriting Agreement; and (f) the proceedings before and the
order entered by the Commission under the 1935 Act relating to the
issuance and sale of the Bonds by the Company. I have also examined or
caused to be examined such other documents and have satisfied myself as
to such other matters as I have deemed necessary in order to render
this opinion. I have not examined the Bonds, except a specimen
thereof, and I have relied upon a certificate of the Corporate Trustee
as to the authentication and delivery thereof.
In my examination, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the legal capacity of natural persons and the conformity with the originals of all documents submitted to me as copies. In making my examination of documents and instruments executed or to be executed by persons other than the Company, I have assumed that each such other person had the requisite power and authority to enter into and perform fully its obligations thereunder, the due authorization by each such other person for the execution, delivery and performance thereof by such person, and the due execution and delivery by or on behalf of such person of each such document and instrument. In the case of any such other person that is not a natural person, I have also assumed, insofar as it is relevant to the opinions set forth below, that each such other person is duly organized, validly existing and in good standing under the laws of the jurisdiction in which such other person was created, and is duly qualified and in good standing in each other jurisdiction where the failure to be so qualified could reasonably be expected to have a material effect upon the ability of such other person to execute, deliver and/or perform such other person's obligations under any such document or instrument. I have further assumed that each document, instrument, agreement, record and certificate reviewed by me for purposes of rendering the opinions expressed below has not been amended by oral agreement, conduct or course of dealing of the parties thereto, although I have no knowledge of any facts or circumstances that could give rise to such amendment.
As to questions of fact material to the opinions expressed herein, I have relied upon certificates and representations of officers of the Company (including but not limited to those contained in the Underwriting Agreement, the Supplemental Indenture and certificates delivered at the closing of the sale of the Bonds) and appropriate public officials without independent verification of such matters except as otherwise described herein.
Whenever my opinions herein with respect to the existence or absence of facts are stated to be to my knowledge or awareness, I intend to signify that no information has come to my attention or the attention of any other attorneys acting for or on behalf of the Company or any of its affiliates that have participated in the negotiation of the transactions contemplated by the Underwriting Agreement and the Supplemental Indenture, in the preparation of the Registration Statement and the Prospectus or in the preparation of this opinion letter that would give me, or them, actual knowledge that would contradict such opinions. However, except to the extent necessary in order to give the opinions hereinafter expressed, neither I nor they have undertaken any independent investigation to determine the existence or absence of such facts, and no inference as to knowledge of the existence or absence of such facts (except to the extent necessary in order to give the opinions hereinafter expressed) should be assumed.
In rendering the opinions set forth in paragraph (2) below, I have relied upon reports and/or opinions by counsel who historically acted on behalf of the Company in real estate transactions and transactions involving the Mortgage and in whom I have confidence, title reports prepared in connection with the procurement of title insurance policies on certain property of the Company, and information from officers of the Company responsible for the acquisition of real property and maintenance of records with respect thereto, which I believe to be satisfactory in form and scope and which I have no reason to believe are inaccurate in any material respect. I have not, for purposes of rendering such opinion, conducted an independent examination or investigation of official title records (or abstracts thereof) with respect to property (i) acquired by the Company prior to the date of the most recent report and/or opinions of counsel, (ii) as to which title insurance has been obtained or (iii) the aggregate purchase price of which was not material.
Subject to the foregoing and to the further exceptions and qualifications set forth below, I am of the opinion that:
(1) The Company is duly organized and validly existing as a corporation in good standing under the laws of the State of Louisiana, has due corporate power and authority to conduct the business that it is described as conducting in the Prospectus and to own and operate the properties owned and operated by it in such business and is duly qualified to conduct such business in the State of Louisiana.
(2) The Company has good and sufficient title to the properties described as owned by it in and as subject to the lien of the Mortgage (except properties released under the terms of the Mortgage), subject only to Excepted Encumbrances as defined in the Mortgage and to minor defects and encumbrances customarily found in properties of like size and character that do not materially impair the use of such properties by the Company. The description of such properties set forth in the Mortgage is adequate to constitute the Mortgage as a lien thereon; and subject to paragraph (3) hereof, the Mortgage, subject only to such minor defects and Excepted Encumbrances, constitutes a valid, direct and first mortgage lien upon said properties, which include substantially all of the permanent physical properties and franchises of the Company (other than those expressly excepted). All permanent physical properties and franchises (other than those expressly excepted) acquired by the Company after the date of the Supplemental Indenture will, upon such acquisition, become subject to the lien of the Mortgage, subject, however, to such Excepted Encumbrances and to liens, if any, existing or placed thereon at the time of the acquisition thereof by the Company and except as limited by bankruptcy law.
(3) It will be necessary to record the Supplemental Indenture in all the Parishes in Louisiana in which the Company owns property and to file with the Recorder of Mortgages for the Parish of Orleans, Louisiana, a Louisiana Form UCC-3 amending UCC File No. 36-58323 to include the Supplemental Indenture before the liens created by the Supplemental Indenture become effective as to and enforceable against third parties. However, all permanent physical properties and franchises of the Company (other than those expressly excepted in the Mortgage) presently owned by the Company are subject to the lien of the Mortgage, subject to minor defects and Excepted Encumbrances of the character referred to in paragraph (2) hereof.
(4) The Mortgage has been duly and validly authorized by all necessary corporate action on the part of the Company, has been duly and validly executed and delivered by the Company, is a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, except (i) as the same may be limited by the laws of the State of Louisiana, where the property covered thereby is located, affecting the remedies for the enforcement of the security provided for therein, which laws do not, in my opinion, make inadequate remedies necessary for the realization of the benefits of such security, and (ii) as the same may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting enforcement of mortgagees' and other creditors' rights and general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and is qualified under the Trust Indenture Act, and no proceedings to suspend such qualification have been instituted or, to my knowledge, threatened by the Commission.
(5) The Bonds are legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting enforcement of mortgagees' and other creditors' rights and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and are entitled to the benefit of the security afforded by the Mortgage.
(6) The statements made in the Prospectus and the Prospectus Supplement under the captions "Description of New 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.
(7) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(8) Except as to the financial statements and other financial or statistical data included or incorporated by reference therein, upon which I do not pass, the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, at the respective times of their effectiveness, and the Prospectus, at the time it was filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b), complied as to form in all material respects with the applicable requirements of the Securities Act and (except with respect to the statements of eligibility of the Trustees on Form T-1 and Form T-2 filed as exhibits to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, upon which I do not pass) the Trust Indenture Act, and the applicable instructions, rules and regulations of the Commission thereunder or pursuant to said instructions, rules and regulations are deemed to comply therewith; and, with respect to the documents or portions thereof filed with the Commission pursuant to the Exchange Act, and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, such documents or portions thereof, on the date first filed with the Commission, complied as to form in all material respects with the applicable provisions of the Exchange Act, and the applicable instructions, rules and regulations of the Commission thereunder or pursuant to said instructions, rules and regulations are deemed to comply therewith; the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement have become, and on the date hereof are, effective under the Securities Act; and, to the best of my knowledge, no stop order suspending the effectiveness of the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement has been issued and no proceedings for that purpose are pending or threatened under Section 8(d) of the Securities Act.
(9) An appropriate order has been entered by the Commission under the 1935 Act authorizing the issuance and sale of the Bonds by the Company; to the best of my knowledge, said order is in full force and effect; no further approval, authorization, consent or other order of any governmental body (other than under the Securities Act, which has been duly obtained, or in connection or compliance with the provisions of the securities or blue sky laws of any jurisdiction) is legally required to permit the issuance and sale of the Bonds by the Company pursuant to the Underwriting Agreement; and no further approval, authorization, consent or other order of any governmental body is legally required to permit the performance by the Company of its obligations with respect to the Bonds or under the Mortgage and the Underwriting Agreement.
(10) The issuance and sale by the Company of the Bonds and the execution, delivery and performance by the Company of the Underwriting Agreement and the Mortgage (a) will not violate any provision of the Company's Restated 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 me (having made due inquiry with respect thereto) to which the Company is a party or which purports to be binding upon the Company or upon any of its assets, and (c) will not violate any provision of any law or regulation applicable to the Company or, to the best of my knowledge (having made due inquiry with respect thereto), any provision of any order, writ, judgment or decree of any governmental instrumentality applicable to the Company (except that various consents of, and filings with, governmental authorities may be required to be obtained or made, as the case may be, in connection or compliance with the provisions of the securities or blue sky laws of any jurisdiction).
In connection with the preparation by the Company of the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement and the Prospectus, I have had discussions with certain of the Company's officers and representatives, with other counsel for the Company, and with the independent certified public accountants of the Company who examined certain of the financial statements included or incorporated by reference in the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement. My examination of the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement and the Prospectus and my discussions did not disclose to me any information which gives me reason to believe that the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement, at the Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, at the time first filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b) and at the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. I do not express any opinion or belief as to the financial statements or other financial or statistical data included or incorporated by reference in the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement or the Prospectus, as to the statements of eligibility on Form T-1 and Form T-2 of the Trustees filed as exhibits to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement or as to the information contained in the Prospectus under the caption "Book Entry Securities."
I have examined the portions of the information contained in the Prospectus that are stated therein to have been made on my authority, and I believe such information to be correct. I have examined the opinions of even date herewith rendered to you by Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts, and concur in the conclusions expressed therein insofar as they involve questions of Louisiana law.
I am a member of the Louisiana Bar and do not hold myself out as an expert on the laws of any other state. As to all matters of New York law, I have relied, with your approval, upon the opinion of even date herewith addressed to you by Reid & Priest LLP of New York, New York.
With respect to the opinions set forth in paragraphs (4) and
(5) above, I call your attention to the fact that the provisions of the
Atomic Energy Act of 1954, as amended, and regulations promulgated
thereunder impose certain licensing and other requirements upon persons
(such as the Trustees under the Mortgage or other purchasers pursuant
to the remedial provisions of the Mortgage) who seek to acquire,
possess or use nuclear production facilities.
The opinion set forth above is solely for the benefit of the addressees of this letter in connection with the Underwriting Agreement and the transactions contemplated thereunder and it may not be relied upon in any manner by any other person or for any other purpose, without my prior written consent, except that Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts may rely on this opinion as to all matters of Louisiana law in rendering their opinions required to be delivered under the Underwriting Agreement.
Very truly yours,
EXHIBIT B
[Letterhead of Reid & Priest LLP]
March __, 1996
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Salomon Brothers Inc
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
We, together with Denise C. Redmann, Esq., Senior Attorney-- Corporate and Securities of Entergy Services, Inc., have acted as counsel for Louisiana Power & Light Company (the "Company") in connection with the issuance and sale to you pursuant to the Underwriting Agreement, effective March __, 1996 (the "Underwriting Agreement"), between the Company and you, of $115,000,000 aggregate principal amount of its First Mortgage Bonds, _____% Series due March 1, 2026 (the "Bonds") issued pursuant to the Company's Mortgage and Deed of Trust, dated as of April 1, 1944, with Bank of Montreal Trust Company (successor to The Chase Manhattan Bank (National Association)), as Corporate Trustee (the "Corporate Trustee"), and Mark F. McLaughlin (successor to Z. George Klodnicki), as Co-Trustee (the "Co-Trustee" and, together with the Corporate Trustee, the "Trustees"), as heretofore amended and supplemented by all indentures amendatory thereof and supplemental thereto, including the Fifty-first Supplemental Indenture, dated as of March 1, 1996 (the "Supplemental Indenture") (the Mortgage and Deed of Trust as so amended and supplemented being hereinafter referred to as the "Mortgage"). This opinion is being rendered to you at the request of the Company. Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either participated
in the preparation of or have examined and are familiar with: (a) the
Company's Restated Articles of Incorporation and By-Laws, each as
amended; (b) the Underwriting Agreement; (c) the Mortgage; (d) the 1991
Registration Statement, the 1992 Registration Statement, the
Registration Statement and Prospectus filed under the Securities Act;
(e) the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company and the
execution and delivery by the Company of the Supplemental Indenture and
the Underwriting Agreement; and (f) the proceedings before and the
order entered by the Commission under the 1935 Act relating to the
issuance and sale of the Bonds by the Company. We have also examined
or caused to be examined such other documents and have satisfied
ourselves as to such other matters as we have deemed necessary in order
to render this opinion. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity to the originals of
the documents submitted to us as certified or photostatic copies. We
have not examined the Bonds, except a specimen thereof, and we have
relied upon a certificate of the Corporate Trustee as to the
authentication and delivery thereof.
Subject to the foregoing and to the further exceptions and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized by all necessary corporate action on the part of the Company, has been duly and validly executed and delivered by the Company, is a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, except (i) as the same may be limited by the laws of the State of Louisiana, where the property covered thereby is located, affecting the remedies for the enforcement of the security provided for therein, and (ii) as the same may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting enforcement of mortgagees' and other creditors' rights and general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and is qualified under the Trust Indenture Act, and no proceedings to suspend such qualification have been instituted or, to our knowledge, threatened by the Commission.
(2) The Bonds are legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting enforcement of mortgagees' and other creditors' rights and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and are entitled to the benefit of the security afforded by the Mortgage.
(3) The statements made in the Prospectus and the Prospectus Supplement under the captions "Description of New 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 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, at the respective times of their effectiveness, and the Prospectus, at the time it was filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b), complied as to form in all material respects with the applicable requirements of the Securities Act and (except with respect to the statements of eligibility of the Trustees on Form T-1 and Form T-2 filed as exhibits to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, upon which we do not pass) the Trust Indenture Act, and the applicable instructions, rules and regulations of the Commission thereunder or pursuant to said instructions, rules and regulations are deemed to comply therewith; and, with respect to the documents or portions thereof filed with the Commission pursuant to the Exchange Act, and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, such documents or portions thereof, on the date first filed with the Commission, complied as to form in all material respects with the applicable provisions of the Exchange Act, and the applicable instructions, rules and regulations of the Commission thereunder or pursuant to said instructions, rules and regulations are deemed to comply therewith; the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement have become, and on the date hereof are, effective under the Securities Act; and, to the best of our knowledge, no stop order suspending the effectiveness of the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement has been issued and no proceedings for that purpose are pending or threatened under Section 8(d) of the Securities Act.
(6) An appropriate order has been issued by the Commission under the 1935 Act authorizing the issuance and sale of the Bonds by the Company; to the best of our knowledge, said order is in full force and effect; no further approval, authorization, consent or other order of any governmental body (other than under the Securities Act, which has been duly obtained, or in connection or compliance with the provisions of the securities or blue sky laws of any jurisdiction) is legally required to permit the issuance and sale of the Bonds by the Company pursuant to the Underwriting Agreement; and no further approval, authorization, consent or other order of any governmental body is legally required to permit the performance by the Company of its obligations with respect to the Bonds or under the Mortgage and the Underwriting Agreement.
In passing upon the forms of the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement and the Prospectus, we necessarily assume the correctness, completeness and fairness of the statements made by the Company and information included or incorporated by reference in the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement and the Prospectus and take no responsibility therefor, except insofar as such statements relate to us and as set forth in paragraph (3) above. In connection with the preparation by the Company of the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement and the Prospectus, we have had discussions with certain of the Company's officers and representatives, with other counsel for the Company, and with the independent certified public accountants of the Company who examined certain of the financial statements included or incorporated by reference in the 1991 Registration Statement, the 1992 Registration Statement, and the Registration Statement. Our examination of the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement and the Prospectus and our discussions did not disclose to us any information which gives us reason to believe that the 1991 Registration Statement, the 1992 Registration Statement or the Registration Statement, at the Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, at the time first filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b) and at the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. We do not express any opinion or belief as to the financial statements or other financial or statistical data included or incorporated by reference in the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement or the Prospectus, as to the statements of eligibility on Form T-1 and Form T-2 of the Trustees filed as exhibits to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement or as to the information contained in the Prospectus under the caption "Book Entry Securities."
We have examined the portions of the information contained in the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement that are stated therein to have been made on our authority, and we believe such information to be correct. We are members of the New York Bar and do not hold ourselves out as experts on the laws of any other state. As to all matters of Louisiana law, we have relied upon the opinion of even date herewith addressed to you by Denise C. Redmann, Esq., Senior Attorney--Corporate and Securities of Entergy Services, Inc., counsel for the Company. We have not examined into and are not passing upon matters relating to incorporation of the Company, titles to property, franchises or the lien of the Mortgage.
With respect to the opinions set forth in paragraphs (1) and
(2) above, we call your attention to the fact that the provisions of
the Atomic Energy Act of 1954, as amended, and regulations promulgated
thereunder impose certain licensing and other requirements upon persons
(such as the Trustees under the Mortgage or other purchasers pursuant
to the remedial provisions of the Mortgage) who seek to acquire,
possess or use nuclear production facilities.
The opinion set forth above is solely for the benefit of the addressees of this letter in connection with the Underwriting Agreement and the transactions contemplated thereunder and it may not be relied upon in any manner by any other person or for any other purpose, without our prior written consent, except that Denise C. Redmann, Esq., Senior Attorney--Corporate and Securities of Entergy Services, Inc. may rely on this opinion as to all matters of New York law in rendering her opinion required to be delivered under the Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
March __, 1996
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Salomon Brothers Inc
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
We have acted as counsel for you as the several underwriters of $115,000,000 in aggregate principal amount of First Mortgage Bonds, ____% Series due March 1, 2026 (the "Bonds"), issued by Louisiana Power & Light Company (the "Company") under the Company's Mortgage and Deed of Trust, dated as of April 1, 1944, with Bank of Montreal Trust Company (successor to The Chase Manhattan Bank (National Association)), as Corporate Trustee (the "Corporate Trustee"), and Mark F. McLaughlin (successor to Z. George Klodnicki), as Co-Trustee (the "Co-Trustee" and, together with the Corporate Trustee, the "Trustees"), as heretofore amended and supplemented by all indentures amendatory thereof and supplemental thereto, including the Fifty-first Supplemental Indenture, dated as of March 1, 1996 (the Mortgage and Deed of Trust as so amended and supplemented being hereinafter referred to as the "Mortgage"), pursuant to the Underwriting Agreement between you and the Company effective March , 1996 (the "Underwriting Agreement").
We are members of the New York Bar and, for purposes of this opinion, do not hold ourselves out as experts on the laws of any jurisdiction other than the State of New York and the United States of America. We have, with your consent, relied upon an opinion of even date herewith addressed to you by Denise C. Redmann, Esq., Senior Attorney--Corporate and Securities of Entergy Services, Inc., counsel for the Company, as to the matters covered in such opinion relating to Louisiana law. We have reviewed said opinion and believe that it is satisfactory. We have also reviewed the opinion of Reid & Priest LLP required by Section 7(d) of the Underwriting Agreement, and we believe said opinion to be satisfactory.
We have also examined such documents and satisfied ourselves as to such other matters as we have deemed necessary in order to enable us to express this opinion. As to various questions of fact material to this opinion, we have relied upon representations of the Company and statements in the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement hereinafter mentioned. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to the originals of the documents submitted to us as certified or photostatic copies. We have not examined the Bonds, except a specimen thereof, and we have relied upon a certificate of the Corporate Trustee as to the authentication and delivery thereof. We have not examined into, and are expressing no opinion or belief as to matters relating to, incorporation of the Company, titles to property, franchises or the lien of the Mortgage. Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized by all necessary corporate action on the part of the Company, has been duly and validly executed and delivered by the Company, is a legal, valid and binding instrument of the Company enforceable against the Company in accordance with its terms, except (i) as the same may be limited by the laws of the State of Louisiana, where the property covered thereby is located, affecting the remedies for the enforcement of the security provided for therein, and (ii) as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting enforcement of mortgagees' and other creditors' rights and general equitable principles (regardless of whether 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 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 New 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 order has been issued by the Commission under the 1935 Act authorizing the issuance and sale of the Bonds, and to the best of our knowledge, such order is in full force and effect; and no further approval, authorization, consent or other order of any governmental body (other than under the Securities Act, which has been duly obtained, or in connection or compliance with the provisions of the securities or blue sky laws of any jurisdiction) is legally required to permit the issuance and sale of the Bonds by the Company pursuant to the Underwriting Agreement.
(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 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, at the respective times of their effectiveness, and the Prospectus, at the time it was filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b), complied as to form in all material respects with the applicable requirements of the Securities Act and (except with respect to the statements of eligibility of the Trustees on Form T-1 and Form T-2 filed as exhibits to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, upon which we do not pass) the Trust Indenture Act, and the applicable instructions, rules and regulations of the Commission thereunder or pursuant to said instructions, rules and regulations are deemed to comply therewith; and, with respect to the documents or portions thereof filed with the Commission pursuant to the Exchange Act, and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, such documents or portions thereof, on the date first filed with the Commission, complied as to form in all material respects with the applicable provisions of the Exchange Act, and the applicable instructions, rules and regulations of the Commission thereunder or pursuant to said instructions, rules and regulations are deemed to comply therewith; the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement have become, and on the date hereof are, effective under the Securities Act; and, to the best of our knowledge, no stop order suspending the effectiveness of the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement has been issued and no proceedings for that purpose are pending or threatened under Section 8(d) of the Securities Act.
In passing upon the forms of the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement and the form of the Prospectus, we necessarily assume the correctness, completeness and fairness of the statements made by the Company and information included or incorporated by reference in the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement and the Prospectus and take no responsibility therefor, except insofar as such statements relate to us and as set forth in paragraph (3) above. In connection with the preparation by the Company of the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement and the Prospectus, we have had discussions with certain officers, employees and representatives of the Company and Entergy Services Inc., with counsel for the Company and with your representatives. Our review of the 1991 Registration Statement, the 1992 Registration Statement, the Registration Statement and the Prospectus and our discussions did not disclose to us any information that gives us reason to believe that the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement, at the Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, at the time first filed with, or transmitted for filing to, the Commission pursuant to Rule 424(b) and at the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. We do not express any opinion or belief as to the financial statements or other financial or statistical data included or incorporated by reference in the Registration Statement or the Prospectus, as to the statements of eligibility on Form T-1 and Form T-2 of the Trustees filed as exhibits to the 1991 Registration Statement, the 1992 Registration Statement and the Registration Statement or as to the information contained in the Prospectus under the caption "Book Entry Securities."
With respect to the opinions set forth in paragraphs (1) and
(2) above, we call your attention to the fact that the provisions of
the Atomic Energy Act of 1954, as amended, and regulations promulgated
thereunder impose certain licensing and other requirements upon persons
(such as the Trustees under the Mortgage or other purchasers pursuant
to the remedial provisions of the Mortgage) who seek to acquire,
possess or use nuclear production facilities.
This opinion is solely for the benefit of the addressees hereof in connection with the Underwriting Agreement and the transactions contemplated thereunder and may not be relied upon in any manner by any other person or for any other purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
EXHIBIT D
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS
PURSUANT TO SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT
FOR INCLUSION IN THE LETTER OF THE ACCOUNTANTS
REFERRED TO THEREIN
Caption Page Items
Annual Report on Form 10-K
for the year ended December
31, 1995
"MANAGEMENT'S FINANCIAL 47 The amounts of first
DISCUSSION AND ANALYSIS, mortgage bonds and
LIQUIDITY AND CAPITAL preferred stock issuable
RESOURCES" by the Company at December
31, 1995 based upon the
Company's most restrictive
applicable tests and the
assumed annual interest
and dividend rates stated
therein.
"SELECTED FINANCIAL DATA - 95 The amounts of electric
FIVE YEAR COMPARISON" operating revenues (by
source) for the twelve
month periods ended
December 31, 1995 and
1994.
|
Exhibit F-1(b)
[Letterhead of Entergy Services, Inc.]
April 4, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration ("Application-Declaration") on Form U-1, as amended (File No. 70-8487), filed by Louisiana Power & Light Company ("Company") with the Securities and Exchange Commission ("Commission") under the Public Utility Holding Company Act of 1935, as amended, contemplating, among other things, the issuance and sale by the Company of one or more new series of the Company's First Mortgage Bonds; (2) the Commission's order dated October 3, 1995 ("Order") permitting the Application-Declaration, as amended, to become effective with respect to the issuance and sale of said First Mortgage Bonds; and (3) the issuance and sale by the Company on March 27, 1996 of $115,000,000 in aggregate principal amount of its First Mortgage Bonds, 8 3/4% Series due March 1, 2026 (the "Bonds"), I advise you that in my opinion:
(a) the Company is a corporation duly organized and validly existing under the laws of the State of Louisiana;
(b) the issuance and sale of the Bonds have been consummated in accordance with the Application- Declaration, as amended, and the Order;
(c) all state laws that relate or are applicable to the issuance and sale of the Bonds (other than so- called "blue sky" or similar laws, upon which we do not pass herein) have been complied with;
(d) the Bonds are valid and binding obligations of the Company in accordance with their terms, except as limited by bankruptcy, insolvency, reorganization or other similar laws affecting enforcement of mortgagees' and other creditors' rights; and
(e) the consummation of the issuance and sale of the Bonds has not violated the legal rights of the holders of any securities issued by the Company.
I am a member of the Louisiana State Bar and do not hold myself out as an expert on the laws of any other state.
My consent is hereby given to the use of this opinion as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Denise C. Redmann Denise C. Redmann Senior Attorney - Corporate and Securities |
Exhibit F-3(b)
[Letterhead of Reid & Priest LLP]
New York, New York
April 4, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration ("Application-Declaration") on Form U-1, as amended (File No. 70-8487), filed by Louisiana Power & Light Company ("Company") with the Securities and Exchange Commission ("Commission") under the Public Utility Holding Company Act of 1935, as amended, contemplating, among other things, the issuance and sale by the Company of one or more new series of the Company's First Mortgage Bonds; (2) the Commission's order dated October 3, 1995 ("Order") permitting the Application-Declaration, as amended, to become effective with respect to the issuance and sale of said First Mortgage Bonds; and (3) the issuance and sale by the Company on March 27, 1996 of $115,000,000 in aggregate principal amount of its First Mortgage Bonds, 8 3/4% Series due March 1, 2026 (the "Bonds"), we advise you that in our opinion:
(a) the Company is a corporation duly organized and validly existing under the laws of the State of Louisiana;
(b) the issuance and sale of the Bonds have been consummated in accordance with the Application- Declaration, as amended, and the Order;
(c) all state laws that relate or are applicable to the issuance and sale of the Bonds (other than so-called "blue sky" or similar laws, upon which we do not pass herein) have been complied with;
(d) the Bonds are valid and binding obligations of the Company in accordance with their terms, except as limited by bankruptcy, insolvency, reorganization or other similar laws affecting enforcement of mortgagees' and other creditors' rights; and
(e) the consummation of the issuance and sale of the Bonds has not violated the legal rights of the holders of any securities issued by the Company or any associate company thereof.
We are members of the New York Bar and do not hold ourselves out as experts on the laws of any other state. In giving this opinion, we have relied, as to all matters governed by the laws of any other state, upon the opinion of Denise C. Redmann, Esq., Senior Attorney -- Corporate and Securities of Entergy Services, Inc., counsel for the Company, which is to be filed as an exhibit to the Certificate pursuant to Rule 24.
Our consent is hereby given to the use of this opinion as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Reid & Priest LLP REID & PRIEST LLP |