<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 1999
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ORANGE AND ROCKLAND UTILITIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
New York One Blue Hill Plaza 13-1727729
(State or Other Jurisdiction of Pearl River, New York 10965 (I.R.S. Employer
Incorporation or Organization) (914) 352-6000 Identification Number)
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive
Offices)
</TABLE>
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)
Copy To:
Michael F. Cusick, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, 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, please 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(c) 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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
TITLE OF CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE
PER UNIT(1) PRICE (1)
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
% Debentures Due $45,000,000 100% $45,000,000 $12,510
2029 (Series G)
==================================================================================================================================
</TABLE>
(1) Exclusive of accrued interest, if any, and estimated solely for the purpose
of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(a), MAY DETERMINE.
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION DATED FEBRUARY 12, 1999
PROSPECTUS
$45,000,000
ORANGE AND ROCKLAND UTILITIES, INC.
% DEBENTURES DUE 2029 (SERIES G)
-----------------------
Orange and Rockland Utilities, Inc. intends to issue $45,000,000 of
unsecured debentures in a single series. After the competitive bidding and
pricing for the debentures, we will publish a final prospectus that will set
forth the amount of interest you will be paid each year on the debentures.
Interest on the debentures will be paid each year on March 1 and September 1,
beginning September 1, 1999. We may redeem the debentures on or after March 1,
2009.
The debentures are unsecured and rank equally with all of our other
unsecured senior indebtedness. The debentures will be issued only in registered
form in denominations of $1,000 or in any amount in excess thereof which is an
integral multiple of $1,000. We expect that the debentures will be ready for
delivery in book-entry form only through The Depository Trust Company, on or
about March , 1999.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
This prospectus is to be used for the public invitation for competitive
bids to select the purchasers to purchase all the debentures. After the
purchasers accept the debentures, they will offer them to the public to buy.
BIDS FOR THE DEBENTURES WILL BE RECEIVED BY FAX UNTIL
11:00 A.M. NEW YORK TIME ON , 1999
AT THE OFFICES OF WINTHROP, STIMSON, PUTNAM & ROBERTS,
ONE BATTERY PARK PLAZA, NEW YORK, NEW YORK 10004-1490,
ATTN: MICHAEL CUSICK, FAX NO. 212-858-1500.
The date of this prospectus is , 1999
<PAGE> 3
TABLE OF CONTENTS
Page
WHERE YOU CAN FIND MORE INFORMATION...........................................3
INCORPORATION OF INFORMATION WE FILE WITH THE SEC.............................3
ORANGE AND ROCKLAND UTILITIES, INC............................................4
MERGER WITH CONSOLIDATED EDISON, INC..........................................5
REGULATORY PROCEEDINGS........................................................6
SELECTED FINANCIAL INFORMATION................................................9
USE OF PROCEEDS..............................................................10
PLAN OF DISTRIBUTION.........................................................10
DESCRIPTION OF DEBENTURES....................................................10
LEGAL MATTERS................................................................16
EXPERTS......................................................................16
----------------------
FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus and in the documents
incorporated by reference into this prospectus are forward-looking statements.
We have based these forward-looking statements on our current expectations and
projections about future events. These forward-looking statements are not
statements of historical fact. Forward-looking statements involve risks,
uncertainties and assumptions that may cause our actual financial condition,
results of operations, business or performance to be materially different from
the expectations of future financial condition, results of operations, business
or performance we express or imply in any forward-looking statements. Some of
the important factors that could cause our actual financial condition, results
of operations, business or performance to differ materially from our
expectations include:
- competition and industry restructuring,
- changes in economic conditions,
- changes in laws, regulations or regulatory policies,
- uncertainties relating to the ultimate outcome of the Company's
proposed merger and the sale of its electric generation assets,
which transactions are discussed in this prospectus under "Merger with
Consolidated Edison, Inc." and "Regulatory Proceedings -- Divestiture,"
- the outcome of certain assumptions made in regard to Year 2000
issues, and
- other uncertainties.
We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed in this prospectus might not occur. When used
in our documents or oral presentations, the words "anticipate," "intend,"
"estimate," "expect," "objective," "projection," "forecast," "goal" or similar
words are intended to identify forward-looking statements. We qualify any such
forward-looking statements entirely by these cautionary factors.
----------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. We are offering to sell the debentures
and seeking offers to buy the debentures only in jurisdictions where offers and
sales are permitted. The information contained in this prospectus is accurate
only as of the dates of this prospectus, regardless of the time of delivery of
this prospectus or any sale of the debentures. Our business, financial
condition, results of operations and prospects may have changed since that date.
As used in this prospectus, the terms "O&R," "we," "our" and "the company,"
refer to Orange and Rockland Utilities, Inc., an investor-owned utility
incorporated in New York, and, unless the context requires otherwise, its
subsidiaries.
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WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC
(Securities and Exchange Commission). You can inspect and copy any documents
that we file at the SEC's public reference facilities in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
more information on their public reference rooms and their copy charges. Our SEC
filings can also be reviewed on the internet at the SEC's website at
http://www.sec.gov. In addition, our SEC filings and other information can 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 INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information we file
with them, which means:
- incorporated documents are considered part of the prospectus;
- we can disclose important information to you by referring you to those
documents; and
- information that we file with the SEC will automatically update and
supersede this prospectus.
We incorporate by reference the documents listed below which the
company filed with the SEC under the Exchange Act ("Securities Exchange Act
of 1934"):
- annual report on Form 10-K for the year ended December 31, 1997;
- quarterly reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998, and September 30, 1998; and
- current reports on Form 8-K dated February 5, 1998, March 9, 1998,
April 8, 1998, May 10, 1998, June 18, 1998, August 20,1998 and
November 27, 1998.
We also incorporate by reference each of the following documents that
we will file with the SEC after the date of this prospectus but before the end
of the offering:
- all documents filed under Sections 13(a) and (c) of the Exchange Act;
- definitive proxy or information statements filed under Section 14 of
the Exchange Act in connection with any subsequent stockholders'
meeting; and
- any reports filed under Section 15(d) of the Exchange Act.
You may review our SEC filings through our website at
http://www.oru.com and may request a copy of any filings referred to above
(excluding certain exhibits) at no cost, by contacting us, either orally or in
writing, at the following address or phone number:
Orange and Rockland Utilities, Inc.
Office of the Treasurer
One Blue Hill Plaza
Pearl River, New York 10965
(telephone: 914-577-2512)
3
<PAGE> 5
ORANGE AND ROCKLAND UTILITIES, INC.
Our company was formed on May 21, 1926 as Rockland Light and Power
Company (originally organized in 1899) when it was consolidated with Catskill
Power Corporation and Orange County Public Service Company Inc. We adopted our
present name on February 28, 1958 when we consolidated with The Orange and
Rockland Electric Company.
Our company, with its two wholly-owned utility subsidiaries RECO
(Rockland Electric Company), a New Jersey corporation, and Pike (Pike County
Light & Power Company), a Pennsylvania corporation, supplies electricity and gas
to a territory covering approximately 1,350 square miles. Our service area
includes southeastern New York State and adjacent sections of northern New
Jersey and northeastern Pennsylvania. As of September 30, 1998, we furnished
electric service to approximately 273,000 customers in 96 communities with an
estimated population of 681,000 and gas service to approximately 116,000
customers in 57 communities with an estimated population of 482,000.
We also have two wholly owned non-utility subsidiaries, Clove (Clove
Development Corporation), a real estate operation, and ORD (O&R Development,
Inc.), a land development company. In addition, RECO has two wholly-owned
non-utility subsidiaries, EHI (Enserve Holdings, Inc.) and SRH (Saddle River
Holdings Corp.). EHI also has two wholly-owned non-utility subsidiaries. The
following chart shows our principal subsidiaries.
[O & R Flow Chart]
In addition, SRH has a wholly-owned non-utility subsidiary, NHI
(NORSTAR Holdings, Inc.) (formerly O&R Energy, Inc.), which was engaged in
natural gas marketing through its wholly-owned non-utility subsidiary, NMI
(NORSTAR Management, Inc.). NMI was the sole general partner of the NORSTAR
Partnership (NORSTAR Energy Limited Partnership), the majority owner of NORSTAR
LLC (NORSTAR Energy Pipeline Company, L.L.C.). The NORSTAR Partnership sold its
accounts receivable, with certain exceptions, and its contracts with customers
and related agreements to mc2 Inc. in 1997, and the winding down of the NORSTAR
Partnership has been substantially completed.
4
<PAGE> 6
MERGER WITH CONSOLIDATED EDISON, INC.
On May 10, 1998, the company, CEI (Consolidated Edison, Inc.) and C
Acquisition Corp., a wholly-owned merger subsidiary of CEI, entered into a
merger agreement providing for a merger transaction among the company, CEI and
the merger subsidiary. Pursuant to the merger agreement, the merger subsidiary
will merge with and into the company, with the company being the surviving
corporation and becoming a wholly-owned subsidiary of CEI.
On June 22, 1998, the company, CEI and CEI's utility subsidiary, Con
Edison (Consolidated Edison Company of New York, Inc.) filed a joint petition
with the NYPSC (New York Public Service Commission) requesting approval of the
merger. The parties have requested regulatory reviews and approvals prior to
March 31, 1999.
In this joint petition, the company reaffirmed its commitment to honor
the provisions of its NYPSC-approved Electric Rate and Restructuring Plan, dated
November 26, 1997. In the divestiture plan the company agreed to divest all of
its electric generating assets and to implement full retail access for all
electric customers by May 1, 1999. Since both the company and Con Edison have
agreed to implement full retail access and have committed to comprehensive
generation divestiture programs, the company and Con Edison in their filing with
the FERC (Federal Energy Regulatory Commission) took the position that the
merger will not have an adverse impact on competition in the electric industry.
On July 2, 1998, RECO and Pike filed similar petitions with the NJBPU
(New Jersey Board of Public Utilities) and the PPUC (Pennsylvania Public Utility
Commission), respectively, for approval of the merger. The proceedings before
the NYPSC, the NJBPU and the PPUC have established schedules that provide for
final decisions by March 31, 1999. The company can give no assurance that any of
the commissions will issue orders by that date or what, if any, conditions such
commissions may impose on such orders.
On January 14, 1999, Pike, the Office of the Consumer Advocate and the
Office of the Small Business Advocate executed a settlement agreement which
allows Pike to retain all merger savings, net of costs to achieve, until its
next electric and gas base rate case. An administrative law judge issued a
recommended decision to the PPUC on February 3, 1999 recommending approval of
the settlement in its entirety. A final PPUC order is expected prior to March
31, 1999.
On September 9, 1998, the company and Con Edison filed an Application
for Approval of Merger and Related Authorizations with the FERC. On January 27,
1999, the FERC issued an order approving the merger consistent with the terms of
the application.
On January 26, 1999, the company and CEI each filed a Notification and
Report Form under the HSR Act (Hart-Scott-Rodino Act of 1976) with the
Department of Justice and the Federal Trade Commission. Under the provisions of
the HSR Act, consummation of the merger is subject to the expiration or earlier
termination of the applicable waiting period.
On February 3, 1999, the company and CEI filed an application with the
SEC seeking approval of the merger under the Public Utility Holding Company Act
of 1935.
The merger is expected to occur shortly after all of the conditions to
the consummation of the merger, including the receipt of all regulatory
approvals, are met or waived. At a special meeting of the common shareholders of
the company held on August 20, 1998, the merger agreement was approved by a vote
of approximately 74% of the common shares entitled to vote.
5
<PAGE> 7
REGULATORY PROCEEDINGS
DIVESTITURE
In accordance with the schedule in the restructuring plan referred to
above, the company filed its final plan for divestiture of all of its electric
generating assets with the NYPSC on February 4, 1998. The plan, which provides
for a two phase auction process, was approved by the NYPSC in orders issued
April 16, 1998 and May 26, 1998. The company retained Donaldson, Lufkin &
Jenrette Securities Corporation to act as its financial advisor in connection
with the divestiture of the generating assets.
Following the review of final bids and negotiations with the winning
bidder, on November 24, 1998, the company entered into four separate ASAs (Asset
Sales Agreements) with subsidiaries of Southern Energy (Southern Energy, Inc.),
a subsidiary of The Southern Company. The sales price for all generating
facilities, including the two-thirds interest in the Bowline Point Generating
Plant owned by Con Edison is approximately $480 million, plus certain fuel
inventory and other adjustments. The company's share of the sales price is
approximately $345 million. The sales are subject to federal and state
regulatory review and approval. The ASAs provide for the closing of the sale to
occur on April 30, 1999, which date may be adjusted depending on the receipt of
regulatory approvals. Under the terms of the ASAs, if approval by the FERC of
the establishment of the ISO (Independent System Operator), as described below,
has not been obtained by the time all other regulatory approvals have been
obtained, the parties have agreed to defer the closing of the sale, but in no
event to a date later than August 31, 1999.
The restructuring plan provides that the New York share of any net book
gains from the divestiture of the generating assets will be shared between the
company's New York customers and shareholders, with shareholders receiving 25
percent of the gain, up to $20 million. The NJBPU has not yet decided how RECO's
share of any gain will be allocated between ratepayers and shareholders.
Pike's settlement will allow shareholders to retain $55,000 of any gain.
The terms of the restructuring plan also permit the company to defer
and recover up to $7.5 million (New York electric share) of prudent and
verifiable non-officer employee costs associated with the divestiture, such as
retraining, outplacement, severance, early retirement and employee retention
programs. 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 restructuring plan provides for the recovery of
all prudent and verifiable costs of the sale.
COMPETITION
Regulatory agencies at the federal level as well as in the three states
in which the company and its utility subsidiaries have retail electric
franchises are currently implementing changes in regulatory and rate-making
practices designed to promote increased competition consistent with safety,
reliability and affordability standards. Depending on ongoing developments in
this area, the company's market share and profit margins will become subject to
competitive pressures in addition to regulatory constraints.
FEDERAL INITIATIVE
On April 24, 1996, the FERC issued its final order (FERC Order 888)
requiring electric utilities to file nondiscriminatory open access transmission
tariffs that would be available to wholesale sellers and buyers of electric
energy. The order also provided for the recovery of related legitimate and
verifiable strandable costs subject to the FERC's jurisdiction. The company's
open access transmission tariff, as originally filed with the FERC on July 9,
1996 and amended through August 1997, offers transmission service and certain
ancillary services to wholesale customers on a basis that is comparable to that
which it provides itself. The company is operating under the filed tariff,
subject to refund, pending final FERC approval of the company's filing. The
company participates in the wholesale electric market primarily as a buyer of
energy and, as a result, Order 888 is not expected to materially impact the
company's financial condition or results of operations.
On January 31, 1997, the company, in conjunction with the other members
of the NYPP (New York Power Pool), filed tariffs with the FERC seeking
permission to restructure the NYPP into an ISO. On December 19, 1997,
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the company and the other members of the NYPP made a supplemental filing with
the FERC which provides for a revised ISO governance structure. In an order
dated January 27, 1999, the FERC conditionally accepted the proposed ISO tariff
and the proposed market rules of the ISO. The order requires substantial
modifications to the proposed ISO tariff, including separation of the
transmission tariff from the rate schedules that govern non-transmission
functions. The NYPP members must submit a revised monitoring program to identify
both the exercise of market power and market design flaws. The FERC also set a
hearing to consider certain rate issues and noted that an application pursuant
to Section 203 of the Federal Power Act requesting transfer of control of all
necessary facilities from the NYPP members to the ISO must be submitted to and
approved by the FERC. The NYPP members filed such Section 203 application with
the FERC on February 5, 1999. The company is unable to predict when the ISO will
become operational.
NEW YORK COMPETITIVE OPPORTUNITIES PROCEEDING--ELECTRIC
The restructuring plan, in addition to providing for divestiture of the
company's electric generating facilities, as discussed above, provides that full
retail access to a competitive energy and capacity market will be available for
all customers by May 1, 1999.
The restructuring plan also provides for electric price reductions of
approximately $32.4 million over its four-year term and for recovery, through a
CTC (Competitive Transition Charge), of above-market generation costs should the
transfer of title to the company's generating assets not occur before May 1,
1999. 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 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 title to the generating assets is
transferred. The CTC does not allow for the recovery of inflationary increases
in non-fuel operating and maintenance 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.
In addition, the restructuring plan permits the company to retain all
earnings up to an 11.4% return on equity and provides 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 also provides a schedule for the submission of
comments by the company, the staff of the New York State Department of Public
Service and other interested parties to the NYPSC on the degree and timing of
introducing competition in metering and billing services. The NYPSC initiated
proceedings in these areas during 1998. The company cannot predict at this time
the ultimate outcome of the proceedings or their effect, if any, on the
company's consolidated financial position or results of operations.
Settlement agreements providing for the implementation of unbundled
rates which separate the components of existing tariffs into production,
transmission, distribution and customer cost categories effective May 1, 1999,
were reached on August 13 and September 18, 1998 between the company, the NYPSC
staff and other interested parties. By orders dated February 4, 1999, the NYPSC
approved the settlement agreements with minor modifications.
NEW YORK COMPETITIVE OPPORTUNITIES PROCEEDING--GAS
In 1996, the NYPSC approved utility restructuring plans designed to
open up the local natural gas market to competition and allow residential and
small commercial users the ability to purchase gas supplies from a variety of
sources, other than the franchised local distribution utility. On November 3,
1998, the NYPSC issued a Policy Statement Concerning the Future of the Natural
Gas Industry in New York State and Order Terminating Capacity Assignment (Case
97-G-1380). In accordance with the policy statement, the company ceased
requiring transportation customers to utilize its upstream capacity as of
October 1, 1998. As of December 31, 1998, the company has not incurred any
stranded costs related to its upstream pipeline capacity. As the company moves
to a competitive market, traditional cost recovery mechanisms may be replaced by
market-based methods. It is not
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possible to predict the outcome of this proceeding or its effect on the
company's consolidated financial position or results of operations.
Additional information concerning regulatory proceedings relating to
the company and its utility subsidiaries is contained in the documents
incorporated by reference into this prospectus.
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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. The company's financial statements for the years ended
December 31, 1997 and 1996 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 nine months ended September
30, 1998 and 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>
Nine Months
Ended September 30, Years Ended December 31,
----------------------------- ------------------------------
1998 1997(1) 1997(1) 1996(1)
----------- ----------- ----------- -----------
(unaudited) (unaudited)
(Dollars in thousands)
<S> <C> <C> <C> <C>
Selected Income Statement Data:
- -------------------------------
Operating Revenues $ 476,748 $ 482,241 $ 648,774 $ 654,890
Operating Income $ 61,096 $ 58,204 $ 76,997 $ 82,644
Net Income:
Continuing Operations $ 37,329 $ 33,921 $ 44,938 $ 48,147
Discontinued Operations $ -- $ (15,432) $ (15,432) $ (1,844)
Total $ 37,329 $ 18,489 $ 29,506 $ 46,303
Earnings Applicable to Common Stock $ 35,069 $ 16,390 $ 26,706 $ 43,279
Selected Balance Sheet Data:
- ----------------------------
Total Assets $ 1,294,263 $ 1,271,019 $ 1,288,009 $ 1,266,132
Total Long-Term Debt $ 356,676 $ 354,680 $ 356,676 $ 359,825
Common Stock Equity $ 382,010 $ 377,819 $ 376,319 $ 387,850
Other Data:
- -----------
Electric Customers 273,329 269,059 269,096 266,022
Gas Customers 115,788 113,886 114,400 113,126
Ratio of Earnings to Fixed Charges (2) 3.16 2.99 2.93 3.20
</TABLE>
(1) Effective August 1, 1997, the accounts receivable, with certain
exceptions, and contracts with customers and related agreements of the
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 the NORSTAR
Partnership as "Discontinued Operations," and the results of 1996 and
1995 have been restated to conform with the current period
classifications. Additional information regarding the NORSTAR
Partnership is included in the company's Annual Report to the Commission
on Form 10-K for the year ended December 31, 1997, which information is
incorporated by reference in this document.
(2) The ratio of earnings to fixed charges for the years ended December 31,
1995, 1994 and 1993 were 2.75, 2.62 and 2.88, respectively. Ratios for
1993 and 1994 have been calculated on a historical basis and have not
been restated to reflect discontinued operations of the NORSTAR
Partnership. 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.
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USE OF PROCEEDS
We will use the net proceeds from the sale of the debentures to redeem
all of our outstanding preferred stock and preference stock, of which 428,443
shares and 10,684 shares, respectively, are outstanding at December 31, 1998,
with an aggregate liquidation preference of approximately $43,192,000. The
dividend rates on our preferred and preference stock range from 4% to 8%. We
will use remaining proceeds to refinance permanently outstanding short-term
debt.
PLAN OF DISTRIBUTION
The company is conducting a competitive bidding for the sale of the
debentures. Under the terms and subject to the conditions contained in the bid
and the terms of purchase (together, the purchase agreement) between the company
and the purchasers, the purchasers will agree severally to purchase, and the
company will agree to sell to the purchasers, the debentures.
DESCRIPTION OF DEBENTURES
The 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 four supplemental indentures, and by a fifth supplemental
indenture, to be dated as of March 1, 1999, relating to the debentures
(collectively, the "Indenture," which term includes all amendments and
supplements from time to time). The statements herein concerning the 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 title of the debentures shall be " % Debentures Due 2029 (Series
G)." The debentures will be issued in a single series and will be limited to
$45,000,000 in aggregate principal amount.
The debentures will mature on March 1, 2029 and will bear interest from
the date of original issuance at the rate of % per annum payable on March 1
and September 1 of each year, commencing September 1, 1999, until maturity.
REDEMPTION
The 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.
The company may not redeem the debentures for the first ten years, but
may do so on March 1, 2009 or at any time thereafter. The debentures will be
redeemable prior to maturity, at the option of the company, as a whole at any
time or in part from time to time, on notice given as provided in the Indenture,
at the principal amount thereof and accrued interest to the date fixed for
redemption, together with a premium equal to a percentage of the principal
amount thereof, determined as set forth below.
<TABLE>
If redeemed If redeemed If redeemed
during the during the during the
12 months' 12 months' 12 months'
period ending period ending period ending
____________, Premium ____________, Premium ___________, Premium
<S> <C> <C> <C> <C> <C>
2010 .......... % 2017 .......... % 2024 .......... %
2011 .......... % 2018 .......... % 2025 .......... %
2012 .......... % 2019 .......... % 2026 .......... %
2013 .......... % 2020 .......... % 2027 .......... %
2014 .......... % 2021 .......... % 2028 .......... %
2015 .......... % 2022 .......... % 2029 .......... 0.00%
2016 .......... % 2023 .......... %
</TABLE>
There is no sinking fund for the debentures.
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
10
<PAGE> 12
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. (Section 4.7, as amended by Section 2.01 of the second supplemental
indenture)
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 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. In the case of any such sale or transfer, the company will thereupon
be released from its liability as obligor on the debentures. (Section 11.2)
DELIVERY AND FORM
The debentures will be issued in fully-registered form without coupons.
See "--Book-Entry, Delivery and Form." The debentures will be issued only in
denominations of $1,000 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 debentures, reduce the principal amount or the amount
of any premium payable thereon, reduce the rate, extend the time of 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:
- default in the payment of the principal of (or premium, if any,
on) any debentures of such series when and as the same shall be due
and payable;
- 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;
- default for 30 days in the payment of any installment of interest on
any debentures of such series;
- 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;
11
<PAGE> 13
- 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
- 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)
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)
On or before May 1 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 debenture certificates are required to be printed and
delivered as described under "--Book-Entry, Delivery and Form," principal,
premium, if any, and interest on 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 debentures are registered at the close of business
on the February 15 or the August 15 next preceding the relevant interest payment
date. (Sections 3.8 and 4.1)
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)
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The company may, at its option, at any time, elect to have all
obligations discharged with respect to the Outstanding 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
debentures, except for:
- the rights of holders of Outstanding debentures to receive payments in
respect of the principal of and interest on the debentures when such
payments are due;
12
<PAGE> 14
- the company's obligations with respect to the debentures concerning
issuing temporary debentures, registration of debentures, mutilated,
destroyed, lost or stolen debentures and the maintenance of an office
or agency for payment and money for security payments held in trust;
- the rights, powers, trust, duties and immunities of the Trustee, and
the company's obligations in connection therewith; and
- the Legal Defeasance provisions of the fifth supplemental indenture.
In addition, the company may, at its option at any time, 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 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 debentures.
In order to exercise either Legal Defeasance or Covenant Defeasance:
- the company must irrevocably deposit with the Trustee, in trust, for
the benefit of the holders of the 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
debentures on the earlier of stated maturity or the date that the
debentures have been irrevocably called for redemption on or after
March 1, 2009;
- 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 fifth 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 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;
- in the case of Covenant Defeasance, the company shall have delivered to
the Trustee an Opinion of Counsel confirming that the holders of such
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;
- 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;
- 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;
- 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 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
13
<PAGE> 15
- 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 two indentures 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 Depository Trust Company ("DTC") will act as securities depository
for the debentures. The debentures will be issued as fully- registered
securities registered in the name of Cede & Co. (DTC's partnership nominee). One
fully- registered Global Debenture will be issued for the debentures in the
aggregate principal amount of such issue and will be deposited with DTC.
DTC 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 Exchange Act. DTC
holds securities that its participants (the "Participants") deposit with DTC.
DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of debentures. The "Direct
Participants" include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC 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 DTC'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 DTC and its
Participants are on file with the Commission.
Purchases of debentures under DTC's system must be made by or through
Direct Participants, who will receive a credit for the debentures on DTC's
records. The ownership interest of each actual purchaser of each Debenture (the
"Beneficial Owners") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the debentures are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in debentures,
except in the event that use of the book-entry system for the debentures is
discontinued.
To facilitate subsequent transfers, all debentures deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of debentures with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the debentures; DTC's records reflect only the
identity of the Direct Participants to whose accounts such 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 DTC 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.
14
<PAGE> 16
Redemption notices shall be sent to DTC. If less than all of the
debentures within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to
debentures. Under its usual procedures, DTC 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 debentures are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
Principal, premium, if any, and interest payments on the debentures
will be made to Cede & Co., as nominee of DTC. DTC's practice is to credit
Direct Participants' accounts upon DTC's receipt of funds and corresponding
detail information from the company or the Trustee on the payable date in
accordance with their respective holdings shown on DTC's records. 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 DTC, the Trustee, or the company,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of principal, premium, if any, and interest to Cede & Co.
is the responsibility of the company or the Trustee, disbursement of such
payments to Direct Participants shall be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository
with respect to the debentures at any time by giving reasonable notice to the
company or the Trustee. Under such circumstances, in the event that a successor
securities depository 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 DTC (or a successor securities depository). In that event,
Debenture certificates will be printed and delivered.
The information in this section concerning DTC and DTC'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.
15
<PAGE> 17
LEGAL MATTERS
Winthrop, Stimson, Putnam & Roberts will issue an opinion about the
validity of the debentures for us. Thelen Reid & Priest LLP will issue an
opinion about the validity of the debentures for the purchasers. Thelen Reid &
Priest LLP has represented the company for many years with respect to certain
tax matters.
EXPERTS
The consolidated financial statements and related financial statement
schedule 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.
16
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a list of the expenses the company expects to pay in
connection with the issuance and distribution of the debentures registered
hereby:
<TABLE>
<CAPTION>
ESTIMATED
AMOUNT
CATEGORY OF EXPENSE OF EXPENSE
<S> <C>
Filing and Registration Fees................................ $ 12,510
Legal Fees and Expenses*.................................... 110,000
Cost of Printing*........................................... 20,000
Accounting Fees and Expenses*............................... 35,000
Rating Agency Fees*......................................... 20,000
Blue Sky Fees and Expenses*................................. 1,500
--------
Miscellaneous Expenses*..................................... 25,990
========
*Total............................................. $225,000
========
</TABLE>
- ------------------------
* Estimated.
ITEM 15. 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> 19
<TABLE>
<CAPTION>
ITEM 16. EXHIBITS.
Exhibit
Number Description
------ -----------
<S> <C> <C>
1 Form of Bid and Form of Terms of Purchase
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 Form of Debentures (included in Exhibit 4.7 below)
4.3 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)
4.4 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)
4.5 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)
4.6 Fourth Supplemental Indenture dated as of December 1, 1997
(incorporated by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S-4 filed on January 9, 1998, File
No. 333-43953)
4.7 Form of Fifth Supplemental Indenture dated as
of March 1, 1999
5 Opinion of Winthrop, Stimson, Putnam & Roberts
12 Statements Regarding Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Winthrop, Stimson, Putnam & Roberts (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Powers of Attorney
25 Statement of Eligibility under the Trust Indenture Act of 1939 of The
Bank of New York, as Trustee under the Indenture between the Company
and The Bank of New York, on Form T-1
26.1 Form of Statement of Terms and Conditions Relating to Bids
26.2 Form of Notice of Sale
</TABLE>
II-2
<PAGE> 20
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) to use its best efforts to distribute prior to the opening
of bids, to prospective bidders, underwriters, and dealers, a
reasonable number of copies of a prospectus which at that time meets
the requirements of section 10(a) of the Act, and relating to the
securities offered at competitive bidding, as contained in the
registration statement, together with any supplements thereto, and
(2) to file an amendment to the registration statement
reflecting the results of bidding, the terms of the reoffering and
related matters to the extent required by the applicable form, not
later than the first use, authorized by the issuer after the opening of
bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the
issuer and no reoffering of such securities by the purchasers is
proposed to be made.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement 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 be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15, 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 Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon the Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be a part of this
registration statement as of the time it was declared effective.
(e) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities as that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 21
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-3 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 12th day of
February, 1999.
ORANGE AND ROCKLAND UTILITIES, INC.
(Registrant)
By: /s/ R. Lee Haney
------------------------------------------
(R. Lee Haney, Senior Vice President and
Chief Financial 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;
/s/ D. Louis Peoples * Director
- -------------------------------------------------------
(D. Louis Peoples, Vice Chairman of the Board of
Directors and Chief Executive Officer)
/s/ R. Lee Haney Chief Financial Officer February 12, 1999
- -------------------------------------------------------
(R. Lee Haney, Senior Vice President and Chief
Financial Officer)
Controller, Chief February 12, 1999
/s/ Edward M. McKenna Accounting Officer
- -------------------------------------------------------
(Edward M. McKenna, Controller, Chief Accounting
Officer)
/s/ Michael J. Del Giudice * Director
- -------------------------------------------------------
(Michael J. Del Giudice, Chairman of the Board of
Directors)
/s/ Ralph M. Baruch * Director
- -------------------------------------------------------
(Ralph M. Baruch)
/s/ J. Fletcher Creamer * Director
- -------------------------------------------------------
(J. Fletcher Creamer)
/s/ Jon F. Hanson * Director
- -------------------------------------------------------
(Jon F. Hanson)
/s/ Kenneth D. McPherson * Director
- -------------------------------------------------------
(Kenneth D. McPherson)
/s/ Robert E. Mulcahy III * Director
- -------------------------------------------------------
(Robert E. Mulcahy III)
</TABLE>
II-4
<PAGE> 22
<TABLE>
<CAPTION>
Capacity in
Signature Which Signing Date
--------- ------------- ----
<S> <C> <C>
/s/ James F. O'Grady, Jr. * Director
- -------------------------------------------------------
(James F. O'Grady, Jr.)
/s/ Linda C. Taliaferro * Director
- -------------------------------------------------------
(Linda C. Taliaferro)
*By /s/ G. D. Caliendo February 12, 1999
-------------------------------------------
G. D. Caliendo
Attorney-in-fact
</TABLE>
II-5
<PAGE> 23
FORM S-3
ORANGE AND ROCKLAND UTILITIES, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Pages
<S> <C> <C>
1 Form of Bid and Form of Terms of Purchase
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 Form of Debentures (included in Exhibit 4.7 below)
4.3 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)
4.4 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)
4.5 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)
4.6 Fourth Supplemental Indenture dated as of December 1, 1997
(incorporated by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S-4 filed on January 9, 1998, File
No. 333-43953)
4.7 Form of Fifth Supplemental Indenture dated as
of March 1, 1999
5 Opinion of Winthrop, Stimson, Putnam & Roberts
12 Statements Regarding Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Winthrop, Stimson, Putnam & Roberts (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Powers of Attorney
25 Statement of Eligibility under the Trust Indenture Act of 1939 of The
Bank of New York, as Trustee under the Indenture between the Company
and The Bank of New York, on Form T-1
26.1 Form of Statement of Terms and Conditions Relating to Bids
26.2 Form of Notice of Sale
</TABLE>
II-6
<PAGE> 1
EXHIBIT 1
ORANGE AND ROCKLAND UTILITIES, INC.
FORM OF BID
$45,000,000
______% DEBENTURES DUE 2029 (SERIES G)
INTEREST RATE: _____% [(MULTIPLE OF 1/8 OR 1/20 OF 1%)]
PRICE: _____% [(NOT LESS THAN 98% NOR MORE THAN 100%)]
TRUE INTEREST COST: _____% [(FOR INFORMATIONAL PURPOSES ONLY)]
NOTE: PRICE TO PUBLIC MAY NOT EXCEED 100%, PLUS ACCRUED INTEREST.
[ ], 1999
ORANGE AND ROCKLAND UTILITIES, INC.
c/o Winthrop, Stimson, Putnam & Roberts
Attention: Michael F. Cusick
One Battery Park Plaza
New York, NY 10004-1490
Fax: 212-858-1500
Ladies and Gentlemen:
Referring to the Notice of Sale (the "Notice of Sale"), dated
[ ], 1999, inviting bids for the purchase of $45,000,000 aggregate
principal amount of % Debentures Due 2029 (Series G) (the "Debentures") of
Orange and Rockland Utilities, Inc. (the "Company"), and subject to the
Statement of Terms and Conditions Relating to Bids, of the same date (the
"Statement of Terms and Conditions"), the persons, firms or corporations (or the
person, firm or corporation) named in the attached Schedule A (the "Bidders")
submit the following bid for the purchase of the Debentures:
<PAGE> 2
1. The stated interest rate to be borne by the Debentures and the price
(stated as a percentage of the principal amount) to be paid to the Company for
the Debentures shall be as set forth above; and the Bidders, severally and not
jointly, hereby offer to purchase the Debentures from the Company at such price,
upon the terms and conditions set forth in the Terms of Purchase annexed hereto
in the aggregate principal amount set forth opposite its name in Schedule A
attached hereto.
2. If this bid is accepted by the Company, the annexed Terms of
Purchase shall become effective without any separate execution thereof; the
accepted bid and the Terms of Purchase, together, shall constitute the agreement
between the Company and the Bidders; and all rights of the Company and the
Bidders shall be determined solely in accordance with the terms thereof,
subject, however, to such modifications therein as may be necessary and as are
contemplated by the Statement of Terms and Conditions.
3. The Bidders agree that (a) their offer included in this bid shall be
irrevocable until 12:00 Noon, New York Time, on the date fixed for the
presentation hereof, unless such bid is sooner returned or rejected by the
Company; and (b) if this bid shall be accepted they will forthwith furnish to
the Company the information with respect to the public offering, if any, of the
Debentures which is required to complete the prospectus dated , 1999
relating to the Debentures (the "Bidding Prospectus"). The Bidders specifically
agree that the initial price to the public may not exceed 100% of the principal
amount of the Debentures, plus accrued interest.
4. The Notice of Sale is not intended as a disclosure document and
Bidders are required to obtain and carefully review the Bidding Prospectus
before submitting a bid.
5. This bid shall be deemed rejected by the Company if it shall not
have been accepted by the Company by 12:00 Noon, New York Time, on the date
fixed for the presentation thereof.
6. The validity and interpretation of this bid shall be governed by the
laws of the State of New York.
7. Each of the Bidders acknowledges receipt of a copy of the Bidding
Prospectus relating to the Debentures referred to in the Notice of Sale.
8. Each Bidder has provided, for informational purposes only, the "true
interest cost" of its bid calculated in accordance with Paragraph 3 of the
Statement of Terms and Conditions but acknowledges that the Company's
calculation of the "true interest cost" shall be final.
2
<PAGE> 3
9. The undersigned hereby represents that it or they have been
authorized by the Bidders to sign this bid on their behalf and to act for them
in the manner provided herein, in the Statement of Terms and Conditions and in
the Terms of Purchase annexed hereto.
Very truly yours,
Representative
_____________________________________
By: _________________________________
Name:
Title:
Address:
Accepted:
Orange and Rockland Utilities, Inc.
By: _________________________________
THIS FORM OF BID MUST BE SIGNED AND SUBMITTED WITH THE ATTACHED SCHEDULE A
COMPLETED.
3
<PAGE> 4
SCHEDULE A
PURCHASERS PRINCIPAL AMOUNT OF DEBENTURES
4
<PAGE> 5
Exhibit 1
ORANGE AND ROCKLAND UTILITIES, INC.
______________________________
TERMS OF PURCHASE
(to be attached to Form of Bid)
1. PURCHASERS AND REPRESENTATIVE. If there shall be two or more
persons, firms or corporations named in Schedule A to the attached Form of Bid
(the "BID"), the term "PURCHASERS," as used in the Purchase Agreement (as
hereinafter defined), shall be deemed to mean the persons, firms or corporations
so named (including the Representative hereinafter mentioned), and the term
"REPRESENTATIVE," as used in the Purchase Agreement, shall be deemed to mean the
representative or representatives by whom or on whose behalf the Bid has been
signed. Except as otherwise specified in the Purchase Agreement, all obligations
of the Purchasers hereunder are several. If there shall be only one person, firm
or corporation named in said Schedule A, the term "Purchasers" and the term
"Representative," as used in the Purchase Agreement, shall mean such person,
firm or corporation.
2. BACKGROUND. (a) Orange and Rockland Utilities, Inc., a New York
corporation (the "COMPANY"), proposes to issue and sell to the Purchasers an
aggregate of $45,000,000 in principal amount of its % Debentures Due 2029
(Series G) (the "DEBENTURES") subject to the terms and conditions set forth
herein and in the Bid, which together shall constitute the purchase agreement
(the "PURCHASE AGREEMENT"). The Debentures will be issued pursuant to
resolutions adopted by the Company on November 5, 1998 and February 4, 1999 (the
"RESOLUTIONS"), and issued pursuant to the provisions of an Indenture, dated as
of March 1, 1990, as amended and supplemented by 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, the Fourth Supplemental Indenture, dated as of December 1, 1997 and as to
be further supplemented by a Fifth Supplemental Indenture to be dated as of
March 1, 1999 relating to the Debentures, between the Company and The Bank of
New York, as trustee (the "TRUSTEE") (such Indenture, as so supplemented, the
"INDENTURE").
(b) Any reference in the Purchase Agreement to the Registration
Statement, the Bidding Prospectus or the Final Prospectus (all as hereinafter
defined) shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed by the
Company under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Bidding Prospectus or the Final
Prospectus, as the case may be; and any reference in the Purchase Agreement to
the terms "amend," "amendment"
1
<PAGE> 6
or "supplement" with respect to the Registration Statement, the Bidding
Prospectus or the Final Prospectus shall be deemed to refer to and include the
filing by the Company of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Bidding Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference.
3. AGREEMENTS TO SELL AND PURCHASE. On the terms and subject to the
conditions of the Purchase Agreement, and in reliance on the representations,
warranties and covenants in the Purchase Agreement from the Company to the
Purchasers, each Purchaser will severally buy from the Company, and the Company
will sell to such Purchaser, the principal amount of the Debentures set forth
opposite the name of such Purchaser in Schedule A to the Bid. The purchase
price of the Debentures will be the price set forth in the Bid (the "PURCHASE
PRICE") and shall be payable in immediately available funds.
4. DELIVERY AND PAYMENT. (a) Delivery of, and payment of the Purchase
Price for, the Debentures shall be made at the offices of Winthrop, Stimson,
Putnam & Roberts, One Battery Park Plaza, New York, New York 10004, or such
other location as may be mutually acceptable. Such delivery and payment shall
be made at 10:00 a.m. New York City Time, on [ ], 1999 or at such other
time as shall be at agreed upon by the Representative and the Company. The time
and date of such delivery and the payment are herein called the "CLOSING DATE."
(b) One or more of the Debentures in definitive global form,
registered in the name of Cede & Co., as nominee of The Depository Trust Company
("DTC"), having an aggregate principal amount equal to the aggregate principal
amount of the Debentures (collectively, the "GLOBAL DEBENTURE"), shall be
delivered by the Company to the Purchasers (or as the Purchasers direct).
5. AGREEMENTS OF THE COMPANY. The Company hereby agrees with the
Purchasers as follows:
(a) Prior to the termination of the offering of the Debentures, the
Company will not file any amendment to the Registration Statement or supplement
to the Bidding Prospectus or the Final Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished the Representative a
copy for review by the Purchasers prior to filing. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly completed, to be
filed with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Purchasers of such timely filing. The Company will promptly advise the
Purchasers (i) when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to termination of the
offering of the Debentures, any amendment to the Registration Statement shall
have been filed or become effective, (iii) of any request by the Commission or
its staff for any amendment of the Registration Statement or for any supplement
to the Final Prospectus or of any additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Debentures for sale in any
6
<PAGE> 7
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Debentures is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any 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, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will (i)
prepare and file with the Commission, subject to the first sentence of paragraph
(a) of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and (ii) supply any supplemented
Final Prospectus to the Purchasers in such quantities as the Representative may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders an earning statement or statements of the
Company and its subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Purchasers and counsel for the
Purchasers, without charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus by a Purchaser or
dealer may be required by the Act, as many copies of the Final Prospectus and
any supplement thereto as the Purchasers may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Debentures for sale under the laws of such jurisdictions as the
Representative may designate, will maintain such qualifications in effect so
long as required for the distribution of the Debentures; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Debentures, in any jurisdiction where it is not now so
subject.
(f) Whether or not the transactions contemplated in the Purchase
Agreement are consummated or the Purchase Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of the obligations of
the Company under the Purchase Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and accountants of the Company in
connection with the sale and delivery of the Debentures to the Purchasers and
all other fees and expenses in connection with the preparation, printing and
distribution of the Registration Statement, the Bidding Prospectus and the Final
Prospectus and all amendments and supplements to any of the foregoing (including
financial statements) specified in Section 5(b), (ii) all costs and expenses
related to the delivery of the Debentures to the Purchasers, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing the Purchase Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the Debentures,
(iv) all expenses in connection with the registration or qualification of the
Debentures for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any preliminary and
supplemental Blue Sky
7
<PAGE> 8
memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Purchasers in connection with such registration
or qualification and memoranda relating thereto not to exceed $1,500), (v) the
fees and expenses of the Trustee and the Trustee's counsel in connection with
the Indenture and the Debentures, (vi) the costs and charges of any transfer
agent, registrar and/or depositary (including DTC), (vii) any fees charged by
rating agencies for the rating of the Debentures, and (viii) and all other costs
and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section.
(g) To obtain the approval of DTC for "book-entry" transfer of the
Debentures, and to comply with all of its agreements set forth in the
representation letter of the Company to DTC relating to the approval of the
Debentures by DTC for "book-entry" transfer.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities of the Company or any
warrants, rights or options to purchase or otherwise acquire debt securities of
the Company substantially similar to the Debentures (other than (i) the
Debentures and (ii) commercial paper and notes payable to banks issued in the
ordinary course of business), without the prior written consent of the
Purchasers.
(i) To furnish the Purchasers with copies of all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act subsequent to the time the Registration Statement becomes
effective and prior to the termination of the offering of the Debentures.
(j) So long as may be required by law for the distribution of the
Debentures by the Purchasers, the Company will comply with all requirements
under the Exchange Act relating to the timely filing with the Commission of its
reports pursuant to Section 13 of the Exchange Act and of its proxy statements
pursuant to Section 14 of the Exchange Act.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under the Purchase Agreement by it prior to
the Closing Date and to satisfy all conditions precedent to the delivery of the
Debentures.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As of the
date of the Purchase Agreement, the Company represents and warrants to, and
agrees with the Purchasers that:
(a) The Company meets the requirements for the use of Form S-3 under
the Act and has filed with the Commission a registration statement (file number
333-[ ]) on such form (the "REGISTRATION STATEMENT"), including a form of
prospectus, for registration under the Act of the Debentures. The Company may
have filed one or more amendments thereto each of which has previously been
furnished to the Purchasers. The Registration Statement has become effective and
no stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purposes are pending before or, to the
knowledge of the Company, threatened by the Commission. The prospectus contained
in the Registration Statement when it became effective, is herein referred to
as the "BIDDING PROSPECTUS." The Company will next file with the Commission a
final prospectus (the "FINAL PROSPECTUS") relating to the Debentures in
accordance with Rules 430A and 424(b). The Company has included in the
Registration Statement as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As filed, the
Final Prospectus shall contain all Rule 430A Information, together with all
other such required information.
(b) On the Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed in accordance with Rule 424(b) and on the
Closing Date, the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective Date, the
Registration Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act and the rules thereunder; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the
8
<PAGE> 9
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in the Purchase Agreement or
in writing to the Company by or on behalf of any Purchasers through the
Representative specifically for inclusion the Final Prospectus (or any
supplement thereto).
(c) Each of the Company and its subsidiaries has been duly incorporated
or organized, is validly existing in good standing under the laws of its
jurisdiction of incorporation or organization and has the power and authority to
carry on its business as described in the Final Prospectus and the Registration
Statement and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(d) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been validly executed and delivered by the Company.
When the Indenture has been duly executed and delivered by the Company, and
assuming it has been duly executed by, and constitutes the valid, binding and
enforceable agreement of, the Trustee, the Indenture will be a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as may be limited by (i) bankruptcy, insolvency, fraudulent
conveyance, moratorium or similar laws affecting creditors' rights generally,
(ii) equitable principles of general applicability and (iii) any implied
covenant of good faith and fair dealing. On the Closing Date, the Indenture will
have been duly qualified under the Trust Indenture Act.
(f) The Debentures have been duly authorized and, on the Closing Date,
will have been validly executed and delivered by the Company. When the
Debentures have been issued, executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Purchasers in
accordance with the terms of the Purchase Agreement, the Debentures will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms except as
may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, moratorium
or similar laws affecting creditors' rights generally, (ii) equitable principles
of general applicability and (iii) any implied covenant of good faith and fair
dealing. On the Closing Date, the Debentures will conform as to legal matters
to the description thereof contained in the Final Prospectus.
(g) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or in default in the performance of any
obligation, agreement,
9
<PAGE> 10
covenant or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound except for violations or defaults which
would not, in the aggregate, have a Material Adverse Effect.
(h) The execution, delivery and performance of the Purchase Agreement and
the Indenture by the Company, compliance by the Company with all provisions
hereof and thereof and the consummation of the transactions contemplated hereby
and thereby will not (i) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of the
Company or any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company, to which the Company is a party or
by which the Company or its property is bound, (ii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any court
or any governmental body or agency having jurisdiction over the Company, or its
property, or (iii) result in the imposition or creation of (or the obligation to
create or impose) a lien under, any agreement or instrument to which the Company
is a party or by which the Company or any of its properties is bound.
(i) An appropriate order or orders have been entered by the New York
Public Service Commission ("NYPSC"), authorizing the issuance and sale of the
Debentures; said order or orders are in full force and effect and are not
subject to any pending appeal or request for rehearing or reconsideration; such
order or orders are sufficient to authorize the issuance and sale of the
Debentures by the Company pursuant to the Purchase Agreement; and no further
approval, authorization, consent or other order of any governmental body (other
than in connection or compliance with the provisions of the securities or "blue
sky" laws of any jurisdiction) is legally required to permit the issuance and
sale of the Debentures by the Company pursuant to the Purchase Agreement.
(j) The Company and its subsidiaries are exempt from the provisions of
the Public Utility Holding Company Act of 1935, except for the provisions of
Section 9(a)(2) thereof.
(k) Except as disclosed in the Final Prospectus, there are no legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is or could be a party or to which any of their respective
property is or could be subject, which might result, singly or in the aggregate,
in a Material Adverse Effect.
(l) The accountants, Arthur Andersen LLP, that have certified the
financial statements incorporated by reference in the Final Prospectus and the
Registration Statement are independent public accountants with respect to the
Company, as required by the Act and the Exchange Act. The historical financial
statements, together with related notes, incorporated by reference in the Final
Prospectus and the Registration Statement comply as to form in all material
respects with the requirements applicable to registration statements on Form S-3
under the Act.
(m) The historical financial statements, together with related schedules
and notes incorporated by reference in the Final Prospectus and the Registration
Statement (and any
10
<PAGE> 11
amendment or supplement thereto), comply as to form in all material respects
with the requirements of the Act and present fairly the consolidated financial
position, results of operations and consolidated cash flow of the Company and
its subsidiaries on the basis stated in the Final Prospectus and the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Final Prospectus and the Registration Statement (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(n) Since the respective dates as of which information is given in the
Registration Statement, the Bidding Prospectus or the Final Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date of
the Purchase Agreement), (i) there has not occurred any material adverse change
in the condition, financial or otherwise, or the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, (ii) there has
not been any material adverse change in the capital stock or in the long-term
debt of the Company or any of its subsidiaries and (iii) neither the Company nor
any of its subsidiaries has incurred any material liability or obligation,
direct or contingent.
(o) Each certificate signed by an officer of the Company and delivered to
the Purchasers or counsel for the Purchasers shall be deemed to be a
representation and warranty by the Company to the Purchasers as to the matters
covered thereby.
(p) The documents incorporated by reference in the Registration
Statement, the Bidding Prospectus and the Final Prospectus, when they were filed
(or, if an amendment with respect to any such document was filed, when such
amendment was filed) with the Commission, complied in all material respects with
the applicable requirements of the Exchange Act and the rules thereunder, and
any further documents so filed and incorporated by reference will, when they are
filed with the Commission, comply in all material respects with the applicable
requirements of the Exchange Act and the rules thereunder. None of such
documents, when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and no such further
document, when it is filed, will contain any untrue statement of a material
fact or will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
The Company acknowledges that the Purchasers and, for purposes of the
opinions to be delivered to the Purchasers pursuant to Section 8 hereof, counsel
to the Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Purchaser, its directors, its officers and each person, if any,
who controls such Purchasers 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 and 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 the Registration Statement, the
Bidding Prospectus or the Final Prospectus (or any amendment of supplement
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, 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 Purchaser furnished in writing to the Company by any
Purchaser.
(b) Each of the Purchasers, 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 the Purchasers but only with reference to
information relating to such Purchaser furnished in writing to the Company by
such Purchaser expressly for use in the Registration Statement, the Bidding
Prospectus or the Final Prospectus.
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<PAGE> 12
(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 party") 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 reasonable 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 7(a) and 7(b), the Purchasers shall not be
required to assume the defense of such action pursuant to this Section 7(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 such Purchaser). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the reasonable 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 reasonable 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 the Representative, in
the case of the parties indemnified pursuant to Section 7(a), and by the
Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action effected with its written consent. 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 a failure to
act. by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7
is unavailable to an indemnified party or insufficient 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 and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and each Purchaser on the other hand from the offering
of the Debentures or (ii) if the allocation provided by clause 7(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to
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<PAGE> 13
reflect not only the relative benefits referred to in clause 7(d)(i) above but
also the relative fault of the Company, on the one hand, and each Purchaser, 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 benefits received by the
Company, on the one hand, and each Purchaser, on the other hand, shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Debentures (before deducting expenses) received by the Company, and the total
discounts and commissions received by each Purchaser bear to the total price to
investors of the Debentures, in each case as set forth in the table on the cover
page of the Final Prospectus. The relative fault of the Company. on the one
hand, and each Purchaser, 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 such
Purchaser, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Purchasers 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 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. 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 Purchasers'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective principal amount of Debentures purchased by each of
the Purchasers hereunder and not joint.
8. CONDITIONS OF PURCHASERS' OBLIGATIONS. The obligations of the
Purchasers to purchase the Debentures under the Purchase Agreement are subject
to the satisfaction of each of the following conditions:
(a) The Final Prospectus shall have been filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) All the representations and warranties of the Company contained
in the Purchase Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. At or prior to
the Closing Date, the Company shall have performed or complied with all of its
obligations and agreements contained in the Purchase Agreement and required to
be performed or complied with by it at or prior to the Closing Date.
(c) On or after the date of the Purchase Agreement, (i) there shall
not have occurred any downgrading, suspension or withdrawal of, nor shall any
notice have been given of
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<PAGE> 14
any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Act and (ii) there shall not have occurred any
change, nor shall notice have been given of any potential or intended change, in
the outlook for any rating of the Company by any such rating organization.
(d) Since the respective dates as of which information is given in
the Registration Statement, the Bidding Prospectus or the Final Prospectus other
than as set forth therein (exclusive of any amendments or supplements thereto
subsequent to the date of the Purchase Agreement), (i) there shall not have
occurred any change or any development involving a prospective change in the
condition, financial or otherwise, or the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, (ii) there shall not have
been any change or any development involving a prospective change in the capital
stock or in the long-term debt of the Company or any of its subsidiaries and
(iii) neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any such
case described in clause 8(d)(i), 8(d)(ii) or 8(d)(iii) is material and adverse
and makes it impracticable to market the Debentures on the terms and in the
manner contemplated in the Final Prospectus.
(e) The Purchasers shall have received on the Closing Date a
certificate dated the Closing Date, signed by the Chief Executive Officer or any
Vice President and the Chief Financial Officer or the Treasurer or any Assistant
Treasurer of the Company, confirming the matters set forth in Sections 8(a)
and 8(b).
(f) The Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of G. D. Caliendo, Senior Vice President,
General Counsel and Secretary of the Company, to the effect set forth in
Exhibit A.
(g) The Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Winthrop, Stimson, Putnam & Roberts, counsel
for the Company, to the effect set forth in Exhibit B.
(h) The Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Thelen Reid & Priest LLP, counsel for the
Purchasers, to the effect set forth in Exhibit C.
(i) At the Closing Date, Arthur Andersen LLP shall have furnished to
the Purchasers a letter, dated as of the Closing Date, in form and substance
satisfactory to the Purchasers, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and Final
Prospectus.
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<PAGE> 15
9. EFFECTIVENESS OF AGREEMENT AND TERMINATION. The Purchase Agreement
shall become effective upon the acceptance by the Company of the Bid.
The Purchase Agreement may be terminated at any time prior to the Closing
Date by the Purchasers by written notice to the Company if any of the following
has occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in the Purchasers'
judgment, is material and adverse and makes it impracticable to market the
Debentures on the terms and in the manner contemplated in the Final Prospectus,
(ii) the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over- the-counter market or (iv) the declaration of a banking moratorium by
either federal or New York State authorities.
If on the Closing Date any Purchasers shall fail or refuse to purchase the
Debentures which it has agreed to purchase hereunder on such date and the
aggregate principal amount of the Debentures which such defaulting Purchaser
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Debentures to be purchased on such date by all
Purchasers, the non-defaulting Purchasers shall be obligated severally, in the
proportion which the principal amount of the Debentures set forth opposite its
name in the Bid bears to the aggregate principal amount of the Debentures which
the non-defaulting Purchaser has agreed to purchase, or in such other proportion
as the Representative may specify, to purchase the Debentures which such
defaulting Purchaser agreed but failed or refused to purchase on such date;
provided that in no event shall the aggregate principal amount of the Debentures
which any Purchaser has agreed to purchase pursuant to Section 2(a) hereof be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
principal amount of the Debentures without the written consent of such
Purchaser. If on the Closing Date any Purchaser shall fail or refuse to purchase
the Debentures and the aggregate principal amount of the Debentures with respect
to which such default occurs is more than one-tenth of the aggregate principal
amount of the Debentures to be purchased by the Purchasers and arrangements
satisfactory to the Purchasers and the Company for purchase of such Debentures
are not made within 48 hours after such default, the Purchase Agreement will
terminate without liability on the part of any non- defaulting Purchaser and the
Company. In any such case which does not result in termination of the Purchase
Agreement, either the Purchasers or the Company shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Final Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Purchaser from liability in respect of any default of any
such Purchaser under the Purchase Agreement.
10. MISCELLANEOUS. Notices given pursuant to any provision of the
Purchase Agreement shall be addressed as follows: (i) if to the Company, to
Orange and Rockland Utilities, Inc., One Blue Hill Plaza, Pearl River, New York
10965, Attention: Office of the Treasurer and (ii) if to the Purchasers, to the
Representative at the address set forth in the Bid, or in any case to such other
address as the person to be notified may have requested in writing.
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<PAGE> 16
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the Purchasers set forth in
or made pursuant hereto shall remain operative and in full force and effect, and
will survive delivery of and payment for the Debentures, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
the Purchasers, the officers or directors of the Purchasers, any person
controlling the Purchasers, the Company, the officers or directors of the
Company or any person controlling the Company and (ii) acceptance of the
Debentures and payment for them hereunder. Upon any termination of the Purchase
Agreement, (a) the provisions of Section 7 hereof shall survive such termination
and (b) the Company shall remain liable for all expenses which it has agreed to
pay pursuant to Section 5(f) hereof.
Except as otherwise provided, the Purchase Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Purchasers,
the Purchasers' directors and officers, any controlling persons referred to in
the Purchase Agreement, the directors of the Company and the respective
successors and assigns of each of the aforementioned, all as and to the extent
provided in the Purchase Agreement, and no other person shall acquire or have
any right under or by virtue of the Purchase Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Debentures from the
Purchasers merely because of such purchase.
The Purchase Agreement shall be governed and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed within the State of New York.
The Purchase Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
11. DEFINITIONS. The terms which follow, when used in the Purchase
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended.
"Bidding Prospectus" shall have the meaning set forth in Section 6(a)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Closing Date" shall have the meaning set forth in Section 4 hereof.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
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<PAGE> 17
"Execution Time" shall mean the date and time that the Bid is accepted by
the Company.
"Final Prospectus" shall have the meaning set forth in Section 6(a) hereof.
"Material Adverse Effect" shall have the meaning set forth in Section 6(c)
hereof.
"Purchase Price" shall have the meaning set forth in Section 3 hereof.
"Registration Statement" shall mean the registration statement referred to
in Section 6(a) above, including exhibits and financial statements, as amended
at the time it becomes effective and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as the case
may be. Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Debentures and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the initial registration statement.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
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Exhibit A
[Form of Opinion]
[Letterhead of Orange and Rockland]
[ ], 1999
[Address of Representative/Purchasers]
Re: $45,000,000 in aggregate principal amount of % Debentures Due
2029 (Series G) (the "Series G Debentures") of Orange and Rockland
Utilities, Inc. (the "Company"), issued under an Indenture dated as of
March 1, 1990, as supplemented by the First Supplemental Indenture,
dated as of March 7, 1990, as supplemented and amended by the Second
Supplemental Indenture, dated as of October 15, 1992, as supplemented
by the Third Supplemental Indenture, dated as of March 1, 1993, as
supplemented and amended by the Fourth Supplemental Indenture, dated
as of December 1, 1997 and as further supplemented and amended by a
Fifth Supplemental Indenture, dated as of March 1, 1999 (collectively,
the "INDENTURE"), from the Company to The Bank of New York, Trustee
(the "TRUSTEE")
Ladies and Gentlemen:
This opinion is furnished to you as the Purchasers under the Bid and Terms
of Purchase dated [ ], 1999 among you and the Company
(the "Purchase Agreement") relating to the issue and sale by the Company of the
Series G Debentures. This opinion is being rendered to you at the request of the
Company. All capitalized terms not defined herein have the meanings specified in
the Purchase Agreement.
I have examined, in addition to the documents listed in subparagraphs
(a) through (h) on page 2 of this opinion:
(a) The Registration Statement, dated [ ], 1999,
relating to the Series G Debentures, including the documents
incorporated therein by reference (the "Registration Statement").
(b) The bidding prospectus relating to the Series G Debentures
contained in the Registration Statement when it became effective.
(c) The final prospectus relating to the Series G Debentures in
accordance with Rules 430A and 424(b) (the "Final Prospectus").
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<PAGE> 19
(d) To the extent deemed appropriate, minutes of meetings of the
stockholders and the Board of Directors (and committees thereof)
of the Company, including copies of resolutions relating to the
issue and sale of the Series G Debentures adopted by the Board of
Directors of the Company at meetings held on November 5, 1998 and
February 4, 1999.
As General Counsel of the Company, I am familiar with the affairs of the
Company and the contents of the Registration Statement and Final Prospectus.
Except with respect to and as explained in paragraph 7 below, I am not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and Final
Prospectus and make no representation that I have independently verified the
accuracy, completeness or fairness of such statements.
In connection with the opinions expressed below, in addition to my review
of the documents referred to above and my discussions with members of my staff
who have assisted me in this transaction, either my staff or I have examined and
relied upon originals, or copies identified to my satisfaction, of such
certificates, receipts, records and other documents as are necessary or
appropriate, including:
(a) The Restated Certificate of Incorporation of the Company as now
in effect.
(b) The By-laws of the Company as now in effect.
(c) The Petition of the Company to the Public Service Commission of
the State of New York (the "NYPSC") filed October 6, 1998 and a
copy of the order of the NYPSC with respect thereto effective
February 8, 1999.
(d) The Purchase Agreement.
(e) The Indenture.
(f) A form of Series G Debenture.
(g) Such records in the office of the Secretary of State of the State
of New York as are necessary for the purpose of this opinion.
(h) A certificate delivered on the date hereof pursuant to Section
8(e) of the Purchase Agreement.
Based upon and subject to the foregoing, it is my opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of New York and has the
corporate power and authority to carry on its business as described in the
Registration Statement and Final Prospectus and to own, lease and operate its
properties.
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<PAGE> 20
2. The Company is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect.
3. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
4. The execution, delivery and performance of the Purchase Agreement
and the Indenture by the Company, compliance by the Company with all provisions
thereof and the consummation of the transactions contemplated thereby will not
(i) conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the Restated Certificate of Incorporation or By-laws of the
Company or any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company, to which the Company is a party or
by which the Company or any of its property is bound, (ii) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company or any of its property or (iii) result in the imposition or creation of
(or the obligation to create or impose) a lien under any agreement or instrument
to which the Company is a party or by which the Company or any of its properties
is bound.
5. An appropriate order or orders have been entered by the NYSPC,
authorizing the issuance and sale of the Series G Debentures; said order or
orders are in full force and effect and are not subject to any pending appeal or
request for rehearing or reconsideration; such order or orders are sufficient to
authorize the issuance and sale of the Series G Debentures by the Company
pursuant to the Purchase Agreement; and no further approval, authorization,
consent or other order of any governmental body (other than in connection or
compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction) is legally required to permit the issuance and sale of the Series
G Debentures by the Company pursuant to the Purchase Agreement.
6. After due inquiry, except as disclosed in the Registration Statement
or Final Prospectus, I do not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is or
could be a party or to which any of their respective property is or could be
subject, which might result, singly or in the aggregate, in a Material Adverse
Effect.
7. I have no reason to believe that the Registration Statement, at the
Effective Date (including the Rule 430A Information) (except for the financial
statements, related financial schedules and other financial and statistical
information contained or incorporated by reference in the Registration Statement
and the statements contained in the Form T-1 filed as an exhibit to the
Registration Statement as to which I express no opinion or belief), 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
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<PAGE> 21
misleading or that the Final Prospectus, as of its issue date or at the date
hereof (except for the financial statements, related financial schedules and
other financial and statistical information contained or incorporated by
reference in the Final Prospectus as to which I express no opinion or belief),
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. With respect to the documents or portions thereof filed with the
Commission pursuant to the Exchange Act, and incorporated by reference in the
Final Prospectus pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date such documents were first filed with the Commission,
complied as to form in all material respects with the applicable provisions of
the Exchange Act, and the applicable rules and regulations of the Commission
thereunder or pursuant to said rules and regulations are deemed to comply
therewith. My opinion and belief are based upon my participation in the
preparation of the Registration Statement and the Final Prospectus and review
and discussion of the contents thereof, but are without independent check or
verification except as specified.
This opinion is being delivered to you pursuant to the Purchase Agreement
solely for your benefit, and is not to be used, circulated, quoted or otherwise
referred to for any other purpose or to be provided to any other person without
my express written consent.
Very truly yours,
G. D. Caliendo
<PAGE> 22
Exhibit B
[Form of Opinion]
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[ ], 1999
[Address of Representative/Purchasers]
Ladies and Gentlemen:
We have acted as counsel to Orange and Rockland Utilities, Inc., a
corporation organized and existing under the laws of the State of New York (the
"Company"), in connection with the issuance and sale by the Company of
$45,000,000 aggregate principal amount of the Company's % Debentures Due 2029
(Series G) (the "Series G Debentures") pursuant to the Bid and Terms of Purchase
dated [ ], 1999 (the "Purchase Agreement") among the Company
and purchasers named in Schedule A to the Bid (the "Purchasers"). Capitalized
terms used and not otherwise defined herein shall have the meaning ascribed to
them in the Purchase Agreement.
In so acting, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of (a) a specimen of the Series G Debentures,
(b) the Registration Statement (c) the Bidding Prospectus, (d) the Final
Prospectus (e) the Purchase Agreement, (f) the Indenture, (g) a good standing
certificate of the Company in respect of the State of New York and (h) such
other instruments, records and documents as we have deemed necessary in order to
enable us to render this opinion. As to various questions of fact, we have
relied on (i) representations and warranties made by the Company in the Purchase
Agreement and statements in the Registration Statement, Bidding Prospectus and
Final Prospectus and (ii) certificates of officers and other representatives of
the Company and of public officials. With your permission, we have not
independently verified or investigated, nor do we assume any responsibility for,
the factual accuracy or completeness of such representations and warranties,
statements or certificates. We have assumed the genuineness of all signatures,
the capacity of natural persons, the authenticity of all documents and materials
submitted to us as originals, the conformity with, and the authenticity of, the
originals of all documents and materials submitted to us as copies and the
accuracy and correctness of all statements of fact contained therein. We have
assumed that each of the Purchase Agreement and the Indenture has been duly
authorized, executed and delivered by the parties thereto (other than
the Company).
On the basis of the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
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(i) The Series G Debentures have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchasers in accordance
with the terms of the Purchase Agreement, will be entitled to the benefits
of the Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as may be limited by (x)
bankruptcy, insolvency, fraudulent conveyance, moratorium or similar laws
affecting creditors' rights generally, (y) equitable principles of general
applicability and (z) any implied covenant of good faith and fair dealing.
(ii) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except as may
be limited by (x) bankruptcy, insolvency, fraudulent conveyance, moratorium
or similar laws affecting creditors' rights generally, (y) equitable
principles of general applicability and (z) any implied covenant of good
faith and fair dealing; the Indenture is qualified under the Trust
Indenture Act and, to the best of our knowledge, no proceedings to suspend
such qualification have been instituted or threatened by the Commission.
(iii) The statements under the "Description of Debentures" in the
Final Prospectus, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly present
in all material respects such legal matters, documents and proceedings.
(iv) The Company and its subsidiaries are exempt from the provisions
of the Holding Company Act, except for the provisions of Section 9(a)(2)
thereof.
(v) The Registration Statement, at the Effective Date, and the Final
Prospectus, when it was filed with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 424(b) under the Act (other than the
financial statements and other financial and statistical data contained or
incorporated by reference therein and the statements contained in the Form
T-1 filed as an exhibit to the Registration Statement, as to which we
express no opinion), complied as to form in all material respects with the
applicable requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder. The
Registration Statement has, to the best of our knowledge, become and is
effective under the Act; and, to the best of our knowledge, no stop order
has been issued and no proceedings for a stop order with respect thereto
are pending or threatened under Section 8(d) of the Act.
In passing upon the form of the Registration Statement and the form of the
Final Prospectus, we necessarily assume the correctness and completeness of the
statements made by the Company and the information included or incorporated by
reference therein and take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraph (iii) above. We have
participated in certain telephone conversations and conferences with officers
and other representatives of the Company, representatives of Arthur Andersen
LLP, the independent certified public accountants of the Company who examined
certain of the financial statements contained or incorporated by reference in
the Registration Statement and Final Prospectus, representatives of the
Purchasers and representatives of Thelen Reid & Priest LLP, counsel for the
Purchasers, at which the contents of various parts of the Registration Statement
and Final Prospectus and related matters were discussed and revised. Our
examination of the Registration Statement and the Final Prospectus and our
discussions in the above-mentioned conferences did not disclose to us any
information which give us reason to believe that the Registration Statement, at
the Effective Date (including the Rule 430A Information) (except for
23
<PAGE> 24
the financial statements, related financial schedules and other financial and
statistical information contained or incorporated by reference in the
Registration Statement and the statements contained in the Form T-1 filed as an
exhibit to the Registration Statement as to which we express no opinion or
belief), 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 Final Prospectus, as of its issue date or at
the date hereof (except for the financial statements, related financial
schedules and other financial and statistical information contained or
incorporated by reference in the Final Prospectus as to which we express no
opinion or belief), contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
This opinion is limited to the laws of the State of New York and the
federal laws of the United States, and we express no opinion as to the effect on
the matters covered by this opinion of the laws of any other jurisdiction.
In rendering this opinion we express no opinion as to any securities or
Blue Sky laws or regulations of any state or local jurisdiction.
This opinion is being delivered to you pursuant to the Purchase Agreement
solely for your benefit, and is not to be used, circulated, quoted or otherwise
referred to for any other purpose or to be provided to any other person without
our express written consent.
Very truly yours,
[Winthrop, Stimson, Putnam & Roberts]
24
<PAGE> 25
Exhibit C
New York, New York
, 1999
[Bidder Name]
[Bidder Address]
[Bidder Address]
[Bidder Address]
Re: Orange and Rockland Utilities, Inc.
$45,000,000 % Debentures Due 2029 (Series G)
-----------------------------------------------
Ladies and Gentlemen:
We have acted as your counsel in connection with the issuance and sale to
you by Orange and Rockland Utilities, Inc. (the "Company") of $45,000,000
aggregate principal amount of the Company's % Debentures Due 2029 (Series G)
(the "Series G Debentures"), pursuant to the Bid and Terms of Purchase dated
, 1999 (the "Purchase Agreement") between the Company and you.
Capitalized terms used herein and not otherwise defined have the meanings
ascribed thereto in the Purchase Agreement.
In so acting, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of (a) the Registration Statement, (b) the
Bidding Prospectus, (c) the Final Prospectus, (d) the Purchase Agreement and
(e) the Indenture. In addition, we have examined, and relied as to matters of
fact upon, the other documents described in the closing memorandum with respect
to the closing of the sale of the Series G Debentures on this date (except the
certificate representing the Series G Debentures, of which we have examined a
specimen), and we have made such other and further investigations as we deemed
necessary to enable us to render the following opinions. In such examination,
we have assumed the genuineness of all signatures, the legal capacity of
natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original
25
<PAGE> 26
[Bidder Name]
, 1999
Page 2
documents of all documents submitted to us as certified or photostatic copies,
and the authenticity of the originals of such latter documents.
Our opinions expressed below are limited to the law of the State of New
York and the federal securities laws of the United States of America; and we do
not express any opinion herein concerning any other law.
Based upon and subject to the foregoing, we are of the opinion that:
(1) The statements under the caption "Description of Debentures" in
the Final Prospectus, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to
therein, fairly present in all material respects such legal
matters, documents and proceedings; provided, however, that we
express no opinion as to the information contained therein under
the subcaption "--Book-Entry, Delivery and Form";
(2) The Indenture has been duly authorized, executed and delivered by
the Company and is qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted or,
to our knowledge, threatened by the Commission;
(3) The Registration Statement, at the Effective Date, and the Final
Prospectus, when it was filed with the Commission pursuant to Rule
424(b) under the Act (other than the financial statements and
other financial and statistical data contained or incorporated by
reference therein and the statements contained in the Form T-1
filed as an exhibit to the Registration Statement, as to which we
express no opinion), complied, or were deemed to have complied, as
to form in all material respects with the applicable requirements
of the Act and the Trust Indenture Act and the applicable rules
and regulations of the Commission thereunder; and
26
<PAGE> 27
[Bidder Name]
, 1999
Page 3
the Registration Statement has, to the best of our knowledge, become
and is effective under the Act; and, to the best of our knowledge, no
stop order has been issued and no proceedings for a stop order with
respect thereto are pending or threatened under Section 8(d) of the
Act;
(4) The opinions furnished pursuant to Section 8(f) and 8(g) of the Terms
of Purchase are in substantially acceptable legal form, although we
have not, except as set forth in subparagraphs (1), (2) and (3),
independently considered the matters covered by such opinions to the
extent necessary to enable us to express the conclusions stated
therein; and
(5) The documents delivered to you on the date hereof are substantially
responsive to the requirements of the Purchase Agreement.
In the course of the preparation of the Registration Statement and the
Final Prospectus, we had discussions with certain officers, employees and
counsel for the Company and representatives of the Company's independent public
accountants, at which the contents of the Registration Statement and the Final
Prospectus and related matters were discussed, and we have considered the
information set forth in the Registration Statement and the Final Prospectus in
light of the matters required to be set forth therein. Although we are not
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Final Prospectus (except to the extent set forth in paragraph 3 above), we
advise you that, on the basis of the foregoing, no facts have come to our
attention which lead us to believe that the Registration Statement, at the
Effective Date (including the Rule 430A Information) (except for the financial
statements, related financial schedules and other financial and statistical
information contained or incorporated by reference in
27
<PAGE> 28
[Bidder Name]
, 1999
Page 4
the Registration Statement and the statements contained in the Form T-1 filed as
an exhibit to the Registration Statement as to which we express no opinion or
belief) 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 Final Prospectus, as of its issue date or at
the date hereof (except for the financial statements, related financial
schedules and other financial and statistical information contained or
incorporated by reference in the Final Prospectus as to which we express no
opinion or belief) contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that no belief is expressed with respect to the
information contained in the Final Prospectus under the caption "Description of
Debentures -- Book-Entry, Delivery and Form."
This letter is solely for the benefit of the addressee hereof in connection
with the Purchase Agreement and the transactions contemplated thereunder and it
may not be relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
THELEN REID & PRIEST LLP
28
<PAGE> 1
EXHIBIT 4.7
ORANGE AND ROCKLAND UTILITIES, INC.
to
THE BANK OF NEW YORK,
As Trustee
------------------------------------
FIFTH SUPPLEMENTAL INDENTURE
Dated as of March 1, 1999
Supplementing and Amending the Indenture
Dated as of March 1, 1990,
As Previously Supplemented and Amended
------------------------------------
<PAGE> 2
THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of March 1, 1999 (this
"Fifth 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, (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)" and (d)
supplemented by a Fourth Supplemental Indenture, dated as of December 1, 1997,
which, among other things established the form of (i) the Securities of a fifth
series, designated "6-1/2% Debentures Due 2027 (Series E)" of the Issuer and
(ii) the Securities of a sixth series issued in exchange therefor, pursuant to a
Registration Rights Agreement dated as of December 18, 1997, designated "6-1/2%
Debentures Due 2027 (Series F)" of the Issuer. The Issuer desires by this Fifth
Supplemental Indenture to establish the form of the Securities of a seventh
series, to be designated " % Debentures Due 2029 (Series G)" 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 Fifth Supplemental Indenture.
2
<PAGE> 3
The execution and delivery of this Fifth Supplemental Indenture by the
parties hereto are in all respects authorized by the provisions of the Amended
Indenture.
All things necessary have been done to make this Fifth Supplemental
Indenture a valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, as follows:
ARTICLE ONE
Establishment of % Debentures Due 2029 (Series G)
Section 1.01. There is hereby established by this Fifth Supplemental
Indenture a seventh series of the Securities, which shall be designated " %
Debentures Due 2029 (Series G)" of the Issuer (hereinafter called the "Series G
Debentures"). The Series G 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 G Debentures shall have the terms and
provisions set forth in Exhibit A hereto. In particular, but without limitation,
the Series G Debentures shall (a) be limited to $45,000,000 in aggregate
principal amount at any time Outstanding, (b) mature on March 1, 2029, (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 G Debentures, payable
semi-annually on March 1 and September 1 of each year, commencing September 1,
1999, 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 G Debentures shall be as set
forth in Exhibit A. The Series G Debentures are not redeemable in whole or in
part prior to March 1, 2009, but are redeemable on that date and thereafter in
the manner specified in the Form of Series G Debenture attached as Exhibit A
hereto. There is no sinking fund for the Series G Debentures.
Section 1.03 (a) The Series G Debentures shall be issued initially in
the form of a permanent Global Security in definitive form without coupons with
the global security legend set forth in Exhibit A hereto (the "Series G 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 depository. The aggregate principal amount of the
Series G 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.
3
<PAGE> 4
(b) Members of, or participants in, the Depository ("Agent
Members") shall have no rights under the Fifth Supplemental Indenture or the
Amended Indenture with respect to any Series G 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 G Global Debenture for all purposes whatsoever.
(c) Certificated Series G Debentures may be issued in exchange
for beneficial interests in the Series G Global Debentures only in accordance
with Section 2.4 of the Amended Indenture and this Article One.
ARTICLE TWO
Defeasance
Notwithstanding anything contained in Article Twelve of the Amended
Indenture, the provisions of this Article Two shall in all cases govern
defeasance of the Issuer's obligations in respect of the Series G Debentures:
Section 2.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may at any time terminate its substantive obligations in respect of
the Series G Debentures by delivering all Outstanding Series G Debentures 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, with respect to the Series G Debentures,
elect to have either Section 2.02 or 2.03 be applied to all Outstanding Series G
Debentures upon compliance with the conditions set forth below in this Article
Two.
Section 2.02 Legal Defeasance and Discharge. Upon the exercise by the
Issuer under Section 2.01 of the option applicable to this Section 2.02, the
Issuer shall be deemed to have been discharged from its obligations with respect
to all Outstanding Series G Debentures 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 Series G Debentures, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 2.05 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 Series G Debentures 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 Two. Subject to compliance with this Article Two,
the Issuer may exercise the option under this Section 2.02 notwithstanding the
prior exercise of the option under Section 2.03 with respect to such Debentures.
4
<PAGE> 5
Section 2.03. Covenant Defeasance. Upon the exercise by the Issuer
under Section 2.01 of the option applicable to this Section 2.03, 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 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 Series G Debentures, 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
Series G Debentures, but, except as specified above, the remainder of the
Indenture and such Debentures shall be unaffected thereby.
Section 2.04. Conditions to Legal or Covenant Defeasance. The following
shall be the conditions to the application of either Section 2.02 or Section
2.03 to the Outstanding Series G Debentures to be defeased at any time:
(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 Two 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 Series G Debentures,
(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 Series G Debentures
on the stated maturity, or upon redemption on or after March 1, 2009, 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 2.02, 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 Series G 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
5
<PAGE> 6
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 2.03, 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
Series G 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 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 Series
G Debentures 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 2.02 or 2.03 was not made by the Issuer with the
intent of preferring the Holders of the Series G Debentures 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 2.02 or the Covenant
Defeasance under Section 2.03 (as the case may be) have been complied with as
contemplated by this Section 2.04.
Section 2.05. Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 2.06, all money and
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
2.05, the "Trustee") pursuant to Section 2.04 in respect of the Outstanding
Series G Debentures 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, premium if any, 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 2.04 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 Series G Debentures.
Anything in this Article Two 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
2.04 which, in the opinion of a nationally recognized
6
<PAGE> 7
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 2.04(a)) at the expense 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 2.06 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 Series G Debenture and remaining unclaimed for two years after such
principal, premium if any, 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 2.07 Reinstatement. If the Trustee or Paying Agent is unable to
apply any United States Dollars or Government Obligations in accordance with
Section 2.02 or 2.03, 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 Series G Debentures shall be revived and reinstated as though
no deposit had occurred pursuant to Section 2.02 or 2.03 until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 2.02 or 2.03, as the case may be; provided, however, that, if the Issuer
makes any payment of principal of or interest on any Series G 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 THREE
Miscellaneous
Section 3.01. 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 Fifth Supplemental Indenture. The Amended Indenture is in all respects
hereby adopted, ratified and confirmed.
Section 3.02. This Fifth 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 3.03. If any provision of this Fifth 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.
7
<PAGE> 8
Section 3.04. The Article and Section headings herein are for
convenience only and shall not affect the interpretation hereof.
Section 3.05. 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 G Debentures under the circumstances set forth in, and
subject to the provisions of, the Indenture. If and so long as the Series G
Debentures are issued as Global Securities and the Depository or the nominee
therefor is the sole holder of Series G Debentures, (a) the Trustee shall treat
the Depository or said nominee as the only Holder of the Series G Debentures for
all purposes under the Indenture, including receipt of all principal of and
interest on the Series G Debentures, 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 Series G Debentures,
(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 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 Series G
Debentures.
[End of Page]
8
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed (the actual date of this Fifth
Supplemental Indenture being the date of execution by the Trustee, as indicated
in its Acknowledgment).
ORANGE AND ROCKLAND UTILITIES, INC.
By _______________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By _______________________________
Name:
Title:
9
<PAGE> 10
STATE OF NEW YORK )
) ss.:
COUNTY OF ROCKLAND )
At Pearl River, on this ____ day of [ ], 1999, before me, a
Notary Public in and for the County of Rockland and State of New York,
personally appeared ___________________ the ______________, of Orange and
Rockland Utilities, Inc., to me personally known, who executed the foregoing
instrument on behalf of said corporation, and acknowledged the same to be his or
her free act and deed in his or her said capacity and the free act and deed of
Orange and Rockland Utilities, Inc.
-----------------------------
Notary Public
NOTARIAL SEAL
My Commission Expires:
STATE OF NEW YORK )
) ss.:
NEW YORK COUNTY )
At The City of New York, on this ___ day of [ ], 1999, before
me, a Notary Public in and for the County and State of New York, personally
appeared ________________, a ________________ of The Bank of New York,
personally known to me, who executed the foregoing instrument on behalf of said
corporation, and acknowledged the same to be his or her free act and deed in his
or her said capacity and the free act and deed of The Bank of New York, as
Trustee.
-----------------------------------
Notary Public
NOTARIAL SEAL
My Commission Expires:
<PAGE> 11
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.
FORM OF SERIES G DEBENTURE
[FORM OF FACE OF SERIES G DEBENTURE]
No._______ $________
ORANGE AND ROCKLAND UTILITIES, INC.
% DEBENTURE DUE 2029 (SERIES G)
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 March 1, 2029, and to pay interest on said
principal sum, semiannually on March 1 and September 1 of each year, commencing
September 1, 1999, at the rate of % per annum from the March 1 or September
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
<PAGE> 12
interest on this Debenture, if the date hereof is after a regular record date
(which shall be the close of business on the February 15 or August 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:
2
<PAGE> 13
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
<PAGE> 14
[FORM OF REVERSE OF DEBENTURE]
ORANGE AND ROCKLAND UTILITIES, INC.
% DEBENTURE DUE 2029 (SERIES G)
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, the Fourth Supplemental Indenture dated as of December 1,
1997 and the Fifth Supplemental Indenture dated as of March 1, 1999 (said
Indenture, together with all indentures supplemental thereto, including, without
limitation, said First, Second, Third, Fourth and Fifth 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 " % Debentures Due 2029 (Series
G)" (the "Debentures"), limited to $45,000,000 in aggregate principal amount
Outstanding.
The debentures will be redeemable prior to maturity, at the option of
the Company, as a whole at any time or in part from time to time, on notice
given as provided in the Indenture, at the principal amount thereof and accrued
interest to the date fixed for redemption, together with a premium equal
to a percentage of the principal amount thereof, determined as set forth below;
provided however, that no debentures may be redeemed prior to March 1, 2009.
<TABLE>
If redeemed If redeemed If redeemed
during the during the during the
12 months' 12 months' 12 months'
period ending period ending period ending
____________, Premium ____________, Premium ___________, Premium
<S> <C> <C> <C> <C> <C>
2010 .......... % 2017 .......... % 2024 .......... %
2011 .......... % 2018 .......... % 2025 .......... %
2012 .......... % 2019 .......... % 2026 .......... %
2013 .......... % 2020 .......... % 2027 .......... %
2014 .......... % 2021 .......... % 2028 .......... %
2015 .......... % 2022 .......... % 2029 .......... 0.00%
2016 .......... % 2023 .......... %
</TABLE>
There is no sinking fund for the debentures.
The Debentures are issuable only as registered Debentures, without
coupons, in denominations of $1,000 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
<PAGE> 15
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 Two of the Fifth Supplemental Indenture and
subject to the satisfaction of certain conditions therein set forth, including
the deposit of certain funds in trust, 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.
2
<PAGE> 16
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.
3
<PAGE> 17
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.
Signature(s) Guaranteed:
________________________
________________________
THIS SIGNATURE(S) SHOULD BE GUARANTEED BY A BROKERAGE FIRM OR A FINANCIAL
INSTITUTION THAT IS A MEMBER OF A SECURITIES APPROVED MEDALLION PROGRAM, SUCH
AS SECURITIES TRANSFER AGENTS MEDALLION PROGRAM (STAMP), STOCK EXCHANGES
MEDALLION PROGRAM (SEMP) OR NEW YORK STOCK EXCHANGE INC. MEDALLION SIGNATURE
PROGRAM (MSP) PURSUANT TO S.E.C. RULE 17Ad-15.
<PAGE> 1
Exhibit 5
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
February 12, 1999
Orange and Rockland Utilities, Inc.
One Blue Hill Plaza
Pearl River, New York 10965
Ladies and Gentlemen:
We have acted as counsel to Orange and Rockland Utilities, Inc. (the
"Company"), a New York corporation, in connection with its filing on February
12, 1999, with the Securities and Exchange Commission (the "Commission") of a
Registration Statement on Form S-3 (the "Registration Statement") with respect
to $45,000,000 aggregate principal amount of the Company's % Debentures Due
2029 (Series G) (the "Series G Debentures") for issuance pursuant to Rule 430A
under the Securities Act of 1933 (the "Securities Act"). The Series G
Debentures are to be issued pursuant to the Indenture dated as of March 1, 1990,
as supplemented and amended by four supplemental indentures, and further
supplemented and amended by a Fifth Supplemental Indenture dated as of March 1,
1999, between The Bank of New York, as trustee (the "Trustee") and the Company
(collectively, the "Indenture").
For purposes of this opinion, we have (i) examined copies of the
Registration Statement and exhibits thereto, the Indenture and such board
resolutions, corporate documents, records and other instruments as we have
deemed necessary for the purposes of this opinion and (ii) assumed the
authenticity of all documents submitted to us as originals, the conformity to
the originals of all documents submitted to us as copies and the authenticity of
the originals of all documents submitted to us as copies. For such purposes, we
have also assumed the genuineness of all signatures, the legal capacity of
natural persons, the authority of such persons signing on behalf of the parties
thereto and the due authorization, execution and delivery of all documents by
the parties thereto (including the Company). In rendering this opinion, we have
assumed the validity of, and relied upon, the representations of the Company as
to certain factual matters relevant hereto.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we are of the opinion
that:
When, as and if (i) the applicable provisions of the Securities Act
and the securities or "blue sky" laws of various states shall have been
complied with, (ii) the
<PAGE> 2
Registration Statement shall have become effective, (iii) the Indenture
shall have been duly authorized, executed, delivered and qualified pursuant
to the provisions of the Trust Indenture Act of 1939 and (iv) the Series G
Debentures shall have been duly authorized, executed, authenticated and
delivered on behalf of the Company in accordance with the Indenture against
the consideration to be paid by the purchasers thereof, then the Series G
Debentures will be legally issued and will constitute valid and binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance,
moratorium and other laws relating to or affecting generally the
enforcement of creditors' rights and subject to general principles of
equity (whether considered in a proceeding at law or in equity) and by an
implied covenant of good faith and fair dealing.
We are members of the bar of the State of New York and do not express any
opinion herein as to any laws other than the laws of the State of New York.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the related prospectus. In giving this consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Winthrop, Stimson, Putnam & Roberts
<PAGE> 1
Exhibit 12
ORANGE AND ROCKLAND UTILITIES, INC. AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Year Ended Dec. 31, 9 Months Ended Sept. 30,
1993(1) 1994(1) 1995(2) 1996(2) 1997(2) 1997(2) 1998
------------ ------------ ------------ ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net Income from Continuing
Operations $ 44,815 $ 37,217 $ 37,766 $ 48,147 $ 44,938 $ 33,921 $ 37,329
Federal Income Tax 22,700 20,379 23,372 25,705 22,316 17,252 21,093
Fixed Charges 35,896 35,648 34,911 33,509 34,905 25,692 27,106
---------- --------- --------- --------- ---------- --------- ---------
Total Earnings Available $ 103,411 $ 93,244 $ 96,049 $ 107,361 $ 102,159 $ 76,865 $ 85,528
========== ========= ========= ========= ========== ========= =========
FIXED CHARGES:
Interest on Long-Term Debt $ 30,383 $ 29,553 $ 26,620 $ 24,221 $ 23,215 $ 18,118 $ 17,918
Amortization of Debt Expense,
Discount and Premium 1,116 1,244 1,394 1,462 1,521 1,221 851
Other Interest 2,404 3,088 4,908 5,748 8,233 4,901 6,836
Interest Factor on Rental Expense 1,993 1,763 1,989 2,078 1,936 1,452 1,501
---------- --------- --------- --------- ---------- --------- ---------
Total Fixed Charges $ 35,896 $ 35,648 $ 34,911 $ 33,509 $ 34,905 $ 25,692 $ 27,106
========== ========= ========= ========= ========== ========= =========
Ratio of Earnings to Fixed
Charges (3) 2.88 2.62 2.75 3.20 2.93 2.99 3.16
---------- --------- --------- --------- ---------- --------- ---------
</TABLE>
(1) Financial results for these years are based on historical data and have
not been restated to reflect discontinued operations of the Norstar
Partnership.
(2) Effective August 1, 1997, the accounts receivable, with certain
exceptions, and contracts with customers and related agreements of the
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 the NORSTAR
Partnership as "Discontinued Operations," and the results of 1996 and
1995 have been restated to conform with the current period
classifications. Additional information regarding the NORSTAR
Partnership is included in the Company's Annual Report to the
Commission on Form 10-K for the year ended December 31, 1997, which
information is incorporated by reference in this document.
(3) The ratio of earnings to fixed charges for the years ended December 31,
1995, 1994 and 1993 were 2.75, 2.62 and 2.88, respectively. Ratios for
1993 and 1994 are calculated on a historical basis and have not been
restated to reflect discontinued operations of the NORSTAR Partnership.
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.
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of Orange & Rockland
Utilities, Inc. of our report dated February 5, 1998, included in Orange &
Rockland Utilities, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1997.
ARTHUR ANDERSEN LLP
New York, New York
February 12, 1999
<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-3
pursuant to the provisions of the Securities Act of 1933 (the "Act"), with
respect to the registration of up to $45 million aggregate principal amount of
unsecured debt securities to be offered, on the terms and conditions to be set
forth in such Registration Statement, 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 4th
day of February 1999.
/s/ D. Louis Peoples
--------------------------------
D. Louis Peoples
Director; Vice Chairman of the Board
and Chief Executive Officer
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 4th
day of February 1999.
/s/ R. Lee Haney
-------------------------------
R. Lee Haney
Senior Vice President and Chief
Financial Officer
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 4th
day of February 1999.
/s/ Edward M. McKenna
---------------------
Edward M. McKenna
Controller, Chief
Accounting Officer
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 4th
day of February 1999.
/s/ Michael J. Del Giudice
--------------------------
Michael J. Del Giudice
Chairman of the Board
of Directors
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 4th
day of February 1999.
/s/ Ralph M. Baruch
-------------------
Ralph M. Baruch
Director
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 4th
day of February 1999.
/s/ J. Fletcher Creamer
-----------------------
J. Fletcher Creamer
Director
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 4th
day of February 1999.
/s/ Jon F. Hanson
-----------------
Jon F. Hanson
Director
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 2nd
day of February 1999.
/s/ Kenneth D. McPherson
------------------------
Kenneth D. McPherson
Director
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 4th
day of February 1999.
/s/ Robert E. Mulcahy III
-------------------------
Robert E. Mulcahy III
Director
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 1st
day of February 1999.
/s/ James F O'Grady, Jr.
------------------------
James F. O'Grady, Jr.
Director
<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-3 pursuant
to the provisions of the Securities Act of 1933 (the "Act"), with respect to the
registration of up to $45 million aggregate principal amount of unsecured debt
securities to be offered, on the terms and conditions to be set forth in such
Registration Statement, 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 4th
day of February 1999.
/s/ Linda C. Taliaferro
-----------------------
Linda C. Taliaferro
Director
<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)
% DEBENTURES DUE 2029 (SERIES G)
(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 5th day of February, 1999.
THE BANK OF NEW YORK
By /s/ Robert A. Massimillo
------------------------
ROBERT A. MASSIMILLO
Assistant Vice President
4
<PAGE> 5
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939 in connection with the proposed issue of % Debentures Due 2029
(Series G) by Orange and Rockland Utilities, Inc., we hereby consent that
reports of examinations by Federal, State, Territorial, or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
THE BANK OF NEW YORK
By /s/ Robert A. Massimillo
------------------------
ROBERT A. MASSIMILLO
Assistant Vice President
Dated: February 5, 1999
5
<PAGE> 6
- --------------------------------------------------------------------------------
CONSOLIDATED REPORT OF CONDITION OF THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal
Reserve System, at the close of business September 30, 1998, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN THOUSANDS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........ $ 7,654,174
Interest-bearing balances................................. 2,182,604
Securities:
Held-to-maturity securities............................... 965,979
Available-for-sale securities............................. 3,894,193
Federal funds sold and Securities purchased under
agreements to resell.................................... 1,001,780
Loans and lease financing receivables:
Loans and leases, net of unearned income.................. 38,117,615
LESS: Allowance for loan and lease losses................. 625,317
LESS: Allocated transfer risk reserve..................... 0
Loans and leases, net of unearned income, allowance,
and reserve............................................. 37,492,298
Assets held in trading accounts.............................. 2,240,241
Premises and fixed assets (including capitalized leases)..... 678,458
Other real estate owned...................................... 13,628
Investments in unconsolidated subsidiaries and associated
companies............................................... 195,594
Customers' liability to this bank on acceptances
outstanding............................................. 1,077,122
Intangible assets............................................ 1,114,091
Other assets................................................. 1,955,491
-----------
Total assets................................................. $60,465,653
===========
LIABILITIES
Deposits:
In domestic offices....................................... $26,473,392
Noninterest-bearing....................................... 11,052,078
Interest-bearing.......................................... 15,421,314
In foreign offices, Edge and
Agreement subsidiaries, and IBFs.......................... 17,657,483
Noninterest-bearing....................................... 118,775
Interest-bearing.......................................... 17,538,708
Federal funds purchased and Securities sold under
agreements to repurchase................................ 2,102,186
Demand notes issued to the U.S. Treasury..................... 245,825
Trading liabilities.......................................... 1,641,447
Other borrowed money:
With remaining maturity of one year or less.................. 2,063,359
With remaining maturity of more than one year through
three years............................................. 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding..... 1,088,142
Subordinated notes and debentures............................ 1,314,000
Other liabilities............................................ 2,468,849
-----------
Total liabilities............................................ $ 5,086,322
-----------
EQUITY CAPITAL
Common Stock................................................. 1,135,284
Surplus...................................................... 731,319
Undivided profits and capital reserves....................... 3,448,813
Net unrealized holding gains (losses) on available-for-sale
securities................................................ 100,784
Cumulative foreign currency translation adjustments.......... ( 36,869)
-----------
Total equity capital......................................... 5,379,331
-----------
Total liabilities and equity capital......................... $60,465,653
===========
</TABLE>
I, Robert E. Keilman, 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. Keilman
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 and the Federal Reserve System and is true and
correct.
Gerald L. Hassell )
Deno D. Papageorge ) Directors
Thomas A. Renyi )
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 26.1
ORANGE AND ROCKLAND UTILITIES, INC.
STATEMENT OF
TERMS AND CONDITIONS RELATING TO BIDS
$45,000,000
______% DEBENTURES DUE 2029 (SERIES G)
Orange and Utilities, Inc. (the "Company") has invited bids, subject to
the terms and conditions hereof, for the purchase of $45,000,000 aggregate
principal amount of its % Debentures Due 2029 (Series G) (the "Debentures").
The Debentures will 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 four supplemental indentures, and by a fifth supplemental
indenture, to be dated as of March 1, 1999 (the "Indenture"). The general
redemption prices of the Debentures shall be 100% of their principal amount plus
a premium equal to the interest rate per annum borne by the Debentures, reduced
for each twelve month period subsequent to the first anniversary of the date the
Debentures are issued, by an amount equal to one twenty-ninth of the interest
rate per annum borne by the Debentures for each successive twelve month period
(rounded to the nearest eight decimal places) in each case with accrued interest
to the date fixed for redemption; provided, however, that none of the Debentures
shall be redeemed prior to March 1, 2009, and, provided, further that in the
thirtieth year the redemption price will be 100% of the principal amount without
any premium.
1. FORM AND CONTENT OF BIDS
Each bid must be for the purchase of all of the Debentures and may be
made by a single bidder or by a group of bidders (the "Bidders"). In the case of
a bid by a group of Bidders, the members of the group shall act through a duly
authorized representative or representatives (the "Representative"). No Bidder
may submit or participate directly or through an affiliate in more than one bid.
All bids must be submitted on the Form of Bid furnished by the Company
and must be signed by the Bidder, or in the case of a bid by a group of Bidders,
by the Representative on behalf of the group. Each bid shall specify the stated
interest rate to be borne by the Debentures,
1
<PAGE> 2
[which interest rate shall be a multiple of 1/8 or 1/20 of 1%], the price to be
paid to the Company for the Debentures, [which price shall not be less than 98%
nor more than 100% of the principal amount of the Debentures] and the "true
interest cost" of the bid, calculated in accordance with Paragraph 3 hereof.
Each bid shall acknowledge that the initial offering price to the public shall
not exceed 100% of the principal amount of the Debentures, plus accrued interest
from the date of original issuance of the Debentures.
2. PRESENTATION OF BIDS
Each bid must be delivered by facsimile transmission to the Company at
the offices of Winthrop, Stimson, Putnam & Roberts before 11:00 A.M., New York
Time, on [ ], 1999, at the following fax number: 212-858-1500, Attention:
Michael F. Cusick. Each such fax must indicate the name and address of the
Bidder, or, in the case of a group of Bidders, of the Representative.
The Company reserves the right in its discretion from time to time to
postpone the time for presentation and examination of bids, and will give prompt
notice of any such postponement to any prospective Bidder or to the
Representative of any group of prospective Bidders from whom a request in
writing that such notice be given has been received by Winthrop, Stimson, Putnam
& Roberts at the address set forth in Paragraph 3 hereof.
3. EXAMINATION, ACCEPTANCE OR REJECTION OF BIDS
All bids will be examined on behalf of the Company in the offices of
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York
10004-1490 at 11:00 A.M., New York Time, on [ ], 1999 (or at such hour
on such later date as may be fixed by the Company as provided in Paragraph 2
hereof). Each Representative and each Bidder is invited to be present at the
examination of the bids. Prior to 12:00 Noon, New York Time, on such date, an
authorized representative of the Company will accept (subject to the provisions
of the next following paragraph) the bid which shall provide the lowest "true
interest cost," to be determined by the Company as hereinafter provided. Unless
sooner rejected, each bid will remain irrevocable until such time. Any bid not
so accepted by the Company by such time shall be deemed to have been rejected.
Each bid will be accepted or rejected in its entirety.
In case two or more bids provide the identical lowest "true interest
cost", the Company (unless it shall reject all bids) will forthwith give the
makers thereof an opportunity to improve their bids. If no improved bids shall
be made by such Bidders within the time specified by the Company, or if upon
such rebidding, two or more of the rebids provide the Company with the identical
lowest "true interest cost," the Company may accept any one of such identical
bids at its discretion.
Notwithstanding any other provisions of this Paragraph 3, the Company
reserves the right to reject all bids at or after the receipt thereof
(irrespective of the interest rates and prices specified therein). Any bid not
conforming to the Notice of Sale or not submitted on the Form of Bid without
alteration, except for the required insertions, may be rejected. The Company
specifically reserves the right to reject all bids.
2
<PAGE> 3
The "true interest cost" with respect to each bid for the purchase of
the Debentures, expressed as an annual interest rate, will be determined as
being twice that factor or discount rate, compounded semi-annually, which when
applied against each semi-annual debt service payment (interest or principal and
interest, as due) for the Debentures will equate the sum of such discounted
semi-annual payments to the bid price. The true interest cost shall be
calculated from the date of original issuance of the Debentures. The calculation
by the Company of the winning bid shall be final.
4. EFFECTIVENESS OF AGREEMENT
Forthwith upon the acceptance in writing of a bid: (a) the Terms of
Purchase shall become effective without any separate execution thereof and such
Terms of Purchase and the bid shall constitute the purchase agreement (the
"Purchase Agreement") between the Company and the successful Bidder or Bidders,
subject, however, to such changes in the Terms of Purchase as may be appropriate
if the time for presentation and opening of bids shall be postponed; and (b) the
successful Bidder, or in the case of a bid by a group of Bidders, the
Representative, on behalf of the successful Bidders, shall furnish to the
Company in writing the information regarding the Bidders and the public
offering, if any, which is required to complete the prospectus, dated ,
1999, relating to the Debentures (the "Bidding Prospectus"). Thereafter, all
rights of the Company and of the successful Bidder or Bidders under an accepted
bid shall be determined solely in accordance with the terms of the Purchase
Agreement. The Company will forthwith deliver one fully executed copy of the
Purchase Agreement to the successful Bidder or, in the case of a bid by a group
of Bidders, to the Representative on their behalf.
5. INFORMATION CONCERNING THE COMPANY AND THE DEBENTURES
Prospective Bidders may examine, at the offices of Winthrop, Stimson,
Putnam & Roberts, One Battery Park Plaza, New York, New York 10004-1490, copies
of the following documents:
(a) The Indenture;
(b) Resolution of the Company authorizing the issuance
of the Debentures;
(c) The preliminary memorandum of Thelen Reid & Priest
LLP, who have been selected to act as counsel for the successful
Bidders, with respect to the qualification of the Debentures for sale
under the blue sky laws of various jurisdictions;
(d) The order of the New York Public Service Commission
with respect to the participation of the Company in the contemplated
transactions;
(e) The registration statement relating to the Debentures
filed by the Company with the Securities and Exchange Commission,
including all amendments and exhibits thereto (the "Registration
Statement"); and
(f) The Bidding Prospectus contained in such Registration
Statement.
3
<PAGE> 4
Copies of said documents will be supplied in reasonable quantities on
request to prospective Bidders, except that the Company will furnish a single
copy of the Registration Statement to each Bidder. The Company reserves the
right to amend or supplement the Bidding Prospectus and to make changes in the
forms of the other documents relating to the issuance of the Debentures. Any
reference to said documents herein shall include any amendments or changes so
made. The Company will give telephone notice (confirmed promptly in writing) of
any such amendment or change made prior to the examination of bids, considered
by counsel for the Bidders to be material, to each prospective single Bidder and
to the Representative of each group of prospective Bidders from whom Winthrop,
Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York
10004-1490, Attention: Michael F. Cusick, Esq. (Tel. 212-858-1238), shall have
received a written request to be informed of such amendments or changes. Copies
of any such amendments and descriptions of any such changes will be made
available for examination at the said offices of Winthrop, Stimson, Putnam &
Roberts.
6. LEGAL MATTERS
Thelen Reid & Priest LLP has been selected to act as counsel for the
Bidders and will deliver an opinion to the successful Bidder or Bidders (the
"Purchasers"). Winthrop, Stimson, Putnam & Roberts and G. D. Caliendo, Senior
Vice President, General Counsel and Secretary of the Company, will also deliver
opinions to the Purchasers. The forms or content of such opinions are attached
to the Terms of Purchase as Exhibits C, B and A thereto, respectively.
The fees and disbursements of counsel for the Bidders are to be paid by
the Purchaser, except as otherwise provided in the Purchase Agreement. Any
prospective Bidder and the Representative of any group of prospective Bidders
may obtain advice from counsel for the Bidders as to the amount of their fees
and the estimated amount of their disbursements.
7. DELIVERY
Delivery of the Debentures will be made against payment of the purchase
price therefor in immediately available funds on or about March ___, 1999 in New
York, New York, as more fully specified in, and subject to the terms and
conditions of, the Purchase Agreement.
8. RESERVATION OF RIGHT TO WAIVE COMPLIANCE HEREWITH
The Company reserves the right to waive any failure on the part of any
Bidder or group of Bidders to comply with the terms or conditions hereof if such
waiver will not unfairly prejudice any other Bidder or group of Bidders.
ORANGE AND ROCKLAND UTILITIES, INC.
Dated: [ ], 1999
4
<PAGE> 1
EXHIBIT 26.2
ORANGE AND ROCKLAND UTILITIES, INC.
NOTICE OF SALE
$45,000,000
______% DEBENTURES DUE 2029 (SERIES G)
Orange and Rockland Utilities, Inc. (the "Company") hereby invites
bids, subject to the Statement of Terms and Conditions Relating to Bids (the
"Statement of Terms and Conditions"), for the purchase from it of $45,000,000
aggregate principal amount of its % Debentures Due 2029 (Series G) (the
"Debentures").
1. BIDS FOR DEBENTURES
Bids will be received from single bidders or groups of bidders (the
"Bidders") by fax by the Company at the offices of Winthrop, Stimson, Putnam &
Roberts, One Battery Park Plaza New York, NY 10004-1490 (Fax: 212-858-1500),
Attention: Michael F. Cusick up to 11:00 A.M., New York Time on [ ],
1999 (or such later time or date as may be fixed as provided in the Statement of
Terms and Conditions). In the case of a bid by a group of Bidders, the members
of the group shall act through a duly authorized representative or
representatives (the "Representative"). Bids will be considered only if made in
accordance with and subject to the terms and conditions set forth in the
Statement of Terms and Conditions.
2. THE DEBENTURES
The Debentures will 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 four supplemental indentures, and by a fifth supplemental
indenture, to be dated as of March 1, 1999 (the "Indenture"). The Debentures
will be issuable in book-entry form through the facilities of The Depository
Trust Company ("DTC") in denominations of $1,000 or any amount in excess thereof
which is an integral multiple of $1,000. Interest on the Debentures will be at a
single interest rate and will be payable semi-annually on March 1 and September
1 in each year, commencing September 1, 1999. All payments on the Debentures
will be made through the facilities of DTC as described in the prospectus, dated
, 1999, relating to the Debentures (the "Bidding Prospectus"). The general
redemption prices of the Debentures shall be 100% of their principal amount plus
a premium equal to the interest rate per annum borne by the Debentures, reduced
for each twelve month period subsequent to the first anniversary of the date the
Debentures are issued, by an amount equal to one twenty-ninth of the interest
rate per annum borne by the Debentures for each successive twelve month period
(rounded to the nearest eight decimal places) in each case with accrued interest
to the date fixed for redemption; provided, however, that none of the Debentures
shall be redeemed prior to March 1, 2009, and, provided, further that in the
thirtieth year the redemption price will be 100% of the principal amount without
any premium.
<PAGE> 2
3. LEGAL MATTERS
Thelen Reid & Priest LLP has been selected to act as counsel for the
Bidders and will deliver an opinion to the successful Bidder or Bidders (the
"Purchasers"). Winthrop, Stimson, Putnam & Roberts and G. D. Caliendo, Senior
Vice President, General Counsel and Secretary of the Company, will also deliver
opinions to the Purchasers. The forms or content of such opinions are attached
to the Terms of Purchase as Exhibits C, B and A thereto, respectively.
The fees and disbursements of counsel for the Bidders are to be paid by
the Purchaser, except as otherwise provided in the Terms of Purchase, which
together with the bid constitutes the Purchase Agreement. Any prospective Bidder
and the Representative of any group of prospective Bidders may obtain advice
from counsel for the Bidders as to the amount of their fees and the estimated
amount of their disbursements.
4. TERMS AND CONDITIONS RELATING TO BIDS
Copies of the Statement of Terms and Conditions, the Form of Bid, the
Terms of Purchase, the Bidding Prospectus and certain other documents may be
obtained from Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New
York, New York 10004-1490, Attention: Michael F. Cusick, Esq., telephone (212)
858-1238.
5. DUE DILIGENCE CONFERENCE CALL
Company officers and counsel and counsel for the Bidders will conduct a
due diligence conference call during which they will also review with
prospective purchasers the Bidding Prospectus and the Statement of Terms and
Conditions. Any prospective Bidder wishing to participate in the conference call
may do so by contacting Michael F. Cusick, Esq. of Winthrop, Stimson, Putnam &
Roberts at One Battery Park Plaza, New York, New York 10004-1490, telephone
(212) 858-1238, before 10:00 A.M., New York Time on [ ], 1999. Telephonic notice
to such prospective Bidders of the time of such conference call will be given by
the Company no later than the business day preceding the date of such call.
ORANGE AND ROCKLAND UTILITIES, INC.
Dated: [ ], 1999
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