-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Anc1NsmPpkEjIwHOZczKclIqBdk4+YEZVXSg5QfpTMLqfYZK5qw1k+gG4Y2sPYrE FMqqPkZx+fFaXGmTLhjeeA== 0000950123-98-000125.txt : 19980112 0000950123-98-000125.hdr.sgml : 19980112 ACCESSION NUMBER: 0000950123-98-000125 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19980109 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORANGE & ROCKLAND UTILITIES INC CENTRAL INDEX KEY: 0000074778 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 131727729 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: SEC FILE NUMBER: 333-43953 FILM NUMBER: 98503566 BUSINESS ADDRESS: STREET 1: ONE BLUE HILL PLZ CITY: PEARL RIVER STATE: NY ZIP: 10965 BUSINESS PHONE: 9143526000 MAIL ADDRESS: STREET 1: ONE BLUE HILL PLAZA CITY: PEARL RIVER STATE: NY ZIP: 10965 FORMER COMPANY: FORMER CONFORMED NAME: ROCKLAND LIGHT & POWER CO DATE OF NAME CHANGE: 19681202 S-4 1 FORM S-4 1 REGISTRATION NO. __________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 -------------------------------- FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------------- ISSUER OF EXCHANGE DEBENTURES REGISTERED HEREBY ORANGE AND ROCKLAND UTILITIES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK 4931 13-1727729 (STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER) ONE BLUE HILL PLAZA PEARL RIVER, NEW YORK 10965 (914) 352-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES) -------------------------------- 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 10004-1490 (212) 858-1000 -------------------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective. -------------------------------- If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. |_| If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| __________ If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| ________________ --------------------------------
CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------------------------------------------------- TITLE OF EACH CLASS AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF OF SECURITIES TO BE REGISTERED REGISTERED(1) OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE PER UNIT(1) PRICE(1) - -------------------------------------------------------------------------------------------------------------------------- 6-1/2% Debentures Due 2027 $80,000,000 100% of principal $80,000,000 $23,600 (Series F) amount - --------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(o). -------------------------------- THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. 2 Information contained herein is subject to completion or amendment. A Registration Statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the Registration Statement becomes effective. This Prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state. Information contained herein is subject to completion or amendment. A Registration Statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the Registration Statement becomes effective. This Prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state. SUBJECT TO COMPLETION, DATED JANUARY ____, 1998 PROSPECTUS CONFIDENTIAL ORANGE AND ROCKLAND UTILITIES, INC. OFFER TO EXCHANGE ITS 6-1/2% DEBENTURES DUE 2027 (SERIES F) FOR ANY AND ALL OF ITS OUTSTANDING 6-1/2% DEBENTURES DUE 2027 (SERIES E) The Exchange Offer will expire at 5:00 P.M., New York City time, on , 1998, unless extended. Orange and Rockland Utilities, Inc., a New York corporation (the "Company"), hereby offers (the "Exchange Offer"), upon the terms and subject to the conditions set forth in this Prospectus (the "Prospectus") and the accompanying Letter of Transmittal (the "Letter of Transmittal"), to exchange $1,000 principal amount of its 6-1/2% Debentures Due 2027 (Series F) (the "Exchange Debentures"), which will have been registered under the Securities Act of 1933 (the "1933 Act"), pursuant to a Registration Statement of which this Prospectus is a part, for each $1,000 principal amount of its outstanding 6-1/2% Debentures Due 2027 (Series E) (the "Old Debentures," and with the Exchange Debentures, the "Debentures"), of which $80,000,000 aggregate principal amount is outstanding. The form and terms of the Exchange Debentures are substantially identical to the form and terms of the Old Debentures except that the Exchange Debentures will bear a Series F designation and will have been registered under the 1933 Act and, therefore, will not bear legends restricting their transfer and will not entitle the holders thereof (the "Holders") to certain provisions relating to liquidated damages which were applicable to the Old Debentures in certain circumstances relating to the timing of the Exchange Offer. The Old Debentures and the Exchange Debentures will be issued only in denominations of $100,000 or in any amount in excess thereof which is an integral multiple of $1,000. The Exchange Debentures will evidence the same debt as the Old Debentures (which they replace) and will be issued under and be entitled to the benefits of the Indenture dated as of March 1, 1990, as supplemented and amended by three supplemental indentures, and further supplemented and amended by a Fourth Supplemental Indenture relating to the Old Debentures and the Exchange Debentures, dated as of December 1, 1997 (the "Fourth Supplemental Indenture") between The Bank of New York, as trustee (the "Trustee") and the Company (the "Indenture"), which also governs the Old Debentures. See "The Exchange Offer" and "Description of Exchange Debentures." The Company will accept for exchange any and all Old Debentures validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on ___________________, 1998, unless the Exchange Offer is extended by the Company in its sole discretion (the "Expiration Date"). Tenders of Old Debentures may be withdrawn at any time prior to 5:00 p.m. on the Expiration Date. The Old Debentures may be tendered only in integral multiples of $1,000 principal amount. The Exchange Offer is subject to certain customary conditions. See "The Exchange Offer." The Old Debentures were sold on December 18, 1997 (the "Issue Date") to the Initial Purchasers (as defined herein) in a transaction not registered under the 1933 Act in reliance upon an exemption under the 1933 Act. The Initial Purchasers subsequently resold the Old Debentures to qualified institutional buyers ("Qualified Institutional Buyers"), in reliance upon Rule 144A ("Rule 144A") under the 1933 Act, that agreed to comply with certain transfer restrictions and other conditions. Accordingly, the Old Debentures may not be reoffered, resold or otherwise transferred in the United States unless registered under the 1933 Act or unless an applicable exemption from the registration requirements of the 1933 Act is available. The Exchange Debentures are being offered hereunder in order to satisfy certain obligations of the Company under the Registration Rights Agreement (as defined herein) entered into in connection with the offering of the Old Debentures. See "The Exchange Offer." Based on no-action letters issued by the staff of the Securities and Exchange Commission (the "Commission") to third parties, the Company believes the Exchange Debentures issued pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by any Holder thereof (other than any such Holder that is an "affiliate" of the Company within the meaning of Rule 405 under the 1933 Act) without compliance with the registration and prospectus delivery requirements of the 1933 Act, provided that such Exchange Debentures are acquired in the ordinary course of such Holder's business and such Holder has no arrangement or understanding with any person to participate in the distribution of such Exchange Debentures. See "The Exchange Offer -- Purpose and Effect of the Exchange Offer" and "The Exchange Offer -- Resale of the Exchange Debentures." Each broker-dealer (a "Participating Broker-Dealer") that receives Exchange Debentures for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Debentures. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a Participating Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the 1933 Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a Participating Broker-Dealer in connection with resales of Exchange Debentures received in exchange for Old Debentures where such Old Debentures were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date, it will make this Prospectus available to any Participating Broker-Dealer for use in connection with any such resale. See "Plan of Distribution." Holders of Old Debentures not tendered and accepted in the Exchange Offer will continue to hold such Old Debentures and will be entitled to all the rights and benefits and will be subject to the limitations applicable thereto under the Fourth Supplemental Indenture and with respect to transfer under the 1933 Act. The Company will pay all the expenses incurred by it incident to the Exchange Offer. See "The Exchange Offer." THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is January __, 1998. 3 NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE EXCHANGE OFFER COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. -------------------------- TABLE OF CONTENTS
Page Available Information............................. 3 Incorporation of Certain Documents by Reference.................................... 3 Prospectus Summary................................ 4 The Company....................................... 9 Regulatory Proceedings............................ 9 Use of Proceeds.................................. 10 Selected Financial Information................... 11 The Exchange Offer .............................. 12 Description of Exchange Debentures............... 18 Certain United States Federal Income Tax Considerations............................. 22 Plan of Distribution............................. 25 Rating........................................... 25 Experts.......................................... 25
There has not previously been any public market for the Old Debentures or the Exchange Debentures. The Company does not intend to list the Exchange Debentures on any securities exchange or to seek approval for quotation through any automated quotation system. There can be no assurance that an active market for the Exchange Debentures will develop. Moreover, to the extent that Old Debentures are tendered and accepted in the Exchange Offer, the trading market for untendered and tendered but unaccepted Old Debentures could be adversely affected. The Exchange Debentures will be available only in book-entry form. The Company expects that the Exchange Debentures issued pursuant to this Exchange Offer will be issued in the form of a Global Debenture (as defined herein), which will be deposited with, or on behalf of, The Depository Trust Company (the "Depositary") and registered in its name or in the name of Cede & Co., its nominee. Beneficial interests in the Global Debenture representing the Exchange Debentures will be shown on, and transfers thereof will be effected through, records maintained by the Depositary and its Participants (as hereinafter defined). See "Description of Exchange Debentures -- Book-Entry; Delivery and Form." 2 4 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934 (the "1934 Act"), and in accordance therewith files reports and other information with the Commission. Such reports, proxy statements and other information filed by the Company with the Commission can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at its Regional Offices located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, Suite 1300, New York, New York 10048. Copies of such material can be obtained from the Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates, or by writing to Orange and Rockland Utilities, Inc., One Blue Hill Plaza, Pearl River, New York, 10965, Attention: Office of the Treasurer. The Commission maintains a web site on the Internet that contains reports, proxy and information statements and other information regarding registrants, including the Company; the address of such site is http://www.sec.gov. Such material can also be inspected at the offices of The New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, where the Company's common stock is listed and traded under the ticker symbol "ORU." INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Commission pursuant to the 1934 Act are incorporated by reference in this Prospectus and made a part hereof: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1996 (the "10-K"). (b) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and September 30, 1997. (c) The Company's Current Reports on Form 8-K dated April 17, June 17, July 1, December 11 and December 17, 1997. In addition, all documents subsequently filed with the Commission by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Prospectus shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the respective dates of filing of such documents. The documents incorporated or deemed to be incorporated herein by reference are sometimes hereinafter called the "Incorporated Documents." Any statement contained in this Prospectus, or in a document incorporated or deemed to be incorporated by reference herein as described above, shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which is or is deemed to be incorporated by reference herein as described above modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, INCLUDING ANY BENEFICIAL OWNER, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE INCORPORATED DOCUMENTS, OTHER THAN CERTAIN EXHIBITS TO SUCH INCORPORATED DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO: OFFICE OF THE TREASURER, ORANGE AND ROCKLAND UTILITIES, INC., ONE BLUE HILL PLAZA, PEARL RIVER, NEW YORK 10965 (TELEPHONE NUMBER 914-352-6000). IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY FIVE BUSINESS DAYS PRIOR TO THE EXPIRATION DATE. 3 5 PROSPECTUS SUMMARY The following summary is qualified in its entirety by reference to the more detailed information contained elsewhere in this Prospectus (which term includes any applicable amendments or supplements hereto), including the Selected Financial Information included herein and the Company's financial statements and other information contained in the Incorporated Documents. THE COMPANY The Company and its two wholly-owned utility subsidiaries, Rockland Electric Company and Pike County Light & Power Company, supply electricity and gas to a territory covering approximately 1,350 square miles. As of December 31, 1996, the Company and its utility subsidiaries furnished electric service to approximately 266,000 customers in 96 communities with an estimated population of 676,000 and gas service to approximately 113,000 customers in 57 communities with an estimated population of 478,000.
THE EXCHANGE OFFER Old Debentures...................................... The Old Debentures were sold on December 18, 1997 to Donaldson, Lufkin & Jenrette Securities Corporation and Salomon Smith Barney (the "Initial Purchasers") pursuant to a Purchase Agreement dated December 15, 1997 by and among the Company and the Initial Purchasers (the "Purchase Agreement"). The Initial Purchasers subsequently resold the Old Debentures to Qualified Institutional Buyers, pursuant to Rule 144A under the 1933 Act, who agreed to be bound by certain transfer restrictions and comply with other conditions. Registration Rights Agreement............................................Pursuant to a Registration Rights Agreement (the "Registration Rights Agreement") between the Company and the Initial Purchasers, the Company agreed to file a registration statement (the "Exchange Offer Registration Statement") with respect to an offer to exchange the Old Debentures for the Exchange Debentures registered under the 1933 Act, with terms substantially identical to those of the Old Debentures. The Exchange Offer is intended to satisfy certain of such exchange rights which will terminate upon the consummation of the Exchange Offer. The Exchange Offer.................................. The Company is offering to exchange $1,000 principal amount of Exchange Debentures for each $1,000 principal amount of Old Debentures. As of the date hereof, $80,000,000 aggregate principal amount of Old Debentures are outstanding. The Old Debentures and the Exchange Debentures will be issued only in denominations of $100,000 or in any amount in excess thereof which is an integral multiple of $1,000. Based on an interpretation by the staff of the Commission set forth in no-action letters issued to third parties, the Company believes that Exchange Debentures issued pursuant to the Exchange Offer in exchange for Old Debentures may be offered for resale, resold and otherwise transferred by any Holder thereof (other than any such Holder which is an "affiliate" of the Company within the meaning of Rule 405 under the 1933 Act) without compliance with the registration and prospectus delivery requirements of the 1933 Act, provided that such Exchange Debentures are acquired in the ordinary course of such Holder's business and that such Holder does not intend to participate and has no arrangement or understanding with any person to participate in the distribution of such Exchange Debentures. Each Participating Broker-Dealer that receives Exchange Debentures for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any
4 6 resale of such Exchange Debentures. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a Participating Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the 1933 Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a Participating Broker-Dealer in connection with resales of Exchange Debentures received in exchange for Old Debentures where such Old Debentures were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date, it will make this Prospectus available to any Participating Broker-Dealer for use in connection with any such resale. See "Plan of Distribution." Any Holder of Old Debentures who tenders in the Exchange Offer with the intention to participate, or for the purpose of participating, in a distribution of the Exchange Debentures could not rely on the position of the staff of the Commission enunciated in no-action letters and, in the absence of an exemption therefrom, must comply with the registration and prospectus delivery requirements of the 1933 Act in connection with any resale transaction. Failure to comply with such requirements in such instance may result in such Holder incurring liability under the 1933 Act for which the Holder is not indemnified by the Company. Expiration Date..................................... 5:00 p.m., New York City time, on ________, 1998 unless the Exchange Offer is extended by the Company in its sole discretion, in which case the term "Expiration Date" means the latest date and time to which the Exchange Offer is extended. Interest............................................ Interest on Exchange Debentures shall accrue from the last interest payment date on which interest was paid on the Old Debentures so surrendered, or, if no interest has been paid on such Old Debentures, from December 18, 1997. No interest will be paid on the Old Debentures accepted for exchange. Conditions to the Exchange Offer................................... The Exchange Offer is subject to certain customary conditions, which may be waived by the Company. See "The Exchange Offer -- Conditions." Procedures for Tendering Old Debentures................................... Each Holder of Old Debentures wishing to accept the Exchange Offer must complete, sign and date the accompanying Letter of Transmittal, or a facsimile thereof, in accordance with the instructions contained herein and therein, and mail or otherwise deliver such Letter of Transmittal, or such facsimile, together with the Old Debentures and any other required documentation to the Exchange Agent (as defined herein) at the address set forth herein. By executing the Letter of Transmittal, each Holder will be deemed to represent to the Company, among other things, that (i) the Exchange Debentures acquired pursuant to the Exchange Offer are being obtained in the ordinary course of business of the person receiving such Exchange Debentures, whether or not such person is the Holder, (ii) neither the Holder nor any such other person has any arrangement or understanding with any person to participate in the distribution of such Exchange Debentures in violation of the 1933 Act, (iii) neither the Holder nor any such other person is an "affiliate," as defined under Rule 405 of the 1933 Act, of the Company and (iv) such Holder has full power and authority to exchange the Old Debentures for the Exchange Debentures. See "The Exchange Offer -- Purpose and Effect of the Exchange Offer" and " -- Procedures for Tendering."
5 7 Untendered Debentures............................... Following the consummation of the Exchange Offer, Holders of Old Debentures eligible to participate but who do not tender their Old Debentures will not have any further registration rights and such Old Debentures will continue to be subject to certain restrictions on transfer. Accordingly, the liquidity of the market for such Old Debentures could be adversely affected. Consequences of Failure to Exchange.............................. Old Debentures that are not exchanged pursuant to the Exchange Offer will remain restricted securities. Accordingly, such Old Debentures may be resold only (i) to the Company, (ii) pursuant to Rule 144A or Rule 144 under the 1933 Act or pursuant to some other exemption under the 1933 Act, (iii) outside the United States to a foreign person pursuant to the requirements of Rule 904 under the 1933 Act, or (iv) pursuant to an effective registration statement under the 1933 Act. See "The Exchange Offer -- Consequences of Failure to Exchange." Shelf Registration Statement........................ If any Holder of the Old Debentures notifies the Company within 20 Business Days following the Consummation of the Exchange Offer that such Holder was prohibited by law or Commission policy from participating in the Exchange Offer, and such Holder has provided information regarding such Holder and the distribution of such Holder's Old Debentures to the Company, the Company has agreed to register the Old Debentures on a shelf registration statement (the "Shelf Registration Statement") and to use its commercially reasonable best efforts to cause such Shelf Registration Statement to become effective on or prior to the 90 days after the date on which the Company becomes obligated to file such Shelf Registration Statement. Special Procedures for Beneficial Owners................................ Any beneficial owner whose Old Debentures are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact such registered Holder promptly and instruct such registered Holder to tender on such beneficial owner's behalf. If such beneficial owner wishes to tender on such owner's own behalf, such owner must, prior to completing and executing the Letter of Transmittal and delivering its Old Debentures, either make appropriate arrangements to register ownership of the Old Debentures in such owner's name or obtain a properly completed bond power from the registered Holder. The transfer of registered ownership may take considerable time. Guaranteed Delivery Procedures....................................... Holders of Old Debentures who wish to tender their Old Debentures and whose Old Debentures are not immediately available or who cannot deliver their Old Debentures, the Letter of Transmittal or any other documents required by the Letter of Transmittal to the Exchange Agent (or comply with the procedures for book-entry transfer) prior to the Expiration Date, must tender their Old Debentures according to the guaranteed delivery procedures set forth in "The Exchange Offer -- Guaranteed Delivery Procedures." Withdrawal Rights................................... Tenders may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date. Acceptance of Old Debentures and Delivery of Exchange Debentures.............................. The Company will accept for exchange any and all Old Debentures which are properly tendered in the Exchange Offer prior to 5:00 p.m., New York City time, on the Expiration Date. The Exchange Debentures issued pursuant to the Exchange Offer will be delivered on the earliest practicable date following the Expiration Date. See "The Exchange Offer -- Terms of the Exchange Offer."
6 8 Use of Proceeds..................................... The Company will not receive any cash proceeds from the issuance of the Exchange Debentures in the Exchange Offer. See "Use of Proceeds." Exchange Agent...................................... The Bank of New York, as Trustee, is serving as Exchange Agent in connection with the Exchange Offer. THE EXCHANGE DEBENTURES General............................................. The form and terms of the Exchange Debentures are substantially identical to the form and terms of the Old Debentures except that (i) the Exchange Debentures bear a Series F designation, (ii) the Exchange Debentures have been registered under the 1933 Act and, therefore, will not bear legends restricting the transfer thereof, and (iii) the Holders of Exchange Debentures will not be entitled to certain rights under the Registration Rights Agreement, including the provisions providing for liquidated damages in certain circumstances relating to the timing of the Exchange Offer, which rights will terminate when the Exchange Offer is consummated. See "The Exchange Offer -- Purpose and Effect of the Exchange Offer." The Exchange Debentures will evidence the same debt as the Old Debentures (which they replace) and will be entitled to the benefits of the Indenture. See "Description of Exchange Debentures." The Old Debentures and/or the Exchange Debentures, whichever was, is or will be outstanding in the particular context, are referred to herein collectively as the "Debentures." Securities Offered:................................. $80,000,000 6-1/2% Debentures Due 2027 (Series F) (the "Exchange Debentures"). Maturity Date:...................................... December 1, 2027 Interest Rate:...................................... 6-1/2% per annum calculated on the basis of a 360-day year consisting of twelve 30-day months. Interest Payments:.................................. Semi-annually on each June 1 and December 1, commencing June 1, 1998, accruing from the last interest payment date on which interest was paid on the Old Debentures so surrendered, or, if no interest has been paid on such Old Debentures, from December 18, 1997. Redemption:......................................... The Exchange Debentures are not redeemable in whole or in part prior to maturity and there is no sinking fund for the Exchange Debentures. Repayment at Option of Holder:...................... The registered Holder of each Exchange Debenture may elect to have such Exchange Debenture (or any portion thereof in the amount of $100,000 or in integral multiples of $1,000 in excess thereof) repaid on December 1, 2004 (or, if such day is not a business day, the next succeeding business day), at a repayment price equal to the principal amount of such Exchange Debenture (or such portion thereof) together with accrued and unpaid interest thereon to the date of repayment. Such election, which is irrevocable, must be made within the period commencing October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 (or, if such day is not a business day, the next succeeding business day). Ranking of Debentures:......................................... The Exchange Debentures will constitute a new series of debentures issued under the Indenture. The Exchange Debentures will be unsecured and rank equally and ratably with all the debentures outstanding under the Indenture and with other unsecured obligations of the Company. The Company has retired its last outstanding series of First Mortgage Bonds and has cancelled its First Mortgage and discharged the lien thereof.
7 9 Restriction on Secured Indebtedness:................ The Indenture contains a covenant restricting the issuance by the Company of secured indebtedness for borrowed money. See "Description of Debentures--Restriction on Secured Indebtedness for Borrowed Money." Denomination and Registration of Debentures:...................................... The Exchange Debentures will be issued in the form of book-entry securities, represented by one global certificate (the "Global Debenture") deposited with a custodian for, and registered in the name of, the Depositary or its nominee. See "Description of Debentures--Book-Entry, Delivery and Form." The Exchange Debentures will be issued only in denominations of $100,000 or any amount in excess thereof which is an integral multiple of $1,000. Rating:............................................. The Exchange Debentures have received a preliminary rating of A- from Standard & Poor's Rating Services ("S&P") and a rating of A3 from Moody's Investors Services, Inc. ("Moody's"), subject to receipt and review of final documents.
8 10 THE COMPANY Orange and Rockland Utilities, Inc. (the "Company) is a New York corporation, with its principal office at One Blue Hill Plaza, Pearl River, New York 10965 (telephone number 914-352-6000), which was formed originally under the name Rockland Light and Power Company on May 21, 1926 through the consolidation of a company having the latter name (organized in 1899), Catskill Power Corporation and Orange County Public Service Company, Inc. Its present name was adopted on February 28, 1958, when The Orange and Rockland Electric Company was consolidated with Rockland Light and Power Company. The Company has two wholly-owned utility subsidiaries, Rockland Electric Company ("RECO"), a New Jersey corporation, and Pike County Light & Power Company, a Pennsylvania corporation. The Company and its utility subsidiaries supply electricity and gas to a territory covering approximately 1,350 square miles. As of December 31, 1996, the Company and its utility subsidiaries furnished electric service to approximately 266,000 customers in 96 communities with an estimated population of 676,000 and gas service to approximately 113,000 customers in 57 communities with an estimated population of 478,000. The Company also has two wholly-owned non-utility subsidiaries, Clove Development Corporation ("Clove"), a real estate operation, and O&R Development, Inc. ("ORD"), a land development company. RECO has two wholly-owned non-utility subsidiaries, Enserve Holding, Inc. ("EHI") and Saddle River Holdings Corp. ("SRH"), both Delaware corporations. EHI has two wholly-owned non-utility subsidiaries which were established to provide non-regulated energy services and to invest in energy technology ventures. SRH has a wholly-owned non-utility subsidiary, NORSTAR Holding, Inc. ("NHI") (formerly O&R Energy, Inc.), a Delaware corporation which was engaged in natural gas marketing through its wholly-owned non-utility subsidiary, NORSTAR Management, Inc. ("NMI"), a Delaware corporation. NMI is the sole general partner of a Delaware limited partnership, NORSTAR Energy Limited Partnership ("NORSTAR Partnership"). NORSTAR Partnership is the majority owner of NORSTAR Energy Pipeline Company, L.L.C. ("NORSTAR LLC"), a Delaware limited liability company. Pursuant to an agreement dated as of August 20, 1997, the NORSTAR Partnership sold to mc2 Inc., effective August 1, 1997, its accounts receivable, with certain exceptions, and its contracts with customers and related agreements. NMI is in the process of winding up the remaining portion of the NORSTAR Partnership business. REGULATORY PROCEEDINGS Regulatory agencies at the Federal level as well as the three states in which the Company and its utility subsidiaries have retail electric franchises are currently evaluating changes in regulatory and rate-making practices designed to promote increased competition consistent with safety, reliability and affordability standards. With respect to the Company, in May 1996, the New York State Public Service Commission ("NYPSC") issued an Order in its Competitive Opportunities Proceeding (Case 96-E-0900) setting forth its visions for the fundamental restructuring of the electric industry in New York State based on competition in the generation and energy services sectors of the industry. On November 26, and December 31, 1997, the NYPSC issued orders approving an Electric Rate and Restructuring Plan (the "Restructuring Plan"), which had been filed on November 6, 1997 by the Company, the New York State Department of Public Service (the "Staff") and other parties in Case 96-E-0900. The Restructuring Plan provides for the sale of all of the Company's generating assets (i.e., all units at the Lovett Generating Station, the Company's one-third interest in the Bowline Generating Station, as well as its hydro-electric facilities and gas turbines) and for lower electric rates. The Restructuring Plan superseded the settlement agreement the Company entered into on March 25, 1997 with the Staff and other parties in this case. The NYPSC had found the March 25, 1997 settlement agreement unacceptable and had directed the Company, the Staff and other parties to resume negotiations to modify it. Under the terms of the Restructuring Plan, which covers a four-year period commencing with NYPSC approval, the Company has agreed to commence immediately the process of auctioning all of its generating assets. The Restructuring Plan provides that if the Company selects a winning bidder prior to May 1, 1999, the New York share of any net book gains associated with the sale are to be allocated between shareholders and customers on a 25/75 basis, respectively, and any net book losses are to be allocated between shareholders and customers on a 5/95 basis, respectively. If the Company selects a winning bidder on or after May 1, 1999, the New York share of the net book gains or losses associated with the sale are to be allocated between shareholders and customers on a 20/80 basis. The Restructuring Plan further provides for a $20 million cap on the New York share of net book gains allocable to shareholders from the sale of generating assets. The NYPSC, in approving the Restructuring Plan, offered the Company the opportunity to participate as a bidder in the auction of the Company's generating assets, subject to the conditions that the auction be conducted by an independent third party and that the Company renounce the shareholders' share of any net book gain from the sale provided for in the Restructuring Plan. In its November 26, 1997 order, the NYPSC also stated that if the Company 9 11 elected to participate in the auction, the shareholders would not be required to absorb their share of any net book loss provided for in the Restructuring Plan. By letter dated December 10, 1997, the Company notified the NYPSC that it has elected not to be a bidder in the auction. Accordingly, the Company will be subject to the terms of the Restructuring Plan as filed on November 6, 1997. On December 11, 1997, in accordance with the Restructuring Plan, the Company submitted its Preliminary Divestiture Plan to the NYPSC Staff and other parties. The terms of the Restructuring Plan permit the Company to defer and recover up to $7.5 million (New York electric share) of prudent and verifiable non-officer employee costs, such as retraining, outplacement, severance, early retirement and employee retention programs associated with the divestiture. Under the terms of the Restructuring Plan, the Company will be authorized to petition the NYPSC for recovery of employee costs in excess of $7.5 million. In addition, the terms of the Restructuring Plan permit the Company to retain all earnings up to an 11.4% return on equity and provide that earnings in excess of 11.4% are to be shared, with 75% to be used to offset NYPSC approved deferrals or otherwise inure to the Company's customers, and 25% to be retained by the Company's shareholders. The Restructuring Plan further provides that full retail access to a competitive energy and capacity market will be available for all customers by May 1, 1999. The Company's existing PowerPick(TM) Program, whereby customers can purchase energy (but not capacity) from suppliers other than the Company, will be expanded to all customers on May 1, 1998. The Restructuring Plan also provides for electric price reductions of approximately $32.4 million over its four-year term and for recovery of above market generation costs should the transfer of title to the Company's generating assets not occur before May 1, 1999, through a Competitive Transition Charge (the "CTC"). Should a CTC be required, the Company would be authorized to recover the difference between its non-variable costs of generation, including 75% of fixed production labor expenses and property taxes, and the revenues, net of fuel and variable operating and maintenance ("O&M") expenses, derived from the operation of the Company's generating assets in a deregulated competitive market. If title to the generating assets has not transferred as of May 1, 2000, the CTC would be modified so as to allow a maximum recovery of 65% of fixed production labor expenses and property taxes. The modified CTC would remain effective until the earlier of the date title to the generating assets is transferred or October 31, 2000. In the event title to the generating assets is not to be transferred by October 31, 2000, the Company would be authorized to petition the NYPSC for permission to continue a CTC until the date title to the generating assets is transferred. The CTC does not allow for the recovery of inflationary increases in non-fuel O&M production costs, property tax increases, wage rate increases, or increased costs associated with capital additions or changes in the costs of capital applicable to production costs. The Restructuring Plan also provides that the Company and its utility subsidiaries are to apply to the appropriate regulatory authorities for permission to form a new holding company, which would be a registered holding company under the Public Utility Holding Company Act of 1935 (the "1935 Act"). The Company currently is an exempt holding company under the 1935 Act. The new holding company structure would provide for separate regulated electric distribution companies in the New York, New Jersey and Pennsylvania service territories, as well as an unregulated energy services company. The Company would continue as the New York regulated electric distribution company, and the Exchange Debentures would remain obligations of the Company. The unregulated energy services company would be able to market electricity and unbundled energy services (e.g., metering) to wholesale and retail customers on a competitive basis using the Company's name without a royalty payment. The formation of the holding company is conditioned upon shareholder and regulatory approval, including approval of the Commission, the Federal Energy Regulatory Commission, the NYPSC, the New Jersey Board of Public Utilities and the Pennsylvania Public Utility Commission. Additional information concerning regulatory proceedings relating to the Company and its utility subsidiaries is contained in the Incorporated Documents. USE OF PROCEEDS The Exchange Offer is intended to satisfy certain of the Company's obligations under the Registration Rights Agreement. The Company will not receive any cash proceeds from the issuance of the Exchange Debentures in the Exchange Offer. The Company used the net proceeds from the sale of the Old Debentures to refund short-term debt incurred to repay at maturity in October 1997 both its last outstanding series of First Mortgage Bonds which bore interest at the rate of 6-1/2% and the 6.50% Series B Debentures in the aggregate principal amount of $78,000,000. The effective interest rate on such short-term debt was approximately 6.0%. The remaining net proceeds were applied to finance permanently outstanding short-term debt or to other corporate purposes. 10 12 SELECTED FINANCIAL INFORMATION The selected financial information set forth below has been derived from the Company's previously published financial statements included in the Incorporated Documents and reflects the reclassification of NORSTAR Partnership as discontinued operations for the years ended December 31, 1996 and 1995 subsequent to the original issuance of such statements. See "The Company." The Company's financial statements for the years ended December 31, 1996 and 1995 have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports included in the Incorporated Documents. The unaudited financial information for the twelve months ended September 30, 1997, includes all adjustments, consisting of normal recurring accruals, that the Company considers necessary for a fair presentation of the financial position and results of operation for such period. The selected financial data set forth below do not purport to be complete and should be read in conjunction with the Company's annual and quarterly reports included in the Incorporated Documents.
Year Ended December 31, Twelve Months 1995(1) 1996(1) Ended September 30, ------- ------- ------------------- 1997(1) (unaudited) (Dollars in thousands) Selected Income Statement Data: Operating Revenues $ 602,310 $ 654,890 $ 637,044 Operating Income $ 75,569 $ 82,644 $ 74,538 Net Income: Continuing Operations $ 37,766 $ 48,147 $ 41,566 Discontinued Operations $ 807 $ (1,844) $ (16,326) Total $ 38,573 $ 46,303 $ 25,240 Earnings Applicable to Common Stock $ 35,438 $ 43,279 $ 22,385 Selected Balance Sheet Data: Total Assets $ 1,241,227 $ 1,257,900 $ 1,271,019 Total Long-Term Debt $ 359,928 $ 359,825 $ 354,680 Common Stock Equity $ 379,776 $ 387,850 $ 377,819 Other Data: Electric Customers 263,156 266,022 269,059 Gas Customers 112,188 113,126 113,886 Ratio of Earnings to Fixed Charges (2) 2.75 3.20 2.83
(1) Effective August 1, 1997, the accounts receivable, with certain exceptions, and contracts with customers and related agreements of NORSTAR Partnership were sold. In accordance with Accounting Principles Board Opinion No. 30, the consolidated financial statements of the Company at September 30, 1997 reported the results of NORSTAR Partnership as "Discontinued Operations," and the results of all prior periods presented herein have been restated to conform with the current period classifications. Additional information regarding NORSTAR Partnership is included in the Company's Quarterly Report to the Commission on Form 10-Q for the quarter ended September 30, 1997, which information is incorporated by reference in this document. (2) For purposes of computing the ratio of earnings to fixed charges, earnings are defined as the sum of pre-tax income from continuing operations plus fixed charges. Fixed charges consist of all interest expense (before allowance for borrowed funds used during construction), one-third of rent expense (which approximates the interest component of such expense) and amortization of debt expense. 11 13 THE EXCHANGE OFFER PURPOSE AND EFFECT OF THE EXCHANGE OFFER The Old Debentures were originally sold on December 18, 1997 to the Initial Purchasers pursuant to the Purchase Agreement. The Initial Purchasers subsequently resold the Old Debentures to Qualified Institutional Buyers, in reliance on Rule 144A under the 1933 Act, who agreed to comply with certain transfer restrictions and other conditions. As a condition to the Purchase Agreement, the Company entered into the Registration Rights Agreement with the Initial Purchasers pursuant to which the Company has agreed, unless the Exchange Offer shall not be permitted by applicable federal law, to (i) cause to be filed with the Commission as soon as practicable after December 18, 1997, but in no event later than 150 days after December 18, 1997, the Exchange Offer Registration Statement, (ii) use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective at the earliest possible time, but in no event later than 180 days after December 18, 1997, (iii) in connection with the foregoing, (A) file all pre-effective amendments to such Exchange Offer Registration Statement as may be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) file, if applicable, a post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under the 1933 Act and (C) cause all necessary filings, if any, in connection with the registration and qualification of the Exchange Debentures to be made under the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer and (iv) upon the effectiveness of such Exchange Offer Registration Statement, Consummate the Exchange Offer. For each Old Debenture surrendered to the Company pursuant to the Exchange Offer, the Holder of such Old Debenture will receive an Exchange Debenture having a principal amount equal to that of the surrendered Old Debenture. Interest on Exchange Debentures will accrue from the last interest payment date on which interest was paid on the Old Debentures so surrendered, or, if no interest has been paid on such Old Debentures, from December 18, 1997. No interest will be paid on the Old Debentures accepted for exchange. The Exchange Offer shall be deemed "Consummated" for purposes of the Registration Rights Agreement upon the occurrence of (a) the filing and effectiveness under the Act of the Exchange Offer Registration Statement relating to the Series F Debentures to be issued in the Exchange Offer, (b) the maintenance of such Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided however, that in no event shall such period be less than 20 Business Days and (c) the delivery by the Company to the Registrar under the Indenture of Exchange Debentures in the same aggregate principal amount as the aggregate principal amount of Old Debentures tendered by Holders thereof pursuant to the Exchange Offer. Under existing interpretations of the staff of the Commission contained in several no-action letters to third parties, the Exchange Debentures would in general be freely tradable after the Exchange Offer without further registration under the 1933 Act. However, any purchaser of Old Debentures who is an "affiliate" of the Company or who intends to participate in the Exchange Offer for the purpose of distributing the Exchange Debentures (i) will not be able to rely on the interpretation of the staff of the Commission, (ii) will not be able to tender its Old Debentures in the Exchange Offer and (iii) must comply with the registration and prospectus delivery requirements of the 1933 Act in connection with any sale or transfer of the Old Debentures, unless such sale or transfer is made pursuant to an exemption from such requirements. As a condition to its participation in the Exchange Offer, each Holder of Old Debentures shall furnish, upon the request of the Company, prior to the Consummation of the Exchange Offer, a written representation to the Company (which may be contained in the Letter of Transmittal) to the effect that (A) it is not an affiliate of the Company, (B) it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Debentures and (C) it is acquiring the Exchange Debentures in its ordinary course of business. In addition, in connection with any resales of Exchange Debentures, any Participating Broker-Dealer who acquired the Old Debentures for its own account as a result of market-making or other trading activities must deliver a prospectus meeting the requirements of the 1933 Act. The staff of the Commission has taken the position to the effect that Participating Broker-Dealers may fulfill their prospectus delivery requirements with respect to the Exchange Debentures (other than a resale of an unsold allotment from the original sale of the Old Debentures) with the prospectus contained in the Exchange Registration Statement. Under the Registration Rights Agreement, the Company is required to allow Participating Broker-Dealers and other persons, if any, subject to similar prospectus delivery requirements to use the prospectus contained in the Exchange Registration Statement in connection with the resale of such Exchange Debentures. If (i) the Company is not required to file an Exchange Offer Registration Statement with respect to the Exchange Debentures because the Exchange Offer is not permitted by applicable law (after compliance with the registration procedures set forth in the Registration Rights Agreement) or (ii) any Holder of Transfer Restricted Securities (as herein defined) shall notify the Company within 20 Business Days following the Consummation of the Exchange Offer that (A) such Holder was prohibited by law or Commission policy from participating in the Exchange Offer or (B) such Holder may not resell the Exchange Debentures acquired by it in the Exchange Offer to the public without delivering a prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder or (C) such Holder is a Broker-Dealer and holds Old Debentures acquired directly from the Company or one of its affiliates, then the Company shall (x) cause to be filed on or prior to 30 days after the date on which the Company determines that it is not required to file the Exchange Offer Registration Statement pursuant to clause (i) above or 30 days after the date on which the Company receives the notice specified 12 14 in clause (ii) above a shelf registration statement pursuant to Rule 415 under the 1933 Act (which may be an amendment to the Exchange Offer Registration Statement (in either event, the "Shelf Registration Statement")), relating to all Transfer Restricted Securities the Holders of which shall have provided in writing to the Company, within 20 days after receipt of a request therefor, the information specified in Item 507 of Regulation S-K under the 1933 Act, and shall (y) use its commercially reasonable best efforts to cause such Shelf Registration Statement to become effective on or prior to 90 days after the date on which the Company becomes obligated to file such Shelf Registration Statement. If, after the Company has filed an Exchange Offer Registration Statement which satisfies the requirements of the Registration Rights Agreement, the Company is required to file and make effective a Shelf Registration Statement solely because the Exchange Offer shall not be permitted under applicable federal law, then the filing of the Exchange Offer Registration Statement shall be deemed to satisfy the requirements of clause (x) above. Such an event shall have no effect on the requirements of clause (y) above. The Company shall use its commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required, to the extent necessary to ensure that it is available for sales of the Transfer Restricted Securities by the Holders thereof entitled to the benefits described in this section, and to ensure that it conforms with the requirements of the Registration Rights Agreement, the 1933 Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least two years following the date on which such Shelf Registration Statement first becomes effective under the 1933 Act. For purposes of the foregoing, "Transfer Restricted Securities" means each Debenture until (i) the date on which an Old Debenture has been exchanged by a person other than a broker-dealer for an Exchange Debenture in the Exchange Offer, (ii) following the exchange by a broker-dealer in the Exchange Offer of an Old Debenture for an Exchange Debenture, the date on which such Exchange Debenture is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the date on which such Debenture has been effectively registered under the 1933 Act and disposed of in accordance with the Shelf Registration Statement or (iv) the date on which such Debenture is distributed to the public pursuant to Rule 144 under the 1933 Act. The statements made in this Prospectus relating to the Registration Rights Agreement are intended to be summaries of all material elements of such agreement in connection with the Exchange Offer and, as such, do not purport to be complete. Reference is made to the Registration Rights Agreement, a copy of which is filed as an exhibit to the Exchange Registration Statement of which this Prospectus is a part, for a more complete description of the agreement or matter involved. Following the consummation of the Exchange Offer, Holders of the Old Debentures who were eligible to participate in the Exchange Offer but who did not tender their Old Debentures will not have any further registration rights and such Old Debentures will continue to be subject to certain restrictions on transfer. Accordingly, the liquidity of the market if any, for such Old Debentures could be adversely affected. TERMS OF THE EXCHANGE OFFER Upon the terms and subject to the conditions set forth in this Prospectus and in the Letter of Transmittal, the Company will accept any and all Old Debentures validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on the Expiration Date. The Company will issue $1,000 principal amount of Exchange Debentures in exchange for each $1,000 principal amount of outstanding Old Debentures accepted in the Exchange Offer. Holders may tender some or all of their Old Debentures pursuant to the Exchange Offer. However, Old Debentures may be tendered only in denominations of $100,000 or any amount in excess thereof which is an integral multiples of $1,000. The form and terms of the Exchange Debentures are substantially identical to the form and terms of the Old Debentures except that (i) the Exchange Debentures bear a Series F designation and a different CUSIP Number from the Old Debentures, (ii) the Exchange Debentures have been registered under the 1933 Act and hence will not bear legends restricting the transfer thereof and (iii) the Holders of the Exchange Debentures will not be entitled to certain rights under the Registration Rights Agreement, including the provisions providing for liquidated damages in certain circumstances relating to the timing of the Exchange Offer, all of which rights will terminate when the Exchange Offer is terminated. The Exchange Debentures will evidence the same debt as the Old Debentures (which they replace) and will be entitled to the benefits of the Indenture. As of the date of this Prospectus, the entire $80,000,000 aggregate principal amount of Old Debentures is registered in the name of Cede & Co., as nominee for the Depositary. The Company has fixed the close of business on _________ , 1998 as the record date for the Exchange Offer for purposes of determining the persons to whom this Prospectus and the Letter of Transmittal will be mailed initially. Only a Holder of Old Debentures may tender such Old Debentures in the Exchange Offer. The term "Holder" with respect to the Exchange Offer means any person in whose name Old Debentures are registered in the Securities Register or any other person who has obtained a properly completed Agent's Message (as hereinafter defined) from the registered Holder, or any person whose Old Debentures are held of record by the Depositary who desires to deliver such Old Debentures by book-entry transfer at the Depositary. Holders of Old Debentures do not have any appraisal or dissenters' rights under the New York Business Corporation Law or the Indenture in connection with the Exchange Offer. The Company intends to conduct the Exchange Offer in accordance with the applicable requirements of the 1934 Act and the rules and regulations of the Commission thereunder. 13 15 The Company shall be deemed to have accepted validly tendered Old Debentures when, as and if the Company has given oral or written notice thereof to the Exchange Agent. The Exchange Agent will act as agent for the tendering Holders of Old Debentures and for the purpose of receiving the Exchange Debentures from the Company. If any tendered Old Debentures are not accepted for exchange because of an invalid tender, the occurrence of certain other events set forth herein or otherwise, the certificates for any such unaccepted Old Debentures will be returned (or in the case of Old Debentures tendered by book-entry transfer through the Depositary, will be credited to an account maintained with the Depositary), without expense, to the tendering Holder thereof as promptly as practicable after the Expiration Date. Holders who tender Old Debentures in the Exchange Offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the Letter of Transmittal, transfer taxes with respect to the exchange of Old Debentures pursuant to the Exchange Offer. The Company will pay all charges and expenses, other than transfer taxes in certain circumstances, in connection with the Exchange Offer. See " -- Fees and Expenses." EXPIRATION DATE; EXTENSIONS; AMENDMENTS The term "Expiration Date" shall mean 5:00 p.m., New York City time, on ____________, 1998, unless the Company, in its sole discretion, extends the Exchange Offer, in which case the term "Expiration Date" shall mean the latest date and time to which the Exchange Offer is extended. In order to extend the Exchange Offer, the Company will notify the Exchange Agent of any extension by oral or written notice and will mail to the registered Holders an announcement thereof, each prior to 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. The Company reserves the right, in its reasonable discretion, (i) to delay accepting any Old Debentures, to extend the Exchange Offer or to terminate the Exchange Offer if any of the conditions set forth below under " -- Conditions" shall not have been satisfied, by giving oral or written notice of such delay, extension or termination to the Exchange Agent or (ii) to amend the terms of the Exchange Offer in any manner. Any such delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by oral or written notice thereof to the registered Holders. INTEREST ON THE EXCHANGE DEBENTURES Interest on Exchange Debentures shall accrue from the last interest payment date on which interest was paid on the Old Debentures so surrendered, or, if no interest has been paid on such Old Debentures, from December 18, 1997. No interest will be paid on the Old Debentures accepted for exchange. PROCEDURES FOR TENDERING For a Holder of Old Debentures to tender Old Debentures validly pursuant to the Exchange Offer, a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature, guarantee, or (in the case of book-entry transfer) an Agent's Message in lieu of the Letter of Transmittal, and any other required documents, must be received by the Exchange Agent at the address set forth below under " -Exchange Agent" prior to 5:00 p.m., New York City time, on the Expiration Date. In addition, prior to 5:00 p.m., New York City time, on the Expiration Date, such Old Debentures must be transferred pursuant to the procedures for book-entry transfer described below (and a confirmation of such tender received by the Exchange Agent, including an Agent's Message if the tendering Holder has not delivered a Letter of Transmittal). The term "Agent's Message" means a message transmitted by the Depositary, received by the Exchange Agent and forming part of the confirmation of a book-entry transfer, which states that the Depositary has received an express acknowledgment from the Participant in the Depositary tendering Old Debentures which are the subject of such book-entry confirmation, that such Participant has received and agrees to be bound by the terms of the Letter of Transmittal and that the Company may enforce such agreement against such Participant. By tendering Old Debentures pursuant to the procedures set forth above, each Holder will be deemed to make to the Company the representations set forth above in the third paragraph under the heading " -- Purpose and Effect of the Exchange Offer." The tender by a Holder of Old Debentures and the acceptance thereof by the Company will constitute agreement between such Holder and the Company in accordance with the terms and subject to the conditions set forth herein and in the Letter of Transmittal. 14 16 THE METHOD OF DELIVERY OF THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND SOLE RISK OF THE HOLDER. AS AN ALTERNATIVE TO DELIVERY BY MAIL, HOLDERS MAY WISH TO CONSIDER OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL SHOULD BE SENT TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS. All beneficial owners who wish to tender should contact the registered Holder promptly and instruct such registered Holder to tender on such beneficial owner's behalf. See "Instruction to Book-Entry Transfer Facility Participant from Owner" included with the Letter of Transmittal. Signatures on a Letter of Transmittal or a notice of withdrawal, as the case may be, must be guaranteed by an Eligible Institution (as defined below) unless the Old Debentures tendered pursuant thereto are tendered (i) by a registered Holder who has not completed the box entitled "Special Registration Instructions" or "Special Delivery Instructions" on the Letter of Transmittal or (ii) for the account of an Eligible Institution. In the event that signatures on a Letter of Transmittal or a notice of withdrawal, as the case may be, are required to be guaranteed, such guarantee must be by a member firm of the Medallion System (an "Eligible Institution"). The Company understands that the Exchange Agent will make a request promptly after the date of this Prospectus to establish accounts with respect to the Old Debentures at the Depositary for the purpose of facilitating the Exchange Offer, and subject to the establishment thereof, any financial institution that is a Participant in the system may make book-entry delivery of Old Debentures by causing the Depositary to transfer such Old Debentures into the Exchange Agent's account with respect to the Old Debentures in accordance with the Depositary's procedures for such transfer. Although delivery of the Old Debentures may be effected through book-entry transfer into the Exchange Agent's account at the Depositary, an Agent's Message in lieu of the Letter of Transmittal and all other required documents must in each case be transmitted to and received or confirmed by the Exchange Agent at its address set forth below on or prior to the Expiration. Delivery of documents to the Depositary does not constitute delivery to the Exchange Agent. The Exchange Agent and the Depositary have confirmed that the Exchange Offer is eligible for the Depositary's Automated Tender Offer Program ("ATOP"). Accordingly, the Depositary's Participants may electronically transmit their acceptance of the Exchange Offer by causing the Depositary to transfer Old Debentures to the Exchange Agent in accordance with the Depositary's ATOP procedures for transfer. The Depositary will then send an Agent's Message to the Exchange Agent. All questions as to the validity, form, eligibility (including time of receipt), acceptance of tendered Old Debentures and withdrawal of tendered Old Debentures will be determined by the Company in its reasonable discretion, which determination will be final and binding. The Company reserves the absolute right to reject any and all Old Debentures not properly tendered or any Old Debentures the Company's acceptance of which would, in the opinion of counsel for the Company, be unlawful. The Company also reserves the right in its reasonable discretion to waive any defects, irregularities or conditions of tender as to particular Old Debentures. The Company's interpretation of the terms and conditions of the Exchange Offer (including the instructions in the Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Old Debentures must be cured within such time as the Company shall determine. Although the Company intends to notify Holders of defects or irregularities with respect to tenders of Old Debentures, neither the Company, the Exchange Agent nor any other person shall incur any liability for failure to give such notification. Tenders of Old Debentures will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Old Debentures received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering Holders, unless otherwise provided in the Letter of Transmittal, as soon as practicable following the Expiration Date. GUARANTEED DELIVERY PROCEDURES Holders who wish to tender their Old Debentures and (i) whose Old Debentures are not immediately available, (ii) who cannot deliver their Old Debentures, the Letter of Transmittal or any other required documents to the Exchange Agent or (iii) who cannot complete the procedures for book-entry transfer, prior to the Expiration Date, may effect a tender if: (a) the tender is made through an Eligible Institution; (b) prior to the Expiration Date, the Exchange Agent receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand delivery) setting forth the name and address of the Holder, the certificate number(s) of such Old Debentures and the principal amount of Old Debentures tendered, stating that the tender is being made thereby and guaranteeing that, within three New York Stock Exchange trading days after the Expiration Date, the Letter of Transmittal (or facsimile thereof) together with the 15 17 certificate(s) representing the Old Debentures (or a confirmation of book-entry transfer of such Old Debentures into the Exchange Agent's account at the Depositary), and any other documents required by the Letter of Transmittal will be deposited by the Eligible Institution with the Exchange Agent; and (c) such properly completed and executed Letter of Transmittal (of facsimile thereof), as well as the certificate(s) representing all tendered Old Debentures in proper form for transfer (or a confirmation of book-entry transfer of such Old Debentures into the Exchange Agent's account at the Depositary), and all other documents required by the Letter of Transmittal are received by the Exchange Agent upon three New York Stock Exchange trading days after the Expiration Date. Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be sent to Holders who wish to tender their Old Debentures according to the guaranteed delivery procedures set forth above. WITHDRAWAL OF TENDERS Except as otherwise provided herein, tenders of Old Debentures may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date. To withdraw a tender of Old Debentures in the Exchange Offer, a telegram, telex, letter or facsimile transmission notice of withdrawal must be received by the Exchange Agent at its address set forth herein prior to 5:00 p.m., New York City time, on the Expiration Date. Any such notice of withdrawal must (i) specify the name of the person having deposited the Old Debentures to be withdrawn (the "Depositor"), (ii) identify the principal amount of Old Debentures to be withdrawn (including the name and number of the account at the Depositary to be credited), (iii) be signed by the Holder in the same manner as the original signature on the Letter of Transmittal by which such Old Debentures were tendered (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the Trustee with respect to the Old Debentures register the transfer of such Old Debentures into the name of the person withdrawing the tender and (iv) specify the name in which any such Old Debentures are to be registered, if different from that of the Depositor. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any Old Debentures so withdrawn will be deemed not to have been validly tendered for purposes of the Exchange Offer and no Exchange Debentures will be issued with respect thereto unless the Old Debentures so withdrawn are validly retendered. Any Old Debentures which have been tendered but which are not accepted for exchange will be returned to the Holder thereof without cost to such Holder as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Old Debentures may be retendered by following one of the procedures described above under " -- Procedures for Tendering" at any time prior to the Expiration Date. CONDITIONS Notwithstanding any other term of the Exchange Offer, the Company shall not be required to accept for exchange, or exchange Exchange Debentures for, any Old Debentures, and may terminate or amend the Exchange Offer as provided herein before the acceptance of such Old Debentures, if: (a) any action or proceeding is instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer (or other similar exchange offers) which, in the sole judgment of the Company, might materially impair the ability of the Company to proceed with the Exchange Offer or any material adverse development has occurred in any existing action or proceeding with respect to the Company or any of its subsidiaries; (b) any law, statute, rule, regulation or interpretation by the staff of the Commission is proposed, adopted or enacted, which, in the reasonable judgment of the Company, might materially impair the ability of the Company to proceed with the Exchange Offer or materially impair the contemplated benefits of the Exchange Offer to the Company; or (c) any governmental approval has not been obtained, which approval the Company shall, in its reasonable discretion, deem necessary for the consummation of the Exchange Offer as contemplated hereby. If the Company determines in its reasonable discretion that any of the conditions are not satisfied, the Company may (i) refuse to accept any Old Debentures and return all tendered Old Debentures to the tendering Holders, (ii) extend the Exchange Offer and retain all Old Debentures tendered prior to the expiration of the Exchange Offer, subject, however, to the rights of Holders to withdraw such Old Debentures (see " -- Withdrawal of Tenders") or (iii) waive such unsatisfied conditions with respect to the Exchange Offer and accept all properly tendered Old Debentures which have not been withdrawn. 16 18 EXCHANGE AGENT The Bank of New York has been appointed as Exchange Agent for the Exchange Offer. Questions and requests for assistance, requests for additional copies of this Prospectus or of the Letter of Transmittal should be directed to the Exchange Agent addressed as follows:
By Registered or Certified Mail, Overnight Courier or Hand: By Facsimile: The Bank of New York Attention: Corporate Trust Office 101 Barclay Street (212) 815-5915 - New York, NY 10286 Attention: Corporate Trust Office Tel: (212) 815-5092
Originals of all documents submitted by facsimile should be sent promptly by registered or certified mail, overnight courier or hand. Delivery to an address other than as set forth above will not constitute a valid delivery. FEES AND EXPENSES The expenses of soliciting tenders will be borne by the Company. The principal solicitation is being made by mail; however, additional solicitation may be made by telegraph, facsimile, telephone or in person by officers and regular employees of the Company and its affiliates. The Company has not retained any dealer-manager in connection with the Exchange Offer and will not make any payments to brokers, dealers, or others soliciting acceptances of the Exchange Offer. The Company, however, will pay the Exchange Agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses in connection therewith. The cash expenses to be incurred in connection with the Exchange Offer will be paid by the Company. Such expenses include fees and expenses of the Exchange Agent and Trustee, accounting and legal fees and printing costs, among others. ACCOUNTING TREATMENT The Exchange Debentures will be recorded at the same carrying value as the Old Debentures, which is face value, as reflected in the Company's accounting records on the date of exchange. Accordingly, no gain or loss for accounting purposes will be recognized by the Company. The expenses of the Exchange Offer will be expensed over the term of the Exchange Debentures. CONSEQUENCES OF FAILURE TO EXCHANGE The Old Debentures were offered for resale in a transaction not involving any public offering in the United States within the meaning of the 1933 Act. The Old Debentures were not registered under the 1933 Act or any United States securities laws. The Old Debentures may not be reoffered, resold, pledged or otherwise transferred except (i) to the Company or any of its subsidiaries, (ii) to a person whom the purchaser reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A under the 1933 Act, (iii) in an offshore transaction complying with Rule 904 of Regulation S, (iv) pursuant to an exemption from registration under the 1933 Act provided by Rule 144 thereunder (if available), (v) to an institutional "accredited investor" (as defined in Rule 501 (a) (1), (2), (3) or (7) of Regulation D under the 1933 Act) that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the transfer of the Debentures and, if such transfer is in respect of an aggregate principal amount of Debentures less than $250,000, an opinion of counsel, (vi) in accordance with another exemption from the registration requirements of the 1933 Act or (vii) pursuant to an effective registration statement under the 1933 Act, and, in each case, in accordance with all applicable state securities laws of any state of the United States or any other applicable jurisdiction. RESALE OF THE EXCHANGE DEBENTURES With respect to resales of Exchange Debentures, based on interpretations by the staff of the Commission set forth in no-action letters issued to third parties, the Company believes that a Holder or other person who receives Exchange Debentures, whether or not such person is the Holder (other than a person that is an "affiliate" of the Company within the meaning of Rule 17 19 405 under the 1933 Act) who receives Exchange Debentures in exchange for Old Debentures, in the ordinary course of business and who is not participating, does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of the Exchange Debentures, will be allowed to resell the Exchange Debentures to the public without further registration under the 1933 Act and without delivering to the purchasers of the Exchange Debentures a prospectus that satisfies the requirements of Section 10 of the 1933 Act. However, if any Holder acquires Exchange Debentures in the Exchange Offer for the purpose of distributing or participating in a distribution of the Exchange Debentures, such Holder cannot rely on the position of the staff of the Commission enunciated in such no-action letters or any similar interpretive letters, and must comply with the registration and prospectus delivery requirements of the 1933 Act in connection with any resale transaction, unless an exemption from registration is otherwise available. Further, each Participating Broker-Dealer that receives Exchange Debentures for its own account in exchange for Old Debentures where such Old Debentures were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Debentures. As contemplated by these no-action letters and the Registration Rights Agreement, each Holder accepting the Exchange Offer is required to represent to the Company in the Letter of Transmittal that (i) the Exchange Debentures are to be acquired by the Holder or the person receiving such Exchange Debentures, whether or not such person is the Holder, in the ordinary course of business, (ii) the Holder or any such other person (other than a broker-dealer referred to in the next sentence) is not engaging, and does not intend to engage, in the distribution of the Exchange Debentures, (iii) the Holder or any such other person has no arrangement or understanding with any person to participate in the distribution of the Exchange Debentures, (iv) neither the Holder nor any such other person is an "affiliate" of the Company within the meaning of Rule 405 under the 1933 Act and (v) the Holder or any such other person acknowledges that if such Holder or other person participates in the Exchange Offer for the purpose of distributing the Exchange Debentures it must comply with the registration and prospectus delivery requirements of the 1933 Act in connection with any resale of the Exchange Debentures and cannot rely on those no-action letters. As indicated above, each Participating Broker-Dealer that receives an Exchange Debenture for its own account in exchange for Old Debentures must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Debentures. For a description of the procedures for such resales by Participating Broker-Dealers, see "Plan of Distribution." DESCRIPTION OF EXCHANGE DEBENTURES The Exchange Debentures are to be issued under an Indenture dated as of March 1, 1990 between the Company and The Bank of New York, as Trustee (the "Trustee"), as supplemented by a First Supplemental Indenture, dated as of March 7, 1990, relating to $80,000,000 in aggregate principal amount of 9 3/8% Debentures Due 2000 (Series A) of the Company, a Second Supplemental Indenture, dated as of October 15, 1992, relating to $55,000,000 in aggregate principal amount of the Company's Series B Debentures, a Third Supplemental Indenture, dated as of March 1, 1993, relating to $20,000,000 in aggregate principal amount of 6.14% Debentures Due 2000 (Series C) of the Company and $35,000,000 in aggregate principal amount of 6.56% Debentures Due 2003 (Series D) of the Company, and a Fourth Supplemental Indenture, dated as of December 1, 1997, relating to the Old Debentures and the Exchange Debentures (collectively, the "Indenture," which term includes all amendments and supplements from time to time). The statements herein concerning the Old Debentures, the Exchange Debentures, and the Indenture do not purport to be complete. They are qualified in their entirety by reference to the Indenture and to the definitions therein of terms used herein. All article and section references appearing in this section are to articles and sections of the Indenture, and all capitalized terms not defined herein have the meanings specified in the Indenture. GENERAL The Exchange Debentures will be issued in a single series, as specified on the cover of this Prospectus, and will be limited to $80,000,000 in aggregate principal amount. The Exchange Debentures will be issued only in exchange for an equal principal amount of Old Debentures; for that reason, the aggregate principal amount of Old Debentures and Exchange Debentures outstanding will always be $80,000,000. The Exchange Debentures will mature on December 1, 2027, and will bear interest from the last interest payment date on which interest was paid on the Old Debentures so surrendered, or, if no interest has been paid on such Old Debentures, from December 18, 1997, at the rate of 6-1/2% per annum payable on June 1 and December 1 of each year, commencing June 1, 1998, until maturity. The Exchange Debentures are not redeemable in whole or in part prior to maturity, and there is no sinking fund for the Exchange Debentures. The Exchange Debentures will be unsecured and will rank equally with other unsecured obligations of the Company. The Indenture does not limit the amount of debentures which may be issued thereunder, and additional debentures may be issued thereunder up to the aggregate principal amount which may be authorized from time to time by the Company. 18 20 REPAYMENT AT OPTION OF HOLDER The registered Holder of each Exchange Debenture may elect to have such Exchange Debenture (or any portion thereof in the amount of $100,000 or in integral multiples of $1,000 in excess thereof) repaid on December 1, 2004 (or, if such day is not a Business Day, the next succeeding Business Day), at a repayment price equal to the principal amount of such Exchange Debenture (or such portion thereof) together with accrued and unpaid interest thereon to the date of repayment. In order for the Holder to exercise this option, the Company must receive at its office or agency in New York, New York, during the period beginning on October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 (or, if such day is not a Business Day, the next succeeding Business Day) such Exchange Debenture with the form entitled "Option to Elect Repayment on December 1, 2004" on the reverse of such Exchange Debenture duly completed. Any such notice received by the Company during the period beginning on October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 shall be irrevocable. So long as the Exchange Debentures are represented by the Global Debenture, a beneficial owner shall give notice to elect to have its Exchange Debentures repaid, through its Participant, to the Trustee, and shall effect delivery of such Exchange Debentures by causing the Direct Participant (as hereinafter defined) to transfer the Participant's interest in the Exchange Debentures on the Depositary's records, to the Trustee. The requirement for physical delivery of Exchange Debentures in connection with a repayment will be deemed satisfied when the ownership rights in the Exchange Debentures are transferred by Direct Participants on the Depositary's records and followed by a book-entry credit of tendered Exchange Debentures to the Trustee's account. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of any Debenture for repayment will be determined by the Company, whose determination shall be final and binding. Failure by the Company to repay the Exchange Debentures when required as described above will result in an Event of Default under the Indenture. As long as the Exchange Debentures are represented by the Global Debenture, the Depositary or its nominee will be the registered Holder of the Exchange Debentures and therefore will be the only person or entity that can exercise a right to such repayment. See " -- Book-Entry, Delivery and Form." RESTRICTION ON SECURED INDEBTEDNESS FOR BORROWED MONEY The Indenture contains a covenant restricting the issuance by the Company of secured indebtedness for borrowed money while any debentures are outstanding under the Indenture. The Company is precluded from creating, issuing, incurring or assuming any other indebtedness for borrowed money secured by a mortgage or other lien on, or security interest in, any properties of the Company (other than (i) certain types of properties such as materials, fuels, supplies, cash, gas, minerals, notes, accounts receivables and securities and (ii) any property that is acquired by the Company after the date of the Second Supplemental Indenture subject to a mortgage, lien or security interest, and certain additions, improvements and betterments thereto). The term "indebtedness for borrowed money" means indebtedness evidenced by a bond, note or other comparable written obligation representing borrowed money, and does not, in any event, include any lease or installment sale agreement (or any obligation in the nature of or having the characteristics of a lease or installment sale agreement), whether or not capitalized for financial reporting or any other purpose. MERGER, SALE OF ASSETS, ETC. Under the Indenture, the Company covenants that it will not consolidate with or merge into any other corporation, or sell, transfer or lease its properties as an entirety or substantially as an entirety, unless the due and punctual payment of the principal of and interest on the Exchange Debentures, and the due and punctual performance and observance of all the terms, covenants and conditions of the Indenture to be performed or observed by the Company, shall be expressly assumed by the successor corporation, if other than the Company, formed by or surviving any such consolidation or merger or to which such sale, transfer or lease shall have been made, and immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing. (Section 11.2) In the case of any such sale or transfer, the Company will thereupon be released from its liability as obligor on the Exchange Debentures. DELIVERY AND FORM The Exchange Debentures will be issued in fully registered form without coupons. See "--Book-Entry, Delivery and Form." The Exchange Debentures will be issued only in denominations of $100,000 or in any amount in excess thereof which is an integral multiple of $1,000. MODIFICATIONS OF INDENTURE The Indenture, the rights and obligations of the Company thereunder and the rights of the Holders may be modified with respect to one or more series of debentures issued under the Indenture with the consent of the Holders of a majority of the aggregate principal amount of outstanding debentures of all series affected by the modification (voting as one class). Without the consent of the Holder of each debenture affected, however, no modification shall change the Stated Maturity of any debenture, reduce the principal amount or the amount of any premium payable thereon, reduce the rate, extend the time of 19 21 payment or change the method of calculation of interest thereon, reduce any amount payable on redemption thereof or reduce the percentage required for modification. No modification of the Indenture subordinating the indebtedness evidenced by any series of debentures issued thereunder to any indebtedness of the Company is effective against any Holder of debentures without the consent of such Holder. Under certain limited circumstances, including, without limitation, modification of the Indenture to conform to any amendments of the Trust Indenture Act of 1939, the Indenture may be modified without the consent of the Holders. (Sections 10.1 and 10.2) EVENTS OF DEFAULT The Indenture provides that the following are Events of Default thereunder with respect to any series of debentures issued thereunder: (i) default in the payment of the principal of (or premium, if any, on) any debenture of such series when and as the same shall be due and payable; (ii) default in making a sinking fund payment, if any, when and as the same shall be due and payable by the terms of the debentures of such series; (iii) default for 30 days in the payment of any installment of interest on any debenture of such series; (iv) default for 60 days after written notice (given to the Company by the Trustee or by the Holders of at least 25% in aggregate principal amount of the outstanding debentures of all series affected) in the performance of any other covenant or agreement in respect of the debentures of such series contained in the Indenture; (v) certain events of bankruptcy, insolvency or reorganization, or any related court appointment of a receiver, liquidator or trustee of the Company or any substantial part of its property; or (vi) any other Event of Default provided in the applicable Board Resolution or supplemental indenture under which such series of debentures is issued. (Section 6.1) The Fourth Supplemental Indenture provides that the following is an additional Event of Default with respect to the Exchange Debentures: a failure by the Company to repay the outstanding principal amount of any Exchange or Old Debenture, together with accrued but unpaid interest thereon, on December 1, 2004 in accordance with a proper election by the Holder of such debenture to receive such repayment. An Event of Default with respect to a particular series of debentures issued under the Indenture does not necessarily constitute an Event of Default with respect to any other series of debentures issued under the Indenture. The Trustee may withhold notice to the Holders of any series of debentures of any default with respect to such series (except a default in the payment of principal, premium or interest) if it considers such withholding in the interest of such Holders. (Section 6.11) If any Event of Default with respect to any series of debentures shall have occurred and be continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding debentures of such series may declare the principal of all the debentures of such series to be due and payable immediately; however, subject to certain conditions, any such declaration and its consequences may be rescinded or annulled by the Holders of a majority in aggregate principal amount of the outstanding debentures of such series. (Section 6.1) Within four months after the close of each year, the Company must file with the Trustee a certificate, signed by specified officers, stating whether or not such officers have knowledge of any default relating to certain covenants, and, if so, specifying each such default and the nature thereof. (Section 4.6) Subject to provisions relating to its duties during the continuance of any Event of Default, the Trustee shall be under no obligation to exercise any of its rights or powers under the Indenture at the request, order or direction of any Holders, unless such Holders shall have offered the Trustee reasonable indemnity. (Section 7.2) Subject to such provisions for indemnification and subject to the right of the Trustee to decline to follow any Holders' directions under specified circumstances, the Holders of a majority in principal amount of the outstanding debentures of any series may direct the time, method and place of conducting any proceeding or any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, with respect to the debentures of such series. (Section 6.9) PAYMENT AND TRANSFER In the event that Exchange Debenture certificates are required to be printed and delivered as described under "--Book-Entry, Delivery and Form," principal and interest on Exchange Debentures will be payable at such place or places as may be designated by the Company for such purpose, except that payment of interest may be made at the option of the Company by check mailed to the persons in whose names such Exchange Debentures are registered at the close of business on the May 15th or the November 15th next preceding the relevant interest payment date. (Sections 3.8 and 4.1) Exchange Debentures may be registered for transfer or exchanged at the Corporate Trust Office of the Trustee or at any other office or agency maintained by the Company for such purposes, subject to the limitations in the Indenture, without the payment of any service charge except for any tax or governmental charge incidental thereto. (Section 3.6) All applicable payments of principal and interest on the Exchange Debentures issued as a Global Debenture will be made by the Company in immediately available funds. The Global Debenture will be in the Same-Day Funds Settlement System at the Depositary and, to the extent that secondary market trading in beneficial interests in the Global Debenture is effected through the facilities of the Depositary, such trades will be settled in immediately available funds. 20 22 LEGAL DEFEASANCE AND COVENANT DEFEASANCE The Company may, at its option and at any time after December 1, 2004, elect to have all obligations discharged with respect to the outstanding Exchange Debentures ("Legal Defeasance"). Such Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by the outstanding Exchange Debentures, except for: (a) the rights of Holders of outstanding Exchange Debentures to receive payments in respect of the principal of and interest on the Exchange Debentures when such payments are due; (b) the Company's obligations with respect to the Exchange Debentures concerning issuing temporary debentures, registration of Exchange Debentures, mutilated, destroyed, lost or stolen Exchange Debentures and the maintenance of an office or agency for payment and money for security payments held in trust; (c) the rights, powers, trust, duties and immunities of the Trustee, and the Company' obligations in connection therewith; and (d) the Legal Defeasance provisions of the Fourth Supplemental Indenture. In addition, the Company may, at its option and at any time after December 1, 2004, elect to have all obligations released with respect to a certain covenant contained in the Indenture restricting the issuance by the Company of secured indebtedness for borrowed money ("Covenant Defeasance") and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Exchange Debentures. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under "--Events of Default" will no longer constitute an Event of Default with respect to the Exchange Debentures. In order to exercise either Legal Defeasance or Covenant Defeasance: (i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Exchange Debentures, cash in United States dollars, non-callable Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants selected by the Trustee, to pay the principal of and interest on the outstanding Exchange Debentures on the stated maturity; (ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that (A) the Company has received from, or there has been published by the Internal Revenue Service, a ruling or (B) since the date of the Fourth Supplemental Indenture, there has been a change in the applicable Federal income tax law, in each case to the effect that, and based thereon such opinion of counsel shall confirm that, the Holders of such Exchange Debentures will not recognize income, gain or loss for Federal income tax purposes as a result of such Legal Defeasance, and will be subject to Federal income tax in the same amount, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that the Holders of such Exchange Debentures will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (iv) no Event of Default shall have occurred and be continuing on the date of such deposit or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit; (v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Indenture or any other material agreement or instrument to which the Company is a party; (vi) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of such Exchange Debentures over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and (vii) the Company shall have delivered to the Trustee an Officers' Certificate stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with. CONCERNING THE TRUSTEE The Bank of New York is the Trustee under the Indenture. The Bank of New York is also the Trustee under an indenture relating to Pollution Control Refunding Revenue Bonds issued by the New York State Energy Research and Development Authority and supported by the obligation of the Company. The Bank of New York also serves as the Company's Stock Transfer Agent. In addition, The Bank of New York has a course of regular dealings with the Company in the ordinary course of business and from time to time may also make short-term unsecured loans and secured or unsecured revolving credit and term loans to the Company and associated companies. BOOK-ENTRY, DELIVERY AND FORM The Depositary will act as securities depository for the Exchange Debentures. The Exchange Debentures will be issued as fully-registered securities registered in the name of Cede & Co. (the Depositary's partnership nominee). One fully-registered Global Debenture will be issued for the Exchange Debentures in the aggregate principal amount of such issue and will be deposited with the Depositary. The Depositary is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the 1934 Act. The Depositary holds securities that its participants (the "Participants") deposit with the Depositary. The Depositary also facilitates the settlement among Participants of securities transactions, such as transfers and 21 23 pledges, in deposited securities through electronic computerized book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates. The "Direct Participants" include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. The Depositary is owned by a number of its Direct Participants and by The New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc. Access to the Depositary's system is also available to others such as securities brokers and dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (the "Indirect Participants"). The Rules applicable to the Depositary and its Participants are on file with the Commission. To facilitate subsequent transfers, all Exchange Debentures deposited by Participants with the Depositary are registered in the name of the Depositary's partnership nominee, Cede & Co. The deposit of Exchange Debentures with the Depositary and their registration in the name of Cede & Co. effect no change in beneficial ownership. The Depositary has no knowledge of the actual beneficial owners of the Exchange Debentures; the Depositary's records reflect only the identity of the Direct Participants to whose accounts such Exchange Debentures are credited, which may or may not be the beneficial owners. The Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by the Depositary to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Neither the Depositary nor Cede & Co. will consent or vote with respect to Exchange Debentures. Under its usual procedures, the Depositary mails an Omnibus Proxy to the Company as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Exchange Debentures are credited on the record date (identified in a listing attached to the Omnibus Proxy). Principal and interest payments on the Exchange Debentures will be made to the Depositary. The Depositary's practice is to credit Direct Participants' accounts on the payable date in accordance with their respective holdings shown on the Depositary's records unless the Depositary has reason to believe it will not receive payment on the payable date. Payments by Participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in a "street name," and will be the responsibility of such Participant and not of the Depositary, the Trustee, or the Company, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal and interest to the Depositary is the responsibility of the Company or the Trustee, disbursement of such payments to Direct Participants shall be the responsibility of the Depositary, and disbursement of such payments to the beneficial owners shall be the responsibility of Direct and Indirect Participants. The Depositary may discontinue providing its services as securities depositary with respect to the Exchange Debentures at any time by giving reasonable notice to the Company or the Trustee. Under such circumstances, in the event that a successor securities depositary is not obtained, Debenture certificates are required to be printed and delivered. The Company may decide to discontinue use of the system of book-entry transfers through the Depositary (or a successor securities depositary). In that event, Debenture certificates will be printed and delivered. The information in this section concerning the Depositary and the Depositary's book-entry system has been obtained from sources that the Company believes to be reliable, but the Company takes no responsibility for the accuracy thereof. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS There follows a discussion of selected United States federal income tax consequences of the Exchange Offer to Holders of Old Debentures. Except as otherwise expressly indicated, this discussion addresses only United States federal income tax consequences to U.S. Holders holding Old Debentures as capital assets. For these purposes, the term "U.S. Holders" denotes (i) citizens or residents of the United States, (ii) corporations, partnerships or other entities created or organized in or under the laws of the United States or any political subdivision thereof or therein, (iii) estates the income of which is subject to United States federal income tax regardless of its source, (iv) trusts the administration of which is subject to the primary supervision of a court within the United States and for which one or more United States fiduciaries have the authority to control all substantial decisions, or (v) any other person defined as a United States person under the Internal Revenue Code of 1986, as amended (the "Code"). This discussion is based upon the Code, the Treasury Department regulations promulgated thereunder, and administrative and judicial interpretations thereof, all as of the date hereof and all of which are subject to change, possibly on a retroactive basis. Holders of Old Debentures should also understand that the following discussion is limited in certain other ways. For example, it does not purport to address tax consequences that may be relevant to particular persons by reason of their special 22 24 status, including, financial institutions, broker-dealers, persons that mark-to-market their securities, insurance companies, tax-exempt organizations, individual retirement and other tax-deferred accounts, and other persons in special situations, such as those that hold Old Debentures or Exchange Debentures as part of a straddle, hedge, conversion transaction, or other integrated investment. Moreover, it does not purport to describe the additional consequences for persons that have a "functional currency" other than the U.S. dollar or that have acquired Old Debentures at a premium or a market discount; nor does it address the United States federal alternative minimum tax consequences or, as already indicated, any aspect of state, local or foreign taxation. This discussion constitutes the opinion of Winthrop, Stimson, Putnam & Roberts, counsel to the Company, and is not binding upon the Internal Revenue Service or the courts. HOLDERS OF OLD DEBENTURES ARE URGED TO CONSULT THEIR TAX ADVISORS CONCERNING THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES TO THEM OF ACQUIRING, OWNING AND DISPOSING OF THE EXCHANGE DEBENTURES, AS WELL AS THE APPLICATION OF STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS. THE EXCHANGE The exchange of an Old Debenture for an Exchange Debenture pursuant to the Exchange Offer should not be treated as an exchange or otherwise as a taxable event for U.S. federal income tax purposes. Accordingly, the Exchange Debentures should have the same issue price as the Old Debentures, and each Holder should have the same adjusted basis and holding period in the Exchange Debentures as it had in the Old Debentures immediately before the Exchange Offer. It is assumed, for purposes of the following discussion, that the consummation of the Exchange Offer will not be treated as a taxable event and that the Exchange Debentures and the Old Debentures will be treated as the same instruments for U.S. federal income tax purposes. DISPOSITION OF EXCHANGE DEBENTURES If a U.S. Holder sells an Exchange Debenture between interest payment dates, the U.S. Holder will recognize gain or loss equal to the difference between the amount realized on the sale less the amount attributable to accrued but previously unrecognized interest, which is taxable as ordinary interest income, and the U.S. Holder's adjusted tax basis in the Exchange Debenture. Subject to U.S. federal income tax rules relating to "market discount," such gain or loss will generally be long-term if the Exchange Debentures have been held for more than 18 months, mid-term if held for more than one year but not more than 18 months and short-term if held for one year or less. Generally, for non-corporate U.S. Holders, mid-term gain will be subject to income tax at a maximum rate of 28% and long-term gain will be subject to income tax at a maximum rate of 20%. Subject to certain limited exceptions, capital losses cannot be used to offset ordinary income. FOREIGN HOLDERS For purposes of this discussion, a "Foreign Holder" is any Holder other than a U.S. Holder. A Foreign Holder generally will not be subject to United States federal withholding tax on interest paid on the Exchange Debentures so long as the Foreign Holder (i) is not actually or constructively a "10 percent shareholder" of the Company or a "controlled foreign corporation" with respect to which the Company is a "related person" within the meaning of section 864(d) of the Code, and (ii) provides an appropriate statement, signed under penalties of perjury, certifying that the beneficial owner of the Exchange Debenture is a foreign person and providing that foreign person's name and address. If the information provided in this statement changes, the foreign person must so inform the Company within 30 days of such change. The statement generally must be provided in the year a payment occurs or in either of the two preceding years. If the foregoing conditions are not satisfied, then interest paid on the Exchange Debentures will be subject to United States withholding tax at a rate of 30%, unless such rate is reduced or eliminated pursuant to an applicable tax treaty. Any capital gain a Foreign Holder realizes on the sale, redemption, retirement or other taxable disposition of an Exchange Debenture will be exempt from United States federal income and withholding tax, provided that (i) the gain is not effectively connected with the Foreign Holder's conduct of a trade or business in the United States, (ii) in the case of a Foreign Holder who is an individual, he or she is not present in the United States for 183 days or more in the taxable year of the disposition and (iii) the Foreign Holder is not subject to tax pursuant to the provisions of U.S. tax law applicable to certain U.S. expatriates. If the interest, gain or other income a Foreign Holder recognizes on an Exchange Debenture is effectively connected with the Foreign Holder's conduct of a trade or business in the United States, the Foreign Holder (although exempt from the withholding tax previously discussed if an appropriate statement is furnished) generally will be subject to United States federal income tax on the interest, gain or other income at regular federal income tax rates. In addition, if the Foreign Holder is a foreign corporation, it may be subject to a branch profits tax equal to 30% of its "effectively connected earnings and profits," as adjusted for certain items, unless it qualifies for a lower rate under an applicable tax treaty. INFORMATION REPORTING AND BACKUP WITHHOLDING 23 25 On October 6, 1997, the Treasury Department issued final regulations relating to information reporting and backup withholding that unify certain certification procedures and forms and clarify certain standards governing the information upon which a withholding agent may rely (the "Final Regulations"). The Final Regulations will be effective with respect to payments made after December 31, 1998. This section (including the related discussion under the heading "--Foreign Holders" above) describes rules applicable to payments made on or before December 31, 1998. Holders of the Exchange Debentures are urged to consult their own tax advisors as to the effect, if any, of the Final Regulations upon their own particular situations. The Company will be required to report annually to the IRS, and to each U.S. Holder of record, the amount of interest paid on the Exchange Debentures (and the amount, if any, withheld) for each calendar year, except as to exempt Holders (generally, corporations, tax-exempt organizations, qualified pension and profit-sharing trusts, individual retirement accounts, or non-resident aliens that provide certification as to their status). Each U.S. Holder (other than Holders, including, among others, corporations, that are not subject to the reporting requirements) will be required to provide to the Company, under penalties of perjury, a certificate containing the U.S. Holder's name, address, correct federal taxpayer identification number and a statement that the U.S. Holder is not subject to backup withholding. Should a nonexempt U.S. Holder fail to provide the required certificate, the Company will be required to withhold 31% of the interest otherwise payable to the U.S. Holder and to remit the withheld amount to the IRS as a credit against the U.S. Holder's federal income tax liability. 24 26 PLAN OF DISTRIBUTION Prior to the Exchange Offer, there has been no market for any of the Exchange Debentures. There can be no assurance that an active trading market will develop for, or as to the liquidity of, any of the Exchange Debentures. Each Participating Broker-Dealer that receives Exchange Debentures for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Debentures. This Prospectus, as it may be amended or supplemented from time to time, may be used by a Participating Broker-Dealer in connection with resales of Exchange Debentures received in exchange for Old Debentures where such Old Debentures were acquired as a result of market-making activities or other trading activities. The Company has agreed that for a period of 180 days after the Expiration Date, the Company will make this Prospectus, as amended or supplemented, available to any Participating Broker-Dealer for use in connection with any such resale. The Company will not receive any proceeds from any sales of the Exchange Debentures by Participating Broker-Dealers. Exchange Debentures received by Participating Broker-Dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Debentures or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchaser or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such Participating Broker-Dealer and/or the purchasers of any such Exchange Debentures. Any Participating Broker-Dealer that resells the Exchange Debentures that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Debentures may be deemed to be an "underwriter" within the meaning of the 1933 Act and any profit on any such resale of Exchange Debentures and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the 1933 Act. The Letter of Transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a Participating Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the 1933 Act. For a period of 180 days after the Expiration Date the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any Participating Broker-Dealer that requests such documents in the Letter of Transmittal. RATING The Exchange Debentures have received a preliminary rating of A- from S&P and a rating of A3 from Moody's, subject to receipt and review of final documents. EXPERTS The consolidated financial statements and related financial statement schedules of the Company incorporated by reference in this Prospectus have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports and are incorporated herein by reference in reliance upon the authority of said firm as experts in giving said reports. 25 27 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS Sections 721 through 726 of Article 7 of the New York Business Corporation Law ("NYBCL") provides for the indemnification of registrant's directors and officers. Article Five of the registrant's By-Laws provides, in summary, for indemnification by registrant, to the fullest extent permitted by law, of each person involved in, or made or threatened to be made a party to any action, suit, claim, or proceeding by reason of the fact that such person was a director or officer of registrant or while serving the registrant, such person is or was serving, at the request of the registrant, as a director or officer, or in any other capacity, any other enterprise, against judgments, fines, penalties, amounts paid in settlement and expenses, including attorney's fees, actually and reasonably incurred by such person. Article Five of the registrant's By-Laws also provides for advancement of expenses with respect to such suits. In addition, Article Five authorizes registrant to purchase indemnity insurance for directors and officers to the extent permitted under Section 726 of the NYBCL. Section 402(b) of the NYBCL permits a corporation, with the approval of its shareholders, to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for damages for any breach of duty in such capacity, subject to certain exceptions. Section 402(b) does not permit the limitation or elimination of personal liability of a director to the corporation or its shareholders for damages for acts or omissions (i) in bad faith; (ii) involving intentional misconduct; (iii) involving a knowing violation of law; (iv) resulting in the director personally gaining a financial profit or other advantage to which he or she was not legally entitled ; or (v) violating the provisions of Section 719 of the NYBCL, which prohibits certain corporate actions relating to (a) declarations of dividends, (b) purchases or redemptions by the corporation of its shares, (c) distribution of assets to shareholders after dissolution of the corporation or (d) making of loans to directors. In addition, Section 402(b) of the NYBCL does not affect the availability of equitable remedies. Article Nine of registrant's Certificate of Incorporation limits the liability of registrant's directors for damages to the maximum extent permissible under Section 402(b) of the NYBCL. Registrant maintains insurance providing for reimbursement, with certain exclusions and deductions, to registrant for registrant's indemnification of its directors and officers for expenses incurred by them as the result of actions or proceedings brought against them in those capacities, and to directors and officers for any such expenses for which they are not indemnified by registrant. In addition, such insurance covers directors and officers and certain other persons against specified liabilities in connection with the administration of registrant's retirement and benefit plans. II-1 28 ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) EXHIBITS
EXHIBIT NUMBER DESCRIPTION - -------------- ----------- 3.1 Restated Certificate of Incorporation dated May 7, 1996 (incorporated by reference to Exhibit 3.4 to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1996, File No. 1-4315) 3.2 By-Laws, as amended through June 30, 1995 (incorporated by reference to Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1995, File No. 1-4315) 4.1 Indenture dated as of March 1, 1990 between the Company and the Bank of New York, as Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-3 filed on October 14, 1992, File No. 33-53256) 4.2 First Supplemental Indenture dated as of March 7, 1990 (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-3 filed on October 14, 1992, File No. 33-53256) 4.3 Second Supplemental Indenture dated as of October 15, 1992 (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on October 29, 1992, File No. 1-4315) 4.4 Third Supplemental Indenture dated as of March 1, 1993 (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on March 8, 1993, File No.1-4315) 4.5 Fourth Supplemental Indenture dated as of December 1, 1997 4.6 Registration Rights Agreement dated as of December 18, 1997, among the Company, Donaldson, Lufkin & Jenrette Securities Corporation and Salomon Brothers Inc *5 Opinion of Winthrop, Stimson, Putnam & Roberts, counsel for the Company *8 Opinion of Winthrop, Stimson, Putnam & Roberts regarding certain United States federal income tax considerations 12 Statements regarding computation of ratios 21 List of the subsidiaries of the Company 23.1 Consent of Arthur Andersen LLP *23.2 Consent of Winthrop, Stimson, Putnam & Roberts, counsel for the Company (included in Exhibit 5) 24 Powers of Attorney 25 Form T-1 Statement of Eligibility of Trustee *99.1 Form of Letter of Transmittal *99.2 Form of Notice of Guaranteed Delivery *99.3 Form of Exchange Agent Agreement
(b) FINANCIAL STATEMENT SCHEDULES Not applicable. - ----------------------------------- *To be filed by amendment II-2 29 ITEM 22. UNDERTAKINGS (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information set forth in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officer and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than payment by the registrant of expenses incurred or paid by a director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 30 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Hamlet of Pearl River, State of New York, on the 9th day of January, 1998. ORANGE AND ROCKLAND UTILITIES, INC. (Registrant) By /s/ D. Louis Peoples ------------------------------------------- (D. Louis Peoples, Vice Chairman of the Board of Directors and Chief Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Capacity in Signature Which Signing Date --------- ------------- ---- Chief Executive Officer; *D. Louis Peoples Director - ---------------------------------------------------- (D. Louis Peoples, Vice Chairman of the Board of Directors and Chief Executive Officer) *R. Lee Haney Chief Financial Officer - ---------------------------------------------------- (R. Lee Haney, Senior Vice President and Chief Financial Officer) *Edward M. McKenna Controller - ---------------------------------------------------- (Edward M. McKenna, Controller) *H. Kent Vanderhoef Director - ---------------------------------------------------- (H. Kent Vanderhoef, Chairman of the Board of Directors) *Ralph M. Baruch Director - ---------------------------------------------------- (Ralph M. Baruch) *J. Fletcher Creamer Director - ---------------------------------------------------- (J. Fletcher Creamer) *Michael J. Del Giudice Director - ---------------------------------------------------- (Michael J. Del Giudice) * Jon F. Hanson Director - ---------------------------------------------------- (Jon F. Hanson) *Kenneth D. McPherson Director - ---------------------------------------------------- (Kenneth D. McPherson) *Robert E. Mulcahy III Director - ---------------------------------------------------- (Robert E. Mulcahy III) *James F. O'Grady, Jr. Director - ---------------------------------------------------- (James F. O'Grady, Jr.)
II-4 31
Capacity in Signature Which Signing Date --------- ------------- ---- *Frederic V. Salerno Director - ---------------------------------------------------- (Frederic V. Salerno) *Linda C. Taliaferro Director - ---------------------------------------------------- (Linda C. Taliaferro) *By /s/ G.D. Caliendo January 9, 1998 ------------------------------------------- G. D. Caliendo Attorney-in-fact
II-5 32 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - -------------- ----------- 3.1 Restated Certificate of Incorporation dated May 7, 1996 (incorporated by reference to Exhibit 3.4 to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1996, File No. 1-4315) 3.2 By-Laws, as amended through June 30, 1995 (incorporated by reference to Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1995, File No. 1-4315) 4.1 Indenture dated as of March 1, 1990 between the Company and the Bank of New York, as Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-3 filed on October 14, 1992, File No. 33-53256) 4.2 First Supplemental Indenture dated as of March 7, 1990 (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-3 filed on October 14, 1992, File No. 33-53256) 4.3 Second Supplemental Indenture dated as of October 15, 1992 (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on October 29, 1992, File No. 1-4315) 4.4 Third Supplemental Indenture dated as of March 1, 1993 (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on March 8, 1993, File No.1-4315) 4.5 Fourth Supplemental Indenture dated as of December 1, 1997 4.6 Registration Rights Agreement dated as of December 18, 1997, among the Company, Donaldson, Lufkin & Jenrette Securities Corporation and Salomon Brothers Inc *5 Opinion of Winthrop, Stimson, Putnam & Roberts, counsel for the Company *8 Opinion of Winthrop, Stimson, Putnam & Roberts regarding certain United States federal income tax considerations 12 Statements regarding computation of ratios 21 List of the subsidiaries of the Company 23.1 Consent of Arthur Andersen LLP *23.2 Consent of Winthrop, Stimson, Putnam & Roberts, counsel for the Company (included in Exhibit 5) 24 Powers of Attorney 25 Form T-1 Statement of Eligibility of Trustee *99.1 Form of Letter of Transmittal *99.2 Form of Notice of Guaranteed Delivery *99.3 Form of Exchange Agent Agreement
*To be filed by amendment EX-4.5 2 FOURTH SUPPLEMENTAL INDENTURE 1 Exhibit 4.5 ORANGE AND ROCKLAND UTILITIES, INC. to THE BANK OF NEW YORK, As Trustee ---------------------------------------- FOURTH SUPPLEMENTAL INDENTURE Dated as of December 1, 1997 Supplementing and Amending the Indenture Dated as of March 1, 1990, As Previously Supplemented and Amended ---------------------------------------- 2 THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of December 1, 1997 (this "Fourth Supplemental Indenture"), is between ORANGE AND ROCKLAND UTILITIES, INC., a New York corporation (hereinafter called the "Issuer" or the "Company"), having its principal office at One Blue Hill Plaza, Pearl River, New York 10965, and THE BANK OF NEW YORK, a New York corporation, as Trustee (hereinafter called the "Trustee"), having its Corporate Trust Office at 101 Barclay Street, New York, New York 10286. Recitals of the Issuer The Issuer and the Trustee have heretofore entered into an Indenture, dated as of March 1, 1990 (hereinafter called the "Original Indenture"), as heretofore amended and supplemented as described in the following paragraph (said Original Indenture, as so amended and supplemented, being hereinafter called the "Amended Indenture"), relating to the issuance at any time or from time to time of its Securities on terms to be specified at the time of issuance. Terms (including the term "Indenture") used and not otherwise defined herein shall (unless the context otherwise clearly requires) have the respective meanings given to them in the Amended Indenture. The Amended Indenture provides in Article Three thereof that, prior to the issuance of Securities of any series, the form of such Securities and the terms applicable to such series shall be established in, or pursuant to, the authority granted (generally, or in the particular instance) in a resolution of the Board of Directors (delivered to the Trustee in the form of a Board Resolution) or established (generally, or in the particular instance) in one or more indentures supplemental thereto. The Original Indenture has, prior to the date hereof, been (a) supplemented by a First Supplemental Indenture, dated as of March 7, 1990, which, among other things, established the form of the Issuer's first series of Securities, designated "9 3/8% Debentures Due 2000 (Series A)," (b) supplemented and amended by a Second Supplemental Indenture, dated as of October 15, 1992 (the "Second Supplemental Indenture"), which, among other things, (i) established the form of the Issuer's second series of Securities, designated "6.50% Debentures Due 1997 (Series B)" and (ii) added to the covenants of the Issuer a further covenant restricting the issuance by the Issuer of secured indebtedness for borrowed money while any Securities are Outstanding under the Indenture and (c) supplemented by a Third Supplemental Indenture, dated as of March 1, 1993, which, among other things, established (i) the form of the Issuer's third series of Securities, designated "6.14% Debentures Due 2000 (Series C)" and (ii) the form of the Issuer's fourth series of Securities, designated "6.56% Debentures Due 2003 (Series D)". The Issuer desires by this Fourth Supplemental Indenture to establish the form of (i) the Securities of a fifth series, to be designated "6 1/2% Debentures Due 2027 (Series E)" of the Issuer and (ii) the Securities of a sixth series to be issued in exchange therefor, pursuant to a Registration Rights Agreement dated as of December 18, 1997 (the "Registration Rights Agreement"), to be designated "6 1/2% Debentures Due 2027 (Series F)" of the Issuer, and to establish the terms applicable to such series, pursuant to Sections 3.1 and 10.1(e) of the Amended Indenture. The Issuer has duly authorized the execution and delivery of this Fourth Supplemental Indenture. The execution and delivery of this Fourth Supplemental Indenture by the parties hereto are in all respects authorized by the provisions of the Amended Indenture. 1 3 All things necessary have been done to make this Fourth Supplemental Indenture a valid agreement of the Issuer, in accordance with its terms. NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH: For and in consideration of the premises, it is mutually covenanted and agreed, as follows: ARTICLE ONE Establishment of 6 1/2% Debentures Due 2027 (Series E) Section 1.01. There is hereby established by this Fourth Supplemental Indenture a fifth series of the Securities, which shall be designated "6 1/2% Debentures Due 2027 (Series E)" of the Issuer (hereinafter called the "Series E Debentures"). The Series E Debentures shall be substantially in the form set forth in Exhibit A hereto (which is hereby incorporated herein and made a part hereof), subject to changes in the form thereof made by the Issuer and acceptable to the Trustee, and may be issued at any time and from time to time, subject to the fulfillment of the conditions set forth in the Amended Indenture. Section 1.02. The Series E Debentures shall have the terms and provisions set forth in Exhibit A hereto. In particular, but without limitation, the Series E Debentures shall (a) be limited to $80,000,000 in aggregate principal amount at any time Outstanding, (b) mature on December 1, 2027, (c) bear interest (computed on the basis of a 360-day year of twelve 30-day months) until the payment of principal thereof has been made or duly provided for, at the rate per annum specified in the title of the Series E Debentures, payable semi-annually on June 1 and December 1 of each year, commencing June 1, 1998, and at the same rate per annum on any overdue installment of principal and (to the extent legally enforceable) interest, and (d) be issuable only as fully registered Securities, without coupons. The regular record dates for the Series E Debentures shall be as set forth in Exhibit A. The Series E Debentures are not redeemable in whole or in part prior to maturity, and there is no sinking fund for the Series E Debentures Section 1.03 (a) The Series E Debentures shall be issued initially in the form of a permanent Global Security in definitive form without coupons with the global security legend and restricted security legend set forth in Exhibit A hereto (the "Series E Global Debenture"), which shall be delivered to, or pursuant to the instructions of, the Depository, or any successor thereto registered under the Securities Exchange Act of 1934, as depositary. The aggregate principal amount of the Series E Global Debenture may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee, as the case may be, as provided below. (b) Members of, or participants in, the Depository ("Agent Members") shall have no rights under the Fourth Supplemental Indenture or the Amended Indenture with respect to any Series E Global Debenture held on their behalf by the Depository, and the 2 4 Depository may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Series E Global Debenture for all purposes whatsoever. (c) At such time as all beneficial interests in the Series E Global Debenture have either been exchanged for Series F Debentures or certificated Series E Debentures, repaid or canceled, the Series E Global Debenture shall be returned to the Depository for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in the Series E Global Debenture is exchanged for Series F Debentures or certificated Series E Debentures, repaid or canceled, the principal amounts of Series E Debentures represented by the Series E Global Debenture shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the custodian for such Series E Global Debenture) with respect to such Series E Global Debenture, by the Trustee, to reflect such reduction. (d) In the event that beneficial interests in the Series E Global Debenture are exchanged for Series E Debentures in certificated form pursuant to Section 2.4 of the Amended Indenture, each such certificated Series E Debenture shall bear the legend regarding transfer restrictions applicable to the Series E Global Debenture set forth on the form of the Series E Global Debenture attached hereto as Exhibit A. In addition, if any certificated Series E Debentures are issued upon the registration of transfer or exchange of such certificated Series E Debentures, (i) the Series E Debentures so issued shall bear the same legend, and (ii) the Trustee shall authenticate and issue such certificated Series E Debentures only upon receipt of a Transfer Certificate in the form of Annex I hereto. (e) Certificated Series E Debentures may be issued in exchange for beneficial interests in the Series E Global Debentures only in accordance with Section 2.4 of the Amended Indenture and this Article One. ARTICLE TWO Establishment of 6 1/2% Debentures Due 2027 (Series F) Section 2.01. There is hereby established by this Fourth Supplemental Indenture a sixth series of the Securities, which shall be designated "6 1/2% Debentures Due 2027 (Series F)" of the Issuer (hereinafter called the "Series F Debentures," and, together with the Series E Debentures, the "Debentures"). The Series F Debentures shall be substantially in the form set forth in Exhibit B hereto (which is hereby incorporated herein and made a part hereof), subject to changes in the form thereof made by the Issuer and acceptable to the Trustee. The Trustee shall authenticate and deliver Series F Debentures for issue only in the Exchange Offer as defined in and pursuant to the Registration Agreement, for a like principal amount of Series E Debentures, in each case pursuant to an Issuer Order. Such Issuer Order shall specify the amount of the Series F Debentures to be authenticated and the date on which the original issue of such Series F Debentures are to be authenticated. The aggregate principal amount of Debentures Outstanding at any time may not exceed $80,000,000. 3 5 Section 2.02. The Series F Debentures shall have the terms and provisions set forth in Exhibit B hereto. In particular, but without limitation, the Series F Debentures shall (a) be limited to $80,000,000 in aggregate principal amount at any time Outstanding, (b) mature on December 1, 2027, (c) bear interest (computed on the basis of a 360-day year of twelve 30-day months) until the payment of principal thereof has been made or duly provided for, at the rate per annum specified in the title of the Series F Debentures, payable semi-annually on June 1 and December 1 of each year, commencing June 1, 1998, and at the same rate per annum on any overdue installment of principal and (to the extent legally enforceable) interest, and (d) be issuable only as fully registered Securities, without coupons. The regular record dates for the Series F Debentures shall be as set forth in Exhibit B. The Series F Debentures are not redeemable in whole or in part prior to maturity, and there is no sinking fund for the Series F Debentures Section 2.03. (a) The Series F Debentures shall be issued initially in the form of a Global Security with the global security legend set forth in Exhibit B hereto that will be delivered to, or pursuant to the instructions of, the Depository, or any successor thereto registered under the Securities Exchange Act of 1934, as depositary. The regular record dates for the Series F Debentures shall be as set forth in Exhibit B. The Series F Debentures are not redeemable in whole or in part prior to maturity, and there is no sinking fund for the Series F Debentures. (b) Members of, or participants in, the Depository ("Agent Members") shall have no rights under the Fourth Supplemental Indenture or the Amended Indenture with respect to any Series F Global Debenture held on their behalf by the Depository, and the Depository may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Series F Global Debenture for all purposes whatsoever. 4 6 ARTICLE THREE Defeasance Notwithstanding anything contained in Article Twelve of the Amended Indenture, the provisions of this Article Three shall in all cases govern defeasance of the Issuer's obligations in respect of the Series E Debentures and the Series F Debentures: Section 3.01. Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may at any time after December 1, 2004 terminate its substantive obligations in respect of the Series E Debentures and/or the Series F Debentures by delivering all Outstanding Debentures of the series to be defeased to the Trustee for cancellation and paying all sums payable by the Issuer on account of principal of and interest on such Debentures or otherwise in respect of such Debentures. In addition to the foregoing, the Issuer may, at the option of its Board of Directors evidenced by resolutions set forth in an Officers' Certificate of the Issuer, at any time after December 1, 2004, with respect to the Series E Debentures and/or the Series F Debentures, elect to have either Section 3.02 or 3.03 be applied to all Outstanding Debentures of either or both series upon compliance with the conditions set forth below in this Article Three. Section 3.02 Legal Defeasance and Discharge. Upon the exercise by the Issuer under Section 3.01 of the option applicable to this Section 3.02, the Issuer shall be deemed to have been discharged from its obligations with respect to all Outstanding Debentures of a particular series on the date the conditions set forth below are satisfied in respect of such Debentures (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Debentures of such series, which shall thereafter be deemed to be "Outstanding" only for the purposes of Section 3.05 and the other provisions of the Amended Indenture referred to in (a) and (b) of this paragraph below, and to have satisfied all of its other obligations in respect of such Debentures (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Debentures of such series to receive payments in respect of the principal of and interest on such Debentures when such payments are due, (b) the Issuer's obligations with respect to such Debentures under Sections 3.6, 3.7, 3.10, 4.2, 4.4 and 5.1 of the Amended Indenture, (c) the rights, powers, trusts, duties and immunities of the Trustee and the Issuer's obligations in connection therewith and (d) this Article Three. Subject to compliance with this Article Three, the Issuer may exercise the option under this Section 3.02 notwithstanding the prior exercise of the option under Section 3.03 with respect to such Debentures. Section 3.03. Covenant Defeasance. Upon the exercise by the Issuer under Section 3.01 of the option applicable to this Section 3.03, the Issuer shall be released from its obligations under the covenants contained in Section 4.7 of the Amended Indenture, as added by Section 2.01 of the Second Supplemental Indenture, on and after the date the conditions set forth below are satisfied in respect of such Debentures (hereinafter, "Covenant Defeasance"), and such Debentures shall thereafter be deemed not "Outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such 5 7 covenant, but shall continue to be deemed "Outstanding" for all other purposes hereunder (it being understood that such Debentures may not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Debentures of such series, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.1(d) of the Amended Indenture with respect to the Outstanding Debentures of such series, but, except as specified above, the remainder of the Indenture and such Debentures shall be unaffected thereby. Section 3.04. Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 3.02 or Section 3.03 to the Outstanding Debentures of a series to be defeased at any time after December 1, 2004: (a) The Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.9 of the Amended Indenture who shall agree to comply with the provisions of this Article Three applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Debentures of such series, (i) cash in United States Dollars, (ii) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, cash in United States Dollars, or (iii) a combination thereof, in such amounts, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee at the expense of the Issuer, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge the principal of and interest on the Outstanding Debentures of such series on the stated maturity of such principal or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Debentures; (b) In the case of an election under Section 3.02, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee confirming that (i) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Outstanding Debentures of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (c) In the case of an election under Section 3.03, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee to the effect that the Holders of the Outstanding Debentures of such series will not 6 8 recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (d) No Default or Event of Default with respect to the Debentures of such series shall have occurred and be continuing on the date of such deposit or, insofar as Sections 6.1(e) or 6.1(f) of the Amended Indenture are concerned, at any time in the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period); (e) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, the Indenture or any other material agreement or instrument to which the Issuer is a party or by which the Issuer is bound; (f) The Issuer shall have delivered to the Trustee an Officers' Certificate stating that the deposit made by the Issuer pursuant to its election under Section 3.02 or 3.03 was not made by the Issuer with the intent of preferring the Holders of the Debentures of such series over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and (g) The Issuer shall have delivered to the Trustee an Officers' Certificate stating that all conditions precedent provided for or relating to either the Legal Defeasance under Section 3.02 or the Covenant Defeasance under Section 3.03 (as the case may be) have been complied with as contemplated by this Section 3.04. Section 3.05. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to Section 3.06, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 3.05, the "Trustee") pursuant to Section 3.04 in respect of the Outstanding Debentures of a particular series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Debentures and the Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Debentures of all sums due and to become due thereon in respect of principal and interest. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Obligations deposited pursuant to Section 3.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the corresponding Outstanding Debentures. Anything in this Article Three to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or Government Obligations held by it as provided in Section 3.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 3.04(a)) at the expense 7 9 of the Issuer, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. Section 3.06 Repayment to Company. Any money deposited with the Trustee or any Paying Agent in trust for the payment of the principal of or interest on any Debenture and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Issuer on its written request and shall be discharged from such trust; and the Holder of such Debenture shall thereafter, as a secured creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. Section 3.07 Reinstatement. If the Trustee or Paying Agent is unable to apply any United States Dollars or Government Obligations in accordance with Section 3.02 or 3.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer in respect of the corresponding Debentures shall be revived and reinstated as though no deposit had occurred pursuant to Section 3.02 or 3.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 3.02 or 3.03, as the case may be; provided, however, that, if the Issuer makes any payment of principal of or interest on any Debenture following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Debentures to receive such payment from the money held by the Trustee or Paying Agent. ARTICLE FOUR Repayment at Option of Holders The Series E Debentures and the Series F Debentures are subject to repayment at the option of the Holders thereof on December 1, 2004 in the manner provided in the forms of the Series E Debentures and Series F Debentures attached hereto as Exhibit A and Exhibit B, respectively. ARTICLE FIVE Events of Default Section 5.01. The following shall constitute additional Events of Default: (a) with respect to the Series E Debentures and the Series F Debentures, a failure by the Issuer to repay the outstanding principal amount of any Series E Debenture or Series F 8 10 Debenture, together with accrued but unpaid interest thereon, on December 1, 2004 in accordance with a proper election by the Holder of such Debenture to receive such repayment made pursuant to Article Four and the relevant provisions of the Debentures, or (b) with respect to the Series E Debentures, a failure by the Issuer to pay Liquidated Damages (as defined in the Registration Rights Agreement) in accordance with the terms of the Registration Rights Agreement, and the continuance of such default for a period of 30 days. ARTICLE SIX Miscellaneous Section 6.01. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity of this Fourth Supplemental Indenture. The Amended Indenture is in all respects hereby adopted, ratified and confirmed. Section 6.02. This Fourth Supplemental Indenture may be executed in any number of counterparts, and in separate counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Section 6.03. If any provision of this Fourth Supplemental Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, through operation of Section 318(c), such imposed duties shall control. Section 6.04. The Article and Section headings herein are for convenience only and shall not affect the interpretation hereof. Section 6.05. The Issuer hereby confirms the appointment of The Bank of New York as the initial Trustee, Securities Registrar and Paying Agent, subject to the provisions of the Indenture with respect to resignation, removal and succession, and subject, further, to the right of the Issuer to appoint additional agents (including Paying Agents). An Authenticating Agent may be appointed for the Series E Debentures and/or the Series F Debentures under the circumstances set forth in, and subject to the provisions of, the Indenture. If and so long as the Debentures of either or both series are issued as Global Securities and the Depository or the nominee therefor is the sole holder of such series of Debentures, (a) the Trustee shall treat the Depository or said nominee as the only Holder of the Debentures of such series for all purposes under the Indenture, including receipt of all principal of and interest on the Debentures of such series, receipt of notices, and voting and requesting or directing the Trustee to take or not to take, or consenting to, certain actions under the Indenture, and (b) the Issuer and the Trustee shall have no responsibility or obligation with respect to (i) the accuracy of any records maintained by the Depository or any participant therein, (ii) the payment by any participant in the Depository of any amount due to any beneficial owner in respect of the principal of and interest on the Debentures of such series, (iii) the delivery or timeliness of delivery by any participant in the Depository of any notice to any beneficial owner which is required or permitted under the terms 9 11 of the Indenture to be given to Holders of Securities or (iv) other action taken by the Depository or its nominee as Holder of the Debentures of such series. [End of Page] 10 12 IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested (the actual date of this Fourth Supplemental Indenture being the date of execution by the Trustee, as indicated in its Acknowledgment). ORANGE AND ROCKLAND UTILITIES, INC. By /s/ R. Lee Haney _______________________________ Name: R. Lee Haney Title: Sr. Vice President & CFO [Seal] Attest: By /s/ Carla Meyer Lois ______________________________ Name: Carla Meyer Lois Title: Assistant Secretary THE BANK OF NEW YORK, as Trustee By /s/ Marie E. Trimboli _______________________________ Name: Marie E. Trimboli Title: Assistant Treasurer [Seal] Attest: By /s/ Robert A. Massimillo ______________________________ Name: Robert A. Massimillo Title: Assistant Vice President 11 13 STATE OF NEW YORK ) ) ss.: COUNTY OF ROCKLAND ) At Pearl River, on this 17th day of December, 1997, before me, a Notary Public in and for the County of Rockland and State of New York, personally appeared R. Lee Haney and Carla Meyer Lois, the Sr. V.P. & CFO and the Assistant Secretary, respectively, of Orange and Rockland Utilities, Inc., each to me personally known, who respectively executed, and affixed and attested the corporate seal on, the foregoing instrument on behalf of said corporation, and severally acknowledged the same to be their free act and deed in their said capacities and the free act and deed of Orange and Rockland Utilities, Inc. /s/ Todd M. Lieval _____________________________ Notary Public NOTARIAL SEAL My Commission Expires: 07/31/99 STATE OF NEW YORK ) ) ss.: NEW YORK COUNTY ) At The City of New York, on this 18 day of December, 1997, before me, a Notary Public in and for the County and State of New York, personally appeared Marie E. Trimboli and Robert A. Massimillo, a Assistant Treasurer and Assistant Vice President, respectively, of The Bank of New York, each to me personally known, who respectively executed, and affixed and attested the corporate seal on, the foregoing instrument on behalf of said corporation, and severally acknowledged the same to be their free act and deed in their said capacities and the free act and deed of The Bank of New York, as Trustee. /s/ Jennifer S. Geetter ____________________________ Notary Public NOTARIAL SEAL My Commission Expires: 8/11/99 12 14 Annex I to Fourth Supplemental Indenture FORM OF TRANSFER CERTIFICATE Donaldson, Lufkin & Jenrette Securities Corporation Salomon Brothers Inc Ladies and Gentlemen: In connection with the proposed transfer to us of 6 1/2% Debentures Due 2027 (Series E) (the "Debentures") of Orange and Rockland Utilities, Inc., a New York corporation (the "Company"), we acknowledge, represent to, warrant and agree with the Company and the Initial Purchasers, named above, as follows: (1) We understand that the Debentures are being offered for resale in a transaction not involving any public offering in the United States within the meaning of the 1933 Act. We understand that the Debentures have not been registered under the 1933 Act or any United States securities laws and they are being offered for resale in transactions not requiring registration under the 1933 Act. We understand that the Debentures may not be reoffered, resold, pledged or otherwise transferred except (i) to the Company or any of its subsidiaries; (ii) to a person whom the purchaser reasonably believes is a qualified institutional buyer in a transaction meeting the requirements of Rule 144A under the 1933 Act (a "Qualified Institutional Buyer"), (iii) in an offshore transaction complying with Rule 904 of Regulation S, (iv) pursuant to an exemption from registration under the 1933 Act provided by Rule 144 thereunder (if available), (v) to an institutional "accredited investor" (as defined in Rule 501 (a) (1), (2), (3) or (7) of Regulation D under the 1933 Act) that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the transfer of the Debentures and, if such transfer is in respect of an aggregate principal amount of Debentures less than $250,000, an opinion of counsel, (vi) in accordance with another exemption from the registration requirements of the 1933 Act or (vii) pursuant to an effective registration statement under the 1933 Act, and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction. We will, and will inform each subsequent holder that such subsequent holder is required to, notify any subsequent purchaser from it of the resale restrictions set forth in the preceding sentence. No representation is being made as to the availability of the exemption provided by Rule 144 for resales of the Debentures. (2) We are not an "affiliate" (as defined in Rule 144 under the 1933 Act) of the Company, we are not acting on behalf of the Company and we are a Qualified Institutional Buyer and are aware that any sale of Debentures to us will be made in reliance on Rule 144A. Such acquisition will be for our own account or for the account of another Qualified Institutional Buyer. 13 15 (3) We are relying on the information contained in the Offering Memorandum in making our investment decision with respect to the Debentures. We acknowledge that no representation or warranty is made by the Initial Purchasers as to the accuracy or completeness of such materials. We further acknowledge that neither the Company nor the Initial Purchasers nor any person representing the Company or the Initial Purchasers has made any representation to us with respect to the Company or the offering or sale of any Debentures other than the information contained in this Offering Memorandum. We have had access to such financial and other information concerning the Company and the Debentures as we have deemed necessary in connection with our decision to purchase any of the Debentures, including an opportunity to ask questions of and request information from the Company and the Initial Purchasers. (4) We understand that until registered under the 1933 Act, the Debentures will bear a legend to the following effect unless otherwise agreed by the Company and the holder thereof. THIS DEBENTURE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE 1933 ACT, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS, EXCEPT AS SET FORTH IN THE SECOND SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE 1933 ACT) (A "QIB"), (B) IT IS ACQUIRING THIS DEBENTURE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE 1933 ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS DEBENTURE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE 1933 ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE 1933 ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS DEBENTURE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE 1933 ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN 14 16 EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE 1933 ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS DEBENTURE IN VIOLATION OF THE FOREGOING. (5) We represent and covenant that we are not, and are not acquiring the Debentures with the assets of, or for or on behalf of, and will not sell or otherwise transfer the Debentures to, any employee benefit plan (as defined in Section 3(3) of ERISA) or individual retirement account or other arrangement that is subject to ERISA or Section 4975 of the Code (hereinafter collectively referred to as an "ERISA Plan") or any entity whose underlying assets include assets of an ERISA Plan pursuant to 29 C.F.R. Section 2510.3-101 or otherwise, except to the extent that the acquisition and holding of the Debentures: (a) (i) are made solely with the assets of a bank collective investment fund and (ii) satisfy the requirements and conditions of Prohibited Transaction Class Exemption 91-38 issued by the Department of Labor; (b) (i) are made solely with assets of an insurance company pooled separate account and (ii) satisfy the requirements and conditions of Prohibited Transaction Class Exemption 90-1 issued by the Department of Labor; (c) (i) are made solely with assets managed by a qualified professional asset manager and (ii) satisfy the requirements and conditions of Prohibited Transaction Class Exemption 84-14 issued by the Department of Labor; (d) are made solely with assets of a governmental plan (as defined in Section 3(32) of ERISA) which is not subject to the provisions of Section 401 of the Code; (e) (i) are made solely with assets of an insurance company general account and (ii) satisfy the requirements and conditions of Prohibited Transaction Class Exemption 95-60 issued by the Department of Labor; or (f) (i) are made solely with assets managed by an in-house asset manager and (ii) satisfy the requirements and conditions of Prohibited Transaction Class Exemption 96-23 issued by the Department of Labor. (6) We acknowledge that the Company and the Initial Purchasers and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements 15 17 and agree that if any of the acknowledgments, representations or agreements deemed to have been made by us by our purchase of the Debentures are no longer accurate, we will promptly notify Orange and Rockland Utilities, Inc., One Blue Hill Plaza, Pearl River, New York 10965, Attention: Office of the Treasurer, and if we are acquiring any Debentures as a fiduciary or agent for one or more investor accounts, we represent that we have sole investment discretion with respect to each such account and that we have full power to make the foregoing acknowledgments, representations and agreements on behalf of each such account. Very truly yours, __________________________________ Name of Transferee: By:_______________________________ Title: Date:_____________________________ Upon transfer, the Debentures would be registered in the name of the new beneficial owner as follows: Name:_____________________________ Address:__________________________ __________________________________ __________________________________ __________________________________ Taxpayer ID Number:_______________ 16 18 Exhibit A UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST THEREIN. TRANSFERS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE DEPOSITORY OR NOMINEES OF THE DEPOSITORY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. THIS DEBENTURE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE 1933 ACT, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS, EXCEPT AS SET FORTH IN THE SECOND SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE 1933 ACT) (A "QIB"), (B) IT IS ACQUIRING THIS DEBENTURE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE 1933 ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS DEBENTURE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE 1933 ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE 1933 ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS DEBENTURE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE 1933 ACT, (F) IN ACCORDANCE WITH ANOTHER 17 19 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE 1933 ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS DEBENTURE IN VIOLATION OF THE FOREGOING FORM OF SERIES E DEBENTURE [FORM OF FACE OF SERIES E DEBENTURE] No._______ $________ ORANGE AND ROCKLAND UTILITIES, INC. 6 1/2% DEBENTURE DUE 2027 (SERIES E) ORANGE AND ROCKLAND UTILITIES, INC., a corporation duly organized and existing under the laws of the State of New York (herein called the "Company," which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to ______________________, or registered assigns, the principal sum of ______________________ Dollars, on December 1, 2027, and to pay interest on said principal sum, semiannually on June 1 and December 1 of each year, commencing June 1, 1998, at the rate of 6 1/2% per annum from the June 1 or December 1, as the case may be, next preceding the date of this Debenture to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Debenture, or unless no interest has been paid on this Debenture, in which case from the date of original issue of this Debenture, until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, when there is no existing default in the payment of interest on this Debenture, if the date hereof is after a regular record date (which shall be the close of business on the May 15 or November 15, as the case may be, next preceding an Interest Payment Date) and before the next succeeding Interest Payment Date, this Debenture shall bear interest from such Interest Payment Date; provided, however, that if the Company shall default in the payment of interest due on such Interest Payment Date, then this Debenture shall bear interest from the next preceding Interest Payment Date to which interest has been paid, or, if no interest has been paid on this Debenture, from the date of original issue of this Debenture. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as 18 20 provided in said Indenture, be paid to the person in whose name this Debenture (or one or more Predecessor Securities) is registered at the record date for such Interest Payment Date. The principal of and interest on this Debenture are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, at the office or agency of the Company in the Borough of Manhattan, The City of New York, except that interest may be paid, at the option of the Company, by check mailed to the person entitled thereto at his address last appearing on the Securities Register. Any interest not punctually paid or duly provided for shall be payable as provided in said Indenture. REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS DEBENTURE SET FORTH ON THE REVERSE HEREOF, WHICH SHALL HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Debenture shall not be entitled to any benefit under the aforesaid Indenture, or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this Debenture to be duly executed under its corporate seal. ORANGE AND ROCKLAND UTILITIES, INC. [SEAL] By _______________________________________ Treasurer Attest: _____________________________ Secretary Dated: 19 21 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee By ____________________________ Authorized Signatory 20 22 [FORM OF REVERSE OF DEBENTURE] ORANGE AND ROCKLAND UTILITIES, INC. 6 1/2% DEBENTURE DUE 2027 (SERIES E) This Debenture is one of a duly authorized issue of unsecured debt securities of the Company (herein called the "Securities"), issued and to be issued under an Indenture dated as of March 1, 1990, between the Company and The Bank of New York, as Trustee (herein called the "Trustee," which term includes any successor Trustee under the Indenture), to which the Indenture and all indentures supplemental thereto, including, without limitation, the First Supplemental Indenture dated as of March 7, 1990, the Second Supplemental Indenture dated as of October 15, 1992, the Third Supplemental Indenture dated as of March 1, 1993 and the Fourth Supplemental Indenture dated as of December 1, 1997 (said Indenture, together with all indentures supplemental thereto, including, without limitation, said First, Second, Third and Fourth Supplemental Indentures, being herein called the "Indenture"), reference is hereby made for a statement of the rights and limitations of rights thereunder of the Holders of the Securities, and of the rights, obligations, duties and immunities of the Trustee and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Security is one of a series designated on the face hereof as "6 1/2% Debentures Due 2027 (Series E)" (the "Debentures"), limited to $80,000,000 in aggregate principal amount Outstanding. The Debentures are not redeemable in whole or in part prior to maturity, and there is no sinking fund for the Debentures. The Holder of this Debenture may elect to have this Debenture (or any portion hereof in the amount of $100,000 or in integral multiples of $1,000 in excess thereof) repaid on December 1, 2004 (or, if such day is not a Business Day, the next succeeding Business Day), at a repayment price equal to the principal amount of this Debenture (or such portion hereof) together with accrued and unpaid interest thereon to the date of repayment. In order for the Holder of this Debenture to make this election, the Company must receive at its office or agency in New York, New York, during the period beginning on October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 (or, if such day is not a Business Day, the next succeeding Business Day) this Debenture with the form entitled "Option to Elect Repayment on December 1, 2004" below duly completed. Any such election received during the period beginning on October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 shall be irrevocable. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of this Debenture for repayment will be determined by the Company, whose determination shall be final and binding. Failure of the Company to so repay this Debenture (or such portion hereof) when required shall constitute an Event of Default with respect to the Series 21 23 E Debentures and the Series F Debentures only and not with respect to any other series of Securities. The Debentures are issuable only as registered Debentures, without coupons, in denominations of $100,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture, and subject to certain limitations therein set forth, Debentures are exchangeable for a like aggregate principal amount of Debentures of different authorized denominations, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Debenture may be registered on the Securities Register of the Company, upon surrender of this Debenture for registration of transfer at the office or agency of the Company in the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Debentures, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment for registration of transfer of this Debenture, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Debenture is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Debenture be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. If any Event of Default with respect to the Debentures shall occur and be continuing, the principal of all the Debentures may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of at least a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected thereby, voting as one class. The Indenture also contains a provision permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive any past default or certain Events of Default by the Company under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Debenture issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Debenture. As provided in Article Three of the Fourth Supplemental Indenture and subject to the satisfaction of certain conditions therein set forth, including the deposit of certain funds in trust, 22 24 at the Company's option, either the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and the obligations under, the Debentures and to have satisfied all the obligations (with certain exceptions) under the Indenture relating to the Debentures or the Company shall cease to be under any obligation to comply with any term, provision or condition of certain restrictive covenants of provisions with respect to the Debentures. No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Debenture at the times, place and rate, and in the coin or currency, herein prescribed. No recourse shall be had for the payment of the principal of or the interest on this Debenture, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, including any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. All terms used in this Debenture which are defined in the Indenture shall have the meanings assigned to them in the Indenture. 23 25 OPTION TO ELECT REPAYMENT ON DECEMBER 1, 2004 The undersigned hereby irrevocably requests and instructs the Company to repay the within Debenture (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the repayment date, to the undersigned at [Insert Name, Address and Tax Identification Number of the Undersigned] For this Debenture to be repaid the Company must receive at the corporate trust office of the Trustee in the Borough of Manhattan, the City of New York or at such additional place or places of which the Company shall from time to time notify the holder of the within Debenture during the period from and including October 1, 2004 to and including November 1, 2004 or, if November 1, 2004 is not a Business Day, the next succeeding Business Day, this Debenture with this "Option to Elect Repayment on December 1, 2004" form duly completed. If less than the entire principal amount of the within Debenture is to be repaid, specify the portion thereof (which shall be in the amount of $100,000 or an integral multiple of $1,000 in excess thereof) which the Holder elects to have repaid: $_________________; and specify the denomination or denominations (which shall be in the amount of $100,000 or an integral multiple of $1,000 in excess thereof) of the Debenture or Debentures to be issued to the Holder for the amount of the portion of the within Debenture not being repaid (in the absence of any such specification, one such Debenture will be issued for the portion not be repaid: _______________). Dated: 2004 ______________________________________ NOTICE: The signature on this Option to Elect Repayment on December 1, 2004 must correspond with the name as written upon the face of this instrument in every particular without alteration or enlargement or any other change whatsoever. 24 26 ASSIGNMENT Abbreviations The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ______________(Custodian)_____________(Minor) under Uniform Gifts to Minors Act_____________ (State) Additional abbreviations may also be used though not in the above list. ------------- FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto ______________________________________________________________ (Please insert social security or other identifying number of assignee) ______________________________________________________________________________ (Please print or typewrite name and address including postal zip code of assignee) the within Debenture and all rights thereunder, hereby irrevocably constituting and appointing ___________________________________________ attorney to transfer said Debenture on the books of the Company, with full power of substitution in the premises. Dated:__________________ ___________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. 25 27 Exhibit B UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST THEREIN. TRANSFERS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. FORM OF SERIES F DEBENTURE [FORM OF FACE OF SERIES F DEBENTURE] No._______ $________ ORANGE AND ROCKLAND UTILITIES, INC. 6 1/2% DEBENTURE DUE 2027 (SERIES F) ORANGE AND ROCKLAND UTILITIES, INC., a corporation duly organized and existing under the laws of the State of New York (herein called the "Company," which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to ______________________, or registered assigns, the principal sum of ______________________ Dollars, on December 1, 2027, and to pay interest on said principal sum, semiannually on June 1 and December 1 of each year, commencing June 1, 1998, at the rate of 6 1/2% per annum from the June 1 or December 1, as the case may be, next preceding the date of this Debenture to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Debenture, or unless no interest has been paid on this Debenture, in which case from the date of original issue of this Debenture, until payment of said principal sum has been made or duly provided for. 26 28 Notwithstanding the foregoing, when there is no existing default in the payment of interest on this Debenture, if the date hereof is after a regular record date (which shall be the close of business on the May 15 or November 15, as the case may be, next preceding an Interest Payment Date) and before the next succeeding Interest Payment Date, this Debenture shall bear interest from such Interest Payment Date; provided, however, that if the Company shall default in the payment of interest due on such Interest Payment Date, then this Debenture shall bear interest from the next preceding Interest Payment Date to which interest has been paid, or, if no interest has been paid on this Debenture, from the date of original issue of this Debenture. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in said Indenture, be paid to the person in whose name this Debenture (or one or more Predecessor Securities) is registered at the record date for such Interest Payment Date. The principal of and interest on this Debenture are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, at the office or agency of the Company in the Borough of Manhattan, The City of New York, except that interest may be paid, at the option of the Company, by check mailed to the person entitled thereto at his address last appearing on the Securities Register. Any interest not punctually paid or duly provided for shall be payable as provided in said Indenture. REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS DEBENTURE SET FORTH ON THE REVERSE HEREOF, WHICH SHALL HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Debenture shall not be entitled to any benefit under the aforesaid Indenture, or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this Debenture to be duly executed under its corporate seal. ORANGE AND ROCKLAND UTILITIES, INC. [SEAL] By _______________________________________ Treasurer Attest: _____________________________ Secretary Dated: 27 29 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee By ____________________________ Authorized Signatory 28 30 [FORM OF REVERSE OF DEBENTURE] ORANGE AND ROCKLAND UTILITIES, INC. 6 1/2% DEBENTURE DUE 2027 (SERIES F) This Debenture is one of a duly authorized issue of unsecured debt securities of the Company (herein called the "Securities"), issued and to be issued under an Indenture dated as of March 1, 1990, between the Company and The Bank of New York, as Trustee (herein called the "Trustee", which term includes any successor Trustee under the Indenture), to which the Indenture and all indentures supplemental thereto, including, without limitation, the First Supplemental Indenture dated as of March 7, 1990, the Second Supplemental Indenture dated as of October 15, 1992, the Third Supplemental Indenture dated as of March 1, 1993 and the Fourth Supplemental Indenture dated as of December 1, 1997 (said Indenture, together with all indentures supplemental thereto, including, without limitation, said First, Second, Third and Fourth Supplemental Indentures, being herein called the "Indenture"), reference is hereby made for a statement of the rights and limitations of rights thereunder of the Holders of the Securities, and of the rights, obligations, duties and immunities of the Trustee and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Security is one of a series designated on the face hereof as "6 1/2% Debentures Due 2027 (Series F)" (the "Debentures"), limited to $80,000,000 in aggregate principal amount Outstanding. The Debentures are not redeemable in whole or in part prior to maturity, and there is no sinking fund for the Debentures. The Holder of this Debenture may elect to have this Debenture (or any portion hereof in the amount of $100,000 or in integral multiples of $1,000 in excess thereof) repaid on December 1, 2004 (or, if such day is not a Business Day, the next succeeding Business Day), at a repayment price equal to the principal amount of this Debenture (or such portion hereof) together with accrued and unpaid interest thereon to the date of repayment. In order for the Holder of this Debenture to make this election, the Company must receive at its office or agency in New York, New York, during the period beginning on October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 (or, if such day is not a Business Day, the next succeeding Business Day) this Debenture with the form entitled "Option to Elect Repayment on December 1, 2004" below duly completed. Any such election received during the period beginning on October 1, 2004 and ending at 5:00 p.m. (New York City time) on November 1, 2004 shall be irrevocable. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of this Debenture for repayment will be determined by the Company, whose determination shall be final and binding. Failure of the Company to so repay this Debenture (or such portion hereof) when required shall constitute an Event of Default with respect to the Series 29 31 E Debentures and the Series F Debentures only and not with respect to any other series of Securities. The Debentures are issuable only as registered Debentures, without coupons, in denominations of $100,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture, and subject to certain limitations therein set forth, Debentures are exchangeable for a like aggregate principal amount of Debentures of different authorized denominations, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Debenture may be registered on the Securities Register of the Company, upon surrender of this Debenture for registration of transfer at the office or agency of the Company in the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Debentures, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment for registration of transfer of this Debenture, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Debenture is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Debenture be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. If any Event of Default with respect to the Debentures shall occur and be continuing, the principal of all the Debentures may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of at least a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected thereby, voting as one class. The Indenture also contains a provision permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive any past default or certain Events of Default by the Company under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Debenture issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Debenture. As provided in Article Three of the Fourth Supplemental Indenture and subject to the satisfaction of certain conditions therein set forth, including the deposit of certain funds in trust, 30 32 at the Company's option, either the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and the obligations under, the Debentures and to have satisfied all the obligations (with certain exceptions) under the Indenture relating to the Debentures or the Company shall cease to be under any obligation to comply with any term, provision or condition of certain restrictive covenants of provisions with respect to the Debentures. No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Debenture at the times, place and rate, and in the coin or currency, herein prescribed. No recourse shall be had for the payment of the principal of or the interest on this Debenture, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, including any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. All terms used in this Debenture which are defined in the Indenture shall have the meanings assigned to them in the Indenture. 31 33 OPTION TO ELECT REPAYMENT ON DECEMBER 1, 2004 The undersigned hereby irrevocably requests and instructs the Company to repay the within Debenture (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the repayment date, to the undersigned at [Insert Name, Address and Tax Identification Number of the Undersigned] For this Debenture to be repaid the Company must receive at the corporate trust office of the Trustee in the Borough of Manhattan, the City of New York or at such additional place or places of which the Company shall from time to time notify the holder of the within Debenture during the period from and including October 1, 2004 to and including November 1, 2004 or, if November 1, 2004 is not a Business Day, the next succeeding Business Day, this Debenture with this "Option to Elect Repayment on December 1, 2004" form duly completed. If less than the entire principal amount of the within Debenture is to be repaid, specify the portion thereof (which shall be in the amount of $100,000 or an integral multiple of $1,000 in excess thereof) which the Holder elects to have repaid: $_________________; and specify the denomination or denominations (which shall be in the amount of $100,000 or an integral multiple of $1,000 in excess thereof) of the Debenture or Debentures to be issued to the Holder for the amount of the portion of the within Debenture not being repaid (in the absence of any such specification, one such Debenture will be issued for the portion not be repaid: _______________). Dated: , 2004 ______________________________________ NOTICE: The signature on this Option to Elect Repayment on December 1, 2004 must correspond with the name as written upon the face of this instrument in every particular without alteration or enlargement or any other change whatsoever. 32 34 ASSIGNMENT Abbreviations The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ______________(Custodian)_____________(Minor) under Uniform Gifts to Minors Act_____________ (State) Additional abbreviations may also be used though not in the above list. ------------- FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto ______________________________________________________________ (Please insert social security or other identifying number of assignee) ______________________________________________________________________________ (Please print or typewrite name and address including postal zip code of assignee) the within Debenture and all rights thereunder, hereby irrevocably constituting and appointing ___________________________________________ attorney to transfer said Debenture on the books of the Company, with full power of substitution in the premises. Dated:__________________ ___________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. 33 EX-4.6 3 REGISTRATION RIGHTS AGREEMENT 1 Exhibit 4.6 ================================================================================ REGISTRATION RIGHTS AGREEMENT Dated as of December 18, 1997 by and among ORANGE AND ROCKLAND UTILITIES, INC., DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION and SALOMON BROTHERS INC ================================================================================ 2 This Registration Rights Agreement (this "Agreement") is made and entered into as of December 18, 1997, by and among Orange and Rockland Utilities, Inc., a New York corporation (the "Company"), and Donaldson, Lufkin & Jenrette Securities Corporation and Salomon Brothers Inc (each an "Initial Purchaser" and, collectively, the "Initial Purchasers"), each of whom has agreed to purchase the Company's 6 1/2% Debentures Due 2027 (Series E) (the "Series E Debentures") pursuant to the Purchase Agreement (as defined below). This Agreement is made pursuant to the Purchase Agreement, dated December 15, 1997 (the "Purchase Agreement"), by and among the Company and the Initial Purchasers. In order to induce the Initial Purchasers to purchase the Series E Debentures, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Initial Purchasers set forth in Section 3 of the Purchase Agreement. The parties hereby agree as follows: SECTION 1. DEFINITIONS As used in this Agreement, the following capitalized terms shall have the following meanings: Act: The Securities Act of 1933, as amended. Business Day: Any day except a Saturday, Sunday or other day in The City of New York, or in the city of the corporate trust office of the Trustee, on which banks are authorized to close. Broker-Dealer: Any broker or dealer registered under the Exchange Act. Broker-Dealer Transfer Restricted Securities: Series F Debentures that are acquired by a Broker-Dealer in the Exchange Offer in exchange for Series E Debentures that such Broker-Dealer acquired for its own account as a result of market making activities or other trading activities (other than Series E Debentures acquired directly from the Company or any of its affiliates). Certificated Securities: Securities which are not Global Securities (as defined in the Indenture). Closing Date: The date hereof. Commission: The Securities and Exchange Commission. Consummate: An Exchange Offer shall be deemed "Consummated" for purposes of this Agreement upon the occurrence of (a) the filing and effectiveness under the Act of the Exchange Offer Registration Statement relating to the Series F Debentures to be issued in the Exchange Offer, (b) the maintenance of such Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 3(b) hereof and (c) the delivery by the Company to the Registrar under the Indenture of 1 3 Series F Debentures in the same aggregate principal amount as the aggregate principal amount of Series E Debentures tendered by Holders thereof pursuant to the Exchange Offer. Damages Payment Date: With respect to the Series E Debentures, each Interest Payment Date. Debentures: The Series E Debentures and the Series F Debentures. Depository: As defined in the Indenture. Exchange Act: The Securities Exchange Act of 1934, as amended. Exchange Offer: The registration by the Company under the Act of the Series F Debentures pursuant to the Exchange Offer Registration Statement pursuant to which the Company shall offer the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding Transfer Restricted Securities for Series F Debentures in an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders. Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the related Prospectus. Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Series E Debentures to certain "qualified institutional buyers," as such term is defined in Rule 144A under the Act. Holders: As defined in Section 2 hereof. Indemnified Party: As defined in Section 8(c) hereof. Indemnifying Person: As defined in Section 8(c) hereof. Indenture: The Indenture, dated as of March 1, 1990, between the Company and The Bank of New York, as trustee (the "Trustee"), pursuant to which the Debentures are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof. Interest Payment Date: As defined in the Indenture and the Debentures. NASD: National Association of Securities Dealers, Inc. Person: An individual, partnership, corporation, trust, unincorporated organization, or a government or agency or political subdivision thereof. Prospectus: The prospectus included in a Registration Statement at the time such Registration Statement is declared effective, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus. 2 4 Record Holder: With respect to any Damages Payment Date, each Person who is a Holder of Debentures on the record date with respect to the Interest Payment Date on which such Damages Payment Date shall occur. Registration Default: As defined in Section 5 hereof. Registration Statement: Any registration statement of the Company relating to (a) an offering of Series F Debentures pursuant to an Exchange Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, in each case, (i) which is filed pursuant to the provisions of this Agreement and (ii) including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein. Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer Transfer Restricted Securities. Series F Debentures: The Company's 6 1/2% Debentures Due 2027 (Series F) to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon the request of any Holder of Series E Debentures covered by a Shelf Registration Statement, in exchange for such Series E Debentures. Shelf Registration Statement: As defined in Section 4 hereof. TIA: The Trust Indenture Act of 1939, as amended, as in effect on the date of this Agreement. Transfer Restricted Securities: Each Debenture, until the earliest to occur of (a) the date on which such Debenture is exchanged in the Exchange Offer and entitled to be resold to the public by the Holder thereof without complying with the prospectus delivery requirements of the Act, (b) the date on which such Debenture has been disposed of in accordance with a Shelf Registration Statement, (c) the date on which such Debenture is disposed of by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the Exchange Offer Registration Statement (including delivery of the Prospectus contained therein) or (d) the date on which such Debenture is sold pursuant to Rule 144 under the Act. Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public. SECTION 2. HOLDERS A Person is deemed to be a holder of Transfer Restricted Securities (each, a "Holder") whenever such Person owns Transfer Restricted Securities. SECTION 3. REGISTERED EXCHANGE OFFER (a) Unless the Exchange Offer shall not be permitted by applicable federal law (after the procedures set forth in Section 6(a)(i) below have been complied with), the Company shall (i) cause to be filed with the Commission as soon as practicable after the Closing Date, but in no 3 5 event later than 150 days after the Closing Date, the Exchange Offer Registration Statement, (ii) use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective at the earliest possible time, but in no event later than 180 days after the Closing Date, (iii) in connection with the foregoing, (A) file all pre-effective amendments to such Exchange Offer Registration Statement as may be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) file, if applicable, a post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause all necessary filings, if any, in connection with the registration and qualification of the Series F Debentures to be made under the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer Registration Statement, commence and Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate form permitting registration of the Series F Debentures to be offered in exchange for the Series E Debentures that are Transfer Restricted Securities and to permit sales of Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers as contemplated by Section 3(c) below. (b) The Company shall use its commercially reasonable best efforts to cause the Exchange Offer Registration Statement to be effective continuously, and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 20 Business Days. The Company shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Series F Debentures shall be included in the Exchange Offer Registration Statement. The Company shall use its commercially reasonable best efforts to cause the Exchange Offer to be Consummated on the earliest practicable date after the Exchange Offer Registration Statement has become effective, but in no event later than 30 Business Days thereafter. (c) The Company shall include a "Plan of Distribution" section in the Prospectus contained in the Exchange Offer Registration Statement and indicate therein that any Restricted Broker-Dealer who holds Series E Debentures that are Transfer Restricted Securities and that were acquired for the account of such Broker-Dealer as a result of market-making activities or other trading activities may exchange such Series E Debentures (other than Transfer Restricted Securities acquired directly from the Company or any Affiliate of the Company) pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Act and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with its initial sale of each Series F Debenture received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of Distribution" section shall also contain all other information with respect to such sales of Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers that the Commission may require in order to permit such sales pursuant thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer or disclose the amount of Debentures held by any such Broker-Dealer, except to the extent required by the Commission as a result of a change in policy after the date of this Agreement. The Company shall use its best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 6(c) 4 6 below to the extent necessary to ensure that it is available for sales of Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers, and to ensure that such Registration Statement conforms with the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of 180 days from the date on which the Exchange Offer is Consummated. The Company shall promptly provide sufficient copies of the latest version of such Prospectus to such Restricted Broker-Dealers promptly upon request, and in no event later than one day after such request, at any time during such 180 day period in order to facilitate such sales. SECTION 4. SHELF REGISTRATION (a) Shelf Registration. If (i) the Company is not required to file an Exchange Offer Registration Statement with respect to the Series F Debentures because the Exchange Offer is not permitted by applicable law (after the procedures set forth in Section 6(a)(i) below have been complied with) or (ii) if any Holder of Transfer Restricted Securities shall notify the Company within 20 Business Days following the Consummation of the Exchange Offer that (A) such Holder was prohibited by law or Commission policy from participating in the Exchange Offer or (B) such Holder may not resell the Series F Debentures acquired by it in the Exchange Offer to the public without delivering a prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder or (C) such Holder is a Broker-Dealer and holds Series E Debentures acquired directly from the Company or one of its affiliates, then the Company shall (x) cause to be filed on or prior to 30 days after the date on which the Company determines that it is not required to file the Exchange Offer Registration Statement pursuant to clause (i) above or 30 days after the date on which the Company receives the notice specified in clause (ii) above a shelf registration statement pursuant to Rule 415 under the Act (which may be an amendment to the Exchange Offer Registration Statement (in either event, the "Shelf Registration Statement")), relating to all Transfer Restricted Securities the Holders of which shall have provided the information required pursuant to Section 4(b) hereof, and shall (y) use its commercially reasonable best efforts to cause such Shelf Registration Statement to become effective on or prior to 90 days after the date on which the Company becomes obligated to file such Shelf Registration Statement. If, after the Company has filed an Exchange Offer Registration Statement which satisfies the requirements of Section 3(a) above, the Company is required to file and make effective a Shelf Registration Statement solely because the Exchange Offer shall not be permitted under applicable federal law, then the filing of the Exchange Offer Registration Statement shall be deemed to satisfy the requirements of clause (x) above. Such an event shall have no effect on the requirements of clause (y) above. The Company shall use its commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by and subject to the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available for sales of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least two years (as extended pursuant to Section 6(c)(i)) following the date on which such Shelf Registration Statement first becomes effective under the Act. 5 7 (b) Provision by Holders of Certain Information in Connection with the Shelf Registration Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 20 days after receipt of a request therefor, such information specified in item 507 of Regulation S-K under the Act for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. No Holder of Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until such Holder shall have used its best efforts to provide all such information. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading. SECTION 5. LIQUIDATED DAMAGES If (i) any Registration Statement required by this Agreement is not filed with the Commission on or prior to the date specified for such filing in this Agreement, (ii) any such Registration Statement has not been declared effective by the Commission on or prior to the date specified for such effectiveness in this Agreement, (iii) the Exchange Offer has not been Consummated within 30 Business Days after the Exchange Offer Registration Statement is first declared effective by the Commission or (iv) any Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose (each such event referred to in clauses (i) through (iv), a "Registration Default"), then the Company hereby agrees to pay liquidated damages to each Holder of Transfer Restricted Securities following the occurrence of such Registration Default, in an amount equal to 0.25% per annum (the "Liquidated Damages Rate") of the principal amount of Transfer Restricted Securities held by such Holder for so long as the Registration Default continues. The amount of liquidated damages payable shall be determined by multiplying the Liquidated Damage Rate by the principal amount of such Transfer Restricted Securities, multiplied by a fraction, the numerator of which is the number of days such Liquidated Damage Rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months), and the denominator of which is 360. Notwithstanding anything to the contrary set forth herein, (1) upon filing of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (ii) above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon the filing of a post-effective amendment to the Registration Statement or an additional Registration Statement that causes the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement) to again be declared effective or made usable in the case of (iv) above, the liquidated damages payable with respect to the Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease. All accrued liquidated damages shall be paid on each Damages Payment Date to the Depository by wire transfer of immediately available funds or by federal funds check and to Holders of Certificated Securities by mailing checks to their registered addresses. All obligations of the Company set forth in the preceding paragraph that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted 6 8 Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full. SECTION 6. REGISTRATION PROCEDURES (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company shall comply with all applicable provisions of Section 6(c) below, shall use its best efforts to effect such exchange and to permit the sale of Broker-Dealer Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof, and shall comply with all of the following provisions: (i) If, following the date hereof there has been published a change in Commission policy with respect to exchange offers such as the Exchange Offer, such that in the reasonable opinion of counsel to the Company there is a substantial question as to whether the Exchange Offer is permitted by applicable federal law, the Company hereby agrees to seek a no-action letter or other favorable decision from the Commission allowing the Company to Consummate an Exchange Offer for such Series E Debentures. The Company hereby agrees to pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company hereby agrees to use its commercially reasonable best efforts to take all such other actions as are requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (A) participating in telephonic conferences with the Commission, (B) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that such an Exchange Offer should be permitted and (C) diligently pursuing a resolution (which need not be favorable) by the Commission staff of such submission. (ii) As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the Company, prior to the Consummation of the Exchange Offer, a written representation to the Company (which may be contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company, (B) it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Series F Debentures to be issued in the Exchange Offer and (C) it is acquiring the Series F Debentures in its ordinary course of business. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, if applicable, any no-action letter obtained pursuant to clause (i) above), and (2) must comply with the registration and prospectus delivery requirements of the Act in connection with a secondary resale transaction and that such a secondary resale transaction must be covered by an effective registration statement containing the selling security holder 7 9 information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Series F Debentures obtained by such Holder in exchange for Series E Debentures acquired by such Holder directly from the Company or an affiliate thereof. (iii) Prior to effectiveness of the Exchange Offer Registration Statement, the Company shall provide a supplemental letter to the Commission (A) stating that the Company is registering the Exchange Offer in reliance on the position of the Commission enunciated in Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) and, if applicable, any no-action letter obtained pursuant to clause (i) above, (B) including a representation that the Company has not entered into any arrangement or understanding with any Person to distribute the Series F Debentures to be received in the Exchange Offer and that, to the best of the Company's information and belief, each Holder participating in the Exchange Offer is acquiring the Series F Debentures in its ordinary course of business and has no arrangement or understanding with any Person to participate in the distribution of the Series F Debentures received in the Exchange Offer and (C) any other undertaking or accurate representation required by the Commission as set forth in any no-action letter obtained pursuant to clause (i) above. (b) Shelf Registration Statement. In connection with the Shelf Registration Statement, the Company shall comply with all the provisions of Section 6(c) below and shall use its commercially reasonable best efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (as indicated in the information furnished to the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company will prepare and file with the Commission a Registration Statement relating to the registration on any appropriate form under the Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof within the time periods and otherwise in accordance with the provisions hereof. (c) General Provisions. In connection with any Registration Statement and any related Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities (including, without limitation, any Exchange Offer Registration Statement and the related Prospectus, to the extent that the same are required to be available to permit sales of Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers), the Company shall: (i) use its commercially reasonable best efforts to keep such Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 or 4 of this Agreement, as applicable. Upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities as contemplated by this Agreement during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Registration Statement, (1) in the case of clause (A), correcting any such misstatement or omission, and (2) in the case of clauses (A) and (B), use its best efforts to cause such 8 10 amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter; (ii) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; (iii) advise the underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement in order to make the statements therein not misleading, or that requires the making of any additions to or changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws, the Company shall use its commercially reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time; (iv) furnish to the Initial Purchasers, each selling Holder named in any Registration Statement or Prospectus and each of the underwriter(s) in connection with such sale, if any, before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or supplements to any such Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Registration Statement), which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a 9 11 period of at least five Business Days, and the Company will not file any such Registration Statement or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus (including all such documents incorporated by reference) to which the selling Holders of the Transfer Restricted Securities covered by such Registration Statement or the underwriter(s) in connection with such sale, if any, shall reasonably object within five Business Days after the receipt thereof; (v) promptly after the filing of any document that is incorporated by reference into a Registration Statement or Prospectus, provide copies of such document to the selling Holders and to the underwriter(s) in connection with such sale, if any, and make the Company's representatives available for discussion of such document and other customary due diligence matters; (vi) make available at reasonable times for inspection by the selling Holders, any managing underwriter participating in any disposition pursuant to such Registration Statement and any attorney or accountant retained by such selling Holders or any of such underwriter(s), all financial and other records, pertinent corporate documents and properties of the Company and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness; (vii) if requested by any selling Holders or the underwriter(s) in connection with such sale, if any, promptly include in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Transfer Restricted Securities, information with respect to the principal amount of Transfer Restricted Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Transfer Restricted Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be included in such Prospectus supplement or post-effective amendment; (viii) furnish to each selling Holder and each of the underwriter(s) in connection with such sale, if any, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference); (ix) deliver to each selling Holder and each of the underwriter(s), if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably may request; the Company hereby consents to the use (in accordance with law) of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the 10 12 underwriter(s), if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto; (x) enter into such agreements (including an underwriting agreement) and make such representations and warranties and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any Registration Statement contemplated by this Agreement as may be reasonably requested by any Holder of Transfer Restricted Securities or underwriter in connection with any sale or resale pursuant to any Registration Statement contemplated by this Agreement, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, the Company shall: (A) furnish (or in the case of paragraphs (2) and (3), use its best efforts to furnish) to each selling Holder and each underwriter, if any, upon the effectiveness of the Shelf Registration Statement and to each Restricted Broker-Dealer upon Consummation of the Exchange Offer: (1) a certificate, dated the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the case may be, signed on behalf of the Company by (x) the President or any Vice President and (y) the Chief Financial Officer or the Treasurer or any Assistant Treasurer of the Company confirming, as of the date thereof, the matters set forth in paragraphs (a) and (b) of Section 9 of the Purchase Agreement and such other similar matters as the Holders, underwriter(s) and/or Restricted Broker Dealers may reasonably request; (2) opinions, dated the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the case may be, of counsel for the Company covering matters similar to those set forth in paragraph (e) of Section 9 of the Purchase Agreement and such other matters as the Holders, underwriters and/or Restricted Broker Dealers may reasonably request, and in any event including a statement to the effect that such counsel has participated in conferences with officers and other representatives of the Company and representatives of the independent public accountants for the Company and have considered the matters required to be stated therein and the statements contained therein, although such counsel has not independently verified the accuracy, completeness or fairness of such statements; and that such counsel advises that, on the basis of the foregoing (relying as to materiality to a large extent upon facts provided to such counsel by officers and other representatives of the Company and without independent check or verification), no facts came to such counsel's attention that caused such counsel to believe 11 13 that the applicable Registration Statement, at the time such Registration Statement or any post-effective amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus contained in such Registration Statement as of its date and, in the case of the opinion dated the date of Consummation of the Exchange Offer, as of the date of Consummation, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limiting the foregoing, such counsel may state further that such counsel assumes no responsibility for, and has not independently verified, the accuracy, completeness or fairness of the financial statements, notes and schedules and other financial or statistical data included in any Registration Statement contemplated by this Agreement or the related Prospectus; and (3) a customary comfort letter, dated as of the date of effectiveness of the Shelf Registration Statement or the date of Consummation of the Exchange Offer, as the case may be, from the Company's independent accountants, in the customary form and covering matters of the type customarily covered in comfort letters to underwriters in connection with primary underwritten offerings, and affirming the matters set forth in the comfort letters delivered pursuant to Section 9 of the Purchase Agreement, without exception; (B) set forth in full or incorporate by reference in the underwriting agreement, if any, in connection with any sale or resale pursuant to any Shelf Registration Statement the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (C) deliver such other documents and certificates as may be reasonably requested by the selling Holders, the underwriter(s), if any, and Restricted Broker Dealers, if any, to evidence compliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company pursuant to this clause (x). The above shall be done at each closing under such underwriting or similar agreement, as and to the extent required thereunder, and if at any time the representations and warranties of the Company contemplated in (A)(1) above cease to be true and correct, the Company shall so advise the underwriter(s), if any, the selling Holders and each Restricted Broker-Dealer promptly and if requested by such Persons, shall confirm such advice in writing; (xi) prior to any public offering of Transfer Restricted Securities, use its commercially reasonable best efforts to cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration and 12 14 qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as the selling Holders or underwriter(s), if any, may request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the applicable Registration Statement; provided, however, that the Company shall not be required to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Registration Statement, in any jurisdiction where it is not now so subject; (xii) issue, upon the request of any Holder of Series E Debentures covered by any Shelf Registration Statement contemplated by this Agreement, Series F Debentures having an aggregate principal amount equal to the aggregate principal amount of Series E Debentures duly surrendered to the Company by such Holder in exchange therefor or being sold by such Holder; such Series F Debentures to be registered in the name of such Holder or in the name of the purchaser(s) of such Debentures, as the case may be; in return, the Series E Debentures held by such Holder shall be surrendered to the Company for cancellation; (xiii) in connection with any sale of Transfer Restricted Securities that will result in such securities no longer being Transfer Restricted Securities, cooperate with the selling Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and to register such Transfer Restricted Securities in such denominations and such names as the Holders or the underwriter(s), if any, may request at least two Business Days prior to such sale of Transfer Restricted Securities; (xiv) use its commercially reasonable best efforts to cause the disposition of the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in clause (xi) above; (xv) subject to Section 6(c)(i), if any fact or event contemplated by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (xvi) provide a CUSIP number for all Transfer Restricted Securities not later than the effective date of a Registration Statement covering such Transfer Restricted Securities and provide the Trustee under the Indenture with printed certificates for the 13 15 Transfer Restricted Securities which are in a form eligible for deposit with The Depository Trust Company; (xvii) use its commercially reasonable best efforts to cooperate and assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter (including any "qualified independent underwriter") that is required to be retained in accordance with the rules and regulations of the NASD, and use their respective best efforts to cause such Registration Statement to become effective and approved by such governmental agencies or authorities as may be necessary to enable the Holders selling Transfer Restricted Securities to consummate the disposition of such Transfer Restricted Securities; (xviii) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders with regard to any applicable Registration Statement, as soon as practicable, a consolidated earning statement meeting the requirements of Rule 158 (which need not be audited) covering a twelve-month period beginning after the effective date of the Registration Statement (as such term is defined in paragraph (c) of Rule 158 under the Act); (xix) cause the Indenture to be qualified under the TIA not later than the effective date of the first Registration Statement required by this Agreement and, in connection therewith, cooperate with the Trustee and the Holders of Debentures to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the TIA; and execute and use its best efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner; and (xx) provide promptly to each Holder upon request each document filed with the Commission pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act. (d) Restrictions on Holders. Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of the notice referred to in Section 6(c)(i) or any notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof, or until it is advised in writing by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus (the "Advice"). If so directed by the Company, each Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of either such notice. In the event the Company shall give any such notice, the time period regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(i) or Section 6(c)(iii)(D) 14 16 hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof or shall have received the Advice. SECTION 7. REGISTRATION EXPENSES (a) All expenses incident to the Company's performance of or compliance with this Agreement will be borne by the Company, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses (including filings made by any Initial Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of any "qualified independent underwriter") and its counsel that may be required by the rules and regulations of the NASD); (ii) all fees and expenses of compliance with federal securities and state Blue Sky or securities laws; (iii) all expenses of printing (including printing certificates for the Series F Debentures to be issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all reasonable fees and disbursements of counsel for the Company and the Holders of Transfer Restricted Securities; (v) all application and filing fees in connection with listing the Debentures on a national securities exchange or automated quotation system pursuant to the requirements hereof; and (vi) all fees and disbursements of independent certified public accountants of the Company (including the expenses of any special audit and comfort letters required by or incident to such performance). The Company will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Company. (b) In connection with any Registration Statement required by this Agreement (including, without limitation, the Exchange Offer Registration Statement and the Shelf Registration Statement), the Company will reimburse the Initial Purchasers and the Holders of Transfer Restricted Securities being tendered in the Exchange Offer and/or resold pursuant to the "Plan of Distribution" contained in the Exchange Offer Registration Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be chosen by the Holders of a majority in principal amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being prepared. SECTION 8. INDEMNIFICATION (a) The Company agrees, to indemnify and hold harmless each Holder, its directors, its officers and each Person, if any, who controls such Holder within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities, judgments, (including without limitation, any legal or other expenses incurred in connection with investigating or defending any matter, including any action that could give rise to any such losses, claims, damages, liabilities or judgments) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, preliminary prospectus or Prospectus (or any amendment or supplement thereto) provided by the Company to any Holder or any prospective purchaser of Series E Debentures, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or 15 17 necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or judgments are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any of the Holders furnished in writing to the Company by any of the Holders. (b) Each Holder of Transfer Restricted Securities, severally and not jointly, agrees to indemnify and hold harmless the Company, and its directors and officers, and each person, if any, who controls (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company, to the same extent as the foregoing indemnity from the Company to each of the Holders, but only with reference to information relating to such Holder furnished in writing to the Company by such Holder expressly for use in any Registration Statement, preliminary prospectus or Prospectus. In no event shall any Holder be liable or responsible for any amount in excess of the amount by which the total amount received by such Holder with respect to its sale of Transfer Restricted Securities pursuant to a Registration Statement exceeds (i) the amount paid by such Holder for such Transfer Restricted Securities and (ii) the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. (c) In case any action shall be commenced involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the "Indemnified Party"), the indemnified party shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Person") in writing, and the indemnifying party shall assume the defense of such action, including the employment of counsel reasonably satisfactory to the indemnified party and the payment of all fees and expenses of such counsel, as incurred (except that in the case of any action in respect of which indemnity may be sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be required to assume the defense of such action pursuant to this Section 8(c), but may employ separate counsel and participate in the defense thereof, but the fees and expenses of such counsel, except as provided below, shall be at the expense of the Holder). Any indemnified party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified party unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnifying party, (ii) the indemnifying party shall have failed to assume the defense of such action or employ counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such action (including any impleaded parties) include both the indemnified party and the indemnifying party, and the indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of the indemnified party). In any such case, the indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties and all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by a majority of the Holders, in the case of the parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall indemnify and hold harmless the indemnified party from and against any and all losses, claims, damages, liabilities 16 18 and judgments by reason of any settlement of any action (i) effected with its written consent or (ii) effected without its written consent if the settlement is entered into more than twenty business days after the indemnifying party shall have received a request from the indemnified party for reimbursement for the fees and expenses of counsel (in any case where such fees and expenses are at the expense of the indemnifying party) and, prior to the date of such settlement, the indemnifying party shall have failed to comply with such reimbursement request. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened action in respect of which the indemnified party is or could have been a party and indemnity or contribution may be or could have been sought hereunder by the indemnified party, unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability on claims that are or could have been the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or failure to act, by or on behalf of the indemnified party. (d) To the extent that the indemnification provided for in this Section 8 is unavailable to an indemnified party in respect of any losses, claims, damages, liabilities or judgments referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or judgments (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Holders, on the other hand, from their sale of Transfer Restricted Securities or (ii) if the allocation provided by clause 8(d)(i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company, on the one hand, and of the Holder, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or judgments, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Holder, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or by the Holder, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and judgments referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or judgments referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any matter, including any action that could have given rise to such losses, claims, damages, liabilities or judgments. Notwithstanding the provisions of this Section 8, no Holder or its directors, its officers or any Person, if any, who controls such Holder shall be required to contribute, in the 17 19 aggregate, any amount in excess of the amount by which the total received by such Holder with respect to the sale of its Transfer Restricted Securities pursuant to a Registration Statement exceeds the sum of (A) the amount paid by such Holder for such Transfer Restricted Securities plus (B) the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders' obligations to contribute pursuant to this Section 8(c) are several in proportion to the respective principal amount of Transfer Restricted Securities held by each of the Holders hereunder and not joint. SECTION 9. RULE 144A The Company hereby agrees with each Holder, for so long as any Transfer Restricted Securities remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act, to make available, upon request of any Holder of Transfer Restricted Securities, to any Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Securities designated by such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A. SECTION 10. UNDERWRITTEN REGISTRATIONS No Holder may participate in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the basis provided in customary underwriting arrangements entered into in connection therewith and (b) completes and executes all reasonable questionnaires, powers of attorney, and other documents required under the terms of such underwriting arrangements. SECTION 11. SELECTION OF UNDERWRITERS For any Underwritten Offering, the investment banker or investment bankers and manager or managers for any Underwritten Offering that will administer such offering will be selected by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included in such offering. Such investment bankers and managers are referred to herein as the "underwriters." SECTION 12. MISCELLANEOUS (a) Remedies. Each Holder, in addition to being entitled to exercise all rights provided herein, in the Indenture, the Purchase Agreement or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate. 18 20 (b) No Inconsistent Agreements. The Company will not, on or after the date of this Agreement, enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The Company has not previously entered into any agreement granting any registration rights with respect to its securities to any Person. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company's securities under any agreement in effect on the date hereof. (c) Adjustments Affecting the Debentures. The Company will not take any action, or voluntarily permit any change to occur, with respect to the Debentures that would materially and adversely affect the ability of the Holders to Consummate any Exchange Offer. (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given unless (i) in the case of Section 5 hereof and this Section 12(d)(i), the Company has obtained the written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case of all other provisions hereof, the Company has obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of Transfer Restricted Securities subject to such Exchange Offer. (e) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery: (i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy to the Registrar under the Indenture; and (ii) if to the Company: Orange and Rockland Utilities, Inc. One Blue Hill Plaza Pearl River, New York 10965 Telecopier No.: (914) 577-6934 Attention: Office of the Treasurer All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and on the next business day, if timely delivered to an air courier guaranteeing overnight delivery. 19 21 Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture. (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided, however, that this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted Securities directly from such Holder. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF. (j) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. (k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 20 22 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. ORANGE AND ROCKLAND UTILITIES, INC. By: /s/ R. Lee Haney ____________________________________ Name: R. Lee Haney Title: Sr. Vice President and CFO DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION By: /s/ Jane Sadowsky ______________________________ Name: Jane Sadowsky Title: Senior Vice President SALOMON BROTHERS INC By: /s/ James D. Hempstead ______________________________ Name: James D. Hempstead Title: Vice President 21 EX-12 4 STATEMENTS REGARDING COMPUTATION OF RATIOS 1 Exhibit 12 ORANGE AND ROCKLAND UTILITIES, INC. AND SUBSIDIARIES RATIO OF EARNINGS TO FIXED CHARGES--SEC METHOD Twelve Year Ended Dec. 31, Months Ended ------------------------ Sept. 30, 1995(1) 1996(1) 1997(1) ----------- ----------- ------------ (Dollars in Thousands) EARNINGS: Net Income from Continuing Operations $37,766 $48,147 $41,566 Federal Income Tax 23,374 25,705 21,458 Fixed Charges 34,911 33,509 34,370 ------ ------ ------ Total Earnings Available $96,051 $107,361 $97,394 ======= ======== ======= FIXED CHARGES: Interest on Long-Term Debt $26,621 $24,221 $24,196 Amortization of Debt Expense, Discount and Premium 1,393 1,462 1,586 Other Interest 4,908 5,748 6,581 Interest Factor on Rental Expense 1,989 2,078 2,007 ----- ----- ----- Total Fixed Charges $34,911 $33,509 $34,370 ======= ======= ======= Ratio of Earnings to Fixed Charges(2) 2.75 3.20 2.83 ==== ==== ==== (1) Effective August 1, 1997, the accounts receivable, with certain exceptions, and contracts with customers and related agreements of NORSTAR Partnership were sold. In accordance with Accounting Principles Board Opinion No. 30, the consolidated financial statements of the Company at September 30, 1997 reported the results of NORSTAR Partnership as "Discontinued Operations," and the results of all prior periods presented herein have been restated to conform with the current period classifications. (2) For purposes of computing the ratio of earnings to fixed charges, earnings are defined as the sum of pre-tax income from continuing operations plus fixed charges. Fixed charges consist of all interest expense (before allowance for borrowed funds used during construction), one-third of rent expense (which approximates the interest component of such expense) and amortization of debt expense. 1 EX-21 5 LIST OF THE SUBSIDIARIES OF THE COMPANY 1 Exhibit 21 ORANGE AND ROCKLAND UTILITIES, INC. AND SUBSIDIARIES Subsidiaries State of Parent and Subsidiary* Incorporation - ---------------------- ------------- Orange and Rockland Utilities, Inc. New York Rockland Electric Company New Jersey Enserve Holdings, Inc. Delaware Compass Resources, Inc. Delaware Palisades Energy Services, Inc. Delaware Saddle River Holdings Corp. Delaware NORSTAR Holdings, Inc. Delaware NORSTAR Management, Inc. Delaware NORSTAR Energy Limited Partnership Delaware NORSTAR Energy Pipeline Company, LLC Delaware Millbrook Holdings, Inc. Delaware Atlantic Morris Broadcasting, Inc. Delaware Pike County Light & Power Company Pennsylvania Clove Development Corporation New York O&R Energy Development, Inc. Delaware O&R Development, Inc. Delaware * Each level of indentation represents subsidiary status of the company under which it is immediately indented. 1 EX-23.1 6 CONSENT OF ARTHUR ANDERSEN LLP 1 Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated February 6, 1997 included and incorporated by reference in Orange and Rockland Utilities, Inc.'s Form 10-K for the year ended December 31, 1996 and to all references to our Firm included in this registration statement. ARTHUR ANDERSEN LLP New York, New York January 6, 1998 1 EX-24 7 POWERS OF ATTORNEY 1 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and an Officer of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ D. Louis Peoples ------------------------------------- D. Louis Peoples Director; Vice Chairman of the Board and Chief Executive Officer 1 2 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an Officer of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ R. Lee Haney ------------------------------------- R. Lee Haney Senior Vice President and Chief Financial Officer 1 3 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an Officer of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ Edward M. McKenna ------------------------------------- Edward M. McKenna Controller 1 4 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ Ralph M. Baruch ------------------------------------- Ralph M. Baruch Director 1 5 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ J. Fletcher Creamer ------------------------------------- J. Fletcher Creamer Director 1 6 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ Michael J. Del Giudice ------------------------------------- Michael J. Del Giudice Director 1 7 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ Jon F. Hanson ------------------------------------- Jon F. Hanson Director 1 8 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ Kenneth D. McPherson ------------------------------------- Kenneth D. McPherson Director 1 9 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ Robert E. Mulcahy III ------------------------------------- Robert E. Mulcahy III Director 1 10 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ James F. O'Grady, Jr. ------------------------------------- James F. O'Grady, Jr. Director 1 11 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ Frederic V. Salerno ------------------------------------- Frederic V. Salerno Director 1 12 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 24th day of September 1997. /s/ H. Kent Vanderhoef ------------------------------------- H. Kent Vanderhoef Chairman of the Board 1 13 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-4 pursuant to the provisions of the Securities Act of 1933, as amended (the "Act"), with respect to the registration of up to $80 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, in exchange for a like amount of unregistered debt securities to be issued and sold by the Company in an exempt offering pursuant to Rule 144A under the Act, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, her true and lawful attorney, for her and in her name, place and stead, and in her office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre-or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as she might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set her hand and seal this 24th day of September 1997. /s/ Linda C. Taliaferro ------------------------------------- Linda C. Taliaferro Director 1 EX-25 8 T-1 1 Exhibit 25 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) . . . |_| ---------- THE BANK OF NEW YORK (Exact Name of Trustee as Specified in its Charter) New York 13-5160382 (State of Incorporation (I.R.S. Employer if not a National Bank) Identification No.) 48 Wall Street, New York, N.Y. 10286 (Address of Principal Executive Offices) (Zip Code) ---------- Orange and Rockland Utilities, Inc. (Exact Name of Obligor as Specified in its Charter) New York 13-1727729 (State or other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) One Blue Hill Plaza Pearl River, NY 10965 (Address of Principal Executive Offices) (Zip Code) ---------- 6 1/2% Debentures Due 2027 (Series F) (Title of the Indenture Securities) ================================================================================ 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 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 4 NOTE Inasmuch as this Form T-1 is being filed prior to the ascertainment by the Trustee of all facts on which to base a responsive answer to Item 2, the answer to said Item is based on incomplete information. Item 2 may, however, be considered as correct unless amended by an amendment to this Form T-1. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 29th day of December, 1997. THE BANK OF NEW YORK By /s/ Robert A. Massimillo ----------------------------------- Assistant Vice President 4 5 Consolidated Report of Condition of THE BANK OF NEW YORK of 48 Wall Street, New York, NY 10296 And Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business June 30, 1997, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act. Dollar Amounts ASSETS in Thousands Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin ............ $ 7,769,502 Interest-bearing balances ..................................... 1,472,524 Securities: Held-to-maturity securities ................................... 1,080,234 Available-for-sale securities ................................. 3,046,199 Federal funds sold and Securities purchased under agreements to resell ..................................................... 3,193,800 Loans and lease financing receivables: Loans and leases, net of unearned income ............35,352,045 LESS: Allowance for loan and lease losses ..............625,042 LESS: Allocated transfer risk reserve ......................429 Loans and leases, net of unearned income, allowance, and reserve ................................................. 34,726,574 Assets held in trading accounts ................................. 1,611,096 Premises and fixed assets (including capitalized leases) ........ 676,729 Other real estate owned ......................................... 22,460 Investments in unconsolidated subsidiaries and associated companies ..................................................... 209,958 Customers' liability to this bank on acceptances outstanding .... 1,357,731 Intangible assets ............................................... 720,883 Other assets .................................................... 1,627,267 ----------- Total assets .................................................... $57,514,958 =========== LIABILITIES Deposits: In domestic offices ........................................... $26,875,598 Noninterest-bearing .................................11,213,657 Interest-bearing ....................................15,661,939 In foreign offices, Edge and Agreement subsidiaries, and IBFs.. 16,334,270 Noninterest-bearing ....................................596,369 Interest-bearing ....................................15,737,901 Federal funds purchased and Securities sold under agreements to repurchase ...................................................... 1,583,157 Demand notes issued to the U.S. Treasury ........................ 303,000 Trading liabilities ............................................. 1,308,173 Other borrowed money: With remaining maturity of one year or less ................... 2,383,570 With remaining maturity of more than one year through three years ....................................................... 0 With remaining maturity of more than three years .............. 20,579 Bank's liability on acceptances executed and outstanding......... 1,377,244 Subordinated notes and debentures ............................... 1,018,940 Other liabilities ............................................... 1,732,792 ----------- Total liabilities ............................................... 52,937,421 ----------- EQUITY CAPITAL Common stock .................................................... 1,135,284 Surplus ......................................................... 731,319 Undivided profits and capital reserves .......................... 2,721,258 Net unrealized holding gains (losses) on available-for-sale securities .................................................... 1,948 Cumulative foreign currency translation adjustments ............. ( 12,272) ----------- Total equity capital ............................................ 4,577,537 ----------- Total liabilities and equity capital ............................ $57,514,958 =========== I, Robert E. Kellman, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. Robert E. Kellman We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct. Thomas A. Renyl ) J. Carter Bacot } Directors Alan R. Griffith ) ------------------------ -----END PRIVACY-ENHANCED MESSAGE-----