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REGISTRATION NO. __________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ISSUER OF EXCHANGE DEBENTURES REGISTERED HEREBY
ORANGE AND ROCKLAND UTILITIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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NEW YORK 4931 13-1727729
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
ONE BLUE HILL PLAZA
PEARL RIVER, NEW YORK 10965
(914) 352-6000
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(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
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G. D. CALIENDO
SENIOR VICE PRESIDENT, GENERAL COUNSEL, AND SECRETARY
ORANGE AND ROCKLAND UTILITIES, INC.
ONE BLUE HILL PLAZA
PEARL RIVER, NEW YORK 10965
(914) 352-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPY TO:
MICHAEL F. CUSICK, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004-1490
(212) 858-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE
PUBLIC: As soon as practicable after this Registration Statement becomes
effective.
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If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| __________
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| ________________
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED(1) OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE
PER UNIT(1) PRICE(1)
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6-1/2% Debentures Due 2027 $80,000,000 100% of principal $80,000,000 $23,600
(Series F) amount
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o).
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the Registration Statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the Registration Statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
SUBJECT TO COMPLETION, DATED JANUARY ____, 1998
PROSPECTUS
CONFIDENTIAL
ORANGE AND ROCKLAND UTILITIES, INC.
OFFER TO EXCHANGE ITS
6-1/2% DEBENTURES DUE 2027 (SERIES F)
FOR ANY AND ALL OF ITS OUTSTANDING
6-1/2% DEBENTURES DUE 2027 (SERIES E)
The Exchange Offer will expire at 5:00 P.M., New York City time, on
, 1998, unless extended.
Orange and Rockland Utilities, Inc., a New York corporation (the
"Company"), hereby offers (the "Exchange Offer"), upon the terms and subject to
the conditions set forth in this Prospectus (the "Prospectus") and the
accompanying Letter of Transmittal (the "Letter of Transmittal"), to exchange
$1,000 principal amount of its 6-1/2% Debentures Due 2027 (Series F) (the
"Exchange Debentures"), which will have been registered under the Securities Act
of 1933 (the "1933 Act"), pursuant to a Registration Statement of which this
Prospectus is a part, for each $1,000 principal amount of its outstanding 6-1/2%
Debentures Due 2027 (Series E) (the "Old Debentures," and with the Exchange
Debentures, the "Debentures"), of which $80,000,000 aggregate principal amount
is outstanding. The form and terms of the Exchange Debentures are substantially
identical to the form and terms of the Old Debentures except that the Exchange
Debentures will bear a Series F designation and will have been registered under
the 1933 Act and, therefore, will not bear legends restricting their transfer
and will not entitle the holders thereof (the "Holders") to certain provisions
relating to liquidated damages which were applicable to the Old Debentures in
certain circumstances relating to the timing of the Exchange Offer. The Old
Debentures and the Exchange Debentures will be issued only in denominations of
$100,000 or in any amount in excess thereof which is an integral multiple of
$1,000. The Exchange Debentures will evidence the same debt as the Old
Debentures (which they replace) and will be issued under and be entitled to the
benefits of the Indenture dated as of March 1, 1990, as supplemented and amended
by three supplemental indentures, and further supplemented and amended by a
Fourth Supplemental Indenture relating to the Old Debentures and the Exchange
Debentures, dated as of December 1, 1997 (the "Fourth Supplemental Indenture")
between The Bank of New York, as trustee (the "Trustee") and the Company (the
"Indenture"), which also governs the Old Debentures. See "The Exchange Offer"
and "Description of Exchange Debentures."
The Company will accept for exchange any and all Old Debentures validly
tendered and not withdrawn prior to 5:00 p.m., New York City time, on
___________________, 1998, unless the Exchange Offer is extended by the Company
in its sole discretion (the "Expiration Date"). Tenders of Old Debentures may be
withdrawn at any time prior to 5:00 p.m. on the Expiration Date. The Old
Debentures may be tendered only in integral multiples of $1,000 principal
amount. The Exchange Offer is subject to certain customary conditions. See "The
Exchange Offer."
The Old Debentures were sold on December 18, 1997 (the "Issue Date") to
the Initial Purchasers (as defined herein) in a transaction not registered under
the 1933 Act in reliance upon an exemption under the 1933 Act. The Initial
Purchasers subsequently resold the Old Debentures to qualified institutional
buyers ("Qualified Institutional Buyers"), in reliance upon Rule 144A ("Rule
144A") under the 1933 Act, that agreed to comply with certain transfer
restrictions and other conditions. Accordingly, the Old Debentures may not be
reoffered, resold or otherwise transferred in the United States unless
registered under the 1933 Act or unless an applicable exemption from the
registration requirements of the 1933 Act is available. The Exchange Debentures
are being offered hereunder in order to satisfy certain obligations of the
Company under the Registration Rights Agreement (as defined herein) entered into
in connection with the offering of the Old Debentures. See "The Exchange Offer."
Based on no-action letters issued by the staff of the Securities and
Exchange Commission (the "Commission") to third parties, the Company believes
the Exchange Debentures issued pursuant to the Exchange Offer may be offered for
resale, resold and otherwise transferred by any Holder thereof (other than any
such Holder that is an "affiliate" of the Company within the meaning of Rule 405
under the 1933 Act) without compliance with the registration and prospectus
delivery requirements of the 1933 Act, provided that such Exchange Debentures
are acquired in the ordinary course of such Holder's business and such Holder
has no arrangement or understanding with any person to participate in the
distribution of such Exchange Debentures. See "The Exchange Offer -- Purpose and
Effect of the Exchange Offer" and "The Exchange Offer -- Resale of the Exchange
Debentures." Each broker-dealer (a "Participating Broker-Dealer") that receives
Exchange Debentures for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Debentures. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a Participating Broker-Dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
1933 Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a Participating Broker-Dealer in connection with resales of
Exchange Debentures received in exchange for Old Debentures where such Old
Debentures were acquired by such Participating Broker-Dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date, it will make this
Prospectus available to any Participating Broker-Dealer for use in connection
with any such resale. See "Plan of Distribution."
Holders of Old Debentures not tendered and accepted in the Exchange
Offer will continue to hold such Old Debentures and will be entitled to all the
rights and benefits and will be subject to the limitations applicable thereto
under the Fourth Supplemental Indenture and with respect to transfer under the
1933 Act. The Company will pay all the expenses incurred by it incident to the
Exchange Offer. See "The Exchange Offer."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is January __, 1998.
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS IN CONNECTION WITH THE EXCHANGE OFFER COVERED BY THIS
PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM,
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS
PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
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TABLE OF CONTENTS
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Page
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Available Information............................. 3
Incorporation of Certain Documents by
Reference.................................... 3
Prospectus Summary................................ 4
The Company....................................... 9
Regulatory Proceedings............................ 9
Use of Proceeds.................................. 10
Selected Financial Information................... 11
The Exchange Offer .............................. 12
Description of Exchange Debentures............... 18
Certain United States Federal Income Tax
Considerations............................. 22
Plan of Distribution............................. 25
Rating........................................... 25
Experts.......................................... 25
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There has not previously been any public market for the Old Debentures
or the Exchange Debentures. The Company does not intend to list the Exchange
Debentures on any securities exchange or to seek approval for quotation through
any automated quotation system. There can be no assurance that an active market
for the Exchange Debentures will develop. Moreover, to the extent that Old
Debentures are tendered and accepted in the Exchange Offer, the trading market
for untendered and tendered but unaccepted Old Debentures could be adversely
affected.
The Exchange Debentures will be available only in book-entry form. The
Company expects that the Exchange Debentures issued pursuant to this Exchange
Offer will be issued in the form of a Global Debenture (as defined herein),
which will be deposited with, or on behalf of, The Depository Trust Company (the
"Depositary") and registered in its name or in the name of Cede & Co., its
nominee. Beneficial interests in the Global Debenture representing the Exchange
Debentures will be shown on, and transfers thereof will be effected through,
records maintained by the Depositary and its Participants (as hereinafter
defined). See "Description of Exchange Debentures -- Book-Entry; Delivery and
Form."
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "1934 Act"), and in accordance therewith
files reports and other information with the Commission. Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at its Regional Offices located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates, or by
writing to Orange and Rockland Utilities, Inc., One Blue Hill Plaza, Pearl
River, New York, 10965, Attention: Office of the Treasurer. The Commission
maintains a web site on the Internet that contains reports, proxy and
information statements and other information regarding registrants, including
the Company; the address of such site is http://www.sec.gov. Such material can
also be inspected at the offices of The New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, where the Company's common stock is listed and
traded under the ticker symbol "ORU."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to the 1934
Act are incorporated by reference in this Prospectus and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996 (the "10-K").
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1997.
(c) The Company's Current Reports on Form 8-K dated April 17, June 17,
July 1, December 11 and December 17, 1997.
In addition, all documents subsequently filed with the Commission by
the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act after
the date of this Prospectus shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the respective dates of filing of
such documents. The documents incorporated or deemed to be incorporated herein
by reference are sometimes hereinafter called the "Incorporated Documents." Any
statement contained in this Prospectus, or in a document incorporated or deemed
to be incorporated by reference herein as described above, shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which is
or is deemed to be incorporated by reference herein as described above modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON
TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, INCLUDING ANY BENEFICIAL
OWNER, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL
OF THE INCORPORATED DOCUMENTS, OTHER THAN CERTAIN EXHIBITS TO SUCH INCORPORATED
DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO: OFFICE OF THE
TREASURER, ORANGE AND ROCKLAND UTILITIES, INC., ONE BLUE HILL PLAZA, PEARL
RIVER, NEW YORK 10965 (TELEPHONE NUMBER 914-352-6000). IN ORDER TO ENSURE TIMELY
DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY FIVE BUSINESS DAYS
PRIOR TO THE EXPIRATION DATE.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the
more detailed information contained elsewhere in this Prospectus (which term
includes any applicable amendments or supplements hereto), including the
Selected Financial Information included herein and the Company's financial
statements and other information contained in the Incorporated Documents.
THE COMPANY
The Company and its two wholly-owned utility subsidiaries, Rockland
Electric Company and Pike County Light & Power Company, supply electricity and
gas to a territory covering approximately 1,350 square miles. As of December 31,
1996, the Company and its utility subsidiaries furnished electric service to
approximately 266,000 customers in 96 communities with an estimated population
of 676,000 and gas service to approximately 113,000 customers in 57 communities
with an estimated population of 478,000.
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THE EXCHANGE OFFER
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Old Debentures...................................... The Old Debentures were sold on December 18, 1997 to
Donaldson, Lufkin & Jenrette Securities Corporation and
Salomon Smith Barney (the "Initial Purchasers") pursuant to
a Purchase Agreement dated December 15, 1997 by and among
the Company and the Initial Purchasers (the "Purchase
Agreement"). The Initial Purchasers subsequently resold the
Old Debentures to Qualified Institutional Buyers, pursuant
to Rule 144A under the 1933 Act, who agreed to be bound by
certain transfer restrictions and comply with other
conditions.
Registration Rights
Agreement............................................Pursuant to a Registration Rights Agreement (the
"Registration Rights Agreement") between the Company and the
Initial Purchasers, the Company agreed to file a
registration statement (the "Exchange Offer Registration
Statement") with respect to an offer to exchange the Old
Debentures for the Exchange Debentures registered under the
1933 Act, with terms substantially identical to those of the
Old Debentures. The Exchange Offer is intended to satisfy
certain of such exchange rights which will terminate upon
the consummation of the Exchange Offer.
The Exchange Offer.................................. The Company is offering to exchange $1,000 principal amount
of Exchange Debentures for each $1,000 principal amount of
Old Debentures. As of the date hereof, $80,000,000 aggregate
principal amount of Old Debentures are outstanding. The Old
Debentures and the Exchange Debentures will be issued only
in denominations of $100,000 or in any amount in excess
thereof which is an integral multiple of $1,000.
Based on an interpretation by the staff of the Commission set
forth in no-action letters issued to third parties, the
Company believes that Exchange Debentures issued pursuant to
the Exchange Offer in exchange for Old Debentures may be
offered for resale, resold and otherwise transferred by any
Holder thereof (other than any such Holder which is an
"affiliate" of the Company within the meaning of Rule 405
under the 1933 Act) without compliance with the registration
and prospectus delivery requirements of the 1933 Act,
provided that such Exchange Debentures are acquired in the
ordinary course of such Holder's business and that such
Holder does not intend to participate and has no arrangement
or understanding with any person to participate in the
distribution of such Exchange Debentures.
Each Participating Broker-Dealer that receives Exchange
Debentures for its own account pursuant to the Exchange Offer
must acknowledge that it will deliver a prospectus in
connection with any
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resale of such Exchange Debentures. The Letter of Transmittal
states that by so acknowledging and by delivering a
prospectus, a Participating Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of
the 1933 Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a
Participating Broker-Dealer in connection with resales of
Exchange Debentures received in exchange for Old Debentures
where such Old Debentures were acquired by such Participating
Broker-Dealer as a result of market-making activities or
other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date, it will make
this Prospectus available to any Participating Broker-Dealer
for use in connection with any such resale. See "Plan of
Distribution."
Any Holder of Old Debentures who tenders in the Exchange
Offer with the intention to participate, or for the purpose
of participating, in a distribution of the Exchange
Debentures could not rely on the position of the staff of the
Commission enunciated in no-action letters and, in the
absence of an exemption therefrom, must comply with the
registration and prospectus delivery requirements of the 1933
Act in connection with any resale transaction. Failure to
comply with such requirements in such instance may result in
such Holder incurring liability under the 1933 Act for which
the Holder is not indemnified by the Company.
Expiration Date..................................... 5:00 p.m., New York City time, on ________, 1998 unless the
Exchange Offer is extended by the Company in its sole
discretion, in which case the term "Expiration Date" means
the latest date and time to which the Exchange Offer is
extended.
Interest............................................ Interest on Exchange Debentures shall accrue from the last
interest payment date on which interest was paid on the Old
Debentures so surrendered, or, if no interest has been paid
on such Old Debentures, from December 18, 1997. No interest
will be paid on the Old Debentures accepted for exchange.
Conditions to the
Exchange Offer................................... The Exchange Offer is subject to certain customary
conditions, which may be waived by the Company. See "The
Exchange Offer -- Conditions."
Procedures for Tendering
Old Debentures................................... Each Holder of Old Debentures wishing to accept the Exchange
Offer must complete, sign and date the accompanying Letter
of Transmittal, or a facsimile thereof, in accordance with
the instructions contained herein and therein, and mail or
otherwise deliver such Letter of Transmittal, or such
facsimile, together with the Old Debentures and any other
required documentation to the Exchange Agent (as defined
herein) at the address set forth herein. By executing the
Letter of Transmittal, each Holder will be deemed to
represent to the Company, among other things, that (i) the
Exchange Debentures acquired pursuant to the Exchange Offer
are being obtained in the ordinary course of business of the
person receiving such Exchange Debentures, whether or not
such person is the Holder, (ii) neither the Holder nor any
such other person has any arrangement or understanding with
any person to participate in the distribution of such
Exchange Debentures in violation of the 1933 Act, (iii)
neither the Holder nor any such other person is an
"affiliate," as defined under Rule 405 of the 1933 Act, of
the Company and (iv) such Holder has full power and
authority to exchange the Old Debentures for the Exchange
Debentures. See "The Exchange Offer -- Purpose and Effect of
the Exchange Offer" and " -- Procedures for Tendering."
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Untendered Debentures............................... Following the consummation of the Exchange Offer, Holders of
Old Debentures eligible to participate but who do not tender
their Old Debentures will not have any further registration
rights and such Old Debentures will continue to be subject
to certain restrictions on transfer. Accordingly, the
liquidity of the market for such Old Debentures could be
adversely affected.
Consequences of
Failure to Exchange.............................. Old Debentures that are not exchanged pursuant to the
Exchange Offer will remain restricted securities.
Accordingly, such Old Debentures may be resold only (i) to
the Company, (ii) pursuant to Rule 144A or Rule 144 under
the 1933 Act or pursuant to some other exemption under the
1933 Act, (iii) outside the United States to a foreign
person pursuant to the requirements of Rule 904 under the
1933 Act, or (iv) pursuant to an effective registration
statement under the 1933 Act. See "The Exchange Offer --
Consequences of Failure to Exchange."
Shelf Registration Statement........................ If any Holder of the Old Debentures notifies the Company
within 20 Business Days following the Consummation of the
Exchange Offer that such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer,
and such Holder has provided information regarding such
Holder and the distribution of such Holder's Old Debentures
to the Company, the Company has agreed to register the Old
Debentures on a shelf registration statement (the "Shelf
Registration Statement") and to use its commercially
reasonable best efforts to cause such Shelf Registration
Statement to become effective on or prior to the 90 days
after the date on which the Company becomes obligated to
file such Shelf Registration Statement.
Special Procedures for
Beneficial Owners................................ Any beneficial owner whose Old Debentures are registered in
the name of a broker, dealer, commercial bank, trust company
or other nominee and who wishes to tender should contact
such registered Holder promptly and instruct such registered
Holder to tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on such owner's own
behalf, such owner must, prior to completing and executing
the Letter of Transmittal and delivering its Old Debentures,
either make appropriate arrangements to register ownership
of the Old Debentures in such owner's name or obtain a
properly completed bond power from the registered Holder.
The transfer of registered ownership may take considerable
time.
Guaranteed Delivery
Procedures....................................... Holders of Old Debentures who wish to tender their Old
Debentures and whose Old Debentures are not immediately
available or who cannot deliver their Old Debentures, the
Letter of Transmittal or any other documents required by the
Letter of Transmittal to the Exchange Agent (or comply with
the procedures for book-entry transfer) prior to the
Expiration Date, must tender their Old Debentures according
to the guaranteed delivery procedures set forth in "The
Exchange Offer -- Guaranteed Delivery Procedures."
Withdrawal Rights................................... Tenders may be withdrawn at any time prior to 5:00 p.m., New
York City time, on the Expiration Date.
Acceptance of Old Debentures
and Delivery of
Exchange Debentures.............................. The Company will accept for exchange any and all Old
Debentures which are properly tendered in the Exchange Offer
prior to 5:00 p.m., New York City time, on the Expiration
Date. The Exchange Debentures issued pursuant to the
Exchange Offer will be delivered on the earliest practicable
date following the Expiration Date. See "The Exchange Offer
-- Terms of the Exchange Offer."
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Use of Proceeds..................................... The Company will not receive any cash proceeds from the
issuance of the Exchange Debentures in the Exchange Offer.
See "Use of Proceeds."
Exchange Agent...................................... The Bank of New York, as Trustee, is serving as Exchange
Agent in connection with the Exchange Offer.
THE EXCHANGE DEBENTURES
General............................................. The form and terms of the Exchange Debentures are
substantially identical to the form and terms of the Old
Debentures except that (i) the Exchange Debentures bear a
Series F designation, (ii) the Exchange Debentures have been
registered under the 1933 Act and, therefore, will not bear
legends restricting the transfer thereof, and (iii) the
Holders of Exchange Debentures will not be entitled to
certain rights under the Registration Rights Agreement,
including the provisions providing for liquidated damages in
certain circumstances relating to the timing of the Exchange
Offer, which rights will terminate when the Exchange Offer
is consummated. See "The Exchange Offer -- Purpose and
Effect of the Exchange Offer." The Exchange Debentures will
evidence the same debt as the Old Debentures (which they
replace) and will be entitled to the benefits of the
Indenture. See "Description of Exchange Debentures." The Old
Debentures and/or the Exchange Debentures, whichever was, is
or will be outstanding in the particular context, are
referred to herein collectively as the "Debentures."
Securities Offered:................................. $80,000,000 6-1/2% Debentures Due 2027 (Series F) (the
"Exchange Debentures").
Maturity Date:...................................... December 1, 2027
Interest Rate:...................................... 6-1/2% per annum calculated on the basis of a 360-day year
consisting of twelve 30-day months.
Interest Payments:.................................. Semi-annually on each June 1 and December 1, commencing June
1, 1998, accruing from the last interest payment date on
which interest was paid on the Old Debentures so surrendered,
or, if no interest has been paid on such Old Debentures, from
December 18, 1997.
Redemption:......................................... The Exchange Debentures are not redeemable in whole or in
part prior to maturity and there is no sinking fund for the
Exchange Debentures.
Repayment at Option of Holder:...................... The registered Holder of each Exchange Debenture may elect to
have such Exchange Debenture (or any portion thereof in the
amount of $100,000 or in integral multiples of $1,000 in
excess thereof) repaid on December 1, 2004 (or, if such day
is not a business day, the next succeeding business day), at
a repayment price equal to the principal amount of such
Exchange Debenture (or such portion thereof) together with
accrued and unpaid interest thereon to the date of repayment.
Such election, which is irrevocable, must be made within the
period commencing October 1, 2004 and ending at 5:00 p.m.
(New York City time) on November 1, 2004 (or, if such day is
not a business day, the next succeeding business day).
Ranking of
Debentures:......................................... The Exchange Debentures will constitute a new series of
debentures issued under the Indenture. The Exchange
Debentures will be unsecured and rank equally and ratably
with all the debentures outstanding under the Indenture and
with other unsecured obligations of the Company. The
Company has retired its last outstanding series of First
Mortgage Bonds and has cancelled its First Mortgage and
discharged the lien thereof.
</TABLE>
7
<PAGE> 9
<TABLE>
<S> <C>
Restriction on Secured Indebtedness:................ The Indenture contains a covenant restricting the issuance by
the Company of secured indebtedness for borrowed money. See
"Description of Debentures--Restriction on Secured
Indebtedness for Borrowed Money."
Denomination
and Registration
of Debentures:...................................... The Exchange Debentures will be issued in the form of
book-entry securities, represented by one global certificate
(the "Global Debenture") deposited with a custodian for, and
registered in the name of, the Depositary or its nominee.
See "Description of Debentures--Book-Entry, Delivery and
Form." The Exchange Debentures will be issued only in
denominations of $100,000 or any amount in excess thereof
which is an integral multiple of $1,000.
Rating:............................................. The Exchange Debentures have received a preliminary rating of
A- from Standard & Poor's Rating Services ("S&P") and a rating of
A3 from Moody's Investors Services, Inc. ("Moody's"), subject to
receipt and review of final documents.
</TABLE>
8
<PAGE> 10
THE COMPANY
Orange and Rockland Utilities, Inc. (the "Company) is a New York
corporation, with its principal office at One Blue Hill Plaza, Pearl River, New
York 10965 (telephone number 914-352-6000), which was formed originally under
the name Rockland Light and Power Company on May 21, 1926 through the
consolidation of a company having the latter name (organized in 1899), Catskill
Power Corporation and Orange County Public Service Company, Inc. Its present
name was adopted on February 28, 1958, when The Orange and Rockland Electric
Company was consolidated with Rockland Light and Power Company. The Company has
two wholly-owned utility subsidiaries, Rockland Electric Company ("RECO"), a New
Jersey corporation, and Pike County Light & Power Company, a Pennsylvania
corporation.
The Company and its utility subsidiaries supply electricity and gas to
a territory covering approximately 1,350 square miles. As of December 31, 1996,
the Company and its utility subsidiaries furnished electric service to
approximately 266,000 customers in 96 communities with an estimated population
of 676,000 and gas service to approximately 113,000 customers in 57 communities
with an estimated population of 478,000.
The Company also has two wholly-owned non-utility subsidiaries, Clove
Development Corporation ("Clove"), a real estate operation, and O&R Development,
Inc. ("ORD"), a land development company. RECO has two wholly-owned non-utility
subsidiaries, Enserve Holding, Inc. ("EHI") and Saddle River Holdings Corp.
("SRH"), both Delaware corporations. EHI has two wholly-owned non-utility
subsidiaries which were established to provide non-regulated energy services and
to invest in energy technology ventures.
SRH has a wholly-owned non-utility subsidiary, NORSTAR Holding, Inc.
("NHI") (formerly O&R Energy, Inc.), a Delaware corporation which was engaged in
natural gas marketing through its wholly-owned non-utility subsidiary, NORSTAR
Management, Inc. ("NMI"), a Delaware corporation. NMI is the sole general
partner of a Delaware limited partnership, NORSTAR Energy Limited Partnership
("NORSTAR Partnership"). NORSTAR Partnership is the majority owner of NORSTAR
Energy Pipeline Company, L.L.C. ("NORSTAR LLC"), a Delaware limited liability
company. Pursuant to an agreement dated as of August 20, 1997, the NORSTAR
Partnership sold to mc2 Inc., effective August 1, 1997, its accounts receivable,
with certain exceptions, and its contracts with customers and related
agreements. NMI is in the process of winding up the remaining portion of the
NORSTAR Partnership business.
REGULATORY PROCEEDINGS
Regulatory agencies at the Federal level as well as the three states in
which the Company and its utility subsidiaries have retail electric franchises
are currently evaluating changes in regulatory and rate-making practices
designed to promote increased competition consistent with safety, reliability
and affordability standards.
With respect to the Company, in May 1996, the New York State Public
Service Commission ("NYPSC") issued an Order in its Competitive Opportunities
Proceeding (Case 96-E-0900) setting forth its visions for the fundamental
restructuring of the electric industry in New York State based on competition in
the generation and energy services sectors of the industry.
On November 26, and December 31, 1997, the NYPSC issued orders
approving an Electric Rate and Restructuring Plan (the "Restructuring Plan"),
which had been filed on November 6, 1997 by the Company, the New York State
Department of Public Service (the "Staff") and other parties in Case 96-E-0900.
The Restructuring Plan provides for the sale of all of the Company's generating
assets (i.e., all units at the Lovett Generating Station, the Company's
one-third interest in the Bowline Generating Station, as well as its
hydro-electric facilities and gas turbines) and for lower electric rates. The
Restructuring Plan superseded the settlement agreement the Company entered into
on March 25, 1997 with the Staff and other parties in this case. The NYPSC had
found the March 25, 1997 settlement agreement unacceptable and had directed the
Company, the Staff and other parties to resume negotiations to modify it.
Under the terms of the Restructuring Plan, which covers a four-year
period commencing with NYPSC approval, the Company has agreed to commence
immediately the process of auctioning all of its generating assets. The
Restructuring Plan provides that if the Company selects a winning bidder prior
to May 1, 1999, the New York share of any net book gains associated with the
sale are to be allocated between shareholders and customers on a 25/75 basis,
respectively, and any net book losses are to be allocated between shareholders
and customers on a 5/95 basis, respectively. If the Company selects a winning
bidder on or after May 1, 1999, the New York share of the net book gains or
losses associated with the sale are to be allocated between shareholders and
customers on a 20/80 basis. The Restructuring Plan further provides for a $20
million cap on the New York share of net book gains allocable to shareholders
from the sale of generating assets. The NYPSC, in approving the Restructuring
Plan, offered the Company the opportunity to participate as a bidder in the
auction of the Company's generating assets, subject to the conditions that the
auction be conducted by an independent third party and that the Company renounce
the shareholders' share of any net book gain from the sale provided for in the
Restructuring Plan. In its November 26, 1997 order, the NYPSC also stated that
if the Company
9
<PAGE> 11
elected to participate in the auction, the shareholders would not be required to
absorb their share of any net book loss provided for in the Restructuring Plan.
By letter dated December 10, 1997, the Company notified the NYPSC that it has
elected not to be a bidder in the auction. Accordingly, the Company will be
subject to the terms of the Restructuring Plan as filed on November 6, 1997. On
December 11, 1997, in accordance with the Restructuring Plan, the Company
submitted its Preliminary Divestiture Plan to the NYPSC Staff and other parties.
The terms of the Restructuring Plan permit the Company to defer and
recover up to $7.5 million (New York electric share) of prudent and verifiable
non-officer employee costs, such as retraining, outplacement, severance, early
retirement and employee retention programs associated with the divestiture.
Under the terms of the Restructuring Plan, the Company will be authorized to
petition the NYPSC for recovery of employee costs in excess of $7.5 million.
In addition, the terms of the Restructuring Plan permit the Company to
retain all earnings up to an 11.4% return on equity and provide that earnings in
excess of 11.4% are to be shared, with 75% to be used to offset NYPSC approved
deferrals or otherwise inure to the Company's customers, and 25% to be retained
by the Company's shareholders. The Restructuring Plan further provides that full
retail access to a competitive energy and capacity market will be available for
all customers by May 1, 1999. The Company's existing PowerPick(TM) Program,
whereby customers can purchase energy (but not capacity) from suppliers other
than the Company, will be expanded to all customers on May 1, 1998.
The Restructuring Plan also provides for electric price reductions of
approximately $32.4 million over its four-year term and for recovery of above
market generation costs should the transfer of title to the Company's generating
assets not occur before May 1, 1999, through a Competitive Transition Charge
(the "CTC"). Should a CTC be required, the Company would be authorized to
recover the difference between its non-variable costs of generation, including
75% of fixed production labor expenses and property taxes, and the revenues, net
of fuel and variable operating and maintenance ("O&M") expenses, derived from
the operation of the Company's generating assets in a deregulated competitive
market. If title to the generating assets has not transferred as of May 1, 2000,
the CTC would be modified so as to allow a maximum recovery of 65% of fixed
production labor expenses and property taxes. The modified CTC would remain
effective until the earlier of the date title to the generating assets is
transferred or October 31, 2000. In the event title to the generating assets is
not to be transferred by October 31, 2000, the Company would be authorized to
petition the NYPSC for permission to continue a CTC until the date title to the
generating assets is transferred. The CTC does not allow for the recovery of
inflationary increases in non-fuel O&M production costs, property tax increases,
wage rate increases, or increased costs associated with capital additions or
changes in the costs of capital applicable to production costs.
The Restructuring Plan also provides that the Company and its utility
subsidiaries are to apply to the appropriate regulatory authorities for
permission to form a new holding company, which would be a registered holding
company under the Public Utility Holding Company Act of 1935 (the "1935 Act").
The Company currently is an exempt holding company under the 1935 Act. The new
holding company structure would provide for separate regulated electric
distribution companies in the New York, New Jersey and Pennsylvania service
territories, as well as an unregulated energy services company. The Company
would continue as the New York regulated electric distribution company, and the
Exchange Debentures would remain obligations of the Company. The unregulated
energy services company would be able to market electricity and unbundled energy
services (e.g., metering) to wholesale and retail customers on a competitive
basis using the Company's name without a royalty payment.
The formation of the holding company is conditioned upon shareholder
and regulatory approval, including approval of the Commission, the Federal
Energy Regulatory Commission, the NYPSC, the New Jersey Board of Public
Utilities and the Pennsylvania Public Utility Commission.
Additional information concerning regulatory proceedings relating to
the Company and its utility subsidiaries is contained in the Incorporated
Documents.
USE OF PROCEEDS
The Exchange Offer is intended to satisfy certain of the Company's
obligations under the Registration Rights Agreement. The Company will not
receive any cash proceeds from the issuance of the Exchange Debentures in the
Exchange Offer.
The Company used the net proceeds from the sale of the Old Debentures
to refund short-term debt incurred to repay at maturity in October 1997 both its
last outstanding series of First Mortgage Bonds which bore interest at the rate
of 6-1/2% and the 6.50% Series B Debentures in the aggregate principal amount of
$78,000,000. The effective interest rate on such short-term debt was
approximately 6.0%. The remaining net proceeds were applied to finance
permanently outstanding short-term debt or to other corporate purposes.
10
<PAGE> 12
SELECTED FINANCIAL INFORMATION
The selected financial information set forth below has been derived
from the Company's previously published financial statements included in the
Incorporated Documents and reflects the reclassification of NORSTAR Partnership
as discontinued operations for the years ended December 31, 1996 and 1995
subsequent to the original issuance of such statements. See "The Company." The
Company's financial statements for the years ended December 31, 1996 and 1995
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports included in the Incorporated Documents.
The unaudited financial information for the twelve months ended
September 30, 1997, includes all adjustments, consisting of normal recurring
accruals, that the Company considers necessary for a fair presentation of the
financial position and results of operation for such period.
The selected financial data set forth below do not purport to be
complete and should be read in conjunction with the Company's annual and
quarterly reports included in the Incorporated Documents.
<TABLE>
<CAPTION>
Year Ended December 31, Twelve Months
1995(1) 1996(1) Ended September 30,
------- ------- -------------------
1997(1)
(unaudited)
(Dollars in thousands)
<S> <C> <C> <C>
Selected Income Statement Data:
Operating Revenues $ 602,310 $ 654,890 $ 637,044
Operating Income $ 75,569 $ 82,644 $ 74,538
Net Income:
Continuing Operations $ 37,766 $ 48,147 $ 41,566
Discontinued Operations $ 807 $ (1,844) $ (16,326)
Total $ 38,573 $ 46,303 $ 25,240
Earnings Applicable to Common Stock $ 35,438 $ 43,279 $ 22,385
Selected Balance Sheet Data:
Total Assets $ 1,241,227 $ 1,257,900 $ 1,271,019
Total Long-Term Debt $ 359,928 $ 359,825 $ 354,680
Common Stock Equity $ 379,776 $ 387,850 $ 377,819
Other Data:
Electric Customers 263,156 266,022 269,059
Gas Customers 112,188 113,126 113,886
Ratio of Earnings to Fixed Charges (2) 2.75 3.20 2.83
</TABLE>
(1) Effective August 1, 1997, the accounts receivable, with certain
exceptions, and contracts with customers and related agreements of
NORSTAR Partnership were sold. In accordance with Accounting Principles
Board Opinion No. 30, the consolidated financial statements of the
Company at September 30, 1997 reported the results of NORSTAR
Partnership as "Discontinued Operations," and the results of all prior
periods presented herein have been restated to conform with the current
period classifications. Additional information regarding NORSTAR
Partnership is included in the Company's Quarterly Report to the
Commission on Form 10-Q for the quarter ended September 30, 1997, which
information is incorporated by reference in this document.
(2) For purposes of computing the ratio of earnings to fixed charges,
earnings are defined as the sum of pre-tax income from continuing
operations plus fixed charges. Fixed charges consist of all interest
expense (before allowance for borrowed funds used during construction),
one-third of rent expense (which approximates the interest component of
such expense) and amortization of debt expense.
11
<PAGE> 13
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The Old Debentures were originally sold on December 18, 1997 to the
Initial Purchasers pursuant to the Purchase Agreement. The Initial Purchasers
subsequently resold the Old Debentures to Qualified Institutional Buyers, in
reliance on Rule 144A under the 1933 Act, who agreed to comply with certain
transfer restrictions and other conditions. As a condition to the Purchase
Agreement, the Company entered into the Registration Rights Agreement with the
Initial Purchasers pursuant to which the Company has agreed, unless the Exchange
Offer shall not be permitted by applicable federal law, to (i) cause to be filed
with the Commission as soon as practicable after December 18, 1997, but in no
event later than 150 days after December 18, 1997, the Exchange Offer
Registration Statement, (ii) use its commercially reasonable best efforts to
cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after December 18,
1997, (iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in
order to cause such Exchange Offer Registration Statement to become effective,
(B) file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the 1933 Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Exchange Debentures to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer and (iv) upon the effectiveness of such Exchange Offer Registration
Statement, Consummate the Exchange Offer. For each Old Debenture surrendered to
the Company pursuant to the Exchange Offer, the Holder of such Old Debenture
will receive an Exchange Debenture having a principal amount equal to that of
the surrendered Old Debenture. Interest on Exchange Debentures will accrue from
the last interest payment date on which interest was paid on the Old Debentures
so surrendered, or, if no interest has been paid on such Old Debentures, from
December 18, 1997. No interest will be paid on the Old Debentures accepted for
exchange. The Exchange Offer shall be deemed "Consummated" for purposes of the
Registration Rights Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series F Debentures to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided however, that in no event shall such period be less
than 20 Business Days and (c) the delivery by the Company to the Registrar under
the Indenture of Exchange Debentures in the same aggregate principal amount as
the aggregate principal amount of Old Debentures tendered by Holders thereof
pursuant to the Exchange Offer.
Under existing interpretations of the staff of the Commission contained
in several no-action letters to third parties, the Exchange Debentures would in
general be freely tradable after the Exchange Offer without further registration
under the 1933 Act. However, any purchaser of Old Debentures who is an
"affiliate" of the Company or who intends to participate in the Exchange Offer
for the purpose of distributing the Exchange Debentures (i) will not be able to
rely on the interpretation of the staff of the Commission, (ii) will not be able
to tender its Old Debentures in the Exchange Offer and (iii) must comply with
the registration and prospectus delivery requirements of the 1933 Act in
connection with any sale or transfer of the Old Debentures, unless such sale or
transfer is made pursuant to an exemption from such requirements.
As a condition to its participation in the Exchange Offer, each Holder
of Old Debentures shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company
(which may be contained in the Letter of Transmittal) to the effect that (A) it
is not an affiliate of the Company, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Debentures and (C) it is
acquiring the Exchange Debentures in its ordinary course of business. In
addition, in connection with any resales of Exchange Debentures, any
Participating Broker-Dealer who acquired the Old Debentures for its own account
as a result of market-making or other trading activities must deliver a
prospectus meeting the requirements of the 1933 Act. The staff of the Commission
has taken the position to the effect that Participating Broker-Dealers may
fulfill their prospectus delivery requirements with respect to the Exchange
Debentures (other than a resale of an unsold allotment from the original sale of
the Old Debentures) with the prospectus contained in the Exchange Registration
Statement. Under the Registration Rights Agreement, the Company is required to
allow Participating Broker-Dealers and other persons, if any, subject to similar
prospectus delivery requirements to use the prospectus contained in the Exchange
Registration Statement in connection with the resale of such Exchange
Debentures.
If (i) the Company is not required to file an Exchange Offer
Registration Statement with respect to the Exchange Debentures because the
Exchange Offer is not permitted by applicable law (after compliance with the
registration procedures set forth in the Registration Rights Agreement) or (ii)
any Holder of Transfer Restricted Securities (as herein defined) shall notify
the Company within 20 Business Days following the Consummation of the Exchange
Offer that (A) such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not resell the
Exchange Debentures acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (C) such Holder is a Broker-Dealer and holds Old Debentures acquired
directly from the Company or one of its affiliates, then the Company shall (x)
cause to be filed on or prior to 30 days after the date on which the Company
determines that it is not required to file the Exchange Offer Registration
Statement pursuant to clause (i) above or 30 days after the date on which the
Company receives the notice specified
12
<PAGE> 14
in clause (ii) above a shelf registration statement pursuant to Rule 415 under
the 1933 Act (which may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration Statement")), relating to
all Transfer Restricted Securities the Holders of which shall have provided in
writing to the Company, within 20 days after receipt of a request therefor, the
information specified in Item 507 of Regulation S-K under the 1933 Act, and
shall (y) use its commercially reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after the date
on which the Company becomes obligated to file such Shelf Registration
Statement. If, after the Company has filed an Exchange Offer Registration
Statement which satisfies the requirements of the Registration Rights Agreement,
the Company is required to file and make effective a Shelf Registration
Statement solely because the Exchange Offer shall not be permitted under
applicable federal law, then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above. Such
an event shall have no effect on the requirements of clause (y) above. The
Company shall use its commercially reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as
required, to the extent necessary to ensure that it is available for sales of
the Transfer Restricted Securities by the Holders thereof entitled to the
benefits described in this section, and to ensure that it conforms with the
requirements of the Registration Rights Agreement, the 1933 Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of at least two years following the date on which such Shelf
Registration Statement first becomes effective under the 1933 Act. For purposes
of the foregoing, "Transfer Restricted Securities" means each Debenture
until (i) the date on which an Old Debenture has been exchanged by a person
other than a broker-dealer for an Exchange Debenture in the Exchange Offer, (ii)
following the exchange by a broker-dealer in the Exchange Offer of an Old
Debenture for an Exchange Debenture, the date on which such Exchange Debenture
is sold to a purchaser who receives from such broker-dealer on or prior to the
date of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Debenture has been
effectively registered under the 1933 Act and disposed of in accordance with the
Shelf Registration Statement or (iv) the date on which such Debenture is
distributed to the public pursuant to Rule 144 under the 1933 Act.
The statements made in this Prospectus relating to the Registration
Rights Agreement are intended to be summaries of all material elements of such
agreement in connection with the Exchange Offer and, as such, do not purport to
be complete. Reference is made to the Registration Rights Agreement, a copy of
which is filed as an exhibit to the Exchange Registration Statement of which
this Prospectus is a part, for a more complete description of the agreement or
matter involved.
Following the consummation of the Exchange Offer, Holders of the Old
Debentures who were eligible to participate in the Exchange Offer but who did
not tender their Old Debentures will not have any further registration rights
and such Old Debentures will continue to be subject to certain restrictions on
transfer. Accordingly, the liquidity of the market if any, for such Old
Debentures could be adversely affected.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this
Prospectus and in the Letter of Transmittal, the Company will accept any and all
Old Debentures validly tendered and not withdrawn prior to 5:00 p.m., New York
City time, on the Expiration Date. The Company will issue $1,000 principal
amount of Exchange Debentures in exchange for each $1,000 principal amount of
outstanding Old Debentures accepted in the Exchange Offer. Holders may tender
some or all of their Old Debentures pursuant to the Exchange Offer. However, Old
Debentures may be tendered only in denominations of $100,000 or any amount in
excess thereof which is an integral multiples of $1,000.
The form and terms of the Exchange Debentures are substantially
identical to the form and terms of the Old Debentures except that (i) the
Exchange Debentures bear a Series F designation and a different CUSIP Number
from the Old Debentures, (ii) the Exchange Debentures have been registered under
the 1933 Act and hence will not bear legends restricting the transfer thereof
and (iii) the Holders of the Exchange Debentures will not be entitled to certain
rights under the Registration Rights Agreement, including the provisions
providing for liquidated damages in certain circumstances relating to the timing
of the Exchange Offer, all of which rights will terminate when the Exchange
Offer is terminated. The Exchange Debentures will evidence the same debt as the
Old Debentures (which they replace) and will be entitled to the benefits of the
Indenture.
As of the date of this Prospectus, the entire $80,000,000 aggregate
principal amount of Old Debentures is registered in the name of Cede & Co., as
nominee for the Depositary. The Company has fixed the close of business on
_________ , 1998 as the record date for the Exchange Offer for purposes of
determining the persons to whom this Prospectus and the Letter of Transmittal
will be mailed initially. Only a Holder of Old Debentures may tender such Old
Debentures in the Exchange Offer. The term "Holder" with respect to the Exchange
Offer means any person in whose name Old Debentures are registered in the
Securities Register or any other person who has obtained a properly completed
Agent's Message (as hereinafter defined) from the registered Holder, or any
person whose Old Debentures are held of record by the Depositary who desires to
deliver such Old Debentures by book-entry transfer at the Depositary.
Holders of Old Debentures do not have any appraisal or dissenters'
rights under the New York Business Corporation Law or the Indenture in
connection with the Exchange Offer. The Company intends to conduct the Exchange
Offer in accordance with the applicable requirements of the 1934 Act and the
rules and regulations of the Commission thereunder.
13
<PAGE> 15
The Company shall be deemed to have accepted validly tendered Old
Debentures when, as and if the Company has given oral or written notice thereof
to the Exchange Agent. The Exchange Agent will act as agent for the tendering
Holders of Old Debentures and for the purpose of receiving the Exchange
Debentures from the Company.
If any tendered Old Debentures are not accepted for exchange because of
an invalid tender, the occurrence of certain other events set forth herein or
otherwise, the certificates for any such unaccepted Old Debentures will be
returned (or in the case of Old Debentures tendered by book-entry transfer
through the Depositary, will be credited to an account maintained with the
Depositary), without expense, to the tendering Holder thereof as promptly as
practicable after the Expiration Date.
Holders who tender Old Debentures in the Exchange Offer will not be
required to pay brokerage commissions or fees or, subject to the instructions in
the Letter of Transmittal, transfer taxes with respect to the exchange of Old
Debentures pursuant to the Exchange Offer. The Company will pay all charges and
expenses, other than transfer taxes in certain circumstances, in connection with
the Exchange Offer. See " -- Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
____________, 1998, unless the Company, in its sole discretion, extends the
Exchange Offer, in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended.
In order to extend the Exchange Offer, the Company will notify the
Exchange Agent of any extension by oral or written notice and will mail to the
registered Holders an announcement thereof, each prior to 9:00 a.m., New York
City time, on the next business day after the previously scheduled expiration
date.
The Company reserves the right, in its reasonable discretion, (i) to
delay accepting any Old Debentures, to extend the Exchange Offer or to terminate
the Exchange Offer if any of the conditions set forth below under " --
Conditions" shall not have been satisfied, by giving oral or written notice of
such delay, extension or termination to the Exchange Agent or (ii) to amend the
terms of the Exchange Offer in any manner. Any such delay in acceptance,
extension, termination or amendment will be followed as promptly as practicable
by oral or written notice thereof to the registered Holders.
INTEREST ON THE EXCHANGE DEBENTURES
Interest on Exchange Debentures shall accrue from the last interest
payment date on which interest was paid on the Old Debentures so surrendered,
or, if no interest has been paid on such Old Debentures, from December 18, 1997.
No interest will be paid on the Old Debentures accepted for exchange.
PROCEDURES FOR TENDERING
For a Holder of Old Debentures to tender Old Debentures validly
pursuant to the Exchange Offer, a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature, guarantee, or
(in the case of book-entry transfer) an Agent's Message in lieu of the Letter of
Transmittal, and any other required documents, must be received by the Exchange
Agent at the address set forth below under " -Exchange Agent" prior to 5:00
p.m., New York City time, on the Expiration Date. In addition, prior to 5:00
p.m., New York City time, on the Expiration Date, such Old Debentures must be
transferred pursuant to the procedures for book-entry transfer described below
(and a confirmation of such tender received by the Exchange Agent, including an
Agent's Message if the tendering Holder has not delivered a Letter of
Transmittal).
The term "Agent's Message" means a message transmitted by the
Depositary, received by the Exchange Agent and forming part of the confirmation
of a book-entry transfer, which states that the Depositary has received an
express acknowledgment from the Participant in the Depositary tendering Old
Debentures which are the subject of such book-entry confirmation, that such
Participant has received and agrees to be bound by the terms of the Letter of
Transmittal and that the Company may enforce such agreement against such
Participant.
By tendering Old Debentures pursuant to the procedures set forth above,
each Holder will be deemed to make to the Company the representations set forth
above in the third paragraph under the heading " -- Purpose and Effect of the
Exchange Offer."
The tender by a Holder of Old Debentures and the acceptance thereof by
the Company will constitute agreement between such Holder and the Company in
accordance with the terms and subject to the conditions set forth herein and in
the Letter of Transmittal.
14
<PAGE> 16
THE METHOD OF DELIVERY OF THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND SOLE RISK OF THE
HOLDER. AS AN ALTERNATIVE TO DELIVERY BY MAIL, HOLDERS MAY WISH TO CONSIDER
OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO
LETTER OF TRANSMITTAL SHOULD BE SENT TO THE COMPANY. HOLDERS MAY REQUEST THEIR
RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO
EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS.
All beneficial owners who wish to tender should contact the registered
Holder promptly and instruct such registered Holder to tender on such beneficial
owner's behalf. See "Instruction to Book-Entry Transfer Facility Participant
from Owner" included with the Letter of Transmittal.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution (as defined below)
unless the Old Debentures tendered pursuant thereto are tendered (i) by a
registered Holder who has not completed the box entitled "Special Registration
Instructions" or "Special Delivery Instructions" on the Letter of Transmittal or
(ii) for the account of an Eligible Institution. In the event that signatures on
a Letter of Transmittal or a notice of withdrawal, as the case may be, are
required to be guaranteed, such guarantee must be by a member firm of the
Medallion System (an "Eligible Institution").
The Company understands that the Exchange Agent will make a request
promptly after the date of this Prospectus to establish accounts with respect to
the Old Debentures at the Depositary for the purpose of facilitating the
Exchange Offer, and subject to the establishment thereof, any financial
institution that is a Participant in the system may make book-entry delivery of
Old Debentures by causing the Depositary to transfer such Old Debentures into
the Exchange Agent's account with respect to the Old Debentures in accordance
with the Depositary's procedures for such transfer. Although delivery of the Old
Debentures may be effected through book-entry transfer into the Exchange Agent's
account at the Depositary, an Agent's Message in lieu of the Letter of
Transmittal and all other required documents must in each case be transmitted to
and received or confirmed by the Exchange Agent at its address set forth below
on or prior to the Expiration. Delivery of documents to the Depositary does not
constitute delivery to the Exchange Agent.
The Exchange Agent and the Depositary have confirmed that the Exchange
Offer is eligible for the Depositary's Automated Tender Offer Program ("ATOP").
Accordingly, the Depositary's Participants may electronically transmit their
acceptance of the Exchange Offer by causing the Depositary to transfer Old
Debentures to the Exchange Agent in accordance with the Depositary's ATOP
procedures for transfer. The Depositary will then send an Agent's Message to the
Exchange Agent.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Old Debentures and withdrawal of tendered Old
Debentures will be determined by the Company in its reasonable discretion, which
determination will be final and binding. The Company reserves the absolute right
to reject any and all Old Debentures not properly tendered or any Old Debentures
the Company's acceptance of which would, in the opinion of counsel for the
Company, be unlawful. The Company also reserves the right in its reasonable
discretion to waive any defects, irregularities or conditions of tender as to
particular Old Debentures. The Company's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in the Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of Old Debentures must be
cured within such time as the Company shall determine. Although the Company
intends to notify Holders of defects or irregularities with respect to tenders
of Old Debentures, neither the Company, the Exchange Agent nor any other person
shall incur any liability for failure to give such notification. Tenders of Old
Debentures will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Old Debentures received by the
Exchange Agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the Exchange
Agent to the tendering Holders, unless otherwise provided in the Letter of
Transmittal, as soon as practicable following the Expiration Date.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Old Debentures and (i) whose Old
Debentures are not immediately available, (ii) who cannot deliver their Old
Debentures, the Letter of Transmittal or any other required documents to the
Exchange Agent or (iii) who cannot complete the procedures for book-entry
transfer, prior to the Expiration Date, may effect a tender if:
(a) the tender is made through an Eligible Institution;
(b) prior to the Expiration Date, the Exchange Agent receives
from such Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the Holder, the
certificate number(s) of such Old Debentures and the principal amount
of Old Debentures tendered, stating that the tender is being made
thereby and guaranteeing that, within three New York Stock Exchange
trading days after the Expiration Date, the Letter of Transmittal (or
facsimile thereof) together with the
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<PAGE> 17
certificate(s) representing the Old Debentures (or a confirmation of
book-entry transfer of such Old Debentures into the Exchange Agent's
account at the Depositary), and any other documents required by the
Letter of Transmittal will be deposited by the Eligible Institution
with the Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal
(of facsimile thereof), as well as the certificate(s) representing all
tendered Old Debentures in proper form for transfer (or a confirmation
of book-entry transfer of such Old Debentures into the Exchange Agent's
account at the Depositary), and all other documents required by the
Letter of Transmittal are received by the Exchange Agent upon three New
York Stock Exchange trading days after the Expiration Date. Upon
request to the Exchange Agent, a Notice of Guaranteed Delivery will be
sent to Holders who wish to tender their Old Debentures according to
the guaranteed delivery procedures set forth above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Old Debentures may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration
Date.
To withdraw a tender of Old Debentures in the Exchange Offer, a
telegram, telex, letter or facsimile transmission notice of withdrawal must be
received by the Exchange Agent at its address set forth herein prior to 5:00
p.m., New York City time, on the Expiration Date. Any such notice of withdrawal
must (i) specify the name of the person having deposited the Old Debentures to
be withdrawn (the "Depositor"), (ii) identify the principal amount of Old
Debentures to be withdrawn (including the name and number of the account at the
Depositary to be credited), (iii) be signed by the Holder in the same manner as
the original signature on the Letter of Transmittal by which such Old Debentures
were tendered (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the Trustee with respect to the Old
Debentures register the transfer of such Old Debentures into the name of the
person withdrawing the tender and (iv) specify the name in which any such Old
Debentures are to be registered, if different from that of the Depositor. All
questions as to the validity, form and eligibility (including time of receipt)
of such notices will be determined by the Company, whose determination shall be
final and binding on all parties. Any Old Debentures so withdrawn will be deemed
not to have been validly tendered for purposes of the Exchange Offer and no
Exchange Debentures will be issued with respect thereto unless the Old
Debentures so withdrawn are validly retendered. Any Old Debentures which have
been tendered but which are not accepted for exchange will be returned to the
Holder thereof without cost to such Holder as soon as practicable after
withdrawal, rejection of tender or termination of the Exchange Offer. Properly
withdrawn Old Debentures may be retendered by following one of the procedures
described above under " -- Procedures for Tendering" at any time prior to the
Expiration Date.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Company shall
not be required to accept for exchange, or exchange Exchange Debentures for, any
Old Debentures, and may terminate or amend the Exchange Offer as provided herein
before the acceptance of such Old Debentures, if:
(a) any action or proceeding is instituted or threatened in
any court or by or before any governmental agency with respect to the
Exchange Offer (or other similar exchange offers) which, in the sole
judgment of the Company, might materially impair the ability of the
Company to proceed with the Exchange Offer or any material adverse
development has occurred in any existing action or proceeding with
respect to the Company or any of its subsidiaries;
(b) any law, statute, rule, regulation or interpretation by
the staff of the Commission is proposed, adopted or enacted, which, in
the reasonable judgment of the Company, might materially impair the
ability of the Company to proceed with the Exchange Offer or materially
impair the contemplated benefits of the Exchange Offer to the Company;
or
(c) any governmental approval has not been obtained, which
approval the Company shall, in its reasonable discretion, deem
necessary for the consummation of the Exchange Offer as contemplated
hereby.
If the Company determines in its reasonable discretion that any of the
conditions are not satisfied, the Company may (i) refuse to accept any Old
Debentures and return all tendered Old Debentures to the tendering Holders, (ii)
extend the Exchange Offer and retain all Old Debentures tendered prior to the
expiration of the Exchange Offer, subject, however, to the rights of Holders to
withdraw such Old Debentures (see " -- Withdrawal of Tenders") or (iii) waive
such unsatisfied conditions with respect to the Exchange Offer and accept all
properly tendered Old Debentures which have not been withdrawn.
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<PAGE> 18
EXCHANGE AGENT
The Bank of New York has been appointed as Exchange Agent for the
Exchange Offer. Questions and requests for assistance, requests for additional
copies of this Prospectus or of the Letter of Transmittal should be directed to
the Exchange Agent addressed as follows:
<TABLE>
<CAPTION>
By Registered or Certified Mail,
Overnight Courier or Hand: By Facsimile:
<S> <C> <C>
The Bank of New York Attention: Corporate Trust Office
101 Barclay Street (212) 815-5915 -
New York, NY 10286
Attention: Corporate Trust Office
Tel: (212) 815-5092
</TABLE>
Originals of all documents submitted by facsimile should be sent
promptly by registered or certified mail, overnight courier or hand. Delivery to
an address other than as set forth above will not constitute a valid delivery.
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitation
may be made by telegraph, facsimile, telephone or in person by officers and
regular employees of the Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers, or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer
will be paid by the Company. Such expenses include fees and expenses of the
Exchange Agent and Trustee, accounting and legal fees and printing costs, among
others.
ACCOUNTING TREATMENT
The Exchange Debentures will be recorded at the same carrying value as
the Old Debentures, which is face value, as reflected in the Company's
accounting records on the date of exchange. Accordingly, no gain or loss for
accounting purposes will be recognized by the Company. The expenses of the
Exchange Offer will be expensed over the term of the Exchange Debentures.
CONSEQUENCES OF FAILURE TO EXCHANGE
The Old Debentures were offered for resale in a transaction not
involving any public offering in the United States within the meaning of the
1933 Act. The Old Debentures were not registered under the 1933 Act or any
United States securities laws. The Old Debentures may not be reoffered, resold,
pledged or otherwise transferred except (i) to the Company or any of its
subsidiaries, (ii) to a person whom the purchaser reasonably believes is a
Qualified Institutional Buyer in a transaction meeting the requirements of Rule
144A under the 1933 Act, (iii) in an offshore transaction complying with Rule
904 of Regulation S, (iv) pursuant to an exemption from registration under the
1933 Act provided by Rule 144 thereunder (if available), (v) to an institutional
"accredited investor" (as defined in Rule 501 (a) (1), (2), (3) or (7) of
Regulation D under the 1933 Act) that, prior to such transfer, furnishes the
Trustee a signed letter containing certain representations and agreements
relating to the transfer of the Debentures and, if such transfer is in respect
of an aggregate principal amount of Debentures less than $250,000, an opinion of
counsel, (vi) in accordance with another exemption from the registration
requirements of the 1933 Act or (vii) pursuant to an effective registration
statement under the 1933 Act, and, in each case, in accordance with all
applicable state securities laws of any state of the United States or any other
applicable jurisdiction.
RESALE OF THE EXCHANGE DEBENTURES
With respect to resales of Exchange Debentures, based on
interpretations by the staff of the Commission set forth in no-action letters
issued to third parties, the Company believes that a Holder or other person who
receives Exchange Debentures, whether or not such person is the Holder (other
than a person that is an "affiliate" of the Company within the meaning of Rule
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<PAGE> 19
405 under the 1933 Act) who receives Exchange Debentures in exchange for Old
Debentures, in the ordinary course of business and who is not participating,
does not intend to participate, and has no arrangement or understanding with any
person to participate, in the distribution of the Exchange Debentures, will be
allowed to resell the Exchange Debentures to the public without further
registration under the 1933 Act and without delivering to the purchasers of the
Exchange Debentures a prospectus that satisfies the requirements of Section 10
of the 1933 Act. However, if any Holder acquires Exchange Debentures in the
Exchange Offer for the purpose of distributing or participating in a
distribution of the Exchange Debentures, such Holder cannot rely on the position
of the staff of the Commission enunciated in such no-action letters or any
similar interpretive letters, and must comply with the registration and
prospectus delivery requirements of the 1933 Act in connection with any resale
transaction, unless an exemption from registration is otherwise available.
Further, each Participating Broker-Dealer that receives Exchange Debentures for
its own account in exchange for Old Debentures where such Old Debentures were
acquired by such Participating Broker-Dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Debentures.
As contemplated by these no-action letters and the Registration Rights
Agreement, each Holder accepting the Exchange Offer is required to represent to
the Company in the Letter of Transmittal that (i) the Exchange Debentures are to
be acquired by the Holder or the person receiving such Exchange Debentures,
whether or not such person is the Holder, in the ordinary course of business,
(ii) the Holder or any such other person (other than a broker-dealer referred to
in the next sentence) is not engaging, and does not intend to engage, in the
distribution of the Exchange Debentures, (iii) the Holder or any such other
person has no arrangement or understanding with any person to participate in the
distribution of the Exchange Debentures, (iv) neither the Holder nor any such
other person is an "affiliate" of the Company within the meaning of Rule 405
under the 1933 Act and (v) the Holder or any such other person acknowledges
that if such Holder or other person participates in the Exchange Offer for the
purpose of distributing the Exchange Debentures it must comply with the
registration and prospectus delivery requirements of the 1933 Act in connection
with any resale of the Exchange Debentures and cannot rely on those no-action
letters. As indicated above, each Participating Broker-Dealer that receives an
Exchange Debenture for its own account in exchange for Old Debentures must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Debentures. For a description of the procedures for such resales
by Participating Broker-Dealers, see "Plan of Distribution."
DESCRIPTION OF EXCHANGE DEBENTURES
The Exchange Debentures are to be issued under an Indenture dated as of March 1,
1990 between the Company and The Bank of New York, as Trustee (the "Trustee"),
as supplemented by a First Supplemental Indenture, dated as of March 7, 1990,
relating to $80,000,000 in aggregate principal amount of 9 3/8% Debentures Due
2000 (Series A) of the Company, a Second Supplemental Indenture, dated as of
October 15, 1992, relating to $55,000,000 in aggregate principal amount of the
Company's Series B Debentures, a Third Supplemental Indenture, dated as of March
1, 1993, relating to $20,000,000 in aggregate principal amount of 6.14%
Debentures Due 2000 (Series C) of the Company and $35,000,000 in aggregate
principal amount of 6.56% Debentures Due 2003 (Series D) of the Company, and a
Fourth Supplemental Indenture, dated as of December 1, 1997, relating to the Old
Debentures and the Exchange Debentures (collectively, the "Indenture," which
term includes all amendments and supplements from time to time). The statements
herein concerning the Old Debentures, the Exchange Debentures, and the Indenture
do not purport to be complete. They are qualified in their entirety by reference
to the Indenture and to the definitions therein of terms used herein. All
article and section references appearing in this section are to articles and
sections of the Indenture, and all capitalized terms not defined herein have the
meanings specified in the Indenture.
GENERAL
The Exchange Debentures will be issued in a single series, as specified
on the cover of this Prospectus, and will be limited to $80,000,000 in aggregate
principal amount. The Exchange Debentures will be issued only in exchange for an
equal principal amount of Old Debentures; for that reason, the aggregate
principal amount of Old Debentures and Exchange Debentures outstanding will
always be $80,000,000.
The Exchange Debentures will mature on December 1, 2027, and will bear
interest from the last interest payment date on which interest was paid on the
Old Debentures so surrendered, or, if no interest has been paid on such Old
Debentures, from December 18, 1997, at the rate of 6-1/2% per annum payable on
June 1 and December 1 of each year, commencing June 1, 1998, until maturity.
The Exchange Debentures are not redeemable in whole or in part prior to
maturity, and there is no sinking fund for the Exchange Debentures.
The Exchange Debentures will be unsecured and will rank equally with
other unsecured obligations of the Company. The Indenture does not limit the
amount of debentures which may be issued thereunder, and additional debentures
may be issued thereunder up to the aggregate principal amount which may be
authorized from time to time by the Company.
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<PAGE> 20
REPAYMENT AT OPTION OF HOLDER
The registered Holder of each Exchange Debenture may elect to have such
Exchange Debenture (or any portion thereof in the amount of $100,000 or in
integral multiples of $1,000 in excess thereof) repaid on December 1, 2004 (or,
if such day is not a Business Day, the next succeeding Business Day), at a
repayment price equal to the principal amount of such Exchange Debenture (or
such portion thereof) together with accrued and unpaid interest thereon to the
date of repayment. In order for the Holder to exercise this option, the Company
must receive at its office or agency in New York, New York, during the period
beginning on October 1, 2004 and ending at 5:00 p.m. (New York City time) on
November 1, 2004 (or, if such day is not a Business Day, the next succeeding
Business Day) such Exchange Debenture with the form entitled "Option to Elect
Repayment on December 1, 2004" on the reverse of such Exchange Debenture duly
completed. Any such notice received by the Company during the period beginning
on October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1,
2004 shall be irrevocable. So long as the Exchange Debentures are represented by
the Global Debenture, a beneficial owner shall give notice to elect to have its
Exchange Debentures repaid, through its Participant, to the Trustee, and shall
effect delivery of such Exchange Debentures by causing the Direct Participant
(as hereinafter defined) to transfer the Participant's interest in the Exchange
Debentures on the Depositary's records, to the Trustee. The requirement for
physical delivery of Exchange Debentures in connection with a repayment will be
deemed satisfied when the ownership rights in the Exchange Debentures are
transferred by Direct Participants on the Depositary's records and followed by a
book-entry credit of tendered Exchange Debentures to the Trustee's account.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of any Debenture for repayment will be determined by the
Company, whose determination shall be final and binding. Failure by the Company
to repay the Exchange Debentures when required as described above will result in
an Event of Default under the Indenture. As long as the Exchange Debentures are
represented by the Global Debenture, the Depositary or its nominee will be the
registered Holder of the Exchange Debentures and therefore will be the only
person or entity that can exercise a right to such repayment. See " --
Book-Entry, Delivery and Form."
RESTRICTION ON SECURED INDEBTEDNESS FOR BORROWED MONEY
The Indenture contains a covenant restricting the issuance by the
Company of secured indebtedness for borrowed money while any debentures are
outstanding under the Indenture. The Company is precluded from creating,
issuing, incurring or assuming any other indebtedness for borrowed money secured
by a mortgage or other lien on, or security interest in, any properties of the
Company (other than (i) certain types of properties such as materials, fuels,
supplies, cash, gas, minerals, notes, accounts receivables and securities and
(ii) any property that is acquired by the Company after the date of the Second
Supplemental Indenture subject to a mortgage, lien or security interest, and
certain additions, improvements and betterments thereto). The term "indebtedness
for borrowed money" means indebtedness evidenced by a bond, note or other
comparable written obligation representing borrowed money, and does not, in any
event, include any lease or installment sale agreement (or any obligation in the
nature of or having the characteristics of a lease or installment sale
agreement), whether or not capitalized for financial reporting or any other
purpose.
MERGER, SALE OF ASSETS, ETC.
Under the Indenture, the Company covenants that it will not consolidate
with or merge into any other corporation, or sell, transfer or lease its
properties as an entirety or substantially as an entirety, unless the due and
punctual payment of the principal of and interest on the Exchange Debentures,
and the due and punctual performance and observance of all the terms, covenants
and conditions of the Indenture to be performed or observed by the Company,
shall be expressly assumed by the successor corporation, if other than the
Company, formed by or surviving any such consolidation or merger or to which
such sale, transfer or lease shall have been made, and immediately after giving
effect to such transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing. (Section 11.2) In the case of any such sale or
transfer, the Company will thereupon be released from its liability as obligor
on the Exchange Debentures.
DELIVERY AND FORM
The Exchange Debentures will be issued in fully registered form without
coupons. See "--Book-Entry, Delivery and Form." The Exchange Debentures will be
issued only in denominations of $100,000 or in any amount in excess thereof
which is an integral multiple of $1,000.
MODIFICATIONS OF INDENTURE
The Indenture, the rights and obligations of the Company
thereunder and the rights of the Holders may be modified with respect to one or
more series of debentures issued under the Indenture with the consent of the
Holders of a majority of the aggregate principal amount of outstanding
debentures of all series affected by the modification (voting as one class).
Without the consent of the Holder of each debenture affected, however, no
modification shall change the Stated Maturity of any debenture, reduce the
principal amount or the amount of any premium payable thereon, reduce the rate,
extend the time of
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<PAGE> 21
payment or change the method of calculation of interest thereon, reduce any
amount payable on redemption thereof or reduce the percentage required for
modification. No modification of the Indenture subordinating the indebtedness
evidenced by any series of debentures issued thereunder to any indebtedness of
the Company is effective against any Holder of debentures without the consent of
such Holder. Under certain limited circumstances, including, without limitation,
modification of the Indenture to conform to any amendments of the Trust
Indenture Act of 1939, the Indenture may be modified without the consent of the
Holders. (Sections 10.1 and 10.2)
EVENTS OF DEFAULT
The Indenture provides that the following are Events of Default
thereunder with respect to any series of debentures issued thereunder: (i)
default in the payment of the principal of (or premium, if any, on) any
debenture of such series when and as the same shall be due and payable; (ii)
default in making a sinking fund payment, if any, when and as the same shall be
due and payable by the terms of the debentures of such series; (iii) default for
30 days in the payment of any installment of interest on any debenture of such
series; (iv) default for 60 days after written notice (given to the Company by
the Trustee or by the Holders of at least 25% in aggregate principal amount of
the outstanding debentures of all series affected) in the performance of any
other covenant or agreement in respect of the debentures of such series
contained in the Indenture; (v) certain events of bankruptcy, insolvency or
reorganization, or any related court appointment of a receiver, liquidator or
trustee of the Company or any substantial part of its property; or (vi) any
other Event of Default provided in the applicable Board Resolution or
supplemental indenture under which such series of debentures is issued. (Section
6.1) The Fourth Supplemental Indenture provides that the following is an
additional Event of Default with respect to the Exchange Debentures: a
failure by the Company to repay the outstanding principal amount of any Exchange
or Old Debenture, together with accrued but unpaid interest thereon, on December
1, 2004 in accordance with a proper election by the Holder of such debenture to
receive such repayment.
An Event of Default with respect to a particular series of debentures
issued under the Indenture does not necessarily constitute an Event of Default
with respect to any other series of debentures issued under the Indenture. The
Trustee may withhold notice to the Holders of any series of debentures of any
default with respect to such series (except a default in the payment of
principal, premium or interest) if it considers such withholding in the interest
of such Holders. (Section 6.11)
If any Event of Default with respect to any series of debentures shall
have occurred and be continuing, the Trustee or the Holders of not less than 25%
in aggregate principal amount of the outstanding debentures of such series may
declare the principal of all the debentures of such series to be due and payable
immediately; however, subject to certain conditions, any such declaration and
its consequences may be rescinded or annulled by the Holders of a majority in
aggregate principal amount of the outstanding debentures of such series.
(Section 6.1)
Within four months after the close of each year, the Company must file
with the Trustee a certificate, signed by specified officers, stating whether or
not such officers have knowledge of any default relating to certain covenants,
and, if so, specifying each such default and the nature thereof. (Section 4.6)
Subject to provisions relating to its duties during the continuance of
any Event of Default, the Trustee shall be under no obligation to exercise any
of its rights or powers under the Indenture at the request, order or direction
of any Holders, unless such Holders shall have offered the Trustee reasonable
indemnity. (Section 7.2) Subject to such provisions for indemnification and
subject to the right of the Trustee to decline to follow any Holders' directions
under specified circumstances, the Holders of a majority in principal amount of
the outstanding debentures of any series may direct the time, method and place
of conducting any proceeding or any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, with respect to the
debentures of such series. (Section 6.9)
PAYMENT AND TRANSFER
In the event that Exchange Debenture certificates are required to be
printed and delivered as described under "--Book-Entry, Delivery and Form,"
principal and interest on Exchange Debentures will be payable at such place or
places as may be designated by the Company for such purpose, except that payment
of interest may be made at the option of the Company by check mailed to the
persons in whose names such Exchange Debentures are registered at the close of
business on the May 15th or the November 15th next preceding the relevant
interest payment date. (Sections 3.8 and 4.1)
Exchange Debentures may be registered for transfer or exchanged at the
Corporate Trust Office of the Trustee or at any other office or agency
maintained by the Company for such purposes, subject to the limitations in the
Indenture, without the payment of any service charge except for any tax or
governmental charge incidental thereto. (Section 3.6)
All applicable payments of principal and interest on the Exchange
Debentures issued as a Global Debenture will be made by the Company in
immediately available funds. The Global Debenture will be in the Same-Day Funds
Settlement System at the Depositary and, to the extent that secondary market
trading in beneficial interests in the Global Debenture is effected through the
facilities of the Depositary, such trades will be settled in immediately
available funds.
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LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time after December 1, 2004,
elect to have all obligations discharged with respect to the outstanding
Exchange Debentures ("Legal Defeasance"). Such Legal Defeasance means that the
Company will be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Exchange Debentures, except for: (a) the rights
of Holders of outstanding Exchange Debentures to receive payments in respect of
the principal of and interest on the Exchange Debentures when such payments are
due; (b) the Company's obligations with respect to the Exchange Debentures
concerning issuing temporary debentures, registration of Exchange Debentures,
mutilated, destroyed, lost or stolen Exchange Debentures and the maintenance of
an office or agency for payment and money for security payments held in trust;
(c) the rights, powers, trust, duties and immunities of the Trustee, and the
Company' obligations in connection therewith; and (d) the Legal Defeasance
provisions of the Fourth Supplemental Indenture. In addition, the Company may,
at its option and at any time after December 1, 2004, elect to have all
obligations released with respect to a certain covenant contained in the
Indenture restricting the issuance by the Company of secured indebtedness
for borrowed money ("Covenant Defeasance") and thereafter any omission to comply
with such obligations shall not constitute a Default or Event of Default with
respect to the Exchange Debentures. In the event Covenant Defeasance occurs,
certain events (not including non-payment, bankruptcy, receivership,
rehabilitation and insolvency events) described under "--Events of Default" will
no longer constitute an Event of Default with respect to the Exchange
Debentures.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(i) the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders of the Exchange Debentures, cash in United States
dollars, non-callable Government Obligations, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Trustee, to pay the principal of
and interest on the outstanding Exchange Debentures on the stated maturity; (ii)
in the case of Legal Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel confirming that (A) the Company has received from, or
there has been published by the Internal Revenue Service, a ruling or (B) since
the date of the Fourth Supplemental Indenture, there has been a change in the
applicable Federal income tax law, in each case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders of such Exchange
Debentures will not recognize income, gain or loss for Federal income tax
purposes as a result of such Legal Defeasance, and will be subject to Federal
income tax in the same amount, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred; (iii) in the case
of Covenant Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that the Holders of such Exchange Debentures will
not recognize income, gain or loss for Federal income tax purposes as a result
of such Covenant Defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred; (iv) no Event of Default
shall have occurred and be continuing on the date of such deposit or insofar as
Events of Default from bankruptcy or insolvency events are concerned, at any
time in the period ending on the 91st day after the date of deposit; (v) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the Indenture or any other material
agreement or instrument to which the Company is a party; (vi) the Company shall
have delivered to the Trustee an Officers' Certificate stating that the deposit
was not made by the Company with the intent of preferring the Holders of such
Exchange Debentures over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors of the
Company or others; and (vii) the Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with.
CONCERNING THE TRUSTEE
The Bank of New York is the Trustee under the Indenture. The Bank of
New York is also the Trustee under an indenture relating to Pollution Control
Refunding Revenue Bonds issued by the New York State Energy Research and
Development Authority and supported by the obligation of the Company. The Bank
of New York also serves as the Company's Stock Transfer Agent. In addition, The
Bank of New York has a course of regular dealings with the Company in the
ordinary course of business and from time to time may also make short-term
unsecured loans and secured or unsecured revolving credit and term loans to the
Company and associated companies.
BOOK-ENTRY, DELIVERY AND FORM
The Depositary will act as securities depository for the Exchange
Debentures. The Exchange Debentures will be issued as fully-registered
securities registered in the name of Cede & Co. (the Depositary's partnership
nominee). One fully-registered Global Debenture will be issued for the Exchange
Debentures in the aggregate principal amount of such issue and will be deposited
with the Depositary.
The Depositary is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
1934 Act. The Depositary holds securities that its participants (the
"Participants") deposit with the Depositary. The Depositary also facilitates the
settlement among Participants of securities transactions, such as transfers and
21
<PAGE> 23
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. The "Direct Participants" include
securities brokers and dealers, banks, trust companies, clearing corporations,
and certain other organizations. The Depositary is owned by a number of its
Direct Participants and by The New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc. Access
to the Depositary's system is also available to others such as securities
brokers and dealers, banks, and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly
(the "Indirect Participants"). The Rules applicable to the Depositary and its
Participants are on file with the Commission.
To facilitate subsequent transfers, all Exchange Debentures deposited
by Participants with the Depositary are registered in the name of the
Depositary's partnership nominee, Cede & Co. The deposit of Exchange Debentures
with the Depositary and their registration in the name of Cede & Co. effect no
change in beneficial ownership. The Depositary has no knowledge of the actual
beneficial owners of the Exchange Debentures; the Depositary's records reflect
only the identity of the Direct Participants to whose accounts such Exchange
Debentures are credited, which may or may not be the beneficial owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by the Depositary to
Direct Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to beneficial owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither the Depositary nor Cede & Co. will consent or vote with respect
to Exchange Debentures. Under its usual procedures, the Depositary mails an
Omnibus Proxy to the Company as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Exchange Debentures are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Exchange Debentures will be made
to the Depositary. The Depositary's practice is to credit Direct Participants'
accounts on the payable date in accordance with their respective holdings shown
on the Depositary's records unless the Depositary has reason to believe it will
not receive payment on the payable date. Payments by Participants to beneficial
owners will be governed by standing instructions and customary practices, as is
the case with securities held for the accounts of customers in bearer form or
registered in a "street name," and will be the responsibility of such
Participant and not of the Depositary, the Trustee, or the Company, subject to
any statutory or regulatory requirements as may be in effect from time to time.
Payment of principal and interest to the Depositary is the responsibility of the
Company or the Trustee, disbursement of such payments to Direct Participants
shall be the responsibility of the Depositary, and disbursement of such payments
to the beneficial owners shall be the responsibility of Direct and Indirect
Participants.
The Depositary may discontinue providing its services as securities
depositary with respect to the Exchange Debentures at any time by giving
reasonable notice to the Company or the Trustee. Under such circumstances, in
the event that a successor securities depositary is not obtained, Debenture
certificates are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through the Depositary (or a successor securities depositary). In that
event, Debenture certificates will be printed and delivered.
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
There follows a discussion of selected United States federal income tax
consequences of the Exchange Offer to Holders of Old Debentures. Except as
otherwise expressly indicated, this discussion addresses only United States
federal income tax consequences to U.S. Holders holding Old Debentures as
capital assets. For these purposes, the term "U.S. Holders" denotes (i) citizens
or residents of the United States, (ii) corporations, partnerships or other
entities created or organized in or under the laws of the United States or any
political subdivision thereof or therein, (iii) estates the income of which is
subject to United States federal income tax regardless of its source, (iv)
trusts the administration of which is subject to the primary supervision of a
court within the United States and for which one or more United States
fiduciaries have the authority to control all substantial decisions, or (v) any
other person defined as a United States person under the Internal Revenue Code
of 1986, as amended (the "Code"). This discussion is based upon the Code, the
Treasury Department regulations promulgated thereunder, and administrative and
judicial interpretations thereof, all as of the date hereof and all of which are
subject to change, possibly on a retroactive basis.
Holders of Old Debentures should also understand that the following
discussion is limited in certain other ways. For example, it does not purport to
address tax consequences that may be relevant to particular persons by reason of
their special
22
<PAGE> 24
status, including, financial institutions, broker-dealers, persons that
mark-to-market their securities, insurance companies, tax-exempt organizations,
individual retirement and other tax-deferred accounts, and other persons in
special situations, such as those that hold Old Debentures or Exchange
Debentures as part of a straddle, hedge, conversion transaction, or other
integrated investment. Moreover, it does not purport to describe the additional
consequences for persons that have a "functional currency" other than the U.S.
dollar or that have acquired Old Debentures at a premium or a market discount;
nor does it address the United States federal alternative minimum tax
consequences or, as already indicated, any aspect of state, local or foreign
taxation. This discussion constitutes the opinion of Winthrop, Stimson, Putnam &
Roberts, counsel to the Company, and is not binding upon the Internal Revenue
Service or the courts.
HOLDERS OF OLD DEBENTURES ARE URGED TO CONSULT THEIR TAX ADVISORS
CONCERNING THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES TO THEM OF
ACQUIRING, OWNING AND DISPOSING OF THE EXCHANGE DEBENTURES, AS WELL AS THE
APPLICATION OF STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS.
THE EXCHANGE
The exchange of an Old Debenture for an Exchange Debenture pursuant to
the Exchange Offer should not be treated as an exchange or otherwise as a
taxable event for U.S. federal income tax purposes. Accordingly, the Exchange
Debentures should have the same issue price as the Old Debentures, and each
Holder should have the same adjusted basis and holding period in the Exchange
Debentures as it had in the Old Debentures immediately before the Exchange
Offer. It is assumed, for purposes of the following discussion, that the
consummation of the Exchange Offer will not be treated as a taxable event and
that the Exchange Debentures and the Old Debentures will be treated as the same
instruments for U.S. federal income tax purposes.
DISPOSITION OF EXCHANGE DEBENTURES
If a U.S. Holder sells an Exchange Debenture between interest payment
dates, the U.S. Holder will recognize gain or loss equal to the difference
between the amount realized on the sale less the amount attributable to accrued
but previously unrecognized interest, which is taxable as ordinary interest
income, and the U.S. Holder's adjusted tax basis in the Exchange Debenture.
Subject to U.S. federal income tax rules relating to "market discount," such
gain or loss will generally be long-term if the Exchange Debentures have been
held for more than 18 months, mid-term if held for more than one year but not
more than 18 months and short-term if held for one year or less. Generally, for
non-corporate U.S. Holders, mid-term gain will be subject to income tax at a
maximum rate of 28% and long-term gain will be subject to income tax at a
maximum rate of 20%. Subject to certain limited exceptions, capital losses
cannot be used to offset ordinary income.
FOREIGN HOLDERS
For purposes of this discussion, a "Foreign Holder" is any Holder other
than a U.S. Holder.
A Foreign Holder generally will not be subject to United States federal
withholding tax on interest paid on the Exchange Debentures so long as the
Foreign Holder (i) is not actually or constructively a "10 percent shareholder"
of the Company or a "controlled foreign corporation" with respect to which the
Company is a "related person" within the meaning of section 864(d) of the Code,
and (ii) provides an appropriate statement, signed under penalties of perjury,
certifying that the beneficial owner of the Exchange Debenture is a foreign
person and providing that foreign person's name and address. If the information
provided in this statement changes, the foreign person must so inform the
Company within 30 days of such change. The statement generally must be provided
in the year a payment occurs or in either of the two preceding years. If the
foregoing conditions are not satisfied, then interest paid on the Exchange
Debentures will be subject to United States withholding tax at a rate of 30%,
unless such rate is reduced or eliminated pursuant to an applicable tax treaty.
Any capital gain a Foreign Holder realizes on the sale, redemption,
retirement or other taxable disposition of an Exchange Debenture will be exempt
from United States federal income and withholding tax, provided that (i) the
gain is not effectively connected with the Foreign Holder's conduct of a trade
or business in the United States, (ii) in the case of a Foreign Holder who is an
individual, he or she is not present in the United States for 183 days or more
in the taxable year of the disposition and (iii) the Foreign Holder is not
subject to tax pursuant to the provisions of U.S. tax law applicable to certain
U.S. expatriates.
If the interest, gain or other income a Foreign Holder recognizes on an
Exchange Debenture is effectively connected with the Foreign Holder's conduct of
a trade or business in the United States, the Foreign Holder (although exempt
from the withholding tax previously discussed if an appropriate statement is
furnished) generally will be subject to United States federal income tax on the
interest, gain or other income at regular federal income tax rates. In addition,
if the Foreign Holder is a foreign corporation, it may be subject to a branch
profits tax equal to 30% of its "effectively connected earnings and profits," as
adjusted for certain items, unless it qualifies for a lower rate under an
applicable tax treaty.
INFORMATION REPORTING AND BACKUP WITHHOLDING
23
<PAGE> 25
On October 6, 1997, the Treasury Department issued final regulations
relating to information reporting and backup withholding that unify certain
certification procedures and forms and clarify certain standards governing the
information upon which a withholding agent may rely (the "Final Regulations").
The Final Regulations will be effective with respect to payments made after
December 31, 1998. This section (including the related discussion under the
heading "--Foreign Holders" above) describes rules applicable to payments made
on or before December 31, 1998. Holders of the Exchange Debentures are urged to
consult their own tax advisors as to the effect, if any, of the Final
Regulations upon their own particular situations.
The Company will be required to report annually to the IRS, and to each
U.S. Holder of record, the amount of interest paid on the Exchange Debentures
(and the amount, if any, withheld) for each calendar year, except as to exempt
Holders (generally, corporations, tax-exempt organizations, qualified pension
and profit-sharing trusts, individual retirement accounts, or non-resident
aliens that provide certification as to their status). Each U.S. Holder (other
than Holders, including, among others, corporations, that are not subject to the
reporting requirements) will be required to provide to the Company, under
penalties of perjury, a certificate containing the U.S. Holder's name, address,
correct federal taxpayer identification number and a statement that the U.S.
Holder is not subject to backup withholding. Should a nonexempt U.S. Holder fail
to provide the required certificate, the Company will be required to withhold
31% of the interest otherwise payable to the U.S. Holder and to remit the
withheld amount to the IRS as a credit against the U.S. Holder's federal income
tax liability.
24
<PAGE> 26
PLAN OF DISTRIBUTION
Prior to the Exchange Offer, there has been no market for any of the
Exchange Debentures. There can be no assurance that an active trading market
will develop for, or as to the liquidity of, any of the Exchange Debentures.
Each Participating Broker-Dealer that receives Exchange Debentures for
its own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Debentures.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a Participating Broker-Dealer in connection with resales of Exchange
Debentures received in exchange for Old Debentures where such Old Debentures
were acquired as a result of market-making activities or other trading
activities. The Company has agreed that for a period of 180 days after the
Expiration Date, the Company will make this Prospectus, as amended or
supplemented, available to any Participating Broker-Dealer for use in connection
with any such resale.
The Company will not receive any proceeds from any sales of the
Exchange Debentures by Participating Broker-Dealers. Exchange Debentures
received by Participating Broker-Dealers for their own account pursuant to the
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Debentures or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchaser or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
Participating Broker-Dealer and/or the purchasers of any such Exchange
Debentures. Any Participating Broker-Dealer that resells the Exchange Debentures
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such Exchange
Debentures may be deemed to be an "underwriter" within the meaning of the 1933
Act and any profit on any such resale of Exchange Debentures and any commissions
or concessions received by any such persons may be deemed to be underwriting
compensation under the 1933 Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Participating Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Participating Broker-Dealer that requests
such documents in the Letter of Transmittal.
RATING
The Exchange Debentures have received a preliminary rating of A- from
S&P and a rating of A3 from Moody's, subject to receipt and review of final
documents.
EXPERTS
The consolidated financial statements and related financial statement
schedules of the Company incorporated by reference in this Prospectus have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their reports and are incorporated herein by reference in reliance upon the
authority of said firm as experts in giving said reports.
25
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 721 through 726 of Article 7 of the New York Business
Corporation Law ("NYBCL") provides for the indemnification of registrant's
directors and officers. Article Five of the registrant's By-Laws provides, in
summary, for indemnification by registrant, to the fullest extent permitted by
law, of each person involved in, or made or threatened to be made a party to any
action, suit, claim, or proceeding by reason of the fact that such person was a
director or officer of registrant or while serving the registrant, such person
is or was serving, at the request of the registrant, as a director or officer,
or in any other capacity, any other enterprise, against judgments, fines,
penalties, amounts paid in settlement and expenses, including attorney's fees,
actually and reasonably incurred by such person. Article Five of the
registrant's By-Laws also provides for advancement of expenses with respect to
such suits. In addition, Article Five authorizes registrant to purchase
indemnity insurance for directors and officers to the extent permitted under
Section 726 of the NYBCL.
Section 402(b) of the NYBCL permits a corporation, with the approval of
its shareholders, to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its shareholders for damages for any breach of duty in such capacity, subject
to certain exceptions. Section 402(b) does not permit the limitation or
elimination of personal liability of a director to the corporation or its
shareholders for damages for acts or omissions (i) in bad faith; (ii) involving
intentional misconduct; (iii) involving a knowing violation of law; (iv)
resulting in the director personally gaining a financial profit or other
advantage to which he or she was not legally entitled ; or (v) violating the
provisions of Section 719 of the NYBCL, which prohibits certain corporate
actions relating to (a) declarations of dividends, (b) purchases or redemptions
by the corporation of its shares, (c) distribution of assets to shareholders
after dissolution of the corporation or (d) making of loans to directors. In
addition, Section 402(b) of the NYBCL does not affect the availability of
equitable remedies. Article Nine of registrant's Certificate of Incorporation
limits the liability of registrant's directors for damages to the maximum extent
permissible under Section 402(b) of the NYBCL.
Registrant maintains insurance providing for reimbursement, with
certain exclusions and deductions, to registrant for registrant's
indemnification of its directors and officers for expenses incurred by them as
the result of actions or proceedings brought against them in those capacities,
and to directors and officers for any such expenses for which they are not
indemnified by registrant. In addition, such insurance covers directors and
officers and certain other persons against specified liabilities in connection
with the administration of registrant's retirement and benefit plans.
II-1
<PAGE> 28
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
3.1 Restated Certificate of Incorporation dated
May 7, 1996 (incorporated by reference to
Exhibit 3.4 to the Company's Quarterly
Report on Form 10-Q for the period ended
March 31, 1996, File No. 1-4315)
3.2 By-Laws, as amended through June 30, 1995
(incorporated by reference to Exhibit 3.2 to
the Company's Quarterly Report on Form 10-Q
for the period ended June 30, 1995, File No.
1-4315)
4.1 Indenture dated as of March 1, 1990 between
the Company and the Bank of New York, as
Trustee (incorporated by reference to
Exhibit 4.1 to the Company's Registration
Statement on Form S-3 filed on October 14,
1992, File No. 33-53256)
4.2 First Supplemental Indenture dated as of
March 7, 1990 (incorporated by reference to
Exhibit 4.2 to the Company's Registration
Statement on Form S-3 filed on October 14,
1992, File No. 33-53256)
4.3 Second Supplemental Indenture dated as of
October 15, 1992 (incorporated by reference
to Exhibit 4.1 to the Company's Current
Report on Form 8-K filed on October 29,
1992, File No. 1-4315)
4.4 Third Supplemental Indenture dated as of
March 1, 1993 (incorporated by reference to
Exhibit 4.1 to the Company's Current Report
on Form 8-K filed on March 8, 1993, File
No.1-4315)
4.5 Fourth Supplemental Indenture dated as of
December 1, 1997
4.6 Registration Rights Agreement dated as of
December 18, 1997, among the Company,
Donaldson, Lufkin & Jenrette Securities
Corporation and Salomon Brothers Inc
*5 Opinion of Winthrop, Stimson, Putnam &
Roberts, counsel for the Company
*8 Opinion of Winthrop, Stimson, Putnam &
Roberts regarding certain United States
federal income tax considerations
12 Statements regarding computation of ratios
21 List of the subsidiaries of the Company
23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Winthrop, Stimson, Putnam &
Roberts, counsel for the Company (included
in Exhibit 5)
24 Powers of Attorney
25 Form T-1 Statement of Eligibility of Trustee
*99.1 Form of Letter of Transmittal
*99.2 Form of Notice of Guaranteed Delivery
*99.3 Form of Exchange Agent Agreement
</TABLE>
(b) FINANCIAL STATEMENT SCHEDULES
Not applicable.
- -----------------------------------
*To be filed by amendment
II-2
<PAGE> 29
ITEM 22. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information set forth in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officer and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than payment by the registrant of expenses
incurred or paid by a director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Hamlet of Pearl River, State of New York, on the 9th day of
January, 1998.
ORANGE AND ROCKLAND UTILITIES, INC.
(Registrant)
By /s/ D. Louis Peoples
-------------------------------------------
(D. Louis Peoples, Vice Chairman of the
Board of Directors and Chief Executive
Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Capacity in
Signature Which Signing Date
--------- ------------- ----
<S> <C> <C>
Chief Executive Officer;
*D. Louis Peoples Director
- ----------------------------------------------------
(D. Louis Peoples, Vice Chairman of the Board of
Directors and Chief Executive Officer)
*R. Lee Haney Chief Financial Officer
- ----------------------------------------------------
(R. Lee Haney, Senior Vice President and Chief
Financial Officer)
*Edward M. McKenna Controller
- ----------------------------------------------------
(Edward M. McKenna, Controller)
*H. Kent Vanderhoef Director
- ----------------------------------------------------
(H. Kent Vanderhoef, Chairman of the Board of
Directors)
*Ralph M. Baruch Director
- ----------------------------------------------------
(Ralph M. Baruch)
*J. Fletcher Creamer Director
- ----------------------------------------------------
(J. Fletcher Creamer)
*Michael J. Del Giudice Director
- ----------------------------------------------------
(Michael J. Del Giudice)
* Jon F. Hanson Director
- ----------------------------------------------------
(Jon F. Hanson)
*Kenneth D. McPherson Director
- ----------------------------------------------------
(Kenneth D. McPherson)
*Robert E. Mulcahy III Director
- ----------------------------------------------------
(Robert E. Mulcahy III)
*James F. O'Grady, Jr. Director
- ----------------------------------------------------
(James F. O'Grady, Jr.)
</TABLE>
II-4
<PAGE> 31
<TABLE>
<CAPTION>
Capacity in
Signature Which Signing Date
--------- ------------- ----
<S> <C> <C>
*Frederic V. Salerno Director
- ----------------------------------------------------
(Frederic V. Salerno)
*Linda C. Taliaferro Director
- ----------------------------------------------------
(Linda C. Taliaferro)
*By /s/ G.D. Caliendo January 9, 1998
-------------------------------------------
G. D. Caliendo
Attorney-in-fact
</TABLE>
II-5
<PAGE> 32
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
3.1 Restated Certificate of Incorporation dated
May 7, 1996 (incorporated by reference to
Exhibit 3.4 to the Company's Quarterly
Report on Form 10-Q for the period ended
March 31, 1996, File No. 1-4315)
3.2 By-Laws, as amended through June 30, 1995
(incorporated by reference to Exhibit 3.2 to
the Company's Quarterly Report on Form 10-Q
for the period ended June 30, 1995, File No.
1-4315)
4.1 Indenture dated as of March 1, 1990 between
the Company and the Bank of New York, as
Trustee (incorporated by reference to
Exhibit 4.1 to the Company's Registration
Statement on Form S-3 filed on October 14,
1992, File No. 33-53256)
4.2 First Supplemental Indenture dated as of
March 7, 1990 (incorporated by reference to
Exhibit 4.2 to the Company's Registration
Statement on Form S-3 filed on October 14,
1992, File No. 33-53256)
4.3 Second Supplemental Indenture dated as of
October 15, 1992 (incorporated by reference
to Exhibit 4.1 to the Company's Current
Report on Form 8-K filed on October 29,
1992, File No. 1-4315)
4.4 Third Supplemental Indenture dated as of
March 1, 1993 (incorporated by reference to
Exhibit 4.1 to the Company's Current Report
on Form 8-K filed on March 8, 1993, File
No.1-4315)
4.5 Fourth Supplemental Indenture dated as of
December 1, 1997
4.6 Registration Rights Agreement dated as of
December 18, 1997, among the Company,
Donaldson, Lufkin & Jenrette Securities
Corporation and Salomon Brothers Inc
*5 Opinion of Winthrop, Stimson, Putnam &
Roberts, counsel for the Company
*8 Opinion of Winthrop, Stimson, Putnam &
Roberts regarding certain United States
federal income tax considerations
12 Statements regarding computation of ratios
21 List of the subsidiaries of the Company
23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Winthrop, Stimson, Putnam &
Roberts, counsel for the Company (included
in Exhibit 5)
24 Powers of Attorney
25 Form T-1 Statement of Eligibility of Trustee
*99.1 Form of Letter of Transmittal
*99.2 Form of Notice of Guaranteed Delivery
*99.3 Form of Exchange Agent Agreement
</TABLE>
*To be filed by amendment
<PAGE> 1
Exhibit 4.5
ORANGE AND ROCKLAND UTILITIES, INC.
to
THE BANK OF NEW YORK,
As Trustee
----------------------------------------
FOURTH SUPPLEMENTAL INDENTURE
Dated as of December 1, 1997
Supplementing and Amending the Indenture
Dated as of March 1, 1990,
As Previously Supplemented and Amended
----------------------------------------
<PAGE> 2
THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of December 1, 1997
(this "Fourth Supplemental Indenture"), is between ORANGE AND ROCKLAND
UTILITIES, INC., a New York corporation (hereinafter called the "Issuer" or the
"Company"), having its principal office at One Blue Hill Plaza, Pearl River, New
York 10965, and THE BANK OF NEW YORK, a New York corporation, as Trustee
(hereinafter called the "Trustee"), having its Corporate Trust Office at 101
Barclay Street, New York, New York 10286.
Recitals of the Issuer
The Issuer and the Trustee have heretofore entered into an Indenture,
dated as of March 1, 1990 (hereinafter called the "Original Indenture"), as
heretofore amended and supplemented as described in the following paragraph
(said Original Indenture, as so amended and supplemented, being hereinafter
called the "Amended Indenture"), relating to the issuance at any time or from
time to time of its Securities on terms to be specified at the time of issuance.
Terms (including the term "Indenture") used and not otherwise defined herein
shall (unless the context otherwise clearly requires) have the respective
meanings given to them in the Amended Indenture.
The Amended Indenture provides in Article Three thereof that, prior to the
issuance of Securities of any series, the form of such Securities and the terms
applicable to such series shall be established in, or pursuant to, the authority
granted (generally, or in the particular instance) in a resolution of the Board
of Directors (delivered to the Trustee in the form of a Board Resolution) or
established (generally, or in the particular instance) in one or more indentures
supplemental thereto. The Original Indenture has, prior to the date hereof, been
(a) supplemented by a First Supplemental Indenture, dated as of March 7, 1990,
which, among other things, established the form of the Issuer's first series of
Securities, designated "9 3/8% Debentures Due 2000 (Series A)," (b) supplemented
and amended by a Second Supplemental Indenture, dated as of October 15, 1992
(the "Second Supplemental Indenture"), which, among other things, (i)
established the form of the Issuer's second series of Securities, designated
"6.50% Debentures Due 1997 (Series B)" and (ii) added to the covenants of the
Issuer a further covenant restricting the issuance by the Issuer of secured
indebtedness for borrowed money while any Securities are Outstanding under the
Indenture and (c) supplemented by a Third Supplemental Indenture, dated as of
March 1, 1993, which, among other things, established (i) the form of the
Issuer's third series of Securities, designated "6.14% Debentures Due 2000
(Series C)" and (ii) the form of the Issuer's fourth series of Securities,
designated "6.56% Debentures Due 2003 (Series D)". The Issuer desires by this
Fourth Supplemental Indenture to establish the form of (i) the Securities of a
fifth series, to be designated "6 1/2% Debentures Due 2027 (Series E)" of the
Issuer and (ii) the Securities of a sixth series to be issued in exchange
therefor, pursuant to a Registration Rights Agreement dated as of December 18,
1997 (the "Registration Rights Agreement"), to be designated "6 1/2% Debentures
Due 2027 (Series F)" of the Issuer, and to establish the terms applicable to
such series, pursuant to Sections 3.1 and 10.1(e) of the Amended Indenture. The
Issuer has duly authorized the execution and delivery of this Fourth
Supplemental Indenture.
The execution and delivery of this Fourth Supplemental Indenture by the
parties hereto are in all respects authorized by the provisions of the Amended
Indenture.
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<PAGE> 3
All things necessary have been done to make this Fourth Supplemental
Indenture a valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, as follows:
ARTICLE ONE
Establishment of 6 1/2% Debentures Due 2027 (Series E)
Section 1.01. There is hereby established by this Fourth
Supplemental Indenture a fifth series of the Securities, which shall be
designated "6 1/2% Debentures Due 2027 (Series E)" of the Issuer (hereinafter
called the "Series E Debentures"). The Series E Debentures shall be
substantially in the form set forth in Exhibit A hereto (which is hereby
incorporated herein and made a part hereof), subject to changes in the form
thereof made by the Issuer and acceptable to the Trustee, and may be issued at
any time and from time to time, subject to the fulfillment of the conditions set
forth in the Amended Indenture.
Section 1.02. The Series E Debentures shall have the terms and
provisions set forth in Exhibit A hereto. In particular, but without limitation,
the Series E Debentures shall (a) be limited to $80,000,000 in aggregate
principal amount at any time Outstanding, (b) mature on December 1, 2027, (c)
bear interest (computed on the basis of a 360-day year of twelve 30-day months)
until the payment of principal thereof has been made or duly provided for, at
the rate per annum specified in the title of the Series E Debentures, payable
semi-annually on June 1 and December 1 of each year, commencing June 1, 1998,
and at the same rate per annum on any overdue installment of principal and (to
the extent legally enforceable) interest, and (d) be issuable only as fully
registered Securities, without coupons.
The regular record dates for the Series E Debentures shall be as set
forth in Exhibit A. The Series E Debentures are not redeemable in whole or in
part prior to maturity, and there is no sinking fund for the Series E Debentures
Section 1.03 (a) The Series E Debentures shall be issued initially
in the form of a permanent Global Security in definitive form without coupons
with the global security legend and restricted security legend set forth in
Exhibit A hereto (the "Series E Global Debenture"), which shall be delivered to,
or pursuant to the instructions of, the Depository, or any successor thereto
registered under the Securities Exchange Act of 1934, as depositary. The
aggregate principal amount of the Series E Global Debenture may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depository or its nominee, as the case may be, as provided below.
(b) Members of, or participants in, the Depository ("Agent Members")
shall have no rights under the Fourth Supplemental Indenture or the
Amended Indenture with respect to any Series E Global Debenture held on
their behalf by the Depository, and the
2
<PAGE> 4
Depository may be treated by the Issuer, the Trustee and any agent of the
Issuer or the Trustee as the absolute owner of such Series E Global
Debenture for all purposes whatsoever.
(c) At such time as all beneficial interests in the Series E Global
Debenture have either been exchanged for Series F Debentures or
certificated Series E Debentures, repaid or canceled, the Series E Global
Debenture shall be returned to the Depository for cancellation or retained
and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in the Series E Global Debenture is exchanged for
Series F Debentures or certificated Series E Debentures, repaid or
canceled, the principal amounts of Series E Debentures represented by the
Series E Global Debenture shall be reduced and an adjustment shall be made
on the books and records of the Trustee (if it is then the custodian for
such Series E Global Debenture) with respect to such Series E Global
Debenture, by the Trustee, to reflect such reduction.
(d) In the event that beneficial interests in the Series E Global
Debenture are exchanged for Series E Debentures in certificated form
pursuant to Section 2.4 of the Amended Indenture, each such certificated
Series E Debenture shall bear the legend regarding transfer restrictions
applicable to the Series E Global Debenture set forth on the form of the
Series E Global Debenture attached hereto as Exhibit A. In addition, if
any certificated Series E Debentures are issued upon the registration of
transfer or exchange of such certificated Series E Debentures, (i) the
Series E Debentures so issued shall bear the same legend, and (ii) the
Trustee shall authenticate and issue such certificated Series E Debentures
only upon receipt of a Transfer Certificate in the form of Annex I hereto.
(e) Certificated Series E Debentures may be issued in exchange for
beneficial interests in the Series E Global Debentures only in accordance
with Section 2.4 of the Amended Indenture and this Article One.
ARTICLE TWO
Establishment of 6 1/2% Debentures Due 2027 (Series F)
Section 2.01. There is hereby established by this Fourth
Supplemental Indenture a sixth series of the Securities, which shall be
designated "6 1/2% Debentures Due 2027 (Series F)" of the Issuer (hereinafter
called the "Series F Debentures," and, together with the Series E Debentures,
the "Debentures"). The Series F Debentures shall be substantially in the form
set forth in Exhibit B hereto (which is hereby incorporated herein and made a
part hereof), subject to changes in the form thereof made by the Issuer and
acceptable to the Trustee. The Trustee shall authenticate and deliver Series F
Debentures for issue only in the Exchange Offer as defined in and pursuant to
the Registration Agreement, for a like principal amount of Series E Debentures,
in each case pursuant to an Issuer Order. Such Issuer Order shall specify the
amount of the Series F Debentures to be authenticated and the date on which the
original issue of such Series F Debentures are to be authenticated. The
aggregate principal amount of Debentures Outstanding at any time may not exceed
$80,000,000.
3
<PAGE> 5
Section 2.02. The Series F Debentures shall have the terms and
provisions set forth in Exhibit B hereto. In particular, but without limitation,
the Series F Debentures shall (a) be limited to $80,000,000 in aggregate
principal amount at any time Outstanding, (b) mature on December 1, 2027, (c)
bear interest (computed on the basis of a 360-day year of twelve 30-day months)
until the payment of principal thereof has been made or duly provided for, at
the rate per annum specified in the title of the Series F Debentures, payable
semi-annually on June 1 and December 1 of each year, commencing June 1, 1998,
and at the same rate per annum on any overdue installment of principal and (to
the extent legally enforceable) interest, and (d) be issuable only as fully
registered Securities, without coupons.
The regular record dates for the Series F Debentures shall be as set
forth in Exhibit B. The Series F Debentures are not redeemable in whole or in
part prior to maturity, and there is no sinking fund for the Series F Debentures
Section 2.03. (a) The Series F Debentures shall be issued initially
in the form of a Global Security with the global security legend set forth in
Exhibit B hereto that will be delivered to, or pursuant to the instructions of,
the Depository, or any successor thereto registered under the Securities
Exchange Act of 1934, as depositary. The regular record dates for the Series F
Debentures shall be as set forth in Exhibit B. The Series F Debentures are not
redeemable in whole or in part prior to maturity, and there is no sinking fund
for the Series F Debentures.
(b) Members of, or participants in, the Depository ("Agent Members")
shall have no rights under the Fourth Supplemental Indenture or the
Amended Indenture with respect to any Series F Global Debenture held on
their behalf by the Depository, and the Depository may be treated by the
Issuer, the Trustee and any agent of the Issuer or the Trustee as the
absolute owner of such Series F Global Debenture for all purposes
whatsoever.
4
<PAGE> 6
ARTICLE THREE
Defeasance
Notwithstanding anything contained in Article Twelve of the Amended
Indenture, the provisions of this Article Three shall in all cases govern
defeasance of the Issuer's obligations in respect of the Series E Debentures and
the Series F Debentures:
Section 3.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Issuer may at any time after December 1, 2004 terminate its
substantive obligations in respect of the Series E Debentures and/or the Series
F Debentures by delivering all Outstanding Debentures of the series to be
defeased to the Trustee for cancellation and paying all sums payable by the
Issuer on account of principal of and interest on such Debentures or otherwise
in respect of such Debentures. In addition to the foregoing, the Issuer may, at
the option of its Board of Directors evidenced by resolutions set forth in an
Officers' Certificate of the Issuer, at any time after December 1, 2004, with
respect to the Series E Debentures and/or the Series F Debentures, elect to have
either Section 3.02 or 3.03 be applied to all Outstanding Debentures of either
or both series upon compliance with the conditions set forth below in this
Article Three.
Section 3.02 Legal Defeasance and Discharge. Upon the exercise by
the Issuer under Section 3.01 of the option applicable to this Section 3.02, the
Issuer shall be deemed to have been discharged from its obligations with respect
to all Outstanding Debentures of a particular series on the date the conditions
set forth below are satisfied in respect of such Debentures (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Issuer
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Debentures of such series, which shall thereafter be deemed
to be "Outstanding" only for the purposes of Section 3.05 and the other
provisions of the Amended Indenture referred to in (a) and (b) of this paragraph
below, and to have satisfied all of its other obligations in respect of such
Debentures (and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Outstanding Debentures of such series to
receive payments in respect of the principal of and interest on such Debentures
when such payments are due, (b) the Issuer's obligations with respect to such
Debentures under Sections 3.6, 3.7, 3.10, 4.2, 4.4 and 5.1 of the Amended
Indenture, (c) the rights, powers, trusts, duties and immunities of the Trustee
and the Issuer's obligations in connection therewith and (d) this Article Three.
Subject to compliance with this Article Three, the Issuer may exercise the
option under this Section 3.02 notwithstanding the prior exercise of the option
under Section 3.03 with respect to such Debentures.
Section 3.03. Covenant Defeasance. Upon the exercise by the Issuer
under Section 3.01 of the option applicable to this Section 3.03, the Issuer
shall be released from its obligations under the covenants contained in Section
4.7 of the Amended Indenture, as added by Section 2.01 of the Second
Supplemental Indenture, on and after the date the conditions set forth below are
satisfied in respect of such Debentures (hereinafter, "Covenant Defeasance"),
and such Debentures shall thereafter be deemed not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such
5
<PAGE> 7
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Debentures may not be deemed
Outstanding for accounting purposes). For this purpose, such Covenant Defeasance
means that, with respect to the Outstanding Debentures of such series, the
Issuer may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.1(d) of the Amended Indenture
with respect to the Outstanding Debentures of such series, but, except as
specified above, the remainder of the Indenture and such Debentures shall be
unaffected thereby.
Section 3.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to the application of either Section 3.02 or
Section 3.03 to the Outstanding Debentures of a series to be defeased at any
time after December 1, 2004:
(a) The Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.9 of the Amended Indenture who shall agree to
comply with the provisions of this Article Three applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Debentures of such series, (i) cash in United States
Dollars, (ii) Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, cash in United States Dollars, or (iii) a combination thereof, in
such amounts, as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee at the expense of the
Issuer, to pay and discharge and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge the principal of and
interest on the Outstanding Debentures of such series on the stated
maturity of such principal or interest; provided that the Trustee shall
have been irrevocably instructed to apply such money or the proceeds of
such Government Obligations to said payments with respect to such
Debentures;
(b) In the case of an election under Section 3.02, the Issuer
shall have delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Trustee confirming that (i) the Issuer has received
from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date hereof, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
the Outstanding Debentures of such series will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) In the case of an election under Section 3.03, the Issuer
shall have delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Trustee to the effect that the Holders of the
Outstanding Debentures of such series will not
6
<PAGE> 8
recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default with respect to the
Debentures of such series shall have occurred and be continuing on the
date of such deposit or, insofar as Sections 6.1(e) or 6.1(f) of the
Amended Indenture are concerned, at any time in the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(e) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, the
Indenture or any other material agreement or instrument to which the
Issuer is a party or by which the Issuer is bound;
(f) The Issuer shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Issuer pursuant
to its election under Section 3.02 or 3.03 was not made by the Issuer with
the intent of preferring the Holders of the Debentures of such series over
any other creditors of the Issuer or with the intent of defeating,
hindering, delaying or defrauding creditors of the Issuer or others; and
(g) The Issuer shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for
or relating to either the Legal Defeasance under Section 3.02 or the
Covenant Defeasance under Section 3.03 (as the case may be) have been
complied with as contemplated by this Section 3.04.
Section 3.05. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 3.06, all money and Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 3.05, the "Trustee") pursuant
to Section 3.04 in respect of the Outstanding Debentures of a particular series
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Debentures and the Indenture, to the payment, either directly
or through any Paying Agent as the Trustee may determine, to the Holders of such
Debentures of all sums due and to become due thereon in respect of principal and
interest.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or Government
Obligations deposited pursuant to Section 3.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the corresponding Outstanding
Debentures.
Anything in this Article Three to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the request of
the Issuer any money or Government Obligations held by it as provided in Section
3.04 which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 3.04(a)) at the
expense
7
<PAGE> 9
of the Issuer, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 3.06 Repayment to Company. Any money deposited with the
Trustee or any Paying Agent in trust for the payment of the principal of or
interest on any Debenture and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Issuer on
its written request and shall be discharged from such trust; and the Holder of
such Debenture shall thereafter, as a secured creditor, look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuer cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 3.07 Reinstatement. If the Trustee or Paying Agent is unable
to apply any United States Dollars or Government Obligations in accordance with
Section 3.02 or 3.03, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Issuer in respect of
the corresponding Debentures shall be revived and reinstated as though no
deposit had occurred pursuant to Section 3.02 or 3.03 until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 3.02 or 3.03, as the case may be; provided, however, that, if the Issuer
makes any payment of principal of or interest on any Debenture following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Debentures to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE FOUR
Repayment at Option of Holders
The Series E Debentures and the Series F Debentures are subject to
repayment at the option of the Holders thereof on December 1, 2004 in the manner
provided in the forms of the Series E Debentures and Series F Debentures
attached hereto as Exhibit A and Exhibit B, respectively.
ARTICLE FIVE
Events of Default
Section 5.01. The following shall constitute additional Events of
Default:
(a) with respect to the Series E Debentures and the Series F
Debentures, a failure by the Issuer to repay the outstanding principal amount of
any Series E Debenture or Series F
8
<PAGE> 10
Debenture, together with accrued but unpaid interest thereon, on December 1,
2004 in accordance with a proper election by the Holder of such Debenture to
receive such repayment made pursuant to Article Four and the relevant provisions
of the Debentures, or
(b) with respect to the Series E Debentures, a failure by the Issuer
to pay Liquidated Damages (as defined in the Registration Rights Agreement) in
accordance with the terms of the Registration Rights Agreement, and the
continuance of such default for a period of 30 days.
ARTICLE SIX
Miscellaneous
Section 6.01. The recitals contained herein shall be taken as the
statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to the validity
of this Fourth Supplemental Indenture. The Amended Indenture is in all respects
hereby adopted, ratified and confirmed.
Section 6.02. This Fourth Supplemental Indenture may be executed in
any number of counterparts, and in separate counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
Section 6.03. If any provision of this Fourth Supplemental Indenture
limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, through operation of Section 318(c), such imposed
duties shall control.
Section 6.04. The Article and Section headings herein are for
convenience only and shall not affect the interpretation hereof.
Section 6.05. The Issuer hereby confirms the appointment of The Bank
of New York as the initial Trustee, Securities Registrar and Paying Agent,
subject to the provisions of the Indenture with respect to resignation, removal
and succession, and subject, further, to the right of the Issuer to appoint
additional agents (including Paying Agents). An Authenticating Agent may be
appointed for the Series E Debentures and/or the Series F Debentures under the
circumstances set forth in, and subject to the provisions of, the Indenture. If
and so long as the Debentures of either or both series are issued as Global
Securities and the Depository or the nominee therefor is the sole holder of such
series of Debentures, (a) the Trustee shall treat the Depository or said nominee
as the only Holder of the Debentures of such series for all purposes under the
Indenture, including receipt of all principal of and interest on the Debentures
of such series, receipt of notices, and voting and requesting or directing the
Trustee to take or not to take, or consenting to, certain actions under the
Indenture, and (b) the Issuer and the Trustee shall have no responsibility or
obligation with respect to (i) the accuracy of any records maintained by the
Depository or any participant therein, (ii) the payment by any participant in
the Depository of any amount due to any beneficial owner in respect of the
principal of and interest on the Debentures of such series, (iii) the delivery
or timeliness of delivery by any participant in the Depository of any notice to
any beneficial owner which is required or permitted under the terms
9
<PAGE> 11
of the Indenture to be given to Holders of Securities or (iv) other action taken
by the Depository or its nominee as Holder of the Debentures of such series.
[End of Page]
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<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested (the actual date of this Fourth Supplemental
Indenture being the date of execution by the Trustee, as indicated in its
Acknowledgment).
ORANGE AND ROCKLAND UTILITIES, INC.
By /s/ R. Lee Haney
_______________________________
Name: R. Lee Haney
Title: Sr. Vice President & CFO
[Seal]
Attest:
By /s/ Carla Meyer Lois
______________________________
Name: Carla Meyer Lois
Title: Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By /s/ Marie E. Trimboli
_______________________________
Name: Marie E. Trimboli
Title: Assistant Treasurer
[Seal]
Attest:
By /s/ Robert A. Massimillo
______________________________
Name: Robert A. Massimillo
Title: Assistant Vice President
11
<PAGE> 13
STATE OF NEW YORK )
) ss.:
COUNTY OF ROCKLAND )
At Pearl River, on this 17th day of December, 1997, before me, a Notary
Public in and for the County of Rockland and State of New York, personally
appeared R. Lee Haney and Carla Meyer Lois, the Sr. V.P. & CFO and the Assistant
Secretary, respectively, of Orange and Rockland Utilities, Inc., each to me
personally known, who respectively executed, and affixed and attested the
corporate seal on, the foregoing instrument on behalf of said corporation, and
severally acknowledged the same to be their free act and deed in their said
capacities and the free act and deed of Orange and Rockland Utilities, Inc.
/s/ Todd M. Lieval
_____________________________
Notary Public
NOTARIAL SEAL
My Commission Expires: 07/31/99
STATE OF NEW YORK )
) ss.:
NEW YORK COUNTY )
At The City of New York, on this 18 day of December, 1997, before me, a
Notary Public in and for the County and State of New York, personally appeared
Marie E. Trimboli and Robert A. Massimillo, a Assistant Treasurer and Assistant
Vice President, respectively, of The Bank of New York, each to me personally
known, who respectively executed, and affixed and attested the corporate seal
on, the foregoing instrument on behalf of said corporation, and severally
acknowledged the same to be their free act and deed in their said capacities and
the free act and deed of The Bank of New York, as Trustee.
/s/ Jennifer S. Geetter
____________________________
Notary Public
NOTARIAL SEAL
My Commission Expires: 8/11/99
12
<PAGE> 14
Annex I to
Fourth Supplemental Indenture
FORM OF TRANSFER CERTIFICATE
Donaldson, Lufkin & Jenrette Securities Corporation
Salomon Brothers Inc
Ladies and Gentlemen:
In connection with the proposed transfer to us of 6 1/2% Debentures Due
2027 (Series E) (the "Debentures") of Orange and Rockland Utilities, Inc., a New
York corporation (the "Company"), we acknowledge, represent to, warrant and
agree with the Company and the Initial Purchasers, named above, as follows:
(1) We understand that the Debentures are being offered for resale in a
transaction not involving any public offering in the United States within the
meaning of the 1933 Act. We understand that the Debentures have not been
registered under the 1933 Act or any United States securities laws and they are
being offered for resale in transactions not requiring registration under the
1933 Act. We understand that the Debentures may not be reoffered, resold,
pledged or otherwise transferred except (i) to the Company or any of its
subsidiaries; (ii) to a person whom the purchaser reasonably believes is a
qualified institutional buyer in a transaction meeting the requirements of Rule
144A under the 1933 Act (a "Qualified Institutional Buyer"), (iii) in an
offshore transaction complying with Rule 904 of Regulation S, (iv) pursuant to
an exemption from registration under the 1933 Act provided by Rule 144
thereunder (if available), (v) to an institutional "accredited investor" (as
defined in Rule 501 (a) (1), (2), (3) or (7) of Regulation D under the 1933 Act)
that, prior to such transfer, furnishes the Trustee a signed letter containing
certain representations and agreements relating to the transfer of the
Debentures and, if such transfer is in respect of an aggregate principal amount
of Debentures less than $250,000, an opinion of counsel, (vi) in accordance with
another exemption from the registration requirements of the 1933 Act or (vii)
pursuant to an effective registration statement under the 1933 Act, and, in each
case, in accordance with the applicable securities laws of any state of the
United States or any other applicable jurisdiction. We will, and will inform
each subsequent holder that such subsequent holder is required to, notify any
subsequent purchaser from it of the resale restrictions set forth in the
preceding sentence. No representation is being made as to the availability of
the exemption provided by Rule 144 for resales of the Debentures.
(2) We are not an "affiliate" (as defined in Rule 144 under the 1933 Act)
of the Company, we are not acting on behalf of the Company and we are a
Qualified Institutional Buyer and are aware that any sale of Debentures to us
will be made in reliance on Rule 144A. Such acquisition will be for our own
account or for the account of another Qualified Institutional Buyer.
13
<PAGE> 15
(3) We are relying on the information contained in the Offering Memorandum
in making our investment decision with respect to the Debentures. We acknowledge
that no representation or warranty is made by the Initial Purchasers as to the
accuracy or completeness of such materials. We further acknowledge that neither
the Company nor the Initial Purchasers nor any person representing the Company
or the Initial Purchasers has made any representation to us with respect to the
Company or the offering or sale of any Debentures other than the information
contained in this Offering Memorandum. We have had access to such financial and
other information concerning the Company and the Debentures as we have deemed
necessary in connection with our decision to purchase any of the Debentures,
including an opportunity to ask questions of and request information from the
Company and the Initial Purchasers.
(4) We understand that until registered under the 1933 Act, the Debentures
will bear a legend to the following effect unless otherwise agreed by the
Company and the holder thereof.
THIS DEBENTURE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE 1933 ACT, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, UNITED STATES PERSONS, EXCEPT AS SET FORTH IN THE SECOND
SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE 1933 ACT) (A
"QIB"), (B) IT IS ACQUIRING THIS DEBENTURE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE 1933 ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2),
(3) OR (7) OF REGULATION D UNDER THE 1933 ACT (AN "IAI"), (2) AGREES THAT
IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS DEBENTURE EXCEPT (A) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE
1933 ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE 1933 ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS DEBENTURE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE 1933 ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN
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<PAGE> 16
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE 1933 ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS DEBENTURE IN VIOLATION OF THE FOREGOING.
(5) We represent and covenant that we are not, and are not acquiring the
Debentures with the assets of, or for or on behalf of, and will not sell or
otherwise transfer the Debentures to, any employee benefit plan (as defined in
Section 3(3) of ERISA) or individual retirement account or other arrangement
that is subject to ERISA or Section 4975 of the Code (hereinafter collectively
referred to as an "ERISA Plan") or any entity whose underlying assets include
assets of an ERISA Plan pursuant to 29 C.F.R. Section 2510.3-101 or otherwise,
except to the extent that the acquisition and holding of the Debentures:
(a) (i) are made solely with the assets of a bank collective
investment fund and (ii) satisfy the requirements and conditions of
Prohibited Transaction Class Exemption 91-38 issued
by the Department of Labor;
(b) (i) are made solely with assets of an insurance company
pooled separate account and (ii) satisfy the requirements and
conditions of Prohibited Transaction Class Exemption 90-1 issued by
the Department of Labor;
(c) (i) are made solely with assets managed by a qualified
professional asset manager and (ii) satisfy the requirements and
conditions of Prohibited Transaction Class Exemption 84-14 issued by
the Department of Labor;
(d) are made solely with assets of a governmental plan (as
defined in Section 3(32) of ERISA) which is not subject to the
provisions of Section 401 of the Code;
(e) (i) are made solely with assets of an insurance company
general account and (ii) satisfy the requirements and conditions of
Prohibited Transaction Class Exemption 95-60 issued by the
Department of Labor; or
(f) (i) are made solely with assets managed by an in-house
asset manager and (ii) satisfy the requirements and conditions of
Prohibited Transaction Class Exemption 96-23 issued
by the Department of Labor.
(6) We acknowledge that the Company and the Initial Purchasers and others
will rely upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements
15
<PAGE> 17
and agree that if any of the acknowledgments, representations or agreements
deemed to have been made by us by our purchase of the Debentures are no longer
accurate, we will promptly notify Orange and Rockland Utilities, Inc., One Blue
Hill Plaza, Pearl River, New York 10965, Attention: Office of the Treasurer, and
if we are acquiring any Debentures as a fiduciary or agent for one or more
investor accounts, we represent that we have sole investment discretion with
respect to each such account and that we have full power to make the foregoing
acknowledgments, representations and agreements on behalf of each such account.
Very truly yours,
__________________________________
Name of Transferee:
By:_______________________________
Title:
Date:_____________________________
Upon transfer, the Debentures would be registered in the name of the new
beneficial owner as follows:
Name:_____________________________
Address:__________________________
__________________________________
__________________________________
__________________________________
Taxpayer ID Number:_______________
16
<PAGE> 18
Exhibit A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY) ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
THEREIN.
TRANSFERS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO THE DEPOSITORY OR NOMINEES OF THE DEPOSITORY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
DEBENTURE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS DEBENTURE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE 1933 ACT,
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES
PERSONS, EXCEPT AS SET FORTH IN THE SECOND SENTENCE HEREOF. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE 1933
ACT) (A "QIB"), (B) IT IS ACQUIRING THIS DEBENTURE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE 1933 ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL
OR OTHERWISE TRANSFER THIS DEBENTURE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 OF THE 1933 ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE 1933 ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS DEBENTURE (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE 1933 ACT, (F) IN ACCORDANCE WITH ANOTHER
17
<PAGE> 19
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS DEBENTURE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE 1933 ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS DEBENTURE IN VIOLATION OF THE FOREGOING
FORM OF SERIES E DEBENTURE
[FORM OF FACE OF SERIES E DEBENTURE]
No._______ $________
ORANGE AND ROCKLAND UTILITIES, INC.
6 1/2% DEBENTURE DUE 2027 (SERIES E)
ORANGE AND ROCKLAND UTILITIES, INC., a corporation duly organized and
existing under the laws of the State of New York (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of
______________________ Dollars, on December 1, 2027, and to pay interest on said
principal sum, semiannually on June 1 and December 1 of each year, commencing
June 1, 1998, at the rate of 6 1/2% per annum from the June 1 or December 1, as
the case may be, next preceding the date of this Debenture to which interest has
been paid, unless the date hereof is a date to which interest has been paid, in
which case from the date of this Debenture, or unless no interest has been paid
on this Debenture, in which case from the date of original issue of this
Debenture, until payment of said principal sum has been made or duly provided
for. Notwithstanding the foregoing, when there is no existing default in the
payment of interest on this Debenture, if the date hereof is after a regular
record date (which shall be the close of business on the May 15 or November 15,
as the case may be, next preceding an Interest Payment Date) and before the next
succeeding Interest Payment Date, this Debenture shall bear interest from such
Interest Payment Date; provided, however, that if the Company shall default in
the payment of interest due on such Interest Payment Date, then this Debenture
shall bear interest from the next preceding Interest Payment Date to which
interest has been paid, or, if no interest has been paid on this Debenture, from
the date of original issue of this Debenture. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
18
<PAGE> 20
provided in said Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities) is registered at the record date for
such Interest Payment Date. The principal of and interest on this Debenture are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, except that interest may be paid, at the option of the Company, by check
mailed to the person entitled thereto at his address last appearing on the
Securities Register. Any interest not punctually paid or duly provided for shall
be payable as provided in said Indenture.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS DEBENTURE SET FORTH ON
THE REVERSE HEREOF, WHICH SHALL HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Debenture shall not be entitled
to any benefit under the aforesaid Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this Debenture to be duly
executed under its corporate seal.
ORANGE AND ROCKLAND UTILITIES, INC.
[SEAL]
By _______________________________________
Treasurer
Attest:
_____________________________
Secretary
Dated:
19
<PAGE> 21
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By ____________________________
Authorized Signatory
20
<PAGE> 22
[FORM OF REVERSE OF DEBENTURE]
ORANGE AND ROCKLAND UTILITIES, INC.
6 1/2% DEBENTURE DUE 2027 (SERIES E)
This Debenture is one of a duly authorized issue of unsecured debt
securities of the Company (herein called the "Securities"), issued and to be
issued under an Indenture dated as of March 1, 1990, between the Company and The
Bank of New York, as Trustee (herein called the "Trustee," which term includes
any successor Trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto, including, without limitation, the First
Supplemental Indenture dated as of March 7, 1990, the Second Supplemental
Indenture dated as of October 15, 1992, the Third Supplemental Indenture dated
as of March 1, 1993 and the Fourth Supplemental Indenture dated as of December
1, 1997 (said Indenture, together with all indentures supplemental thereto,
including, without limitation, said First, Second, Third and Fourth Supplemental
Indentures, being herein called the "Indenture"), reference is hereby made for a
statement of the rights and limitations of rights thereunder of the Holders of
the Securities, and of the rights, obligations, duties and immunities of the
Trustee and of the Company, and the terms upon which the Securities are and are
to be authenticated and delivered. As provided in the Indenture, the Securities
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous
funds, if any, may be subject to different covenants and Events of Default and
may otherwise vary as in the Indenture provided or permitted. This Security is
one of a series designated on the face hereof as "6 1/2% Debentures Due 2027
(Series E)" (the "Debentures"), limited to $80,000,000 in aggregate principal
amount Outstanding.
The Debentures are not redeemable in whole or in part prior to maturity,
and there is no sinking fund for the Debentures.
The Holder of this Debenture may elect to have this Debenture (or any
portion hereof in the amount of $100,000 or in integral multiples of $1,000 in
excess thereof) repaid on December 1, 2004 (or, if such day is not a Business
Day, the next succeeding Business Day), at a repayment price equal to the
principal amount of this Debenture (or such portion hereof) together with
accrued and unpaid interest thereon to the date of repayment. In order for the
Holder of this Debenture to make this election, the Company must receive at its
office or agency in New York, New York, during the period beginning on October
1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 (or, if
such day is not a Business Day, the next succeeding Business Day) this Debenture
with the form entitled "Option to Elect Repayment on December 1, 2004" below
duly completed. Any such election received during the period beginning on
October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004
shall be irrevocable. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance of this Debenture for repayment will
be determined by the Company, whose determination shall be final and binding.
Failure of the Company to so repay this Debenture (or such portion hereof) when
required shall constitute an Event of Default with respect to the Series
21
<PAGE> 23
E Debentures and the Series F Debentures only and not with respect to any other
series of Securities.
The Debentures are issuable only as registered Debentures, without
coupons, in denominations of $100,000 and integral multiples of $1,000 in excess
thereof. As provided in the Indenture, and subject to certain limitations
therein set forth, Debentures are exchangeable for a like aggregate principal
amount of Debentures of different authorized denominations, as requested by the
Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture may be registered on the Securities
Register of the Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Securities
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name this Debenture is registered as the owner hereof for
the purpose of receiving payment as herein provided and for all other purposes,
whether or not this Debenture be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
If any Event of Default with respect to the Debentures shall occur and be
continuing, the principal of all the Debentures may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of at least a majority
in aggregate principal amount of the Securities at the time Outstanding of all
series to be affected thereby, voting as one class. The Indenture also contains
a provision permitting the Holders of a majority in aggregate principal amount
of the Securities of any series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive any past default or certain
Events of Default by the Company under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Debenture shall be conclusive and
binding upon such Holder and upon all future Holders of this Debenture and of
any Debenture issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Debenture.
As provided in Article Three of the Fourth Supplemental Indenture and
subject to the satisfaction of certain conditions therein set forth, including
the deposit of certain funds in trust,
22
<PAGE> 24
at the Company's option, either the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and the obligations under,
the Debentures and to have satisfied all the obligations (with certain
exceptions) under the Indenture relating to the Debentures or the Company shall
cease to be under any obligation to comply with any term, provision or condition
of certain restrictive covenants of provisions with respect to the Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture at the times, place and rate, and in the coin or currency, herein
prescribed.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, including any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
23
<PAGE> 25
OPTION TO ELECT REPAYMENT ON DECEMBER 1, 2004
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Debenture (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned at
[Insert Name, Address and Tax Identification Number of the Undersigned]
For this Debenture to be repaid the Company must receive at the corporate
trust office of the Trustee in the Borough of Manhattan, the City of New York or
at such additional place or places of which the Company shall from time to time
notify the holder of the within Debenture during the period from and including
October 1, 2004 to and including November 1, 2004 or, if November 1, 2004 is not
a Business Day, the next succeeding Business Day, this Debenture with this
"Option to Elect Repayment on December 1, 2004" form duly completed.
If less than the entire principal amount of the within Debenture is to be
repaid, specify the portion thereof (which shall be in the amount of $100,000 or
an integral multiple of $1,000 in excess thereof) which the Holder elects to
have repaid: $_________________; and specify the denomination or denominations
(which shall be in the amount of $100,000 or an integral multiple of $1,000 in
excess thereof) of the Debenture or Debentures to be issued to the Holder for
the amount of the portion of the within Debenture not being repaid (in the
absence of any such specification, one such Debenture will be issued for the
portion not be repaid: _______________).
Dated: 2004
______________________________________
NOTICE: The signature on this Option to
Elect Repayment on December 1, 2004 must
correspond with the name as written upon the
face of this instrument in every particular
without alteration or enlargement or any
other change whatsoever.
24
<PAGE> 26
ASSIGNMENT
Abbreviations
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT
MIN ACT - ______________(Custodian)_____________(Minor) under Uniform Gifts
to Minors Act_____________ (State)
Additional abbreviations may also be used
though not in the above list.
-------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
(Please insert social security or other identifying number of assignee)
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing ___________________________________________ attorney to transfer
said Debenture on the books of the Company, with full power of substitution in
the premises.
Dated:__________________
___________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
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<PAGE> 27
Exhibit B
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY) ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
THEREIN.
TRANSFERS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF THE DEPOSITORY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL DEBENTURE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
FORM OF SERIES F DEBENTURE
[FORM OF FACE OF SERIES F DEBENTURE]
No._______ $________
ORANGE AND ROCKLAND UTILITIES, INC.
6 1/2% DEBENTURE DUE 2027 (SERIES F)
ORANGE AND ROCKLAND UTILITIES, INC., a corporation duly organized and
existing under the laws of the State of New York (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of
______________________ Dollars, on December 1, 2027, and to pay interest on said
principal sum, semiannually on June 1 and December 1 of each year, commencing
June 1, 1998, at the rate of 6 1/2% per annum from the June 1 or December 1, as
the case may be, next preceding the date of this Debenture to which interest has
been paid, unless the date hereof is a date to which interest has been paid, in
which case from the date of this Debenture, or unless no interest has been paid
on this Debenture, in which case from the date of original issue of this
Debenture, until payment of said principal sum has been made or duly provided
for.
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<PAGE> 28
Notwithstanding the foregoing, when there is no existing default in the payment
of interest on this Debenture, if the date hereof is after a regular record date
(which shall be the close of business on the May 15 or November 15, as the case
may be, next preceding an Interest Payment Date) and before the next succeeding
Interest Payment Date, this Debenture shall bear interest from such Interest
Payment Date; provided, however, that if the Company shall default in the
payment of interest due on such Interest Payment Date, then this Debenture shall
bear interest from the next preceding Interest Payment Date to which interest
has been paid, or, if no interest has been paid on this Debenture, from the date
of original issue of this Debenture. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
said Indenture, be paid to the person in whose name this Debenture (or one or
more Predecessor Securities) is registered at the record date for such Interest
Payment Date. The principal of and interest on this Debenture are payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts, at the office or agency
of the Company in the Borough of Manhattan, The City of New York, except that
interest may be paid, at the option of the Company, by check mailed to the
person entitled thereto at his address last appearing on the Securities
Register. Any interest not punctually paid or duly provided for shall be payable
as provided in said Indenture.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS DEBENTURE SET FORTH
ON THE REVERSE HEREOF, WHICH SHALL HAVE THE SAME EFFECT AS THOUGH FULLY SET
FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Debenture shall not be entitled
to any benefit under the aforesaid Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this Debenture to be duly
executed under its corporate seal.
ORANGE AND ROCKLAND UTILITIES, INC.
[SEAL]
By _______________________________________
Treasurer
Attest:
_____________________________
Secretary
Dated:
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<PAGE> 29
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By ____________________________
Authorized Signatory
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<PAGE> 30
[FORM OF REVERSE OF DEBENTURE]
ORANGE AND ROCKLAND UTILITIES, INC.
6 1/2% DEBENTURE DUE 2027 (SERIES F)
This Debenture is one of a duly authorized issue of unsecured debt
securities of the Company (herein called the "Securities"), issued and to be
issued under an Indenture dated as of March 1, 1990, between the Company and The
Bank of New York, as Trustee (herein called the "Trustee", which term includes
any successor Trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto, including, without limitation, the First
Supplemental Indenture dated as of March 7, 1990, the Second Supplemental
Indenture dated as of October 15, 1992, the Third Supplemental Indenture dated
as of March 1, 1993 and the Fourth Supplemental Indenture dated as of December
1, 1997 (said Indenture, together with all indentures supplemental thereto,
including, without limitation, said First, Second, Third and Fourth Supplemental
Indentures, being herein called the "Indenture"), reference is hereby made for a
statement of the rights and limitations of rights thereunder of the Holders of
the Securities, and of the rights, obligations, duties and immunities of the
Trustee and of the Company, and the terms upon which the Securities are and are
to be authenticated and delivered. As provided in the Indenture, the Securities
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous
funds, if any, may be subject to different covenants and Events of Default and
may otherwise vary as in the Indenture provided or permitted. This Security is
one of a series designated on the face hereof as "6 1/2% Debentures Due 2027
(Series F)" (the "Debentures"), limited to $80,000,000 in aggregate principal
amount Outstanding.
The Debentures are not redeemable in whole or in part prior to maturity,
and there is no sinking fund for the Debentures.
The Holder of this Debenture may elect to have this Debenture (or any
portion hereof in the amount of $100,000 or in integral multiples of $1,000 in
excess thereof) repaid on December 1, 2004 (or, if such day is not a Business
Day, the next succeeding Business Day), at a repayment price equal to the
principal amount of this Debenture (or such portion hereof) together with
accrued and unpaid interest thereon to the date of repayment. In order for the
Holder of this Debenture to make this election, the Company must receive at its
office or agency in New York, New York, during the period beginning on October
1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 (or, if
such day is not a Business Day, the next succeeding Business Day) this Debenture
with the form entitled "Option to Elect Repayment on December 1, 2004" below
duly completed. Any such election received during the period beginning on
October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004
shall be irrevocable. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance of this Debenture for repayment will
be determined by the Company, whose determination shall be final and binding.
Failure of the Company to so repay this Debenture (or such portion hereof) when
required shall constitute an Event of Default with respect to the Series
29
<PAGE> 31
E Debentures and the Series F Debentures only and not with respect to any other
series of Securities.
The Debentures are issuable only as registered Debentures, without
coupons, in denominations of $100,000 and integral multiples of $1,000 in excess
thereof. As provided in the Indenture, and subject to certain limitations
therein set forth, Debentures are exchangeable for a like aggregate principal
amount of Debentures of different authorized denominations, as requested by the
Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture may be registered on the Securities
Register of the Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Securities
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name this Debenture is registered as the owner hereof for
the purpose of receiving payment as herein provided and for all other purposes,
whether or not this Debenture be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
If any Event of Default with respect to the Debentures shall occur and be
continuing, the principal of all the Debentures may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of at least a majority
in aggregate principal amount of the Securities at the time Outstanding of all
series to be affected thereby, voting as one class. The Indenture also contains
a provision permitting the Holders of a majority in aggregate principal amount
of the Securities of any series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive any past default or certain
Events of Default by the Company under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Debenture shall be conclusive and
binding upon such Holder and upon all future Holders of this Debenture and of
any Debenture issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Debenture.
As provided in Article Three of the Fourth Supplemental Indenture and
subject to the satisfaction of certain conditions therein set forth, including
the deposit of certain funds in trust,
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<PAGE> 32
at the Company's option, either the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and the obligations under,
the Debentures and to have satisfied all the obligations (with certain
exceptions) under the Indenture relating to the Debentures or the Company shall
cease to be under any obligation to comply with any term, provision or condition
of certain restrictive covenants of provisions with respect to the Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture at the times, place and rate, and in the coin or currency, herein
prescribed.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, including any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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<PAGE> 33
OPTION TO ELECT REPAYMENT ON DECEMBER 1, 2004
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Debenture (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned at
[Insert Name, Address and Tax Identification Number of the Undersigned]
For this Debenture to be repaid the Company must receive at the corporate
trust office of the Trustee in the Borough of Manhattan, the City of New York or
at such additional place or places of which the Company shall from time to time
notify the holder of the within Debenture during the period from and including
October 1, 2004 to and including November 1, 2004 or, if November 1, 2004 is not
a Business Day, the next succeeding Business Day, this Debenture with this
"Option to Elect Repayment on December 1, 2004" form duly completed.
If less than the entire principal amount of the within Debenture is to be
repaid, specify the portion thereof (which shall be in the amount of $100,000 or
an integral multiple of $1,000 in excess thereof) which the Holder elects to
have repaid: $_________________; and specify the denomination or denominations
(which shall be in the amount of $100,000 or an integral multiple of $1,000 in
excess thereof) of the Debenture or Debentures to be issued to the Holder for
the amount of the portion of the within Debenture not being repaid (in the
absence of any such specification, one such Debenture will be issued for the
portion not be repaid: _______________).
Dated: , 2004
______________________________________
NOTICE: The signature on this Option to
Elect Repayment on December 1, 2004 must
correspond with the name as written upon the
face of this instrument in every particular
without alteration or enlargement or any
other change whatsoever.
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<PAGE> 34
ASSIGNMENT
Abbreviations
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT
MIN ACT - ______________(Custodian)_____________(Minor) under Uniform Gifts
to Minors Act_____________ (State)
Additional abbreviations may also be used
though not in the above list.
-------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
(Please insert social security or other identifying number of assignee)
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing ___________________________________________ attorney to transfer
said Debenture on the books of the Company, with full power of substitution in
the premises.
Dated:__________________
___________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
33
<PAGE> 1
Exhibit 4.6
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of December 18, 1997
by and among
ORANGE AND ROCKLAND UTILITIES, INC.,
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
and
SALOMON BROTHERS INC
================================================================================
<PAGE> 2
This Registration Rights Agreement (this "Agreement") is made and
entered into as of December 18, 1997, by and among Orange and Rockland
Utilities, Inc., a New York corporation (the "Company"), and Donaldson, Lufkin &
Jenrette Securities Corporation and Salomon Brothers Inc (each an "Initial
Purchaser" and, collectively, the "Initial Purchasers"), each of whom has agreed
to purchase the Company's 6 1/2% Debentures Due 2027 (Series E) (the "Series E
Debentures") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 15, 1997 (the "Purchase Agreement"), by and among the Company and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Series E Debentures, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 3 of
the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day in The City
of New York, or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Broker-Dealer Transfer Restricted Securities: Series F Debentures that are
acquired by a Broker-Dealer in the Exchange Offer in exchange for Series E
Debentures that such Broker-Dealer acquired for its own account as a result of
market making activities or other trading activities (other than Series E
Debentures acquired directly from the Company or any of its affiliates).
Certificated Securities: Securities which are not Global Securities (as
defined in the Indenture).
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Series F
Debentures to be issued in the Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the minimum period required pursuant to
Section 3(b) hereof and (c) the delivery by the Company to the Registrar under
the Indenture of
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<PAGE> 3
Series F Debentures in the same aggregate principal amount as the aggregate
principal amount of Series E Debentures tendered by Holders thereof pursuant to
the Exchange Offer.
Damages Payment Date: With respect to the Series E Debentures, each
Interest Payment Date.
Debentures: The Series E Debentures and the Series F Debentures.
Depository: As defined in the Indenture.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act of the
Series F Debentures pursuant to the Exchange Offer Registration Statement
pursuant to which the Company shall offer the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities for Series F Debentures in an aggregate principal
amount equal to the aggregate principal amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
to sell the Series E Debentures to certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act.
Holders: As defined in Section 2 hereof.
Indemnified Party: As defined in Section 8(c) hereof.
Indemnifying Person: As defined in Section 8(c) hereof.
Indenture: The Indenture, dated as of March 1, 1990, between the Company
and The Bank of New York, as trustee (the "Trustee"), pursuant to which the
Debentures are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Debentures.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
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<PAGE> 4
Record Holder: With respect to any Damages Payment Date, each Person who
is a Holder of Debentures on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating
to (a) an offering of Series F Debentures pursuant to an Exchange Offer or (b)
the registration for resale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement, in each case, (i) which is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
Transfer Restricted Securities.
Series F Debentures: The Company's 6 1/2% Debentures Due 2027 (Series F)
to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon
the request of any Holder of Series E Debentures covered by a Shelf Registration
Statement, in exchange for such Series E Debentures.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939, as amended, as in effect on the date
of this Agreement.
Transfer Restricted Securities: Each Debenture, until the earliest to
occur of (a) the date on which such Debenture is exchanged in the Exchange Offer
and entitled to be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Act, (b) the date on which such
Debenture has been disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Debenture is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (d) the date on which such Debenture is sold pursuant to
Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall (i) cause to be filed with the Commission as
soon as practicable after the Closing Date, but in no
3
<PAGE> 5
event later than 150 days after the Closing Date, the Exchange Offer
Registration Statement, (ii) use its commercially reasonable best efforts to
cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the Closing
Date, (iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in
order to cause such Exchange Offer Registration Statement to become effective,
(B) file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings, if any, in connection with the registration and qualification
of the Series F Debentures to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Series F Debentures to be
offered in exchange for the Series E Debentures that are Transfer Restricted
Securities and to permit sales of Broker-Dealer Transfer Restricted Securities
by Restricted Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall use its commercially reasonable best efforts
to cause the Exchange Offer Registration Statement to be effective continuously,
and shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 20 Business Days. The Company shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Series F Debentures shall be included in the Exchange Offer Registration
Statement. The Company shall use its commercially reasonable best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Restricted Broker-Dealer who holds Series E Debentures
that are Transfer Restricted Securities and that were acquired for the account
of such Broker-Dealer as a result of market-making activities or other trading
activities may exchange such Series E Debentures (other than Transfer Restricted
Securities acquired directly from the Company or any Affiliate of the Company)
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of each Series F Debenture received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Debentures held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c)
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<PAGE> 6
below to the extent necessary to ensure that it is available for sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers, and
to ensure that such Registration Statement conforms with the requirements of
this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer is Consummated.
The Company shall promptly provide sufficient copies of the latest version
of such Prospectus to such Restricted Broker-Dealers promptly upon request, and
in no event later than one day after such request, at any time during such 180
day period in order to facilitate such sales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file
an Exchange Offer Registration Statement with respect to the Series F Debentures
because the Exchange Offer is not permitted by applicable law (after the
procedures set forth in Section 6(a)(i) below have been complied with) or (ii)
if any Holder of Transfer Restricted Securities shall notify the Company within
20 Business Days following the Consummation of the Exchange Offer that (A) such
Holder was prohibited by law or Commission policy from participating in the
Exchange Offer or (B) such Holder may not resell the Series F Debentures
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series E Debentures acquired directly
from the Company or one of its affiliates, then the Company shall (x) cause to
be filed on or prior to 30 days after the date on which the Company determines
that it is not required to file the Exchange Offer Registration Statement
pursuant to clause (i) above or 30 days after the date on which the Company
receives the notice specified in clause (ii) above a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf Registration
Statement")), relating to all Transfer Restricted Securities the Holders of
which shall have provided the information required pursuant to Section 4(b)
hereof, and shall (y) use its commercially reasonable best efforts to cause such
Shelf Registration Statement to become effective on or prior to 90 days after
the date on which the Company becomes obligated to file such Shelf Registration
Statement. If, after the Company has filed an Exchange Offer Registration
Statement which satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer shall not be permitted under applicable federal law,
then the filing of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above. Such an event shall have no effect
on the requirements of clause (y) above. The Company shall use its commercially
reasonable best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by and subject to the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years (as extended pursuant to Section 6(c)(i)) following the date on
which such Shelf Registration Statement first becomes effective under the Act.
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<PAGE> 7
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, such
information specified in item 507 of Regulation S-K under the Act for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such information.
Each Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the date specified for such filing in this
Agreement, (ii) any such Registration Statement has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in
this Agreement, (iii) the Exchange Offer has not been Consummated within 30
Business Days after the Exchange Offer Registration Statement is first declared
effective by the Commission or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the
Company hereby agrees to pay liquidated damages to each Holder of Transfer
Restricted Securities following the occurrence of such Registration Default, in
an amount equal to 0.25% per annum (the "Liquidated Damages Rate") of the
principal amount of Transfer Restricted Securities held by such Holder for so
long as the Registration Default continues. The amount of liquidated damages
payable shall be determined by multiplying the Liquidated Damage Rate by the
principal amount of such Transfer Restricted Securities, multiplied by a
fraction, the numerator of which is the number of days such Liquidated Damage
Rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is 360.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the liquidated damages
payable with respect to the Transfer Restricted Securities as a result of such
clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid on each Damages Payment Date
to the Depository by wire transfer of immediately available funds or by federal
funds check and to Holders of Certificated Securities by mailing checks to their
registered addresses. All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted
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<PAGE> 8
Security shall survive until such time as all such obligations with respect to
such security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use its best efforts to effect such exchange and to
permit the sale of Broker-Dealer Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If, following the date hereof there has been published a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, such that in the reasonable opinion of counsel to the
Company there is a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company hereby agrees to seek
a no-action letter or other favorable decision from the Commission
allowing the Company to Consummate an Exchange Offer for such Series E
Debentures. The Company hereby agrees to pursue the issuance of such a
decision to the Commission staff level. In connection with the foregoing,
the Company hereby agrees to use its commercially reasonable best efforts
to take all such other actions as are requested by the Commission or
otherwise required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic conferences
with the Commission, (B) delivering to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange Offer should
be permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation of the Exchange Offer, a written representation
to the Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding
with any person to participate in, a distribution of the Series F
Debentures to be issued in the Exchange Offer and (C) it is acquiring the
Series F Debentures in its ordinary course of business. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to
be acquired in the Exchange Offer (1) could not under Commission policy as
in effect on the date of this Agreement rely on the position of the
Commission enunciated in Morgan Stanley and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of the
Act in connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective registration
statement containing the selling security holder
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<PAGE> 9
information required by Item 507 or 508, as applicable, of Regulation S-K
if the resales are of Series F Debentures obtained by such Holder in
exchange for Series E Debentures acquired by such Holder directly from the
Company or an affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a supplemental letter to
the Commission (A) stating that the Company is registering the Exchange
Offer in reliance on the position of the Commission enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and
Co., Inc. (available June 5, 1991) and, if applicable, any no-action
letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the Series F Debentures to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Series F Debentures in its ordinary course of business and
has no arrangement or understanding with any Person to participate in the
distribution of the Series F Debentures received in the Exchange Offer and
(C) any other undertaking or accurate representation required by the
Commission as set forth in any no-action letter obtained pursuant to
clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its commercially reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the Company
pursuant to Section 4(b) hereof), and pursuant thereto the Company will prepare
and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof within the time periods
and otherwise in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities (including, without limitation,
any Exchange Offer Registration Statement and the related Prospectus, to the
extent that the same are required to be available to permit sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers), the
Company shall:
(i) use its commercially reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities as
contemplated by this Agreement during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to
such Registration Statement, (1) in the case of clause (A), correcting any
such misstatement or omission, and (2) in the case of clauses (A) and (B),
use its best efforts to cause such
8
<PAGE> 10
amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s) as soon
as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
Rules 424, 430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the disposition
of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its commercially reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to the Initial Purchasers, each selling Holder
named in any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing with
the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which documents
will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a
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<PAGE> 11
period of at least five Business Days, and the Company will not file any
such Registration Statement or Prospectus or any amendment or supplement
to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which the selling Holders of the
Transfer Restricted Securities covered by such Registration Statement or
the underwriter(s) in connection with such sale, if any, shall reasonably
object within five Business Days after the receipt thereof;
(v) promptly after the filing of any document that is
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s) in connection with such sale, if any, and make the
Company's representatives available for discussion of such document and
other customary due diligence matters;
(vi) make available at reasonable times for inspection by the
selling Holders, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holders or any of such underwriter(s), all
financial and other records, pertinent corporate documents and properties
of the Company and cause the Company's officers, directors and employees
to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include in
any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to
the "Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s) in connection with such sale, if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company hereby
consents to the use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of
the
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<PAGE> 12
underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(x) enter into such agreements (including an underwriting
agreement) and make such representations and warranties and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement as may be reasonably
requested by any Holder of Transfer Restricted Securities or underwriter
in connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement, and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall:
(A) furnish (or in the case of paragraphs (2) and (3),
use its best efforts to furnish) to each selling Holder and each
underwriter, if any, upon the effectiveness of the Shelf
Registration Statement and to each Restricted Broker-Dealer upon
Consummation of the Exchange Offer:
(1) a certificate, dated the date of Consummation
of the Exchange Offer or the date of effectiveness of
the Shelf Registration Statement, as the case may be,
signed on behalf of the Company by (x) the President or
any Vice President and (y) the Chief Financial Officer
or the Treasurer or any Assistant Treasurer of the
Company confirming, as of the date thereof, the matters
set forth in paragraphs (a) and (b) of Section 9 of the
Purchase Agreement and such other similar matters as the
Holders, underwriter(s) and/or Restricted Broker Dealers
may reasonably request;
(2) opinions, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Company covering matters similar to
those set forth in paragraph (e) of Section 9 of the
Purchase Agreement and such other matters as the
Holders, underwriters and/or Restricted Broker Dealers
may reasonably request, and in any event including a
statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company and representatives of
the independent public accountants for the Company and
have considered the matters required to be stated
therein and the statements contained therein, although
such counsel has not independently verified the
accuracy, completeness or fairness of such statements;
and that such counsel advises that, on the basis of the
foregoing (relying as to materiality to a large extent
upon facts provided to such counsel by officers and
other representatives of the Company and without
independent check or verification), no facts came to
such counsel's attention that caused such counsel to
believe
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<PAGE> 13
that the applicable Registration Statement, at the time
such Registration Statement or any post-effective
amendment thereto became effective, 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 contained in such Registration Statement
as of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue statement of a
material fact or omitted 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. Without limiting the foregoing,
such counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other
financial or statistical data included in any
Registration Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter, dated as of the
date of effectiveness of the Shelf Registration
Statement or the date of Consummation of the Exchange
Offer, as the case may be, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 9 of the Purchase Agreement, without
exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or
resale pursuant to any Shelf Registration Statement the
indemnification provisions and procedures of Section 8 hereof with
respect to all parties to be indemnified pursuant to said Section;
and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders, the underwriter(s), if
any, and Restricted Broker Dealers, if any, to evidence compliance
with clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the
Company pursuant to this clause (x).
The above shall be done at each closing under such underwriting or similar
agreement, as and to the extent required thereunder, and if at any time the
representations and warranties of the Company contemplated in (A)(1) above cease
to be true and correct, the Company shall so advise the underwriter(s), if any,
the selling Holders and each Restricted Broker-Dealer promptly and if requested
by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, use its commercially reasonable best efforts to cooperate with
the selling Holders, the underwriter(s), if any, and their respective
counsel in connection with the registration and
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<PAGE> 14
qualification of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would subject
it to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xii) issue, upon the request of any Holder of Series E
Debentures covered by any Shelf Registration Statement contemplated by
this Agreement, Series F Debentures having an aggregate principal amount
equal to the aggregate principal amount of Series E Debentures duly
surrendered to the Company by such Holder in exchange therefor or being
sold by such Holder; such Series F Debentures to be registered in the name
of such Holder or in the name of the purchaser(s) of such Debentures, as
the case may be; in return, the Series E Debentures held by such Holder
shall be surrendered to the Company for cancellation;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as the Holders
or the underwriter(s), if any, may request at least two Business Days
prior to such sale of Transfer Restricted Securities;
(xiv) use its commercially reasonable best efforts to cause
the disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in clause (xi) above;
(xv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee under
the Indenture with printed certificates for the
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<PAGE> 15
Transfer Restricted Securities which are in a form eligible for deposit
with The Depository Trust Company;
(xvii) use its commercially reasonable best efforts to
cooperate and assist in any filings required to be made with the NASD and
in the performance of any due diligence investigation by any underwriter
(including any "qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the NASD, and use
their respective best efforts to cause such Registration Statement to
become effective and approved by such governmental agencies or authorities
as may be necessary to enable the Holders selling Transfer Restricted
Securities to consummate the disposition of such Transfer Restricted
Securities;
(xviii) otherwise use its commercially reasonable best efforts
to comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a consolidated
earning statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective date
of the Registration Statement (as such term is defined in paragraph (c) of
Rule 158 under the Act);
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required
by this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders of Debentures to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with
the terms of the TIA; and execute and use its best efforts to cause the
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section
13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or until it is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (the "Advice"). If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of either such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 6(c)(i)
or Section 6(c)(iii)(D)
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<PAGE> 16
hereof to and including the date when each selling Holder covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xv) hereof or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter") and its counsel
that may be required by the rules and regulations of the NASD); (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Series F Debentures to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all
reasonable fees and disbursements of counsel for the Company and the Holders of
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing the Debentures on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees, to indemnify and hold harmless each Holder,
its directors, its officers and each Person, if any, who controls such Holder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities, judgments,
(including without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus or Prospectus
(or any amendment or supplement thereto) provided by the Company to any Holder
or any prospective purchaser of Series E Debentures, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or
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<PAGE> 17
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any of the Holders furnished in writing to the Company
by any of the Holders.
(b) Each Holder of Transfer Restricted Securities, severally and not
jointly, agrees to indemnify and hold harmless the Company, and its directors
and officers, and each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company, to the
same extent as the foregoing indemnity from the Company to each of the Holders,
but only with reference to information relating to such Holder furnished in
writing to the Company by such Holder expressly for use in any Registration
Statement, preliminary prospectus or Prospectus. In no event shall any Holder be
liable or responsible for any amount in excess of the amount by which the total
amount received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"Indemnified Party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
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 fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities
16
<PAGE> 18
and judgments by reason of any settlement of any action (i) effected with its
written consent or (ii) effected without its written consent if the settlement
is entered into more than twenty business days after the indemnifying party
shall have received a request from the indemnified party for reimbursement for
the fees and expenses of counsel (in any case where such fees and expenses are
at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments 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, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 8(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Company, on the one hand, and of the Holder, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holder, on the other hand, 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, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and judgments referred to above shall be deemed to include, subject
to the limitations set forth in the second paragraph of Section 8(a), any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) 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 by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments 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 matter, including any action
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Holder or its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the
17
<PAGE> 19
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the amount paid by
such Holder for such Transfer Restricted Securities plus (B) the amount of any
damages which such Holder 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 Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(c) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each of the Holders
hereunder and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company is not subject to Section 13 or 15(d) of the Securities Exchange Act, to
make available, upon request of any Holder of Transfer Restricted Securities, to
any Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, and other documents required under the terms
of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment bankers
and manager or managers for any Underwritten Offering that will administer such
offering will be selected by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities included in such offering. Such
investment bankers and managers are referred to herein as the "underwriters."
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or granted
by law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by them of the provisions of this Agreement and hereby agree
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
18
<PAGE> 20
(b) No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Company has not
previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Debentures. The Company will not take
any action, or voluntarily permit any change to occur, with respect to the
Debentures that would materially and adversely affect the ability of the Holders
to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be given
by the Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities subject to such Exchange Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
Orange and Rockland Utilities, Inc.
One Blue Hill Plaza
Pearl River, New York 10965
Telecopier No.: (914) 577-6934
Attention: Office of the Treasurer
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
19
<PAGE> 21
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities directly from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
20
<PAGE> 22
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
ORANGE AND ROCKLAND UTILITIES, INC.
By: /s/ R. Lee Haney
____________________________________
Name: R. Lee Haney
Title: Sr. Vice President and CFO
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Jane Sadowsky
______________________________
Name: Jane Sadowsky
Title: Senior Vice President
SALOMON BROTHERS INC
By: /s/ James D. Hempstead
______________________________
Name: James D. Hempstead
Title: Vice President
21
<PAGE> 1
Exhibit 12
ORANGE AND ROCKLAND UTILITIES, INC. AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES--SEC METHOD
Twelve
Year Ended Dec. 31, Months Ended
------------------------ Sept. 30,
1995(1) 1996(1) 1997(1)
----------- ----------- ------------
(Dollars in Thousands)
EARNINGS:
Net Income from Continuing Operations $37,766 $48,147 $41,566
Federal Income Tax 23,374 25,705 21,458
Fixed Charges 34,911 33,509 34,370
------ ------ ------
Total Earnings Available $96,051 $107,361 $97,394
======= ======== =======
FIXED CHARGES:
Interest on Long-Term Debt $26,621 $24,221 $24,196
Amortization of Debt Expense,
Discount and Premium 1,393 1,462 1,586
Other Interest 4,908 5,748 6,581
Interest Factor on Rental Expense 1,989 2,078 2,007
----- ----- -----
Total Fixed Charges $34,911 $33,509 $34,370
======= ======= =======
Ratio of Earnings to Fixed Charges(2) 2.75 3.20 2.83
==== ==== ====
(1) Effective August 1, 1997, the accounts receivable, with certain exceptions,
and contracts with customers and related agreements of NORSTAR Partnership
were sold. In accordance with Accounting Principles Board Opinion No. 30,
the consolidated financial statements of the Company at September 30, 1997
reported the results of NORSTAR Partnership as "Discontinued Operations,"
and the results of all prior periods presented herein have been restated to
conform with the current period classifications.
(2) For purposes of computing the ratio of earnings to fixed charges, earnings
are defined as the sum of pre-tax income from continuing operations plus
fixed charges. Fixed charges consist of all interest expense (before
allowance for borrowed funds used during construction), one-third of rent
expense (which approximates the interest component of such expense) and
amortization of debt expense.
1
<PAGE> 1
Exhibit 21
ORANGE AND ROCKLAND UTILITIES, INC. AND SUBSIDIARIES
Subsidiaries
State of
Parent and Subsidiary* Incorporation
- ---------------------- -------------
Orange and Rockland Utilities, Inc. New York
Rockland Electric Company New Jersey
Enserve Holdings, Inc. Delaware
Compass Resources, Inc. Delaware
Palisades Energy Services, Inc. Delaware
Saddle River Holdings Corp. Delaware
NORSTAR Holdings, Inc. Delaware
NORSTAR Management, Inc. Delaware
NORSTAR Energy Limited Partnership Delaware
NORSTAR Energy Pipeline Company, LLC Delaware
Millbrook Holdings, Inc. Delaware
Atlantic Morris Broadcasting, Inc. Delaware
Pike County Light & Power Company Pennsylvania
Clove Development Corporation New York
O&R Energy Development, Inc. Delaware
O&R Development, Inc. Delaware
* Each level of indentation represents subsidiary status of the company under
which it is immediately indented.
1
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 6, 1997
included and incorporated by reference in Orange and Rockland Utilities, Inc.'s
Form 10-K for the year ended December 31, 1996 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
New York, New York
January 6, 1998
1
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and an
Officer of Orange and Rockland Utilities, Inc., which Company proposes to file
with the Securities and Exchange Commission a Registration Statement on Form S-4
pursuant to the provisions of the Securities Act of 1933, as amended (the
"Act"), with respect to the registration of up to $80 million aggregate
principal amount of unsecured debt securities to be offered, on the terms and
conditions to be set forth in such Registration Statement, in exchange for a
like amount of unregistered debt securities to be issued and sold by the Company
in an exempt offering pursuant to Rule 144A under the Act, has made, constituted
and appointed and by these presents does hereby make, constitute and appoint G.
D. CALIENDO, his true and lawful attorney, for him and in his name, place and
stead, and in his office and capacity as aforesaid, to sign and file said
Registration Statement and all amendments thereto (whether pre-or
post-effective), and any and all other documents to be signed and filed with the
Securities and Exchange Commission in connection therewith, hereby granting to
said G. D. CALIENDO, full power and authority to do and perform each and every
act as fully, to all intents and purposes, as he might or could do if personally
present, hereby ratifying and confirming in all respects all that G. D. CALIENDO
may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ D. Louis Peoples
-------------------------------------
D. Louis Peoples
Director; Vice Chairman of the Board
and Chief Executive Officer
1
<PAGE> 2
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an Officer of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ R. Lee Haney
-------------------------------------
R. Lee Haney
Senior Vice President and Chief
Financial Officer
1
<PAGE> 3
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an Officer of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ Edward M. McKenna
-------------------------------------
Edward M. McKenna
Controller
1
<PAGE> 4
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ Ralph M. Baruch
-------------------------------------
Ralph M. Baruch
Director
1
<PAGE> 5
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ J. Fletcher Creamer
-------------------------------------
J. Fletcher Creamer
Director
1
<PAGE> 6
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ Michael J. Del Giudice
-------------------------------------
Michael J. Del Giudice
Director
1
<PAGE> 7
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ Jon F. Hanson
-------------------------------------
Jon F. Hanson
Director
1
<PAGE> 8
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ Kenneth D. McPherson
-------------------------------------
Kenneth D. McPherson
Director
1
<PAGE> 9
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ Robert E. Mulcahy III
-------------------------------------
Robert E. Mulcahy III
Director
1
<PAGE> 10
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ James F. O'Grady, Jr.
-------------------------------------
James F. O'Grady, Jr.
Director
1
<PAGE> 11
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ Frederic V. Salerno
-------------------------------------
Frederic V. Salerno
Director
1
<PAGE> 12
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, his true and
lawful attorney, for him and in his name, place and stead, and in his office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as he might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th
day of September 1997.
/s/ H. Kent Vanderhoef
-------------------------------------
H. Kent Vanderhoef
Chairman of the Board
1
<PAGE> 13
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange
and Rockland Utilities, Inc., which Company proposes to file with the Securities
and Exchange Commission a Registration Statement on Form S-4 pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), with respect
to the registration of up to $80 million aggregate principal amount of unsecured
debt securities to be offered, on the terms and conditions to be set forth in
such Registration Statement, in exchange for a like amount of unregistered debt
securities to be issued and sold by the Company in an exempt offering pursuant
to Rule 144A under the Act, has made, constituted and appointed and by these
presents does hereby make, constitute and appoint G. D. CALIENDO, her true and
lawful attorney, for her and in her name, place and stead, and in her office and
capacity as aforesaid, to sign and file said Registration Statement and all
amendments thereto (whether pre-or post-effective), and any and all other
documents to be signed and filed with the Securities and Exchange Commission in
connection therewith, hereby granting to said G. D. CALIENDO, full power and
authority to do and perform each and every act as fully, to all intents and
purposes, as she might or could do if personally present, hereby ratifying and
confirming in all respects all that G. D. CALIENDO may or shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has set her hand and seal this 24th
day of September 1997.
/s/ Linda C. Taliaferro
-------------------------------------
Linda C. Taliaferro
Director
1
<PAGE> 1
Exhibit 25
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(B)(2) . . . |_|
----------
THE BANK OF NEW YORK
(Exact Name of Trustee as Specified in its Charter)
New York 13-5160382
(State of Incorporation (I.R.S. Employer
if not a National Bank) Identification No.)
48 Wall Street, New York, N.Y. 10286
(Address of Principal Executive Offices) (Zip Code)
----------
Orange and Rockland Utilities, Inc.
(Exact Name of Obligor as Specified in its Charter)
New York 13-1727729
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
One Blue Hill Plaza
Pearl River, NY 10965
(Address of Principal Executive Offices) (Zip Code)
----------
6 1/2% Debentures Due 2027 (Series F)
(Title of the Indenture Securities)
================================================================================
<PAGE> 2
1. General Information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
--------------------------------------------------------------------------
Name Address
--------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New
State of New York York, NY 10006 and
Albany, NY 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New
York, NY 10045
Federal Deposit Insurance
Corporation Washington, D.C. 20549
New York Clearing House
Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 4.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of the Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1,
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
2
<PAGE> 3
4. A copy of the existing By-Laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by section 321(b) of the Act.
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
3
<PAGE> 4
NOTE
Inasmuch as this Form T-1 is being filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York, and State of New York, on the 29th day of December, 1997.
THE BANK OF NEW YORK
By /s/ Robert A. Massimillo
-----------------------------------
Assistant Vice President
4
<PAGE> 5
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, NY 10296
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1997,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............ $ 7,769,502
Interest-bearing balances ..................................... 1,472,524
Securities:
Held-to-maturity securities ................................... 1,080,234
Available-for-sale securities ................................. 3,046,199
Federal funds sold and Securities purchased under agreements
to resell ..................................................... 3,193,800
Loans and lease financing receivables:
Loans and leases, net of unearned income ............35,352,045
LESS: Allowance for loan and lease losses ..............625,042
LESS: Allocated transfer risk reserve ......................429
Loans and leases, net of unearned income, allowance,
and reserve ................................................. 34,726,574
Assets held in trading accounts ................................. 1,611,096
Premises and fixed assets (including capitalized leases) ........ 676,729
Other real estate owned ......................................... 22,460
Investments in unconsolidated subsidiaries and associated
companies ..................................................... 209,958
Customers' liability to this bank on acceptances outstanding .... 1,357,731
Intangible assets ............................................... 720,883
Other assets .................................................... 1,627,267
-----------
Total assets .................................................... $57,514,958
===========
LIABILITIES
Deposits:
In domestic offices ........................................... $26,875,598
Noninterest-bearing .................................11,213,657
Interest-bearing ....................................15,661,939
In foreign offices, Edge and Agreement subsidiaries, and IBFs.. 16,334,270
Noninterest-bearing ....................................596,369
Interest-bearing ....................................15,737,901
Federal funds purchased and Securities sold under agreements to
repurchase ...................................................... 1,583,157
Demand notes issued to the U.S. Treasury ........................ 303,000
Trading liabilities ............................................. 1,308,173
Other borrowed money:
With remaining maturity of one year or less ................... 2,383,570
With remaining maturity of more than one year through three
years ....................................................... 0
With remaining maturity of more than three years .............. 20,579
Bank's liability on acceptances executed and outstanding......... 1,377,244
Subordinated notes and debentures ............................... 1,018,940
Other liabilities ............................................... 1,732,792
-----------
Total liabilities ............................................... 52,937,421
-----------
EQUITY CAPITAL
Common stock .................................................... 1,135,284
Surplus ......................................................... 731,319
Undivided profits and capital reserves .......................... 2,721,258
Net unrealized holding gains (losses) on available-for-sale
securities .................................................... 1,948
Cumulative foreign currency translation adjustments ............. ( 12,272)
-----------
Total equity capital ............................................ 4,577,537
-----------
Total liabilities and equity capital ............................ $57,514,958
===========
I, Robert E. Kellman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Kellman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyl )
J. Carter Bacot } Directors
Alan R. Griffith )
------------------------
