-----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, ERpfl/ekJHtFS9KWUosOg6SkqVJIF/9XZ6MM4k3+ncsgF/BnvsLAJkpRFlttMVJ2 RcdrNYrMdQApWaaPPAEJPQ== 0000950123-99-001104.txt : 19990215 0000950123-99-001104.hdr.sgml : 19990215 ACCESSION NUMBER: 0000950123-99-001104 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 19990212 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-3 SEC ACT: SEC FILE NUMBER: 333-72289 FILM NUMBER: 99536914 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-3 1 FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 1999 REGISTRATION NO. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ORANGE AND ROCKLAND UTILITIES, INC. (Exact Name of Registrant as Specified in Its Charter) New York One Blue Hill Plaza 13-1727729 (State or Other Jurisdiction of Pearl River, New York 10965 (I.R.S. Employer Incorporation or Organization) (914) 352-6000 Identification Number) (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)
G.D. Caliendo Senior Vice President, General Counsel and Secretary Orange and Rockland Utilities, Inc. One Blue Hill Plaza Pearl River, New York 10965 (914) 352-6000 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) Copy To: Michael F. Cusick, Esq. Winthrop, Stimson, Putnam & Roberts One Battery Park Plaza New York, New York 10004 (212) 858-1000 Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [ ] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE
================================================================================================================================== TITLE OF CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE PER UNIT(1) PRICE (1) - ---------------------------------------------------------------------------------------------------------------------------------- % Debentures Due $45,000,000 100% $45,000,000 $12,510 2029 (Series G) ==================================================================================================================================
(1) Exclusive of accrued interest, if any, and estimated solely for the purpose of calculating the registration fee. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE. 2 THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. SUBJECT TO COMPLETION DATED FEBRUARY 12, 1999 PROSPECTUS $45,000,000 ORANGE AND ROCKLAND UTILITIES, INC. % DEBENTURES DUE 2029 (SERIES G) ----------------------- Orange and Rockland Utilities, Inc. intends to issue $45,000,000 of unsecured debentures in a single series. After the competitive bidding and pricing for the debentures, we will publish a final prospectus that will set forth the amount of interest you will be paid each year on the debentures. Interest on the debentures will be paid each year on March 1 and September 1, beginning September 1, 1999. We may redeem the debentures on or after March 1, 2009. The debentures are unsecured and rank equally with all of our other unsecured senior indebtedness. The debentures will be issued only in registered form in denominations of $1,000 or in any amount in excess thereof which is an integral multiple of $1,000. We expect that the debentures will be ready for delivery in book-entry form only through The Depository Trust Company, on or about March , 1999. ------------------------ NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------ This prospectus is to be used for the public invitation for competitive bids to select the purchasers to purchase all the debentures. After the purchasers accept the debentures, they will offer them to the public to buy. BIDS FOR THE DEBENTURES WILL BE RECEIVED BY FAX UNTIL 11:00 A.M. NEW YORK TIME ON , 1999 AT THE OFFICES OF WINTHROP, STIMSON, PUTNAM & ROBERTS, ONE BATTERY PARK PLAZA, NEW YORK, NEW YORK 10004-1490, ATTN: MICHAEL CUSICK, FAX NO. 212-858-1500. The date of this prospectus is , 1999 3 TABLE OF CONTENTS Page WHERE YOU CAN FIND MORE INFORMATION...........................................3 INCORPORATION OF INFORMATION WE FILE WITH THE SEC.............................3 ORANGE AND ROCKLAND UTILITIES, INC............................................4 MERGER WITH CONSOLIDATED EDISON, INC..........................................5 REGULATORY PROCEEDINGS........................................................6 SELECTED FINANCIAL INFORMATION................................................9 USE OF PROCEEDS..............................................................10 PLAN OF DISTRIBUTION.........................................................10 DESCRIPTION OF DEBENTURES....................................................10 LEGAL MATTERS................................................................16 EXPERTS......................................................................16 ---------------------- FORWARD-LOOKING STATEMENTS Certain statements contained in this prospectus and in the documents incorporated by reference into this prospectus are forward-looking statements. We have based these forward-looking statements on our current expectations and projections about future events. These forward-looking statements are not statements of historical fact. Forward-looking statements involve risks, uncertainties and assumptions that may cause our actual financial condition, results of operations, business or performance to be materially different from the expectations of future financial condition, results of operations, business or performance we express or imply in any forward-looking statements. Some of the important factors that could cause our actual financial condition, results of operations, business or performance to differ materially from our expectations include: - competition and industry restructuring, - changes in economic conditions, - changes in laws, regulations or regulatory policies, - uncertainties relating to the ultimate outcome of the Company's proposed merger and the sale of its electric generation assets, which transactions are discussed in this prospectus under "Merger with Consolidated Edison, Inc." and "Regulatory Proceedings -- Divestiture," - the outcome of certain assumptions made in regard to Year 2000 issues, and - other uncertainties. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this prospectus might not occur. When used in our documents or oral presentations, the words "anticipate," "intend," "estimate," "expect," "objective," "projection," "forecast," "goal" or similar words are intended to identify forward-looking statements. We qualify any such forward-looking statements entirely by these cautionary factors. ---------------------- You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are offering to sell the debentures and seeking offers to buy the debentures only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the dates of this prospectus, regardless of the time of delivery of this prospectus or any sale of the debentures. Our business, financial condition, results of operations and prospects may have changed since that date. As used in this prospectus, the terms "O&R," "we," "our" and "the company," refer to Orange and Rockland Utilities, Inc., an investor-owned utility incorporated in New York, and, unless the context requires otherwise, its subsidiaries. 2 4 WHERE YOU CAN FIND MORE INFORMATION We file reports, proxy statements and other information with the SEC (Securities and Exchange Commission). You can inspect and copy any documents that we file at the SEC's public reference facilities in Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for more information on their public reference rooms and their copy charges. Our SEC filings can also be reviewed on the internet at the SEC's website at http://www.sec.gov. In addition, our SEC filings and other information can be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, where the company's common stock is listed and traded under the ticker symbol "ORU." INCORPORATION OF INFORMATION WE FILE WITH THE SEC The SEC allows us to "incorporate by reference" the information we file with them, which means: - incorporated documents are considered part of the prospectus; - we can disclose important information to you by referring you to those documents; and - information that we file with the SEC will automatically update and supersede this prospectus. We incorporate by reference the documents listed below which the company filed with the SEC under the Exchange Act ("Securities Exchange Act of 1934"): - annual report on Form 10-K for the year ended December 31, 1997; - quarterly reports on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998, and September 30, 1998; and - current reports on Form 8-K dated February 5, 1998, March 9, 1998, April 8, 1998, May 10, 1998, June 18, 1998, August 20,1998 and November 27, 1998. We also incorporate by reference each of the following documents that we will file with the SEC after the date of this prospectus but before the end of the offering: - all documents filed under Sections 13(a) and (c) of the Exchange Act; - definitive proxy or information statements filed under Section 14 of the Exchange Act in connection with any subsequent stockholders' meeting; and - any reports filed under Section 15(d) of the Exchange Act. You may review our SEC filings through our website at http://www.oru.com and may request a copy of any filings referred to above (excluding certain exhibits) at no cost, by contacting us, either orally or in writing, at the following address or phone number: Orange and Rockland Utilities, Inc. Office of the Treasurer One Blue Hill Plaza Pearl River, New York 10965 (telephone: 914-577-2512) 3 5 ORANGE AND ROCKLAND UTILITIES, INC. Our company was formed on May 21, 1926 as Rockland Light and Power Company (originally organized in 1899) when it was consolidated with Catskill Power Corporation and Orange County Public Service Company Inc. We adopted our present name on February 28, 1958 when we consolidated with The Orange and Rockland Electric Company. Our company, with its two wholly-owned utility subsidiaries RECO (Rockland Electric Company), a New Jersey corporation, and Pike (Pike County Light & Power Company), a Pennsylvania corporation, supplies electricity and gas to a territory covering approximately 1,350 square miles. Our service area includes southeastern New York State and adjacent sections of northern New Jersey and northeastern Pennsylvania. As of September 30, 1998, we furnished electric service to approximately 273,000 customers in 96 communities with an estimated population of 681,000 and gas service to approximately 116,000 customers in 57 communities with an estimated population of 482,000. We also have two wholly owned non-utility subsidiaries, Clove (Clove Development Corporation), a real estate operation, and ORD (O&R Development, Inc.), a land development company. In addition, RECO has two wholly-owned non-utility subsidiaries, EHI (Enserve Holdings, Inc.) and SRH (Saddle River Holdings Corp.). EHI also has two wholly-owned non-utility subsidiaries. The following chart shows our principal subsidiaries. [O & R Flow Chart] In addition, SRH has a wholly-owned non-utility subsidiary, NHI (NORSTAR Holdings, Inc.) (formerly O&R Energy, Inc.), which was engaged in natural gas marketing through its wholly-owned non-utility subsidiary, NMI (NORSTAR Management, Inc.). NMI was the sole general partner of the NORSTAR Partnership (NORSTAR Energy Limited Partnership), the majority owner of NORSTAR LLC (NORSTAR Energy Pipeline Company, L.L.C.). The NORSTAR Partnership sold its accounts receivable, with certain exceptions, and its contracts with customers and related agreements to mc2 Inc. in 1997, and the winding down of the NORSTAR Partnership has been substantially completed. 4 6 MERGER WITH CONSOLIDATED EDISON, INC. On May 10, 1998, the company, CEI (Consolidated Edison, Inc.) and C Acquisition Corp., a wholly-owned merger subsidiary of CEI, entered into a merger agreement providing for a merger transaction among the company, CEI and the merger subsidiary. Pursuant to the merger agreement, the merger subsidiary will merge with and into the company, with the company being the surviving corporation and becoming a wholly-owned subsidiary of CEI. On June 22, 1998, the company, CEI and CEI's utility subsidiary, Con Edison (Consolidated Edison Company of New York, Inc.) filed a joint petition with the NYPSC (New York Public Service Commission) requesting approval of the merger. The parties have requested regulatory reviews and approvals prior to March 31, 1999. In this joint petition, the company reaffirmed its commitment to honor the provisions of its NYPSC-approved Electric Rate and Restructuring Plan, dated November 26, 1997. In the divestiture plan the company agreed to divest all of its electric generating assets and to implement full retail access for all electric customers by May 1, 1999. Since both the company and Con Edison have agreed to implement full retail access and have committed to comprehensive generation divestiture programs, the company and Con Edison in their filing with the FERC (Federal Energy Regulatory Commission) took the position that the merger will not have an adverse impact on competition in the electric industry. On July 2, 1998, RECO and Pike filed similar petitions with the NJBPU (New Jersey Board of Public Utilities) and the PPUC (Pennsylvania Public Utility Commission), respectively, for approval of the merger. The proceedings before the NYPSC, the NJBPU and the PPUC have established schedules that provide for final decisions by March 31, 1999. The company can give no assurance that any of the commissions will issue orders by that date or what, if any, conditions such commissions may impose on such orders. On January 14, 1999, Pike, the Office of the Consumer Advocate and the Office of the Small Business Advocate executed a settlement agreement which allows Pike to retain all merger savings, net of costs to achieve, until its next electric and gas base rate case. An administrative law judge issued a recommended decision to the PPUC on February 3, 1999 recommending approval of the settlement in its entirety. A final PPUC order is expected prior to March 31, 1999. On September 9, 1998, the company and Con Edison filed an Application for Approval of Merger and Related Authorizations with the FERC. On January 27, 1999, the FERC issued an order approving the merger consistent with the terms of the application. On January 26, 1999, the company and CEI each filed a Notification and Report Form under the HSR Act (Hart-Scott-Rodino Act of 1976) with the Department of Justice and the Federal Trade Commission. Under the provisions of the HSR Act, consummation of the merger is subject to the expiration or earlier termination of the applicable waiting period. On February 3, 1999, the company and CEI filed an application with the SEC seeking approval of the merger under the Public Utility Holding Company Act of 1935. The merger is expected to occur shortly after all of the conditions to the consummation of the merger, including the receipt of all regulatory approvals, are met or waived. At a special meeting of the common shareholders of the company held on August 20, 1998, the merger agreement was approved by a vote of approximately 74% of the common shares entitled to vote. 5 7 REGULATORY PROCEEDINGS DIVESTITURE In accordance with the schedule in the restructuring plan referred to above, the company filed its final plan for divestiture of all of its electric generating assets with the NYPSC on February 4, 1998. The plan, which provides for a two phase auction process, was approved by the NYPSC in orders issued April 16, 1998 and May 26, 1998. The company retained Donaldson, Lufkin & Jenrette Securities Corporation to act as its financial advisor in connection with the divestiture of the generating assets. Following the review of final bids and negotiations with the winning bidder, on November 24, 1998, the company entered into four separate ASAs (Asset Sales Agreements) with subsidiaries of Southern Energy (Southern Energy, Inc.), a subsidiary of The Southern Company. The sales price for all generating facilities, including the two-thirds interest in the Bowline Point Generating Plant owned by Con Edison is approximately $480 million, plus certain fuel inventory and other adjustments. The company's share of the sales price is approximately $345 million. The sales are subject to federal and state regulatory review and approval. The ASAs provide for the closing of the sale to occur on April 30, 1999, which date may be adjusted depending on the receipt of regulatory approvals. Under the terms of the ASAs, if approval by the FERC of the establishment of the ISO (Independent System Operator), as described below, has not been obtained by the time all other regulatory approvals have been obtained, the parties have agreed to defer the closing of the sale, but in no event to a date later than August 31, 1999. The restructuring plan provides that the New York share of any net book gains from the divestiture of the generating assets will be shared between the company's New York customers and shareholders, with shareholders receiving 25 percent of the gain, up to $20 million. The NJBPU has not yet decided how RECO's share of any gain will be allocated between ratepayers and shareholders. Pike's settlement will allow shareholders to retain $55,000 of any gain. The terms of the restructuring plan also permit the company to defer and recover up to $7.5 million (New York electric share) of prudent and verifiable non-officer employee costs associated with the divestiture, such as retraining, outplacement, severance, early retirement and employee retention programs. Under the terms of the restructuring plan, the company will be authorized to petition the NYPSC for recovery of employee costs in excess of $7.5 million. In addition, the restructuring plan provides for the recovery of all prudent and verifiable costs of the sale. COMPETITION Regulatory agencies at the federal level as well as in the three states in which the company and its utility subsidiaries have retail electric franchises are currently implementing changes in regulatory and rate-making practices designed to promote increased competition consistent with safety, reliability and affordability standards. Depending on ongoing developments in this area, the company's market share and profit margins will become subject to competitive pressures in addition to regulatory constraints. FEDERAL INITIATIVE On April 24, 1996, the FERC issued its final order (FERC Order 888) requiring electric utilities to file nondiscriminatory open access transmission tariffs that would be available to wholesale sellers and buyers of electric energy. The order also provided for the recovery of related legitimate and verifiable strandable costs subject to the FERC's jurisdiction. The company's open access transmission tariff, as originally filed with the FERC on July 9, 1996 and amended through August 1997, offers transmission service and certain ancillary services to wholesale customers on a basis that is comparable to that which it provides itself. The company is operating under the filed tariff, subject to refund, pending final FERC approval of the company's filing. The company participates in the wholesale electric market primarily as a buyer of energy and, as a result, Order 888 is not expected to materially impact the company's financial condition or results of operations. On January 31, 1997, the company, in conjunction with the other members of the NYPP (New York Power Pool), filed tariffs with the FERC seeking permission to restructure the NYPP into an ISO. On December 19, 1997, 6 8 the company and the other members of the NYPP made a supplemental filing with the FERC which provides for a revised ISO governance structure. In an order dated January 27, 1999, the FERC conditionally accepted the proposed ISO tariff and the proposed market rules of the ISO. The order requires substantial modifications to the proposed ISO tariff, including separation of the transmission tariff from the rate schedules that govern non-transmission functions. The NYPP members must submit a revised monitoring program to identify both the exercise of market power and market design flaws. The FERC also set a hearing to consider certain rate issues and noted that an application pursuant to Section 203 of the Federal Power Act requesting transfer of control of all necessary facilities from the NYPP members to the ISO must be submitted to and approved by the FERC. The NYPP members filed such Section 203 application with the FERC on February 5, 1999. The company is unable to predict when the ISO will become operational. NEW YORK COMPETITIVE OPPORTUNITIES PROCEEDING--ELECTRIC The restructuring plan, in addition to providing for divestiture of the company's electric generating facilities, as discussed above, provides that full retail access to a competitive energy and capacity market will be available for all customers by May 1, 1999. The restructuring plan also provides for electric price reductions of approximately $32.4 million over its four-year term and for recovery, through a CTC (Competitive Transition Charge), of above-market generation costs should the transfer of title to the company's generating assets not occur before May 1, 1999. Should a CTC be required, the company would be authorized to recover the difference between its non-variable costs of generation, including 75% of fixed production labor expenses and property taxes, and the revenues, net of fuel and variable operating and maintenance expenses, derived from the operation of the company's generating assets in a deregulated competitive market. If title to the generating assets has not transferred as of May 1, 2000, the CTC would be modified so as to allow a maximum recovery of 65% of fixed production labor expenses and property taxes. The modified CTC would remain effective until the earlier of the date title to the generating assets is transferred or October 31, 2000. In the event title to the generating assets is not to be transferred by October 31, 2000, the company would be authorized to petition the NYPSC for permission to continue a CTC until the title to the generating assets is transferred. The CTC does not allow for the recovery of inflationary increases in non-fuel operating and maintenance production costs, property tax increases, wage rate increases, or increased costs associated with capital additions or changes in the costs of capital applicable to production costs. In addition, the restructuring plan permits the company to retain all earnings up to an 11.4% return on equity and provides that earnings in excess of 11.4% are to be shared, with 75% to be used to offset NYPSC approved deferrals or otherwise inure to the company's customers, and 25% to be retained by the company's shareholders. The restructuring plan also provides a schedule for the submission of comments by the company, the staff of the New York State Department of Public Service and other interested parties to the NYPSC on the degree and timing of introducing competition in metering and billing services. The NYPSC initiated proceedings in these areas during 1998. The company cannot predict at this time the ultimate outcome of the proceedings or their effect, if any, on the company's consolidated financial position or results of operations. Settlement agreements providing for the implementation of unbundled rates which separate the components of existing tariffs into production, transmission, distribution and customer cost categories effective May 1, 1999, were reached on August 13 and September 18, 1998 between the company, the NYPSC staff and other interested parties. By orders dated February 4, 1999, the NYPSC approved the settlement agreements with minor modifications. NEW YORK COMPETITIVE OPPORTUNITIES PROCEEDING--GAS In 1996, the NYPSC approved utility restructuring plans designed to open up the local natural gas market to competition and allow residential and small commercial users the ability to purchase gas supplies from a variety of sources, other than the franchised local distribution utility. On November 3, 1998, the NYPSC issued a Policy Statement Concerning the Future of the Natural Gas Industry in New York State and Order Terminating Capacity Assignment (Case 97-G-1380). In accordance with the policy statement, the company ceased requiring transportation customers to utilize its upstream capacity as of October 1, 1998. As of December 31, 1998, the company has not incurred any stranded costs related to its upstream pipeline capacity. As the company moves to a competitive market, traditional cost recovery mechanisms may be replaced by market-based methods. It is not 7 9 possible to predict the outcome of this proceeding or its effect on the company's consolidated financial position or results of operations. Additional information concerning regulatory proceedings relating to the company and its utility subsidiaries is contained in the documents incorporated by reference into this prospectus. 8 10 SELECTED FINANCIAL INFORMATION The selected financial information set forth below has been derived from the company's previously published financial statements included in the incorporated documents. The company's financial statements for the years ended December 31, 1997 and 1996 have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports included in the incorporated documents. The unaudited financial information for the nine months ended September 30, 1998 and 1997, includes all adjustments, consisting of normal recurring accruals, that the company considers necessary for a fair presentation of the financial position and results of operation for such period. The selected financial data set forth below do not purport to be complete and should be read in conjunction with the company's annual and quarterly reports included in the incorporated documents.
Nine Months Ended September 30, Years Ended December 31, ----------------------------- ------------------------------ 1998 1997(1) 1997(1) 1996(1) ----------- ----------- ----------- ----------- (unaudited) (unaudited) (Dollars in thousands) Selected Income Statement Data: - ------------------------------- Operating Revenues $ 476,748 $ 482,241 $ 648,774 $ 654,890 Operating Income $ 61,096 $ 58,204 $ 76,997 $ 82,644 Net Income: Continuing Operations $ 37,329 $ 33,921 $ 44,938 $ 48,147 Discontinued Operations $ -- $ (15,432) $ (15,432) $ (1,844) Total $ 37,329 $ 18,489 $ 29,506 $ 46,303 Earnings Applicable to Common Stock $ 35,069 $ 16,390 $ 26,706 $ 43,279 Selected Balance Sheet Data: - ---------------------------- Total Assets $ 1,294,263 $ 1,271,019 $ 1,288,009 $ 1,266,132 Total Long-Term Debt $ 356,676 $ 354,680 $ 356,676 $ 359,825 Common Stock Equity $ 382,010 $ 377,819 $ 376,319 $ 387,850 Other Data: - ----------- Electric Customers 273,329 269,059 269,096 266,022 Gas Customers 115,788 113,886 114,400 113,126 Ratio of Earnings to Fixed Charges (2) 3.16 2.99 2.93 3.20
(1) Effective August 1, 1997, the accounts receivable, with certain exceptions, and contracts with customers and related agreements of the NORSTAR Partnership were sold. In accordance with Accounting Principles Board Opinion No. 30, the consolidated financial statements of the company at September 30, 1997, reported the results of the NORSTAR Partnership as "Discontinued Operations," and the results of 1996 and 1995 have been restated to conform with the current period classifications. Additional information regarding the NORSTAR Partnership is included in the company's Annual Report to the Commission on Form 10-K for the year ended December 31, 1997, which information is incorporated by reference in this document. (2) The ratio of earnings to fixed charges for the years ended December 31, 1995, 1994 and 1993 were 2.75, 2.62 and 2.88, respectively. Ratios for 1993 and 1994 have been calculated on a historical basis and have not been restated to reflect discontinued operations of the NORSTAR Partnership. For purposes of computing the ratio of earnings to fixed charges, earnings are defined as the sum of pre-tax income from continuing operations plus fixed charges. Fixed charges consist of all interest expense (before allowance for borrowed funds used during construction), one-third of rent expense (which approximates the interest component of such expense) and amortization of debt expense. 9 11 USE OF PROCEEDS We will use the net proceeds from the sale of the debentures to redeem all of our outstanding preferred stock and preference stock, of which 428,443 shares and 10,684 shares, respectively, are outstanding at December 31, 1998, with an aggregate liquidation preference of approximately $43,192,000. The dividend rates on our preferred and preference stock range from 4% to 8%. We will use remaining proceeds to refinance permanently outstanding short-term debt. PLAN OF DISTRIBUTION The company is conducting a competitive bidding for the sale of the debentures. Under the terms and subject to the conditions contained in the bid and the terms of purchase (together, the purchase agreement) between the company and the purchasers, the purchasers will agree severally to purchase, and the company will agree to sell to the purchasers, the debentures. DESCRIPTION OF DEBENTURES The debentures are to be issued under an Indenture dated as of March 1, 1990 between the company and The Bank of New York, as Trustee (the "Trustee"), as supplemented by four supplemental indentures, and by a fifth supplemental indenture, to be dated as of March 1, 1999, relating to the debentures (collectively, the "Indenture," which term includes all amendments and supplements from time to time). The statements herein concerning the debentures and the Indenture do not purport to be complete. They are qualified in their entirety by reference to the Indenture and to the definitions therein of terms used herein. All article and section references appearing in this section are to articles and sections of the Indenture, and all capitalized terms not defined herein have the meanings specified in the Indenture. GENERAL The title of the debentures shall be " % Debentures Due 2029 (Series G)." The debentures will be issued in a single series and will be limited to $45,000,000 in aggregate principal amount. The debentures will mature on March 1, 2029 and will bear interest from the date of original issuance at the rate of % per annum payable on March 1 and September 1 of each year, commencing September 1, 1999, until maturity. REDEMPTION The debentures will be unsecured and will rank equally with other unsecured obligations of the company. The Indenture does not limit the amount of debentures which may be issued thereunder, and additional debentures may be issued thereunder up to the aggregate principal amount which may be authorized from time to time by the company. The company may not redeem the debentures for the first ten years, but may do so on March 1, 2009 or at any time thereafter. The debentures will be redeemable prior to maturity, at the option of the company, as a whole at any time or in part from time to time, on notice given as provided in the Indenture, at the principal amount thereof and accrued interest to the date fixed for redemption, together with a premium equal to a percentage of the principal amount thereof, determined as set forth below. If redeemed If redeemed If redeemed during the during the during the 12 months' 12 months' 12 months' period ending period ending period ending ____________, Premium ____________, Premium ___________, Premium 2010 .......... % 2017 .......... % 2024 .......... % 2011 .......... % 2018 .......... % 2025 .......... % 2012 .......... % 2019 .......... % 2026 .......... % 2013 .......... % 2020 .......... % 2027 .......... % 2014 .......... % 2021 .......... % 2028 .......... % 2015 .......... % 2022 .......... % 2029 .......... 0.00% 2016 .......... % 2023 .......... %
There is no sinking fund for the debentures. RESTRICTION ON SECURED INDEBTEDNESS FOR BORROWED MONEY The Indenture contains a covenant restricting the issuance by the company of secured indebtedness for borrowed money while any debentures are outstanding under the Indenture. The company is precluded from creating, issuing, incurring or assuming any other indebtedness for borrowed money secured by a mortgage or other lien on, or security interest in, any properties of the company (other than (i) certain types of properties such as materials, fuels, supplies, cash, gas, minerals, notes, accounts receivables and securities and (ii) any property that is acquired by the company after the date of the second supplemental indenture subject to a mortgage, lien or security interest and certain additions, improvements and betterments thereto). The term "indebtedness for borrowed money" means indebtedness evidenced by a bond, note or other comparable written obligation representing borrowed money, and does not, in any event, include any lease or installment sale agreement (or any obligation in 10 12 the nature of or having the characteristics of a lease or installment sale agreement), whether or not capitalized for financial reporting or any other purpose. (Section 4.7, as amended by Section 2.01 of the second supplemental indenture) MERGER, SALE OF ASSETS, ETC. Under the Indenture, the company covenants that it will not consolidate with or merge into any other corporation, or sell, transfer or lease its properties as an entirety or substantially as an entirety, unless the due and punctual payment of the principal of and interest on the debentures, and the due and punctual performance and observance of all the terms, covenants and conditions of the Indenture to be performed or observed by the company, shall be expressly assumed by the successor corporation, if other than the company, formed by or surviving any such consolidation or merger or to which such sale, transfer or lease shall have been made, and immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing. In the case of any such sale or transfer, the company will thereupon be released from its liability as obligor on the debentures. (Section 11.2) DELIVERY AND FORM The debentures will be issued in fully-registered form without coupons. See "--Book-Entry, Delivery and Form." The debentures will be issued only in denominations of $1,000 or in any amount in excess thereof which is an integral multiple of $1,000. MODIFICATIONS OF INDENTURE The Indenture, the rights and obligations of the company thereunder and the rights of the Holders may be modified with respect to one or more series of debentures issued under the Indenture with the consent of the Holders of a majority of the aggregate principal amount of Outstanding debentures of all series affected by the modification (voting as one class). Without the consent of the Holder of each debenture affected, however, no modification shall change the Stated Maturity of any debentures, reduce the principal amount or the amount of any premium payable thereon, reduce the rate, extend the time of payment or change the method of calculation of interest thereon, reduce any amount payable on redemption thereof or reduce the percentage required for modification. No modification of the Indenture subordinating the indebtedness evidenced by any series of debentures issued thereunder to any indebtedness of the company is effective against any Holder of debentures without the consent of such Holder. Under certain limited circumstances, including, without limitation, modification of the Indenture to conform to any amendments of the Trust Indenture Act of 1939, the Indenture may be modified without the consent of the Holders. (Sections 10.1 and 10.2) EVENTS OF DEFAULT The Indenture provides that the following are Events of Default thereunder with respect to any series of debentures issued thereunder: - default in the payment of the principal of (or premium, if any, on) any debentures of such series when and as the same shall be due and payable; - default in making a sinking fund payment, if any, when and as the same shall be due and payable by the terms of the debentures of such series; - default for 30 days in the payment of any installment of interest on any debentures of such series; - default for 60 days after written notice (given to the company by the Trustee or by the Holders of at least 25% in aggregate principal amount of the Outstanding debentures of all series affected) in the performance of any other covenant or agreement in respect of the debentures of such series contained in the Indenture; 11 13 - certain events of bankruptcy, insolvency or reorganization, or any related court appointment of a receiver, liquidator or trustee of the company or any substantial part of its property; or - any other Event of Default provided in the applicable Board Resolution or supplemental indenture under which such series of debentures is issued. (Section 6.1) An Event of Default with respect to a particular series of debentures issued under the Indenture does not necessarily constitute an Event of Default with respect to any other series of debentures issued under the Indenture. The Trustee may withhold notice to the Holders of any series of debentures of any default with respect to such series (except a default in the payment of principal, premium or interest) if it considers such withholding in the interest of such Holders. (Section 6.11) If any Event of Default with respect to any series of debentures shall have occurred and be continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding debentures of such series may declare the principal of all the debentures of such series to be due and payable immediately; however, subject to certain conditions, any such declaration and its consequences may be rescinded or annulled by the Holders of a majority in aggregate principal amount of the Outstanding debentures of such series. (Section 6.1) On or before May 1 of each year, the company must file with the Trustee a certificate, signed by specified officers, stating whether or not such officers have knowledge of any default relating to certain covenants, and, if so, specifying each such default and the nature thereof. (Section 4.6) Subject to provisions relating to its duties during the continuance of any Event of Default, the Trustee shall be under no obligation to exercise any of its rights or powers under the Indenture at the request, order or direction of any Holders, unless such Holders shall have offered the Trustee reasonable indemnity. (Section 7.2) Subject to such provisions for indemnification and subject to the right of the Trustee to decline to follow any Holders' directions under specified circumstances, the Holders of a majority in principal amount of the Outstanding debentures of any series may direct the time, method and place of conducting any proceeding or any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, with respect to the debentures of such series. (Section 6.9) PAYMENT AND TRANSFER In the event that debenture certificates are required to be printed and delivered as described under "--Book-Entry, Delivery and Form," principal, premium, if any, and interest on debentures will be payable at such place or places as may be designated by the company for such purpose, except that payment of interest may be made at the option of the company by check mailed to the persons in whose names such debentures are registered at the close of business on the February 15 or the August 15 next preceding the relevant interest payment date. (Sections 3.8 and 4.1) Debentures may be registered for transfer or exchanged at the Corporate Trust Office of the Trustee or at any other office or agency maintained by the company for such purposes, subject to the limitations in the Indenture, without the payment of any service charge except for any tax or governmental charge incidental thereto. (Section 3.6) LEGAL DEFEASANCE AND COVENANT DEFEASANCE The company may, at its option, at any time, elect to have all obligations discharged with respect to the Outstanding debentures ("Legal Defeasance"). Such Legal Defeasance means that the company will be deemed to have paid and discharged the entire indebtedness represented by the Outstanding debentures, except for: - the rights of holders of Outstanding debentures to receive payments in respect of the principal of and interest on the debentures when such payments are due; 12 14 - the company's obligations with respect to the debentures concerning issuing temporary debentures, registration of debentures, mutilated, destroyed, lost or stolen debentures and the maintenance of an office or agency for payment and money for security payments held in trust; - the rights, powers, trust, duties and immunities of the Trustee, and the company's obligations in connection therewith; and - the Legal Defeasance provisions of the fifth supplemental indenture. In addition, the company may, at its option at any time, elect to have all obligations released with respect to a certain covenant contained in the Indenture restricting the issuance by the company of secured indebtedness for borrowed money ("Covenant Defeasance") and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the debentures. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under "--Events of Default" will no longer constitute an Event of Default with respect to the debentures. In order to exercise either Legal Defeasance or Covenant Defeasance: - the company must irrevocably deposit with the Trustee, in trust, for the benefit of the holders of the debentures, cash in United States dollars, non-callable Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants selected by the Trustee, to pay the principal of and interest on the outstanding debentures on the earlier of stated maturity or the date that the debentures have been irrevocably called for redemption on or after March 1, 2009; - in the case of Legal Defeasance, the company shall have delivered to the Trustee an Opinion of Counsel confirming that (A) the company has received from, or there has been published by, the Internal Revenue Service, a ruling or (B) since the date of the fifth supplemental indenture, there has been a change in the applicable Federal income tax law, in each case to the effect that, and based thereon such opinion of counsel shall confirm that, the holders of such debentures will not recognize income, gain or loss for Federal income tax purposes as a result of such Legal Defeasance, and will be subject to Federal income tax in the same amount, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; - in the case of Covenant Defeasance, the company shall have delivered to the Trustee an Opinion of Counsel confirming that the holders of such debentures will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; - no Event of Default shall have occurred and be continuing on the date of such deposit or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit; - such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Indenture or any other material agreement or instrument to which the company is a party; - the company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the company with the intent of preferring the holders of such debentures over any other creditors of the company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the company or others; and 13 15 - the company shall have delivered to the Trustee an Officers' Certificate stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with. CONCERNING THE TRUSTEE The Bank of New York is the Trustee under the Indenture. The Bank of New York is also the Trustee under two indentures relating to Pollution Control Refunding Revenue Bonds issued by the New York State Energy Research and Development Authority and supported by the obligation of the company. The Bank of New York also serves as the company's Stock Transfer Agent. In addition, The Bank of New York has a course of regular dealings with the company in the ordinary course of business and from time to time may also make short-term unsecured loans and secured or unsecured revolving credit and term loans to the company and associated companies. BOOK-ENTRY, DELIVERY AND FORM The Depository Trust Company ("DTC") will act as securities depository for the debentures. The debentures will be issued as fully- registered securities registered in the name of Cede & Co. (DTC's partnership nominee). One fully- registered Global Debenture will be issued for the debentures in the aggregate principal amount of such issue and will be deposited with DTC. DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants (the "Participants") deposit with DTC. DTC also facilitates the settlement among Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of debentures. The "Direct Participants" include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is owned by a number of its Direct Participants and by The New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc. Access to DTC's system is also available to others such as securities brokers and dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (the "Indirect Participants"). The Rules applicable to DTC and its Participants are on file with the Commission. Purchases of debentures under DTC's system must be made by or through Direct Participants, who will receive a credit for the debentures on DTC's records. The ownership interest of each actual purchaser of each Debenture (the "Beneficial Owners") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the debentures are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in debentures, except in the event that use of the book-entry system for the debentures is discontinued. To facilitate subsequent transfers, all debentures deposited by Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. The deposit of debentures with DTC and their registration in the name of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the debentures; DTC's records reflect only the identity of the Direct Participants to whose accounts such debentures are credited, which may or may not be the Beneficial Owners. The Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. 14 16 Redemption notices shall be sent to DTC. If less than all of the debentures within an issue are being redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed. Neither DTC nor Cede & Co. will consent or vote with respect to debentures. Under its usual procedures, DTC mails an Omnibus Proxy to the company as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the debentures are credited on the record date (identified in a listing attached to the Omnibus Proxy). Principal, premium, if any, and interest payments on the debentures will be made to Cede & Co., as nominee of DTC. DTC's practice is to credit Direct Participants' accounts upon DTC's receipt of funds and corresponding detail information from the company or the Trustee on the payable date in accordance with their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in a "street name," and will be the responsibility of such Participant and not of DTC, the Trustee, or the company, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal, premium, if any, and interest to Cede & Co. is the responsibility of the company or the Trustee, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. DTC may discontinue providing its services as securities depository with respect to the debentures at any time by giving reasonable notice to the company or the Trustee. Under such circumstances, in the event that a successor securities depository is not obtained, Debenture certificates are required to be printed and delivered. The company may decide to discontinue use of the system of book-entry transfers through DTC (or a successor securities depository). In that event, Debenture certificates will be printed and delivered. The information in this section concerning DTC and DTC's book-entry system has been obtained from sources that the company believes to be reliable, but the company takes no responsibility for the accuracy thereof. 15 17 LEGAL MATTERS Winthrop, Stimson, Putnam & Roberts will issue an opinion about the validity of the debentures for us. Thelen Reid & Priest LLP will issue an opinion about the validity of the debentures for the purchasers. Thelen Reid & Priest LLP has represented the company for many years with respect to certain tax matters. EXPERTS The consolidated financial statements and related financial statement schedule of the company incorporated by reference in this Prospectus have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports and are incorporated herein by reference in reliance upon the authority of said firm as experts in giving said reports. 16 18 PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following is a list of the expenses the company expects to pay in connection with the issuance and distribution of the debentures registered hereby:
ESTIMATED AMOUNT CATEGORY OF EXPENSE OF EXPENSE Filing and Registration Fees................................ $ 12,510 Legal Fees and Expenses*.................................... 110,000 Cost of Printing*........................................... 20,000 Accounting Fees and Expenses*............................... 35,000 Rating Agency Fees*......................................... 20,000 Blue Sky Fees and Expenses*................................. 1,500 -------- Miscellaneous Expenses*..................................... 25,990 ======== *Total............................................. $225,000 ========
- ------------------------ * Estimated. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Sections 721 through 726 of Article 7 of the New York Business Corporation Law ("NYBCL") provides for the indemnification of registrant's directors and officers. Article Five of the registrant's By-Laws provides, in summary, for indemnification by registrant, to the fullest extent permitted by law, of each person involved in, or made or threatened to be made a party to any action, suit, claim, or proceeding by reason of the fact that such person was a director or officer of registrant or while serving the registrant, such person is or was serving, at the request of the registrant, as a director or officer, or in any other capacity, any other enterprise, against judgments, fines, penalties, amounts paid in settlement and expenses, including attorney's fees, actually and reasonably incurred by such person. Article Five of the registrant's By-Laws also provides for advancement of expenses with respect to such suits. In addition, Article Five authorizes registrant to purchase indemnity insurance for directors and officers to the extent permitted under Section 726 of the NYBCL. Section 402(b) of the NYBCL permits a corporation, with the approval of its shareholders, to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for damages for any breach of duty in such capacity, subject to certain exceptions. Section 402(b) does not permit the limitation or elimination of personal liability of a director to the corporation or its shareholders for damages for acts or omissions (i) in bad faith; (ii) involving intentional misconduct; (iii) involving a knowing violation of law; (iv) resulting in the director personally gaining a financial profit or other advantage to which he or she was not legally entitled ; or (v) violating the provisions of Section 719 of the NYBCL, which prohibits certain corporate actions relating to (a) declarations of dividends, (b) purchases or redemptions by the corporation of its shares, (c) distribution of assets to shareholders after dissolution of the corporation or (d) making of loans to directors. In addition, Section 402(b) of the NYBCL does not affect the availability of equitable remedies. Article Nine of registrant's Certificate of Incorporation limits the liability of registrant's directors for damages to the maximum extent permissible under Section 402(b) of the NYBCL. Registrant maintains insurance providing for reimbursement, with certain exclusions and deductions, to registrant for registrant's indemnification of its directors and officers for expenses incurred by them as the result of actions or proceedings brought against them in those capacities, and to directors and officers for any such expenses for which they are not indemnified by registrant. In addition, such insurance covers directors and officers and certain other persons against specified liabilities in connection with the administration of registrant's retirement and benefit plans. II-1 19
ITEM 16. EXHIBITS. Exhibit Number Description ------ ----------- 1 Form of Bid and Form of Terms of Purchase 4.1 Indenture dated as of March 1, 1990 between the Company and the Bank of New York, as Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-3 filed on October 14, 1992, File No. 33-53256) 4.2 Form of Debentures (included in Exhibit 4.7 below) 4.3 First Supplemental Indenture dated as of March 7, 1990 (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-3 filed on October 14, 1992, File No. 33-53256) 4.4 Second Supplemental Indenture dated as of October 15, 1992 (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on October 29, 1992, File No. 1-4315) 4.5 Third Supplemental Indenture dated as of March 1, 1993 (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on March 8, 1993, File No. 1-4315) 4.6 Fourth Supplemental Indenture dated as of December 1, 1997 (incorporated by reference to Exhibit 4.5 to the Company's Registration Statement on Form S-4 filed on January 9, 1998, File No. 333-43953) 4.7 Form of Fifth Supplemental Indenture dated as of March 1, 1999 5 Opinion of Winthrop, Stimson, Putnam & Roberts 12 Statements Regarding Computation of Ratio of Earnings to Fixed Charges 23.1 Consent of Winthrop, Stimson, Putnam & Roberts (included in Exhibit 5) 23.2 Consent of Arthur Andersen LLP 24 Powers of Attorney 25 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York, as Trustee under the Indenture between the Company and The Bank of New York, on Form T-1 26.1 Form of Statement of Terms and Conditions Relating to Bids 26.2 Form of Notice of Sale
II-2 20 ITEM 17. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) to use its best efforts to distribute prior to the opening of bids, to prospective bidders, underwriters, and dealers, a reasonable number of copies of a prospectus which at that time meets the requirements of section 10(a) of the Act, and relating to the securities offered at competitive bidding, as contained in the registration statement, together with any supplements thereto, and (2) to file an amendment to the registration statement reflecting the results of bidding, the terms of the reoffering and related matters to the extent required by the applicable form, not later than the first use, authorized by the issuer after the opening of bids, of a prospectus relating to the securities offered at competitive bidding, unless no further public offering of such securities by the issuer and no reoffering of such securities by the purchasers is proposed to be made. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. (d) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon the Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be a part of this registration statement as of the time it was declared effective. (e) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities as that time shall be deemed to be the initial bona fide offering thereof. II-3 21 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Hamlet of Pearl River, State of New York, on the 12th day of February, 1999. ORANGE AND ROCKLAND UTILITIES, INC. (Registrant) By: /s/ R. Lee Haney ------------------------------------------ (R. Lee Haney, Senior Vice President and Chief Financial Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Capacity in Signature Which Signing Date --------- ------------- ---- Chief Executive Officer; /s/ D. Louis Peoples * Director - ------------------------------------------------------- (D. Louis Peoples, Vice Chairman of the Board of Directors and Chief Executive Officer) /s/ R. Lee Haney Chief Financial Officer February 12, 1999 - ------------------------------------------------------- (R. Lee Haney, Senior Vice President and Chief Financial Officer) Controller, Chief February 12, 1999 /s/ Edward M. McKenna Accounting Officer - ------------------------------------------------------- (Edward M. McKenna, Controller, Chief Accounting Officer) /s/ Michael J. Del Giudice * Director - ------------------------------------------------------- (Michael J. Del Giudice, Chairman of the Board of Directors) /s/ Ralph M. Baruch * Director - ------------------------------------------------------- (Ralph M. Baruch) /s/ J. Fletcher Creamer * Director - ------------------------------------------------------- (J. Fletcher Creamer) /s/ Jon F. Hanson * Director - ------------------------------------------------------- (Jon F. Hanson) /s/ Kenneth D. McPherson * Director - ------------------------------------------------------- (Kenneth D. McPherson) /s/ Robert E. Mulcahy III * Director - ------------------------------------------------------- (Robert E. Mulcahy III)
II-4 22
Capacity in Signature Which Signing Date --------- ------------- ---- /s/ James F. O'Grady, Jr. * Director - ------------------------------------------------------- (James F. O'Grady, Jr.) /s/ Linda C. Taliaferro * Director - ------------------------------------------------------- (Linda C. Taliaferro) *By /s/ G. D. Caliendo February 12, 1999 ------------------------------------------- G. D. Caliendo Attorney-in-fact
II-5 23 FORM S-3 ORANGE AND ROCKLAND UTILITIES, INC. EXHIBIT INDEX
Sequentially Exhibit Numbered Number Description Pages 1 Form of Bid and Form of Terms of Purchase 4.1 Indenture dated as of March 1, 1990 between the Company and the Bank of New York, as Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-3 filed on October 14, 1992, File No. 33-53256) 4.2 Form of Debentures (included in Exhibit 4.7 below) 4.3 First Supplemental Indenture dated as of March 7, 1990 (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-3 filed on October 14, 1992, File No. 33-53256) 4.4 Second Supplemental Indenture dated as of October 15, 1992 (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on October 29, 1992, File No. 1-4315) 4.5 Third Supplemental Indenture dated as of March 1, 1993 (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on March 8, 1993, File No. 1-4315) 4.6 Fourth Supplemental Indenture dated as of December 1, 1997 (incorporated by reference to Exhibit 4.5 to the Company's Registration Statement on Form S-4 filed on January 9, 1998, File No. 333-43953) 4.7 Form of Fifth Supplemental Indenture dated as of March 1, 1999 5 Opinion of Winthrop, Stimson, Putnam & Roberts 12 Statements Regarding Computation of Ratio of Earnings to Fixed Charges 23.1 Consent of Winthrop, Stimson, Putnam & Roberts (included in Exhibit 5) 23.2 Consent of Arthur Andersen LLP 24 Powers of Attorney 25 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York, as Trustee under the Indenture between the Company and The Bank of New York, on Form T-1 26.1 Form of Statement of Terms and Conditions Relating to Bids 26.2 Form of Notice of Sale
II-6 EX-1 2 FORM OF BID AND TERMS OF PURCHASE 1 EXHIBIT 1 ORANGE AND ROCKLAND UTILITIES, INC. FORM OF BID $45,000,000 ______% DEBENTURES DUE 2029 (SERIES G) INTEREST RATE: _____% [(MULTIPLE OF 1/8 OR 1/20 OF 1%)] PRICE: _____% [(NOT LESS THAN 98% NOR MORE THAN 100%)] TRUE INTEREST COST: _____% [(FOR INFORMATIONAL PURPOSES ONLY)] NOTE: PRICE TO PUBLIC MAY NOT EXCEED 100%, PLUS ACCRUED INTEREST. [ ], 1999 ORANGE AND ROCKLAND UTILITIES, INC. c/o Winthrop, Stimson, Putnam & Roberts Attention: Michael F. Cusick One Battery Park Plaza New York, NY 10004-1490 Fax: 212-858-1500 Ladies and Gentlemen: Referring to the Notice of Sale (the "Notice of Sale"), dated [ ], 1999, inviting bids for the purchase of $45,000,000 aggregate principal amount of % Debentures Due 2029 (Series G) (the "Debentures") of Orange and Rockland Utilities, Inc. (the "Company"), and subject to the Statement of Terms and Conditions Relating to Bids, of the same date (the "Statement of Terms and Conditions"), the persons, firms or corporations (or the person, firm or corporation) named in the attached Schedule A (the "Bidders") submit the following bid for the purchase of the Debentures: 2 1. The stated interest rate to be borne by the Debentures and the price (stated as a percentage of the principal amount) to be paid to the Company for the Debentures shall be as set forth above; and the Bidders, severally and not jointly, hereby offer to purchase the Debentures from the Company at such price, upon the terms and conditions set forth in the Terms of Purchase annexed hereto in the aggregate principal amount set forth opposite its name in Schedule A attached hereto. 2. If this bid is accepted by the Company, the annexed Terms of Purchase shall become effective without any separate execution thereof; the accepted bid and the Terms of Purchase, together, shall constitute the agreement between the Company and the Bidders; and all rights of the Company and the Bidders shall be determined solely in accordance with the terms thereof, subject, however, to such modifications therein as may be necessary and as are contemplated by the Statement of Terms and Conditions. 3. The Bidders agree that (a) their offer included in this bid shall be irrevocable until 12:00 Noon, New York Time, on the date fixed for the presentation hereof, unless such bid is sooner returned or rejected by the Company; and (b) if this bid shall be accepted they will forthwith furnish to the Company the information with respect to the public offering, if any, of the Debentures which is required to complete the prospectus dated , 1999 relating to the Debentures (the "Bidding Prospectus"). The Bidders specifically agree that the initial price to the public may not exceed 100% of the principal amount of the Debentures, plus accrued interest. 4. The Notice of Sale is not intended as a disclosure document and Bidders are required to obtain and carefully review the Bidding Prospectus before submitting a bid. 5. This bid shall be deemed rejected by the Company if it shall not have been accepted by the Company by 12:00 Noon, New York Time, on the date fixed for the presentation thereof. 6. The validity and interpretation of this bid shall be governed by the laws of the State of New York. 7. Each of the Bidders acknowledges receipt of a copy of the Bidding Prospectus relating to the Debentures referred to in the Notice of Sale. 8. Each Bidder has provided, for informational purposes only, the "true interest cost" of its bid calculated in accordance with Paragraph 3 of the Statement of Terms and Conditions but acknowledges that the Company's calculation of the "true interest cost" shall be final. 2 3 9. The undersigned hereby represents that it or they have been authorized by the Bidders to sign this bid on their behalf and to act for them in the manner provided herein, in the Statement of Terms and Conditions and in the Terms of Purchase annexed hereto. Very truly yours, Representative _____________________________________ By: _________________________________ Name: Title: Address: Accepted: Orange and Rockland Utilities, Inc. By: _________________________________ THIS FORM OF BID MUST BE SIGNED AND SUBMITTED WITH THE ATTACHED SCHEDULE A COMPLETED. 3 4 SCHEDULE A PURCHASERS PRINCIPAL AMOUNT OF DEBENTURES 4 5 Exhibit 1 ORANGE AND ROCKLAND UTILITIES, INC. ______________________________ TERMS OF PURCHASE (to be attached to Form of Bid) 1. PURCHASERS AND REPRESENTATIVE. If there shall be two or more persons, firms or corporations named in Schedule A to the attached Form of Bid (the "BID"), the term "PURCHASERS," as used in the Purchase Agreement (as hereinafter defined), shall be deemed to mean the persons, firms or corporations so named (including the Representative hereinafter mentioned), and the term "REPRESENTATIVE," as used in the Purchase Agreement, shall be deemed to mean the representative or representatives by whom or on whose behalf the Bid has been signed. Except as otherwise specified in the Purchase Agreement, all obligations of the Purchasers hereunder are several. If there shall be only one person, firm or corporation named in said Schedule A, the term "Purchasers" and the term "Representative," as used in the Purchase Agreement, shall mean such person, firm or corporation. 2. BACKGROUND. (a) Orange and Rockland Utilities, Inc., a New York corporation (the "COMPANY"), proposes to issue and sell to the Purchasers an aggregate of $45,000,000 in principal amount of its % Debentures Due 2029 (Series G) (the "DEBENTURES") subject to the terms and conditions set forth herein and in the Bid, which together shall constitute the purchase agreement (the "PURCHASE AGREEMENT"). The Debentures will be issued pursuant to resolutions adopted by the Company on November 5, 1998 and February 4, 1999 (the "RESOLUTIONS"), and issued pursuant to the provisions of an Indenture, dated as of March 1, 1990, as amended and supplemented by the First Supplemental Indenture, dated as of March 7, 1990, the Second Supplemental Indenture, dated as of October 15, 1992, the Third Supplemental Indenture, dated as of March 1, 1993, the Fourth Supplemental Indenture, dated as of December 1, 1997 and as to be further supplemented by a Fifth Supplemental Indenture to be dated as of March 1, 1999 relating to the Debentures, between the Company and The Bank of New York, as trustee (the "TRUSTEE") (such Indenture, as so supplemented, the "INDENTURE"). (b) Any reference in the Purchase Agreement to the Registration Statement, the Bidding Prospectus or the Final Prospectus (all as hereinafter defined) shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed by the Company under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Bidding Prospectus or the Final Prospectus, as the case may be; and any reference in the Purchase Agreement to the terms "amend," "amendment" 1 6 or "supplement" with respect to the Registration Statement, the Bidding Prospectus or the Final Prospectus shall be deemed to refer to and include the filing by the Company of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Bidding Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. 3. AGREEMENTS TO SELL AND PURCHASE. On the terms and subject to the conditions of the Purchase Agreement, and in reliance on the representations, warranties and covenants in the Purchase Agreement from the Company to the Purchasers, each Purchaser will severally buy from the Company, and the Company will sell to such Purchaser, the principal amount of the Debentures set forth opposite the name of such Purchaser in Schedule A to the Bid. The purchase price of the Debentures will be the price set forth in the Bid (the "PURCHASE PRICE") and shall be payable in immediately available funds. 4. DELIVERY AND PAYMENT. (a) Delivery of, and payment of the Purchase Price for, the Debentures shall be made at the offices of Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York 10004, or such other location as may be mutually acceptable. Such delivery and payment shall be made at 10:00 a.m. New York City Time, on [ ], 1999 or at such other time as shall be at agreed upon by the Representative and the Company. The time and date of such delivery and the payment are herein called the "CLOSING DATE." (b) One or more of the Debentures in definitive global form, registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), having an aggregate principal amount equal to the aggregate principal amount of the Debentures (collectively, the "GLOBAL DEBENTURE"), shall be delivered by the Company to the Purchasers (or as the Purchasers direct). 5. AGREEMENTS OF THE COMPANY. The Company hereby agrees with the Purchasers as follows: (a) Prior to the termination of the offering of the Debentures, the Company will not file any amendment to the Registration Statement or supplement to the Bidding Prospectus or the Final Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for review by the Purchasers prior to filing. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Purchasers of such timely filing. The Company will promptly advise the Purchasers (i) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Debentures, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement or for any supplement to the Final Prospectus or of any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Debentures for sale in any 6 7 jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. (b) If, at any time when a prospectus relating to the Debentures is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (i) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (ii) supply any supplemented Final Prospectus to the Purchasers in such quantities as the Representative may reasonably request. (c) As soon as practicable, the Company will make generally available to its security holders an earning statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (d) The Company will furnish to the Purchasers and counsel for the Purchasers, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by a Purchaser or dealer may be required by the Act, as many copies of the Final Prospectus and any supplement thereto as the Purchasers may reasonably request. (e) The Company will arrange, if necessary, for the qualification of the Debentures for sale under the laws of such jurisdictions as the Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the Debentures; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Debentures, in any jurisdiction where it is not now so subject. (f) Whether or not the transactions contemplated in the Purchase Agreement are consummated or the Purchase Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company under the Purchase Agreement, including: (i) the fees, disbursements and expenses of counsel to the Company and accountants of the Company in connection with the sale and delivery of the Debentures to the Purchasers and all other fees and expenses in connection with the preparation, printing and distribution of the Registration Statement, the Bidding Prospectus and the Final Prospectus and all amendments and supplements to any of the foregoing (including financial statements) specified in Section 5(b), (ii) all costs and expenses related to the delivery of the Debentures to the Purchasers, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing the Purchase Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Debentures, (iv) all expenses in connection with the registration or qualification of the Debentures for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any preliminary and supplemental Blue Sky 7 8 memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Purchasers in connection with such registration or qualification and memoranda relating thereto not to exceed $1,500), (v) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Debentures, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vii) any fees charged by rating agencies for the rating of the Debentures, and (viii) and all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. (g) To obtain the approval of DTC for "book-entry" transfer of the Debentures, and to comply with all of its agreements set forth in the representation letter of the Company to DTC relating to the approval of the Debentures by DTC for "book-entry" transfer. (h) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company substantially similar to the Debentures (other than (i) the Debentures and (ii) commercial paper and notes payable to banks issued in the ordinary course of business), without the prior written consent of the Purchasers. (i) To furnish the Purchasers with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Debentures. (j) So long as may be required by law for the distribution of the Debentures by the Purchasers, the Company will comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act. (k) To use its best efforts to do and perform all things required or necessary to be done and performed under the Purchase Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Debentures. 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As of the date of the Purchase Agreement, the Company represents and warrants to, and agrees with the Purchasers that: (a) The Company meets the requirements for the use of Form S-3 under the Act and has filed with the Commission a registration statement (file number 333-[ ]) on such form (the "REGISTRATION STATEMENT"), including a form of prospectus, for registration under the Act of the Debentures. The Company may have filed one or more amendments thereto each of which has previously been furnished to the Purchasers. The Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purposes are pending before or, to the knowledge of the Company, threatened by the Commission. The prospectus contained in the Registration Statement when it became effective, is herein referred to as the "BIDDING PROSPECTUS." The Company will next file with the Commission a final prospectus (the "FINAL PROSPECTUS") relating to the Debentures in accordance with Rules 430A and 424(b). The Company has included in the Registration Statement as amended at the Effective Date, all information (other than Rule 430A Information) required by the Act and the rules thereunder to be included in such registration statement and the Final Prospectus. As filed, the Final Prospectus shall contain all Rule 430A Information, together with all other such required information. (b) On the Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the Trust Indenture Act and the respective rules thereunder; on the Effective Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the 8 9 statements therein, in the light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in the Purchase Agreement or in writing to the Company by or on behalf of any Purchasers through the Representative specifically for inclusion the Final Prospectus (or any supplement thereto). (c) Each of the Company and its subsidiaries has been duly incorporated or organized, is validly existing in good standing under the laws of its jurisdiction of incorporation or organization and has the power and authority to carry on its business as described in the Final Prospectus and the Registration Statement and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). (d) The Purchase Agreement has been duly authorized, executed and delivered by the Company. (e) The Indenture has been duly authorized by the Company and, on the Closing Date, will have been validly executed and delivered by the Company. When the Indenture has been duly executed and delivered by the Company, and assuming it has been duly executed by, and constitutes the valid, binding and enforceable agreement of, the Trustee, the Indenture will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, moratorium or similar laws affecting creditors' rights generally, (ii) equitable principles of general applicability and (iii) any implied covenant of good faith and fair dealing. On the Closing Date, the Indenture will have been duly qualified under the Trust Indenture Act. (f) The Debentures have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Debentures have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Purchasers in accordance with the terms of the Purchase Agreement, the Debentures will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, moratorium or similar laws affecting creditors' rights generally, (ii) equitable principles of general applicability and (iii) any implied covenant of good faith and fair dealing. On the Closing Date, the Debentures will conform as to legal matters to the description thereof contained in the Final Prospectus. (g) Neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws or in default in the performance of any obligation, agreement, 9 10 covenant or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound except for violations or defaults which would not, in the aggregate, have a Material Adverse Effect. (h) The execution, delivery and performance of the Purchase Agreement and the Indenture by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company, to which the Company is a party or by which the Company or its property is bound, (ii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, or its property, or (iii) result in the imposition or creation of (or the obligation to create or impose) a lien under, any agreement or instrument to which the Company is a party or by which the Company or any of its properties is bound. (i) An appropriate order or orders have been entered by the New York Public Service Commission ("NYPSC"), authorizing the issuance and sale of the Debentures; said order or orders are in full force and effect and are not subject to any pending appeal or request for rehearing or reconsideration; such order or orders are sufficient to authorize the issuance and sale of the Debentures by the Company pursuant to the Purchase Agreement; and no further approval, authorization, consent or other order of any governmental body (other than in connection or compliance with the provisions of the securities or "blue sky" laws of any jurisdiction) is legally required to permit the issuance and sale of the Debentures by the Company pursuant to the Purchase Agreement. (j) The Company and its subsidiaries are exempt from the provisions of the Public Utility Holding Company Act of 1935, except for the provisions of Section 9(a)(2) thereof. (k) Except as disclosed in the Final Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject, which might result, singly or in the aggregate, in a Material Adverse Effect. (l) The accountants, Arthur Andersen LLP, that have certified the financial statements incorporated by reference in the Final Prospectus and the Registration Statement are independent public accountants with respect to the Company, as required by the Act and the Exchange Act. The historical financial statements, together with related notes, incorporated by reference in the Final Prospectus and the Registration Statement comply as to form in all material respects with the requirements applicable to registration statements on Form S-3 under the Act. (m) The historical financial statements, together with related schedules and notes incorporated by reference in the Final Prospectus and the Registration Statement (and any 10 11 amendment or supplement thereto), comply as to form in all material respects with the requirements of the Act and present fairly the consolidated financial position, results of operations and consolidated cash flow of the Company and its subsidiaries on the basis stated in the Final Prospectus and the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data set forth in the Final Prospectus and the Registration Statement (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company. (n) Since the respective dates as of which information is given in the Registration Statement, the Bidding Prospectus or the Final Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of the Purchase Agreement), (i) there has not occurred any material adverse change in the condition, financial or otherwise, or the earnings, business or operations of the Company and its subsidiaries, taken as a whole, (ii) there has not been any material adverse change in the capital stock or in the long-term debt of the Company or any of its subsidiaries and (iii) neither the Company nor any of its subsidiaries has incurred any material liability or obligation, direct or contingent. (o) Each certificate signed by an officer of the Company and delivered to the Purchasers or counsel for the Purchasers shall be deemed to be a representation and warranty by the Company to the Purchasers as to the matters covered thereby. (p) The documents incorporated by reference in the Registration Statement, the Bidding Prospectus and the Final Prospectus, when they were filed (or, if an amendment with respect to any such document was filed, when such amendment was filed) with the Commission, complied in all material respects with the applicable requirements of the Exchange Act and the rules thereunder, and any further documents so filed and incorporated by reference will, when they are filed with the Commission, comply in all material respects with the applicable requirements of the Exchange Act and the rules thereunder. None of such documents, when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and no such further document, when it is filed, will contain any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. The Company acknowledges that the Purchasers and, for purposes of the opinions to be delivered to the Purchasers pursuant to Section 8 hereof, counsel to the Purchasers will rely upon the accuracy and truth of the foregoing representations and hereby consents to such reliance. 7. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless each Purchaser, its directors, its officers and each person, if any, who controls such Purchasers within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities and judgments (including, without limitation, any legal or other expenses incurred in connection with investigating or defending any matter, including any action, that could give rise to any such losses, claims, damages, liabilities or judgments) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Bidding Prospectus or the Final Prospectus (or any amendment of supplement thereto), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as such losses, claims, damages, liabilities or judgments are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Purchaser furnished in writing to the Company by any Purchaser. (b) Each of the Purchasers, severally and not jointly, agrees to indemnify and hold harmless the Company and its directors and officers and each person, if any, who controls (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company, to the same extent as the foregoing indemnity from the Company to the Purchasers but only with reference to information relating to such Purchaser furnished in writing to the Company by such Purchaser expressly for use in the Registration Statement, the Bidding Prospectus or the Final Prospectus. 11 12 (c) In case any action shall be commenced involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the "indemnified party"), the indemnified party shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party shall assume the defense of such action, including the employment of counsel reasonably satisfactory to the indemnified party and the payment of all reasonable fees and expenses of such counsel, as incurred (except that in the case of any action in respect of which indemnity may be sought pursuant to both Sections 7(a) and 7(b), the Purchasers shall not be required to assume the defense of such action pursuant to this Section 7(c), but may employ separate counsel and participate in the defense thereof, but the fees and expenses of such counsel, except as provided below, shall be at the expense of such Purchaser). Any indemnified party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the indemnified party unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnifying party, (ii) the indemnifying party shall have failed to assume the defense of such action or employ counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such action (including any impleaded parties) include both the indemnified party and the indemnifying party, and the indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of the indemnified party). In any such case, the indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties and all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representative, in the case of the parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall indemnify and hold harmless the indemnified party from and against any and all losses, claims, damages, liabilities and judgments by reason of any settlement of any action effected with its written consent. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened action in respect of which the indemnified party is or could have been a party and indemnity or contribution may be or could have been sought hereunder by the indemnified party, unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability on claims that are or could have been the subject matter of such action and (ii) does not include a statement as to or an admission of fault. culpability or a failure to act. by or on behalf of the indemnified party. (d) To the extent the indemnification provided for in this Section 7 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages, liabilities or judgments referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and judgments (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and each Purchaser on the other hand from the offering of the Debentures or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to 12 13 reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company, on the one hand, and each Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or judgments, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and each Purchaser, on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering of the Debentures (before deducting expenses) received by the Company, and the total discounts and commissions received by each Purchaser bear to the total price to investors of the Debentures, in each case as set forth in the table on the cover page of the Final Prospectus. The relative fault of the Company. on the one hand, and each Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or such Purchaser, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7(d) were determined by pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or judgments referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such indemnified party in connection with investigating or defending any matter, including any action, that could have given rise to such losses, claims, damages, liabilities or judgments. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Purchasers' obligations to contribute pursuant to this Section 7(d) are several in proportion to the respective principal amount of Debentures purchased by each of the Purchasers hereunder and not joint. 8. CONDITIONS OF PURCHASERS' OBLIGATIONS. The obligations of the Purchasers to purchase the Debentures under the Purchase Agreement are subject to the satisfaction of each of the following conditions: (a) The Final Prospectus shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) All the representations and warranties of the Company contained in the Purchase Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. At or prior to the Closing Date, the Company shall have performed or complied with all of its obligations and agreements contained in the Purchase Agreement and required to be performed or complied with by it at or prior to the Closing Date. (c) On or after the date of the Purchase Agreement, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of 13 14 any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act and (ii) there shall not have occurred any change, nor shall notice have been given of any potential or intended change, in the outlook for any rating of the Company by any such rating organization. (d) Since the respective dates as of which information is given in the Registration Statement, the Bidding Prospectus or the Final Prospectus other than as set forth therein (exclusive of any amendments or supplements thereto subsequent to the date of the Purchase Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business or operations of the Company and its subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or any of its subsidiaries and (iii) neither the Company nor any of its subsidiaries shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 8(d)(i), 8(d)(ii) or 8(d)(iii) is material and adverse and makes it impracticable to market the Debentures on the terms and in the manner contemplated in the Final Prospectus. (e) The Purchasers shall have received on the Closing Date a certificate dated the Closing Date, signed by the Chief Executive Officer or any Vice President and the Chief Financial Officer or the Treasurer or any Assistant Treasurer of the Company, confirming the matters set forth in Sections 8(a) and 8(b). (f) The Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of G. D. Caliendo, Senior Vice President, General Counsel and Secretary of the Company, to the effect set forth in Exhibit A. (g) The Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Winthrop, Stimson, Putnam & Roberts, counsel for the Company, to the effect set forth in Exhibit B. (h) The Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of Thelen Reid & Priest LLP, counsel for the Purchasers, to the effect set forth in Exhibit C. (i) At the Closing Date, Arthur Andersen LLP shall have furnished to the Purchasers a letter, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and Final Prospectus. 14 15 9. EFFECTIVENESS OF AGREEMENT AND TERMINATION. The Purchase Agreement shall become effective upon the acceptance by the Company of the Bid. The Purchase Agreement may be terminated at any time prior to the Closing Date by the Purchasers by written notice to the Company if any of the following has occurred: (i) any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic conditions or in the financial markets of the United States or elsewhere that, in the Purchasers' judgment, is material and adverse and makes it impracticable to market the Debentures on the terms and in the manner contemplated in the Final Prospectus, (ii) the suspension or material limitation of trading in securities or other instruments on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities or other instruments on any such exchange or the Nasdaq National Market, (iii) the suspension of trading of any securities of the Company on any exchange or in the over- the-counter market or (iv) the declaration of a banking moratorium by either federal or New York State authorities. If on the Closing Date any Purchasers shall fail or refuse to purchase the Debentures which it has agreed to purchase hereunder on such date and the aggregate principal amount of the Debentures which such defaulting Purchaser agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Debentures to be purchased on such date by all Purchasers, the non-defaulting Purchasers shall be obligated severally, in the proportion which the principal amount of the Debentures set forth opposite its name in the Bid bears to the aggregate principal amount of the Debentures which the non-defaulting Purchaser has agreed to purchase, or in such other proportion as the Representative may specify, to purchase the Debentures which such defaulting Purchaser agreed but failed or refused to purchase on such date; provided that in no event shall the aggregate principal amount of the Debentures which any Purchaser has agreed to purchase pursuant to Section 2(a) hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such principal amount of the Debentures without the written consent of such Purchaser. If on the Closing Date any Purchaser shall fail or refuse to purchase the Debentures and the aggregate principal amount of the Debentures with respect to which such default occurs is more than one-tenth of the aggregate principal amount of the Debentures to be purchased by the Purchasers and arrangements satisfactory to the Purchasers and the Company for purchase of such Debentures are not made within 48 hours after such default, the Purchase Agreement will terminate without liability on the part of any non- defaulting Purchaser and the Company. In any such case which does not result in termination of the Purchase Agreement, either the Purchasers or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Final Prospectus or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Purchaser from liability in respect of any default of any such Purchaser under the Purchase Agreement. 10. MISCELLANEOUS. Notices given pursuant to any provision of the Purchase Agreement shall be addressed as follows: (i) if to the Company, to Orange and Rockland Utilities, Inc., One Blue Hill Plaza, Pearl River, New York 10965, Attention: Office of the Treasurer and (ii) if to the Purchasers, to the Representative at the address set forth in the Bid, or in any case to such other address as the person to be notified may have requested in writing. 15 16 The respective indemnities, contribution agreements, representations, warranties and other statements of the Company and the Purchasers set forth in or made pursuant hereto shall remain operative and in full force and effect, and will survive delivery of and payment for the Debentures, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of the Purchasers, the officers or directors of the Purchasers, any person controlling the Purchasers, the Company, the officers or directors of the Company or any person controlling the Company and (ii) acceptance of the Debentures and payment for them hereunder. Upon any termination of the Purchase Agreement, (a) the provisions of Section 7 hereof shall survive such termination and (b) the Company shall remain liable for all expenses which it has agreed to pay pursuant to Section 5(f) hereof. Except as otherwise provided, the Purchase Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Purchasers, the Purchasers' directors and officers, any controlling persons referred to in the Purchase Agreement, the directors of the Company and the respective successors and assigns of each of the aforementioned, all as and to the extent provided in the Purchase Agreement, and no other person shall acquire or have any right under or by virtue of the Purchase Agreement. The term "successors and assigns" shall not include a purchaser of any of the Debentures from the Purchasers merely because of such purchase. The Purchase Agreement shall be governed and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. The Purchase Agreement may be signed in various counterparts which together shall constitute one and the same instrument. 11. DEFINITIONS. The terms which follow, when used in the Purchase Agreement, shall have the meanings indicated. "Act" shall mean the Securities Act of 1933, as amended. "Bidding Prospectus" shall have the meaning set forth in Section 6(a) hereof. "Business Day" shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City. "Closing Date" shall have the meaning set forth in Section 4 hereof. "Commission" shall mean the Securities and Exchange Commission. "Effective Date" shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or become effective. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 16 17 "Execution Time" shall mean the date and time that the Bid is accepted by the Company. "Final Prospectus" shall have the meaning set forth in Section 6(a) hereof. "Material Adverse Effect" shall have the meaning set forth in Section 6(c) hereof. "Purchase Price" shall have the meaning set forth in Section 3 hereof. "Registration Statement" shall mean the registration statement referred to in Section 6(a) above, including exhibits and financial statements, as amended at the time it becomes effective and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date (as hereinafter defined), shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be. Such term shall include any Rule 430A Information deemed to be included therein at the Effective Date as provided by Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such rules under the Act. "Rule 430A Information" shall mean information with respect to the Debentures and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A. "Rule 462(b) Registration Statement" shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the initial registration statement. "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended. 17 18 Exhibit A [Form of Opinion] [Letterhead of Orange and Rockland] [ ], 1999 [Address of Representative/Purchasers] Re: $45,000,000 in aggregate principal amount of % Debentures Due 2029 (Series G) (the "Series G Debentures") of Orange and Rockland Utilities, Inc. (the "Company"), issued under an Indenture dated as of March 1, 1990, as supplemented by the First Supplemental Indenture, dated as of March 7, 1990, as supplemented and amended by the Second Supplemental Indenture, dated as of October 15, 1992, as supplemented by the Third Supplemental Indenture, dated as of March 1, 1993, as supplemented and amended by the Fourth Supplemental Indenture, dated as of December 1, 1997 and as further supplemented and amended by a Fifth Supplemental Indenture, dated as of March 1, 1999 (collectively, the "INDENTURE"), from the Company to The Bank of New York, Trustee (the "TRUSTEE") Ladies and Gentlemen: This opinion is furnished to you as the Purchasers under the Bid and Terms of Purchase dated [ ], 1999 among you and the Company (the "Purchase Agreement") relating to the issue and sale by the Company of the Series G Debentures. This opinion is being rendered to you at the request of the Company. All capitalized terms not defined herein have the meanings specified in the Purchase Agreement. I have examined, in addition to the documents listed in subparagraphs (a) through (h) on page 2 of this opinion: (a) The Registration Statement, dated [ ], 1999, relating to the Series G Debentures, including the documents incorporated therein by reference (the "Registration Statement"). (b) The bidding prospectus relating to the Series G Debentures contained in the Registration Statement when it became effective. (c) The final prospectus relating to the Series G Debentures in accordance with Rules 430A and 424(b) (the "Final Prospectus"). 18 19 (d) To the extent deemed appropriate, minutes of meetings of the stockholders and the Board of Directors (and committees thereof) of the Company, including copies of resolutions relating to the issue and sale of the Series G Debentures adopted by the Board of Directors of the Company at meetings held on November 5, 1998 and February 4, 1999. As General Counsel of the Company, I am familiar with the affairs of the Company and the contents of the Registration Statement and Final Prospectus. Except with respect to and as explained in paragraph 7 below, I am not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Final Prospectus and make no representation that I have independently verified the accuracy, completeness or fairness of such statements. In connection with the opinions expressed below, in addition to my review of the documents referred to above and my discussions with members of my staff who have assisted me in this transaction, either my staff or I have examined and relied upon originals, or copies identified to my satisfaction, of such certificates, receipts, records and other documents as are necessary or appropriate, including: (a) The Restated Certificate of Incorporation of the Company as now in effect. (b) The By-laws of the Company as now in effect. (c) The Petition of the Company to the Public Service Commission of the State of New York (the "NYPSC") filed October 6, 1998 and a copy of the order of the NYPSC with respect thereto effective February 8, 1999. (d) The Purchase Agreement. (e) The Indenture. (f) A form of Series G Debenture. (g) Such records in the office of the Secretary of State of the State of New York as are necessary for the purpose of this opinion. (h) A certificate delivered on the date hereof pursuant to Section 8(e) of the Purchase Agreement. Based upon and subject to the foregoing, it is my opinion that: 1. The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of New York and has the corporate power and authority to carry on its business as described in the Registration Statement and Final Prospectus and to own, lease and operate its properties. 19 20 2. The Company is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect. 3. The Purchase Agreement has been duly authorized, executed and delivered by the Company. 4. The execution, delivery and performance of the Purchase Agreement and the Indenture by the Company, compliance by the Company with all provisions thereof and the consummation of the transactions contemplated thereby will not (i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the Restated Certificate of Incorporation or By-laws of the Company or any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company, to which the Company is a party or by which the Company or any of its property is bound, (ii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company or any of its property or (iii) result in the imposition or creation of (or the obligation to create or impose) a lien under any agreement or instrument to which the Company is a party or by which the Company or any of its properties is bound. 5. An appropriate order or orders have been entered by the NYSPC, authorizing the issuance and sale of the Series G Debentures; said order or orders are in full force and effect and are not subject to any pending appeal or request for rehearing or reconsideration; such order or orders are sufficient to authorize the issuance and sale of the Series G Debentures by the Company pursuant to the Purchase Agreement; and no further approval, authorization, consent or other order of any governmental body (other than in connection or compliance with the provisions of the securities or "blue sky" laws of any jurisdiction) is legally required to permit the issuance and sale of the Series G Debentures by the Company pursuant to the Purchase Agreement. 6. After due inquiry, except as disclosed in the Registration Statement or Final Prospectus, I do not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject, which might result, singly or in the aggregate, in a Material Adverse Effect. 7. I have no reason to believe that the Registration Statement, at the Effective Date (including the Rule 430A Information) (except for the financial statements, related financial schedules and other financial and statistical information contained or incorporated by reference in the Registration Statement and the statements contained in the Form T-1 filed as an exhibit to the Registration Statement as to which I express no opinion or belief), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not 20 21 misleading or that the Final Prospectus, as of its issue date or at the date hereof (except for the financial statements, related financial schedules and other financial and statistical information contained or incorporated by reference in the Final Prospectus as to which I express no opinion or belief), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to the documents or portions thereof filed with the Commission pursuant to the Exchange Act, and incorporated by reference in the Final Prospectus pursuant to Item 12 of Form S-3, such documents or portions thereof, on the date such documents were first filed with the Commission, complied as to form in all material respects with the applicable provisions of the Exchange Act, and the applicable rules and regulations of the Commission thereunder or pursuant to said rules and regulations are deemed to comply therewith. My opinion and belief are based upon my participation in the preparation of the Registration Statement and the Final Prospectus and review and discussion of the contents thereof, but are without independent check or verification except as specified. This opinion is being delivered to you pursuant to the Purchase Agreement solely for your benefit, and is not to be used, circulated, quoted or otherwise referred to for any other purpose or to be provided to any other person without my express written consent. Very truly yours, G. D. Caliendo 22 Exhibit B [Form of Opinion] [Letterhead of Winthrop, Stimson, Putnam & Roberts] [ ], 1999 [Address of Representative/Purchasers] Ladies and Gentlemen: We have acted as counsel to Orange and Rockland Utilities, Inc., a corporation organized and existing under the laws of the State of New York (the "Company"), in connection with the issuance and sale by the Company of $45,000,000 aggregate principal amount of the Company's % Debentures Due 2029 (Series G) (the "Series G Debentures") pursuant to the Bid and Terms of Purchase dated [ ], 1999 (the "Purchase Agreement") among the Company and purchasers named in Schedule A to the Bid (the "Purchasers"). Capitalized terms used and not otherwise defined herein shall have the meaning ascribed to them in the Purchase Agreement. In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (a) a specimen of the Series G Debentures, (b) the Registration Statement (c) the Bidding Prospectus, (d) the Final Prospectus (e) the Purchase Agreement, (f) the Indenture, (g) a good standing certificate of the Company in respect of the State of New York and (h) such other instruments, records and documents as we have deemed necessary in order to enable us to render this opinion. As to various questions of fact, we have relied on (i) representations and warranties made by the Company in the Purchase Agreement and statements in the Registration Statement, Bidding Prospectus and Final Prospectus and (ii) certificates of officers and other representatives of the Company and of public officials. With your permission, we have not independently verified or investigated, nor do we assume any responsibility for, the factual accuracy or completeness of such representations and warranties, statements or certificates. We have assumed the genuineness of all signatures, the capacity of natural persons, the authenticity of all documents and materials submitted to us as originals, the conformity with, and the authenticity of, the originals of all documents and materials submitted to us as copies and the accuracy and correctness of all statements of fact contained therein. We have assumed that each of the Purchase Agreement and the Indenture has been duly authorized, executed and delivered by the parties thereto (other than the Company). On the basis of the foregoing, and subject to the qualifications stated herein, we are of the opinion that: 22 23 (i) The Series G Debentures have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Purchasers in accordance with the terms of the Purchase Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as may be limited by (x) bankruptcy, insolvency, fraudulent conveyance, moratorium or similar laws affecting creditors' rights generally, (y) equitable principles of general applicability and (z) any implied covenant of good faith and fair dealing. (ii) The Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as may be limited by (x) bankruptcy, insolvency, fraudulent conveyance, moratorium or similar laws affecting creditors' rights generally, (y) equitable principles of general applicability and (z) any implied covenant of good faith and fair dealing; the Indenture is qualified under the Trust Indenture Act and, to the best of our knowledge, no proceedings to suspend such qualification have been instituted or threatened by the Commission. (iii) The statements under the "Description of Debentures" in the Final Prospectus, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings. (iv) The Company and its subsidiaries are exempt from the provisions of the Holding Company Act, except for the provisions of Section 9(a)(2) thereof. (v) The Registration Statement, at the Effective Date, and the Final Prospectus, when it was filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b) under the Act (other than the financial statements and other financial and statistical data contained or incorporated by reference therein and the statements contained in the Form T-1 filed as an exhibit to the Registration Statement, as to which we express no opinion), complied as to form in all material respects with the applicable requirements of the Act and the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder. The Registration Statement has, to the best of our knowledge, become and is effective under the Act; and, to the best of our knowledge, no stop order has been issued and no proceedings for a stop order with respect thereto are pending or threatened under Section 8(d) of the Act. In passing upon the form of the Registration Statement and the form of the Final Prospectus, we necessarily assume the correctness and completeness of the statements made by the Company and the information included or incorporated by reference therein and take no responsibility therefor, except insofar as such statements relate to us and as set forth in paragraph (iii) above. We have participated in certain telephone conversations and conferences with officers and other representatives of the Company, representatives of Arthur Andersen LLP, the independent certified public accountants of the Company who examined certain of the financial statements contained or incorporated by reference in the Registration Statement and Final Prospectus, representatives of the Purchasers and representatives of Thelen Reid & Priest LLP, counsel for the Purchasers, at which the contents of various parts of the Registration Statement and Final Prospectus and related matters were discussed and revised. Our examination of the Registration Statement and the Final Prospectus and our discussions in the above-mentioned conferences did not disclose to us any information which give us reason to believe that the Registration Statement, at the Effective Date (including the Rule 430A Information) (except for 23 24 the financial statements, related financial schedules and other financial and statistical information contained or incorporated by reference in the Registration Statement and the statements contained in the Form T-1 filed as an exhibit to the Registration Statement as to which we express no opinion or belief), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus, as of its issue date or at the date hereof (except for the financial statements, related financial schedules and other financial and statistical information contained or incorporated by reference in the Final Prospectus as to which we express no opinion or belief), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. This opinion is limited to the laws of the State of New York and the federal laws of the United States, and we express no opinion as to the effect on the matters covered by this opinion of the laws of any other jurisdiction. In rendering this opinion we express no opinion as to any securities or Blue Sky laws or regulations of any state or local jurisdiction. This opinion is being delivered to you pursuant to the Purchase Agreement solely for your benefit, and is not to be used, circulated, quoted or otherwise referred to for any other purpose or to be provided to any other person without our express written consent. Very truly yours, [Winthrop, Stimson, Putnam & Roberts] 24 25 Exhibit C New York, New York , 1999 [Bidder Name] [Bidder Address] [Bidder Address] [Bidder Address] Re: Orange and Rockland Utilities, Inc. $45,000,000 % Debentures Due 2029 (Series G) ----------------------------------------------- Ladies and Gentlemen: We have acted as your counsel in connection with the issuance and sale to you by Orange and Rockland Utilities, Inc. (the "Company") of $45,000,000 aggregate principal amount of the Company's % Debentures Due 2029 (Series G) (the "Series G Debentures"), pursuant to the Bid and Terms of Purchase dated , 1999 (the "Purchase Agreement") between the Company and you. Capitalized terms used herein and not otherwise defined have the meanings ascribed thereto in the Purchase Agreement. In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (a) the Registration Statement, (b) the Bidding Prospectus, (c) the Final Prospectus, (d) the Purchase Agreement and (e) the Indenture. In addition, we have examined, and relied as to matters of fact upon, the other documents described in the closing memorandum with respect to the closing of the sale of the Series G Debentures on this date (except the certificate representing the Series G Debentures, of which we have examined a specimen), and we have made such other and further investigations as we deemed necessary to enable us to render the following opinions. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original 25 26 [Bidder Name] , 1999 Page 2 documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents. Our opinions expressed below are limited to the law of the State of New York and the federal securities laws of the United States of America; and we do not express any opinion herein concerning any other law. Based upon and subject to the foregoing, we are of the opinion that: (1) The statements under the caption "Description of Debentures" in the Final Prospectus, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings; provided, however, that we express no opinion as to the information contained therein under the subcaption "--Book-Entry, Delivery and Form"; (2) The Indenture has been duly authorized, executed and delivered by the Company and is qualified under the Trust Indenture Act, and no proceedings to suspend such qualification have been instituted or, to our knowledge, threatened by the Commission; (3) The Registration Statement, at the Effective Date, and the Final Prospectus, when it was filed with the Commission pursuant to Rule 424(b) under the Act (other than the financial statements and other financial and statistical data contained or incorporated by reference therein and the statements contained in the Form T-1 filed as an exhibit to the Registration Statement, as to which we express no opinion), complied, or were deemed to have complied, as to form in all material respects with the applicable requirements of the Act and the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; and 26 27 [Bidder Name] , 1999 Page 3 the Registration Statement has, to the best of our knowledge, become and is effective under the Act; and, to the best of our knowledge, no stop order has been issued and no proceedings for a stop order with respect thereto are pending or threatened under Section 8(d) of the Act; (4) The opinions furnished pursuant to Section 8(f) and 8(g) of the Terms of Purchase are in substantially acceptable legal form, although we have not, except as set forth in subparagraphs (1), (2) and (3), independently considered the matters covered by such opinions to the extent necessary to enable us to express the conclusions stated therein; and (5) The documents delivered to you on the date hereof are substantially responsive to the requirements of the Purchase Agreement. In the course of the preparation of the Registration Statement and the Final Prospectus, we had discussions with certain officers, employees and counsel for the Company and representatives of the Company's independent public accountants, at which the contents of the Registration Statement and the Final Prospectus and related matters were discussed, and we have considered the information set forth in the Registration Statement and the Final Prospectus in light of the matters required to be set forth therein. Although we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (except to the extent set forth in paragraph 3 above), we advise you that, on the basis of the foregoing, no facts have come to our attention which lead us to believe that the Registration Statement, at the Effective Date (including the Rule 430A Information) (except for the financial statements, related financial schedules and other financial and statistical information contained or incorporated by reference in 27 28 [Bidder Name] , 1999 Page 4 the Registration Statement and the statements contained in the Form T-1 filed as an exhibit to the Registration Statement as to which we express no opinion or belief) contained, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Final Prospectus, as of its issue date or at the date hereof (except for the financial statements, related financial schedules and other financial and statistical information contained or incorporated by reference in the Final Prospectus as to which we express no opinion or belief) contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no belief is expressed with respect to the information contained in the Final Prospectus under the caption "Description of Debentures -- Book-Entry, Delivery and Form." This letter is solely for the benefit of the addressee hereof in connection with the Purchase Agreement and the transactions contemplated thereunder and it may not be relied upon in any manner by any other person or for any other purpose, without our prior written consent. Very truly yours, THELEN REID & PRIEST LLP 28 EX-4.7 3 FORM OF FIFTH SUPPLEMENTAL INDENTURE 1 EXHIBIT 4.7 ORANGE AND ROCKLAND UTILITIES, INC. to THE BANK OF NEW YORK, As Trustee ------------------------------------ FIFTH SUPPLEMENTAL INDENTURE Dated as of March 1, 1999 Supplementing and Amending the Indenture Dated as of March 1, 1990, As Previously Supplemented and Amended ------------------------------------ 2 THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of March 1, 1999 (this "Fifth Supplemental Indenture"), is between ORANGE AND ROCKLAND UTILITIES, INC., a New York corporation (hereinafter called the "Issuer" or the "Company"), having its principal office at One Blue Hill Plaza, Pearl River, New York 10965, and THE BANK OF NEW YORK, a New York corporation, as Trustee (hereinafter called the "Trustee"), having its Corporate Trust Office at 101 Barclay Street, New York, New York 10286. Recitals of the Issuer The Issuer and the Trustee have heretofore entered into an Indenture, dated as of March 1, 1990 (hereinafter called the "Original Indenture"), as heretofore amended and supplemented as described in the following paragraph (said Original Indenture, as so amended and supplemented, being hereinafter called the "Amended Indenture"), relating to the issuance at any time or from time to time of its Securities on terms to be specified at the time of issuance. Terms (including the term "Indenture") used and not otherwise defined herein shall (unless the context otherwise clearly requires) have the respective meanings given to them in the Amended Indenture. The Amended Indenture provides in Article Three thereof that, prior to the issuance of Securities of any series, the form of such Securities and the terms applicable to such series shall be established in, or pursuant to, the authority granted (generally, or in the particular instance) in a resolution of the Board of Directors (delivered to the Trustee in the form of a Board Resolution) or established (generally, or in the particular instance) in one or more indentures supplemental thereto. The Original Indenture has, prior to the date hereof, been (a) supplemented by a First Supplemental Indenture, dated as of March 7, 1990, which, among other things, established the form of the Issuer's first series of Securities, designated "9 3/8% Debentures Due 2000 (Series A)," (b) supplemented and amended by a Second Supplemental Indenture, dated as of October 15, 1992 (the "Second Supplemental Indenture"), which, among other things, (i) established the form of the Issuer's second series of Securities, designated "6.50% Debentures Due 1997 (Series B)" and (ii) added to the covenants of the Issuer a further covenant restricting the issuance by the Issuer of secured indebtedness for borrowed money while any Securities are Outstanding under the Indenture, (c) supplemented by a Third Supplemental Indenture, dated as of March 1, 1993, which, among other things, established (i) the form of the Issuer's third series of Securities, designated "6.14% Debentures Due 2000 (Series C)" and (ii) the form of the Issuer's fourth series of Securities, designated "6.56% Debentures Due 2003 (Series D)" and (d) supplemented by a Fourth Supplemental Indenture, dated as of December 1, 1997, which, among other things established the form of (i) the Securities of a fifth series, designated "6-1/2% Debentures Due 2027 (Series E)" of the Issuer and (ii) the Securities of a sixth series issued in exchange therefor, pursuant to a Registration Rights Agreement dated as of December 18, 1997, designated "6-1/2% Debentures Due 2027 (Series F)" of the Issuer. The Issuer desires by this Fifth Supplemental Indenture to establish the form of the Securities of a seventh series, to be designated " % Debentures Due 2029 (Series G)" of the Issuer and to establish the terms applicable to such series, pursuant to Sections 3.1 and 10.1(e) of the Amended Indenture. The Issuer has duly authorized the execution and delivery of this Fifth Supplemental Indenture. 2 3 The execution and delivery of this Fifth Supplemental Indenture by the parties hereto are in all respects authorized by the provisions of the Amended Indenture. All things necessary have been done to make this Fifth Supplemental Indenture a valid agreement of the Issuer, in accordance with its terms. NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH: For and in consideration of the premises, it is mutually covenanted and agreed, as follows: ARTICLE ONE Establishment of % Debentures Due 2029 (Series G) Section 1.01. There is hereby established by this Fifth Supplemental Indenture a seventh series of the Securities, which shall be designated " % Debentures Due 2029 (Series G)" of the Issuer (hereinafter called the "Series G Debentures"). The Series G Debentures shall be substantially in the form set forth in Exhibit A hereto (which is hereby incorporated herein and made a part hereof), subject to changes in the form thereof made by the Issuer and acceptable to the Trustee, and may be issued at any time and from time to time, subject to the fulfillment of the conditions set forth in the Amended Indenture. Section 1.02. The Series G Debentures shall have the terms and provisions set forth in Exhibit A hereto. In particular, but without limitation, the Series G Debentures shall (a) be limited to $45,000,000 in aggregate principal amount at any time Outstanding, (b) mature on March 1, 2029, (c) bear interest (computed on the basis of a 360-day year of twelve 30-day months) until the payment of principal thereof has been made or duly provided for, at the rate per annum specified in the title of the Series G Debentures, payable semi-annually on March 1 and September 1 of each year, commencing September 1, 1999, and at the same rate per annum on any overdue installment of principal and (to the extent legally enforceable) interest, and (d) be issuable only as fully registered Securities, without coupons. The regular record dates for the Series G Debentures shall be as set forth in Exhibit A. The Series G Debentures are not redeemable in whole or in part prior to March 1, 2009, but are redeemable on that date and thereafter in the manner specified in the Form of Series G Debenture attached as Exhibit A hereto. There is no sinking fund for the Series G Debentures. Section 1.03 (a) The Series G Debentures shall be issued initially in the form of a permanent Global Security in definitive form without coupons with the global security legend set forth in Exhibit A hereto (the "Series G Global Debenture"), which shall be delivered to, or pursuant to the instructions of, the Depository, or any successor thereto registered under the Securities Exchange Act of 1934, as depository. The aggregate principal amount of the Series G Global Debenture may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee, as the case may be, as provided below. 3 4 (b) Members of, or participants in, the Depository ("Agent Members") shall have no rights under the Fifth Supplemental Indenture or the Amended Indenture with respect to any Series G Global Debenture held on their behalf by the Depository, and the Depository may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Series G Global Debenture for all purposes whatsoever. (c) Certificated Series G Debentures may be issued in exchange for beneficial interests in the Series G Global Debentures only in accordance with Section 2.4 of the Amended Indenture and this Article One. ARTICLE TWO Defeasance Notwithstanding anything contained in Article Twelve of the Amended Indenture, the provisions of this Article Two shall in all cases govern defeasance of the Issuer's obligations in respect of the Series G Debentures: Section 2.01. Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may at any time terminate its substantive obligations in respect of the Series G Debentures by delivering all Outstanding Series G Debentures to the Trustee for cancellation and paying all sums payable by the Issuer on account of principal of and interest on such Debentures or otherwise in respect of such Debentures. In addition to the foregoing, the Issuer may, at the option of its Board of Directors evidenced by resolutions set forth in an Officers' Certificate of the Issuer, at any time, with respect to the Series G Debentures, elect to have either Section 2.02 or 2.03 be applied to all Outstanding Series G Debentures upon compliance with the conditions set forth below in this Article Two. Section 2.02 Legal Defeasance and Discharge. Upon the exercise by the Issuer under Section 2.01 of the option applicable to this Section 2.02, the Issuer shall be deemed to have been discharged from its obligations with respect to all Outstanding Series G Debentures on the date the conditions set forth below are satisfied in respect of such Debentures (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Series G Debentures, which shall thereafter be deemed to be "Outstanding" only for the purposes of Section 2.05 and the other provisions of the Amended Indenture referred to in (a) and (b) of this paragraph below, and to have satisfied all of its other obligations in respect of such Debentures (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Series G Debentures to receive payments in respect of the principal of and interest on such Debentures when such payments are due, (b) the Issuer's obligations with respect to such Debentures under Sections 3.6, 3.7, 3.10, 4.2, 4.4 and 5.1 of the Amended Indenture, (c) the rights, powers, trusts, duties and immunities of the Trustee and the Issuer's obligations in connection therewith and (d) this Article Two. Subject to compliance with this Article Two, the Issuer may exercise the option under this Section 2.02 notwithstanding the prior exercise of the option under Section 2.03 with respect to such Debentures. 4 5 Section 2.03. Covenant Defeasance. Upon the exercise by the Issuer under Section 2.01 of the option applicable to this Section 2.03, the Issuer shall be released from its obligations under the covenants contained in Section 4.7 of the Amended Indenture, as added by Section 2.01 of the Second Supplemental Indenture, on and after the date the conditions set forth below are satisfied in respect of such Debentures (hereinafter, "Covenant Defeasance"), and such Debentures shall thereafter be deemed not "Outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenant, but shall continue to be deemed "Outstanding" for all other purposes hereunder (it being understood that such Debentures may not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Series G Debentures, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.1(d) of the Amended Indenture with respect to the Outstanding Series G Debentures, but, except as specified above, the remainder of the Indenture and such Debentures shall be unaffected thereby. Section 2.04. Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 2.02 or Section 2.03 to the Outstanding Series G Debentures to be defeased at any time: (a) The Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.9 of the Amended Indenture who shall agree to comply with the provisions of this Article Two applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Series G Debentures, (i) cash in United States Dollars, (ii) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, cash in United States Dollars, or (iii) a combination thereof, in such amounts, as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee at the expense of the Issuer, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge the principal of and interest on the Outstanding Series G Debentures on the stated maturity, or upon redemption on or after March 1, 2009, of such principal or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Debentures; (b) In the case of an election under Section 2.02, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee confirming that (i) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Outstanding Series G Debentures will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to 5 6 federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (c) In the case of an election under Section 2.03, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee to the effect that the Holders of the Outstanding Series G Debentures will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (d) No Default or Event of Default with respect to the Series G Debentures shall have occurred and be continuing on the date of such deposit or, insofar as Sections 6.1(e) or 6.1(f) of the Amended Indenture are concerned, at any time in the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period); (e) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, the Indenture or any other material agreement or instrument to which the Issuer is a party or by which the Issuer is bound; (f) The Issuer shall have delivered to the Trustee an Officers' Certificate stating that the deposit made by the Issuer pursuant to its election under Section 2.02 or 2.03 was not made by the Issuer with the intent of preferring the Holders of the Series G Debentures over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and (g) The Issuer shall have delivered to the Trustee an Officers' Certificate stating that all conditions precedent provided for or relating to either the Legal Defeasance under Section 2.02 or the Covenant Defeasance under Section 2.03 (as the case may be) have been complied with as contemplated by this Section 2.04. Section 2.05. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to Section 2.06, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 2.05, the "Trustee") pursuant to Section 2.04 in respect of the Outstanding Series G Debentures shall be held in trust and applied by the Trustee, in accordance with the provisions of such Debentures and the Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Debentures of all sums due and to become due thereon in respect of principal, premium if any, and interest. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Obligations deposited pursuant to Section 2.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the corresponding Outstanding Series G Debentures. Anything in this Article Two to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or Government Obligations held by it as provided in Section 2.04 which, in the opinion of a nationally recognized 6 7 firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 2.04(a)) at the expense of the Issuer, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. Section 2.06 Repayment to Company. Any money deposited with the Trustee or any Paying Agent in trust for the payment of the principal of or interest on any Series G Debenture and remaining unclaimed for two years after such principal, premium if any, or interest has become due and payable shall be paid to the Issuer on its written request and shall be discharged from such trust; and the Holder of such Debenture shall thereafter, as a secured creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. Section 2.07 Reinstatement. If the Trustee or Paying Agent is unable to apply any United States Dollars or Government Obligations in accordance with Section 2.02 or 2.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer in respect of the corresponding Series G Debentures shall be revived and reinstated as though no deposit had occurred pursuant to Section 2.02 or 2.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 2.02 or 2.03, as the case may be; provided, however, that, if the Issuer makes any payment of principal of or interest on any Series G Debenture following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Debentures to receive such payment from the money held by the Trustee or Paying Agent. ARTICLE THREE Miscellaneous Section 3.01. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity of this Fifth Supplemental Indenture. The Amended Indenture is in all respects hereby adopted, ratified and confirmed. Section 3.02. This Fifth Supplemental Indenture may be executed in any number of counterparts, and in separate counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Section 3.03. If any provision of this Fifth Supplemental Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, through operation of Section 318(c), such imposed duties shall control. 7 8 Section 3.04. The Article and Section headings herein are for convenience only and shall not affect the interpretation hereof. Section 3.05. The Issuer hereby confirms the appointment of The Bank of New York as the initial Trustee, Securities Registrar and Paying Agent, subject to the provisions of the Indenture with respect to resignation, removal and succession, and subject, further, to the right of the Issuer to appoint additional agents (including Paying Agents). An Authenticating Agent may be appointed for the Series G Debentures under the circumstances set forth in, and subject to the provisions of, the Indenture. If and so long as the Series G Debentures are issued as Global Securities and the Depository or the nominee therefor is the sole holder of Series G Debentures, (a) the Trustee shall treat the Depository or said nominee as the only Holder of the Series G Debentures for all purposes under the Indenture, including receipt of all principal of and interest on the Series G Debentures, receipt of notices, and voting and requesting or directing the Trustee to take or not to take, or consenting to, certain actions under the Indenture, and (b) the Issuer and the Trustee shall have no responsibility or obligation with respect to (i) the accuracy of any records maintained by the Depository or any participant therein, (ii) the payment by any participant in the Depository of any amount due to any beneficial owner in respect of the principal of and interest on the Series G Debentures, (iii) the delivery or timeliness of delivery by any participant in the Depository of any notice to any beneficial owner which is required or permitted under the terms of the Indenture to be given to Holders of Securities or (iv) other action taken by the Depository or its nominee as Holder of the Series G Debentures. [End of Page] 8 9 IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed (the actual date of this Fifth Supplemental Indenture being the date of execution by the Trustee, as indicated in its Acknowledgment). ORANGE AND ROCKLAND UTILITIES, INC. By _______________________________ Name: Title: THE BANK OF NEW YORK, as Trustee By _______________________________ Name: Title: 9 10 STATE OF NEW YORK ) ) ss.: COUNTY OF ROCKLAND ) At Pearl River, on this ____ day of [ ], 1999, before me, a Notary Public in and for the County of Rockland and State of New York, personally appeared ___________________ the ______________, of Orange and Rockland Utilities, Inc., to me personally known, who executed the foregoing instrument on behalf of said corporation, and acknowledged the same to be his or her free act and deed in his or her said capacity and the free act and deed of Orange and Rockland Utilities, Inc. ----------------------------- Notary Public NOTARIAL SEAL My Commission Expires: STATE OF NEW YORK ) ) ss.: NEW YORK COUNTY ) At The City of New York, on this ___ day of [ ], 1999, before me, a Notary Public in and for the County and State of New York, personally appeared ________________, a ________________ of The Bank of New York, personally known to me, who executed the foregoing instrument on behalf of said corporation, and acknowledged the same to be his or her free act and deed in his or her said capacity and the free act and deed of The Bank of New York, as Trustee. ----------------------------------- Notary Public NOTARIAL SEAL My Commission Expires: 11 Exhibit A UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST THEREIN. TRANSFERS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE DEPOSITORY OR NOMINEES OF THE DEPOSITORY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. FORM OF SERIES G DEBENTURE [FORM OF FACE OF SERIES G DEBENTURE] No._______ $________ ORANGE AND ROCKLAND UTILITIES, INC. % DEBENTURE DUE 2029 (SERIES G) ORANGE AND ROCKLAND UTILITIES, INC., a corporation duly organized and existing under the laws of the State of New York (herein called the "Company," which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to ______________________, or registered assigns, the principal sum of ______________________ Dollars, on March 1, 2029, and to pay interest on said principal sum, semiannually on March 1 and September 1 of each year, commencing September 1, 1999, at the rate of % per annum from the March 1 or September 1, as the case may be, next preceding the date of this Debenture to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Debenture, or unless no interest has been paid on this Debenture, in which case from the date of original issue of this Debenture, until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, when there is no existing default in the payment of 12 interest on this Debenture, if the date hereof is after a regular record date (which shall be the close of business on the February 15 or August 15, as the case may be, next preceding an Interest Payment Date) and before the next succeeding Interest Payment Date, this Debenture shall bear interest from such Interest Payment Date; provided, however, that if the Company shall default in the payment of interest due on such Interest Payment Date, then this Debenture shall bear interest from the next preceding Interest Payment Date to which interest has been paid, or, if no interest has been paid on this Debenture, from the date of original issue of this Debenture. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in said Indenture, be paid to the person in whose name this Debenture (or one or more Predecessor Securities) is registered at the record date for such Interest Payment Date. The principal of and interest on this Debenture are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, at the office or agency of the Company in the Borough of Manhattan, The City of New York, except that interest may be paid, at the option of the Company, by check mailed to the person entitled thereto at his address last appearing on the Securities Register. Any interest not punctually paid or duly provided for shall be payable as provided in said Indenture. REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS DEBENTURE SET FORTH ON THE REVERSE HEREOF, WHICH SHALL HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Debenture shall not be entitled to any benefit under the aforesaid Indenture, or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this Debenture to be duly executed under its corporate seal. ORANGE AND ROCKLAND UTILITIES, INC. [SEAL] By _________________________________ Treasurer Attest: _________________________________ Secretary Dated: 2 13 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee By ____________________________ Authorized Signatory 14 [FORM OF REVERSE OF DEBENTURE] ORANGE AND ROCKLAND UTILITIES, INC. % DEBENTURE DUE 2029 (SERIES G) This Debenture is one of a duly authorized issue of unsecured debt securities of the Company (herein called the "Securities"), issued and to be issued under an Indenture dated as of March 1, 1990, between the Company and The Bank of New York, as Trustee (herein called the "Trustee," which term includes any successor Trustee under the Indenture), to which the Indenture and all indentures supplemental thereto, including, without limitation, the First Supplemental Indenture dated as of March 7, 1990, the Second Supplemental Indenture dated as of October 15, 1992, the Third Supplemental Indenture dated as of March 1, 1993, the Fourth Supplemental Indenture dated as of December 1, 1997 and the Fifth Supplemental Indenture dated as of March 1, 1999 (said Indenture, together with all indentures supplemental thereto, including, without limitation, said First, Second, Third, Fourth and Fifth Supplemental Indentures, being herein called the "Indenture"), reference is hereby made for a statement of the rights and limitations of rights thereunder of the Holders of the Securities, and of the rights, obligations, duties and immunities of the Trustee and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Security is one of a series designated on the face hereof as " % Debentures Due 2029 (Series G)" (the "Debentures"), limited to $45,000,000 in aggregate principal amount Outstanding. The debentures will be redeemable prior to maturity, at the option of the Company, as a whole at any time or in part from time to time, on notice given as provided in the Indenture, at the principal amount thereof and accrued interest to the date fixed for redemption, together with a premium equal to a percentage of the principal amount thereof, determined as set forth below; provided however, that no debentures may be redeemed prior to March 1, 2009. If redeemed If redeemed If redeemed during the during the during the 12 months' 12 months' 12 months' period ending period ending period ending ____________, Premium ____________, Premium ___________, Premium 2010 .......... % 2017 .......... % 2024 .......... % 2011 .......... % 2018 .......... % 2025 .......... % 2012 .......... % 2019 .......... % 2026 .......... % 2013 .......... % 2020 .......... % 2027 .......... % 2014 .......... % 2021 .......... % 2028 .......... % 2015 .......... % 2022 .......... % 2029 .......... 0.00% 2016 .......... % 2023 .......... %
There is no sinking fund for the debentures. The Debentures are issuable only as registered Debentures, without coupons, in denominations of $1,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture, and subject to certain limitations therein set forth, Debentures are exchangeable for a like aggregate principal amount of Debentures of different authorized denominations, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Debenture may be registered on the Securities Register of the Company, upon surrender of this Debenture for registration of transfer at the office or agency of the Company in 15 the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Debentures, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment for registration of transfer of this Debenture, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Debenture is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Debenture be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. If any Event of Default with respect to the Debentures shall occur and be continuing, the principal of all the Debentures may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of at least a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected thereby, voting as one class. The Indenture also contains a provision permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive any past default or certain Events of Default by the Company under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Debenture issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Debenture. As provided in Article Two of the Fifth Supplemental Indenture and subject to the satisfaction of certain conditions therein set forth, including the deposit of certain funds in trust, at the Company's option, either the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and the obligations under, the Debentures and to have satisfied all the obligations (with certain exceptions) under the Indenture relating to the Debentures or the Company shall cease to be under any obligation to comply with any term, provision or condition of certain restrictive covenants of provisions with respect to the Debentures. No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Debenture at the times, place and rate, and in the coin or currency, herein prescribed. 2 16 No recourse shall be had for the payment of the principal of or the interest on this Debenture, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, including any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. All terms used in this Debenture which are defined in the Indenture shall have the meanings assigned to them in the Indenture. 3 17 ASSIGNMENT Abbreviations The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ______________(Custodian)_____________(Minor) under Uniform Gifts to Minors Act_____________ (State) Additional abbreviations may also be used though not in the above list. ------------- FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto _______________________________________________________________ (Please insert social security or other identifying number of assignee) ________________________________________________________________________________ (Please print or typewrite name and address including postal zip code of assignee) the within Debenture and all rights thereunder, hereby irrevocably constituting and appointing ___________________________________________ attorney to transfer said Debenture on the books of the Company, with full power of substitution in the premises. Dated:__________________ ________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. Signature(s) Guaranteed: ________________________ ________________________ THIS SIGNATURE(S) SHOULD BE GUARANTEED BY A BROKERAGE FIRM OR A FINANCIAL INSTITUTION THAT IS A MEMBER OF A SECURITIES APPROVED MEDALLION PROGRAM, SUCH AS SECURITIES TRANSFER AGENTS MEDALLION PROGRAM (STAMP), STOCK EXCHANGES MEDALLION PROGRAM (SEMP) OR NEW YORK STOCK EXCHANGE INC. MEDALLION SIGNATURE PROGRAM (MSP) PURSUANT TO S.E.C. RULE 17Ad-15. EX-5 4 OPINION RE LEGALITY 1 Exhibit 5 [Letterhead of Winthrop, Stimson, Putnam & Roberts] February 12, 1999 Orange and Rockland Utilities, Inc. One Blue Hill Plaza Pearl River, New York 10965 Ladies and Gentlemen: We have acted as counsel to Orange and Rockland Utilities, Inc. (the "Company"), a New York corporation, in connection with its filing on February 12, 1999, with the Securities and Exchange Commission (the "Commission") of a Registration Statement on Form S-3 (the "Registration Statement") with respect to $45,000,000 aggregate principal amount of the Company's % Debentures Due 2029 (Series G) (the "Series G Debentures") for issuance pursuant to Rule 430A under the Securities Act of 1933 (the "Securities Act"). The Series G Debentures are to be issued pursuant to the Indenture dated as of March 1, 1990, as supplemented and amended by four supplemental indentures, and further supplemented and amended by a Fifth Supplemental Indenture dated as of March 1, 1999, between The Bank of New York, as trustee (the "Trustee") and the Company (collectively, the "Indenture"). For purposes of this opinion, we have (i) examined copies of the Registration Statement and exhibits thereto, the Indenture and such board resolutions, corporate documents, records and other instruments as we have deemed necessary for the purposes of this opinion and (ii) assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. For such purposes, we have also assumed the genuineness of all signatures, the legal capacity of natural persons, the authority of such persons signing on behalf of the parties thereto and the due authorization, execution and delivery of all documents by the parties thereto (including the Company). In rendering this opinion, we have assumed the validity of, and relied upon, the representations of the Company as to certain factual matters relevant hereto. Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that: When, as and if (i) the applicable provisions of the Securities Act and the securities or "blue sky" laws of various states shall have been complied with, (ii) the 2 Registration Statement shall have become effective, (iii) the Indenture shall have been duly authorized, executed, delivered and qualified pursuant to the provisions of the Trust Indenture Act of 1939 and (iv) the Series G Debentures shall have been duly authorized, executed, authenticated and delivered on behalf of the Company in accordance with the Indenture against the consideration to be paid by the purchasers thereof, then the Series G Debentures will be legally issued and will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance, moratorium and other laws relating to or affecting generally the enforcement of creditors' rights and subject to general principles of equity (whether considered in a proceeding at law or in equity) and by an implied covenant of good faith and fair dealing. We are members of the bar of the State of New York and do not express any opinion herein as to any laws other than the laws of the State of New York. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement and to the reference to us under the heading "Legal Matters" in the related prospectus. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Very truly yours, /s/ Winthrop, Stimson, Putnam & Roberts EX-12 5 STATEMENTS RE COMPUTATION OF RATIO OF EARNINGS 1 Exhibit 12 ORANGE AND ROCKLAND UTILITIES, INC. AND SUBSIDIARIES RATIO OF EARNINGS TO FIXED CHARGES
Year Ended Dec. 31, 9 Months Ended Sept. 30, 1993(1) 1994(1) 1995(2) 1996(2) 1997(2) 1997(2) 1998 ------------ ------------ ------------ ----------- ------------ --------- --------- Earnings: Net Income from Continuing Operations $ 44,815 $ 37,217 $ 37,766 $ 48,147 $ 44,938 $ 33,921 $ 37,329 Federal Income Tax 22,700 20,379 23,372 25,705 22,316 17,252 21,093 Fixed Charges 35,896 35,648 34,911 33,509 34,905 25,692 27,106 ---------- --------- --------- --------- ---------- --------- --------- Total Earnings Available $ 103,411 $ 93,244 $ 96,049 $ 107,361 $ 102,159 $ 76,865 $ 85,528 ========== ========= ========= ========= ========== ========= ========= FIXED CHARGES: Interest on Long-Term Debt $ 30,383 $ 29,553 $ 26,620 $ 24,221 $ 23,215 $ 18,118 $ 17,918 Amortization of Debt Expense, Discount and Premium 1,116 1,244 1,394 1,462 1,521 1,221 851 Other Interest 2,404 3,088 4,908 5,748 8,233 4,901 6,836 Interest Factor on Rental Expense 1,993 1,763 1,989 2,078 1,936 1,452 1,501 ---------- --------- --------- --------- ---------- --------- --------- Total Fixed Charges $ 35,896 $ 35,648 $ 34,911 $ 33,509 $ 34,905 $ 25,692 $ 27,106 ========== ========= ========= ========= ========== ========= ========= Ratio of Earnings to Fixed Charges (3) 2.88 2.62 2.75 3.20 2.93 2.99 3.16 ---------- --------- --------- --------- ---------- --------- ---------
(1) Financial results for these years are based on historical data and have not been restated to reflect discontinued operations of the Norstar Partnership. (2) Effective August 1, 1997, the accounts receivable, with certain exceptions, and contracts with customers and related agreements of the NORSTAR Partnership were sold. In accordance with Accounting Principles Board Opinion No. 30, the consolidated financial statements of the Company at September 30, 1997 reported the results of the NORSTAR Partnership as "Discontinued Operations," and the results of 1996 and 1995 have been restated to conform with the current period classifications. Additional information regarding the NORSTAR Partnership is included in the Company's Annual Report to the Commission on Form 10-K for the year ended December 31, 1997, which information is incorporated by reference in this document. (3) The ratio of earnings to fixed charges for the years ended December 31, 1995, 1994 and 1993 were 2.75, 2.62 and 2.88, respectively. Ratios for 1993 and 1994 are calculated on a historical basis and have not been restated to reflect discontinued operations of the NORSTAR Partnership. For purposes of computing the ratio of earnings to fixed charges, earnings are defined as the sum of pre-tax income from continuing operations plus fixed charges. Fixed charges consist of all interest expense (before allowance for borrowed funds used during construction), one-third of rent expense (which approximates the interest component of such expense) and amortization of debt expense. EX-23.2 6 CONSENT OF ARTHUR ANDERSEN LLP 1 Exhibit 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-3 of Orange & Rockland Utilities, Inc. of our report dated February 5, 1998, included in Orange & Rockland Utilities, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997. ARTHUR ANDERSEN LLP New York, New York February 12, 1999 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-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 4th day of February 1999. /s/ D. Louis Peoples -------------------------------- D. Louis Peoples Director; Vice Chairman of the Board and Chief Executive Officer 2 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an Officer of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 4th day of February 1999. /s/ R. Lee Haney ------------------------------- R. Lee Haney Senior Vice President and Chief Financial Officer 3 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an Officer of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 4th day of February 1999. /s/ Edward M. McKenna --------------------- Edward M. McKenna Controller, Chief Accounting Officer 4 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 4th day of February 1999. /s/ Michael J. Del Giudice -------------------------- Michael J. Del Giudice Chairman of the Board of Directors 5 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 4th day of February 1999. /s/ Ralph M. Baruch ------------------- Ralph M. Baruch Director 6 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 4th day of February 1999. /s/ J. Fletcher Creamer ----------------------- J. Fletcher Creamer Director 7 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 4th day of February 1999. /s/ Jon F. Hanson ----------------- Jon F. Hanson Director 8 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 2nd day of February 1999. /s/ Kenneth D. McPherson ------------------------ Kenneth D. McPherson Director 9 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 4th day of February 1999. /s/ Robert E. Mulcahy III ------------------------- Robert E. Mulcahy III Director 10 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, his true and lawful attorney, for him and in his name, place and stead, and in his office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as he might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set his hand and seal this 1st day of February 1999. /s/ James F O'Grady, Jr. ------------------------ James F. O'Grady, Jr. Director 11 Exhibit 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director of Orange and Rockland Utilities, Inc., which Company proposes to file with the Securities and Exchange Commission a Registration Statement on Form S-3 pursuant to the provisions of the Securities Act of 1933 (the "Act"), with respect to the registration of up to $45 million aggregate principal amount of unsecured debt securities to be offered, on the terms and conditions to be set forth in such Registration Statement, has made, constituted and appointed and by these presents does hereby make, constitute and appoint G. D. CALIENDO, her true and lawful attorney, for her and in her name, place and stead, and in her office and capacity as aforesaid, to sign and file said Registration Statement and all amendments thereto (whether pre- or post-effective), and any and all other documents to be signed and filed with the Securities and Exchange Commission in connection therewith, hereby granting to said G. D. CALIENDO, full power and authority to do and perform each and every act as fully, to all intents and purposes, as she might or could do if personally present, hereby ratifying and confirming in all respects all that G. D. CALIENDO may or shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has set her hand and seal this 4th day of February 1999. /s/ Linda C. Taliaferro ----------------------- Linda C. Taliaferro Director 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) % DEBENTURES DUE 2029 (SERIES G) (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 5th day of February, 1999. THE BANK OF NEW YORK By /s/ Robert A. Massimillo ------------------------ ROBERT A. MASSIMILLO Assistant Vice President 4 5 Exhibit 6 CONSENT OF TRUSTEE Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939 in connection with the proposed issue of % Debentures Due 2029 (Series G) by Orange and Rockland Utilities, Inc., we hereby consent that reports of examinations by Federal, State, Territorial, or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. THE BANK OF NEW YORK By /s/ Robert A. Massimillo ------------------------ ROBERT A. MASSIMILLO Assistant Vice President Dated: February 5, 1999 5 6 - -------------------------------------------------------------------------------- CONSOLIDATED REPORT OF CONDITION OF THE BANK OF NEW YORK of One Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business September 30, 1998, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS ASSETS IN THOUSANDS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin........ $ 7,654,174 Interest-bearing balances................................. 2,182,604 Securities: Held-to-maturity securities............................... 965,979 Available-for-sale securities............................. 3,894,193 Federal funds sold and Securities purchased under agreements to resell.................................... 1,001,780 Loans and lease financing receivables: Loans and leases, net of unearned income.................. 38,117,615 LESS: Allowance for loan and lease losses................. 625,317 LESS: Allocated transfer risk reserve..................... 0 Loans and leases, net of unearned income, allowance, and reserve............................................. 37,492,298 Assets held in trading accounts.............................. 2,240,241 Premises and fixed assets (including capitalized leases)..... 678,458 Other real estate owned...................................... 13,628 Investments in unconsolidated subsidiaries and associated companies............................................... 195,594 Customers' liability to this bank on acceptances outstanding............................................. 1,077,122 Intangible assets............................................ 1,114,091 Other assets................................................. 1,955,491 ----------- Total assets................................................. $60,465,653 =========== LIABILITIES Deposits: In domestic offices....................................... $26,473,392 Noninterest-bearing....................................... 11,052,078 Interest-bearing.......................................... 15,421,314 In foreign offices, Edge and Agreement subsidiaries, and IBFs.......................... 17,657,483 Noninterest-bearing....................................... 118,775 Interest-bearing.......................................... 17,538,708 Federal funds purchased and Securities sold under agreements to repurchase................................ 2,102,186 Demand notes issued to the U.S. Treasury..................... 245,825 Trading liabilities.......................................... 1,641,447 Other borrowed money: With remaining maturity of one year or less.................. 2,063,359 With remaining maturity of more than one year through three years............................................. 0 With remaining maturity of more than three years............. 31,639 Bank's liability on acceptances executed and outstanding..... 1,088,142 Subordinated notes and debentures............................ 1,314,000 Other liabilities............................................ 2,468,849 ----------- Total liabilities............................................ $ 5,086,322 ----------- EQUITY CAPITAL Common Stock................................................. 1,135,284 Surplus...................................................... 731,319 Undivided profits and capital reserves....................... 3,448,813 Net unrealized holding gains (losses) on available-for-sale securities................................................ 100,784 Cumulative foreign currency translation adjustments.......... ( 36,869) ----------- Total equity capital......................................... 5,379,331 ----------- Total liabilities and equity capital......................... $60,465,653 ===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. Robert E. Keilman We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors and the Federal Reserve System and is true and correct. Gerald L. Hassell ) Deno D. Papageorge ) Directors Thomas A. Renyi ) - -------------------------------------------------------------------------------- EX-26.1 9 FORM OF STATEMENT OF TERMS AND CONDITIONS RE BID 1 EXHIBIT 26.1 ORANGE AND ROCKLAND UTILITIES, INC. STATEMENT OF TERMS AND CONDITIONS RELATING TO BIDS $45,000,000 ______% DEBENTURES DUE 2029 (SERIES G) Orange and Utilities, Inc. (the "Company") has invited bids, subject to the terms and conditions hereof, for the purchase of $45,000,000 aggregate principal amount of its % Debentures Due 2029 (Series G) (the "Debentures"). The Debentures will be issued under an Indenture, dated as of March 1, 1990 between the Company and The Bank of New York, as Trustee (the "Trustee"), as supplemented by four supplemental indentures, and by a fifth supplemental indenture, to be dated as of March 1, 1999 (the "Indenture"). The general redemption prices of the Debentures shall be 100% of their principal amount plus a premium equal to the interest rate per annum borne by the Debentures, reduced for each twelve month period subsequent to the first anniversary of the date the Debentures are issued, by an amount equal to one twenty-ninth of the interest rate per annum borne by the Debentures for each successive twelve month period (rounded to the nearest eight decimal places) in each case with accrued interest to the date fixed for redemption; provided, however, that none of the Debentures shall be redeemed prior to March 1, 2009, and, provided, further that in the thirtieth year the redemption price will be 100% of the principal amount without any premium. 1. FORM AND CONTENT OF BIDS Each bid must be for the purchase of all of the Debentures and may be made by a single bidder or by a group of bidders (the "Bidders"). In the case of a bid by a group of Bidders, the members of the group shall act through a duly authorized representative or representatives (the "Representative"). No Bidder may submit or participate directly or through an affiliate in more than one bid. All bids must be submitted on the Form of Bid furnished by the Company and must be signed by the Bidder, or in the case of a bid by a group of Bidders, by the Representative on behalf of the group. Each bid shall specify the stated interest rate to be borne by the Debentures, 1 2 [which interest rate shall be a multiple of 1/8 or 1/20 of 1%], the price to be paid to the Company for the Debentures, [which price shall not be less than 98% nor more than 100% of the principal amount of the Debentures] and the "true interest cost" of the bid, calculated in accordance with Paragraph 3 hereof. Each bid shall acknowledge that the initial offering price to the public shall not exceed 100% of the principal amount of the Debentures, plus accrued interest from the date of original issuance of the Debentures. 2. PRESENTATION OF BIDS Each bid must be delivered by facsimile transmission to the Company at the offices of Winthrop, Stimson, Putnam & Roberts before 11:00 A.M., New York Time, on [ ], 1999, at the following fax number: 212-858-1500, Attention: Michael F. Cusick. Each such fax must indicate the name and address of the Bidder, or, in the case of a group of Bidders, of the Representative. The Company reserves the right in its discretion from time to time to postpone the time for presentation and examination of bids, and will give prompt notice of any such postponement to any prospective Bidder or to the Representative of any group of prospective Bidders from whom a request in writing that such notice be given has been received by Winthrop, Stimson, Putnam & Roberts at the address set forth in Paragraph 3 hereof. 3. EXAMINATION, ACCEPTANCE OR REJECTION OF BIDS All bids will be examined on behalf of the Company in the offices of Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York 10004-1490 at 11:00 A.M., New York Time, on [ ], 1999 (or at such hour on such later date as may be fixed by the Company as provided in Paragraph 2 hereof). Each Representative and each Bidder is invited to be present at the examination of the bids. Prior to 12:00 Noon, New York Time, on such date, an authorized representative of the Company will accept (subject to the provisions of the next following paragraph) the bid which shall provide the lowest "true interest cost," to be determined by the Company as hereinafter provided. Unless sooner rejected, each bid will remain irrevocable until such time. Any bid not so accepted by the Company by such time shall be deemed to have been rejected. Each bid will be accepted or rejected in its entirety. In case two or more bids provide the identical lowest "true interest cost", the Company (unless it shall reject all bids) will forthwith give the makers thereof an opportunity to improve their bids. If no improved bids shall be made by such Bidders within the time specified by the Company, or if upon such rebidding, two or more of the rebids provide the Company with the identical lowest "true interest cost," the Company may accept any one of such identical bids at its discretion. Notwithstanding any other provisions of this Paragraph 3, the Company reserves the right to reject all bids at or after the receipt thereof (irrespective of the interest rates and prices specified therein). Any bid not conforming to the Notice of Sale or not submitted on the Form of Bid without alteration, except for the required insertions, may be rejected. The Company specifically reserves the right to reject all bids. 2 3 The "true interest cost" with respect to each bid for the purchase of the Debentures, expressed as an annual interest rate, will be determined as being twice that factor or discount rate, compounded semi-annually, which when applied against each semi-annual debt service payment (interest or principal and interest, as due) for the Debentures will equate the sum of such discounted semi-annual payments to the bid price. The true interest cost shall be calculated from the date of original issuance of the Debentures. The calculation by the Company of the winning bid shall be final. 4. EFFECTIVENESS OF AGREEMENT Forthwith upon the acceptance in writing of a bid: (a) the Terms of Purchase shall become effective without any separate execution thereof and such Terms of Purchase and the bid shall constitute the purchase agreement (the "Purchase Agreement") between the Company and the successful Bidder or Bidders, subject, however, to such changes in the Terms of Purchase as may be appropriate if the time for presentation and opening of bids shall be postponed; and (b) the successful Bidder, or in the case of a bid by a group of Bidders, the Representative, on behalf of the successful Bidders, shall furnish to the Company in writing the information regarding the Bidders and the public offering, if any, which is required to complete the prospectus, dated , 1999, relating to the Debentures (the "Bidding Prospectus"). Thereafter, all rights of the Company and of the successful Bidder or Bidders under an accepted bid shall be determined solely in accordance with the terms of the Purchase Agreement. The Company will forthwith deliver one fully executed copy of the Purchase Agreement to the successful Bidder or, in the case of a bid by a group of Bidders, to the Representative on their behalf. 5. INFORMATION CONCERNING THE COMPANY AND THE DEBENTURES Prospective Bidders may examine, at the offices of Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York 10004-1490, copies of the following documents: (a) The Indenture; (b) Resolution of the Company authorizing the issuance of the Debentures; (c) The preliminary memorandum of Thelen Reid & Priest LLP, who have been selected to act as counsel for the successful Bidders, with respect to the qualification of the Debentures for sale under the blue sky laws of various jurisdictions; (d) The order of the New York Public Service Commission with respect to the participation of the Company in the contemplated transactions; (e) The registration statement relating to the Debentures filed by the Company with the Securities and Exchange Commission, including all amendments and exhibits thereto (the "Registration Statement"); and (f) The Bidding Prospectus contained in such Registration Statement. 3 4 Copies of said documents will be supplied in reasonable quantities on request to prospective Bidders, except that the Company will furnish a single copy of the Registration Statement to each Bidder. The Company reserves the right to amend or supplement the Bidding Prospectus and to make changes in the forms of the other documents relating to the issuance of the Debentures. Any reference to said documents herein shall include any amendments or changes so made. The Company will give telephone notice (confirmed promptly in writing) of any such amendment or change made prior to the examination of bids, considered by counsel for the Bidders to be material, to each prospective single Bidder and to the Representative of each group of prospective Bidders from whom Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York 10004-1490, Attention: Michael F. Cusick, Esq. (Tel. 212-858-1238), shall have received a written request to be informed of such amendments or changes. Copies of any such amendments and descriptions of any such changes will be made available for examination at the said offices of Winthrop, Stimson, Putnam & Roberts. 6. LEGAL MATTERS Thelen Reid & Priest LLP has been selected to act as counsel for the Bidders and will deliver an opinion to the successful Bidder or Bidders (the "Purchasers"). Winthrop, Stimson, Putnam & Roberts and G. D. Caliendo, Senior Vice President, General Counsel and Secretary of the Company, will also deliver opinions to the Purchasers. The forms or content of such opinions are attached to the Terms of Purchase as Exhibits C, B and A thereto, respectively. The fees and disbursements of counsel for the Bidders are to be paid by the Purchaser, except as otherwise provided in the Purchase Agreement. Any prospective Bidder and the Representative of any group of prospective Bidders may obtain advice from counsel for the Bidders as to the amount of their fees and the estimated amount of their disbursements. 7. DELIVERY Delivery of the Debentures will be made against payment of the purchase price therefor in immediately available funds on or about March ___, 1999 in New York, New York, as more fully specified in, and subject to the terms and conditions of, the Purchase Agreement. 8. RESERVATION OF RIGHT TO WAIVE COMPLIANCE HEREWITH The Company reserves the right to waive any failure on the part of any Bidder or group of Bidders to comply with the terms or conditions hereof if such waiver will not unfairly prejudice any other Bidder or group of Bidders. ORANGE AND ROCKLAND UTILITIES, INC. Dated: [ ], 1999 4 EX-26.2 10 FORM OF NOTICE OF SALE 1 EXHIBIT 26.2 ORANGE AND ROCKLAND UTILITIES, INC. NOTICE OF SALE $45,000,000 ______% DEBENTURES DUE 2029 (SERIES G) Orange and Rockland Utilities, Inc. (the "Company") hereby invites bids, subject to the Statement of Terms and Conditions Relating to Bids (the "Statement of Terms and Conditions"), for the purchase from it of $45,000,000 aggregate principal amount of its % Debentures Due 2029 (Series G) (the "Debentures"). 1. BIDS FOR DEBENTURES Bids will be received from single bidders or groups of bidders (the "Bidders") by fax by the Company at the offices of Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza New York, NY 10004-1490 (Fax: 212-858-1500), Attention: Michael F. Cusick up to 11:00 A.M., New York Time on [ ], 1999 (or such later time or date as may be fixed as provided in the Statement of Terms and Conditions). In the case of a bid by a group of Bidders, the members of the group shall act through a duly authorized representative or representatives (the "Representative"). Bids will be considered only if made in accordance with and subject to the terms and conditions set forth in the Statement of Terms and Conditions. 2. THE DEBENTURES The Debentures will be issued under an Indenture, dated as of March 1, 1990 between the Company and The Bank of New York, as Trustee (the "Trustee"), as supplemented by four supplemental indentures, and by a fifth supplemental indenture, to be dated as of March 1, 1999 (the "Indenture"). The Debentures will be issuable in book-entry form through the facilities of The Depository Trust Company ("DTC") in denominations of $1,000 or any amount in excess thereof which is an integral multiple of $1,000. Interest on the Debentures will be at a single interest rate and will be payable semi-annually on March 1 and September 1 in each year, commencing September 1, 1999. All payments on the Debentures will be made through the facilities of DTC as described in the prospectus, dated , 1999, relating to the Debentures (the "Bidding Prospectus"). The general redemption prices of the Debentures shall be 100% of their principal amount plus a premium equal to the interest rate per annum borne by the Debentures, reduced for each twelve month period subsequent to the first anniversary of the date the Debentures are issued, by an amount equal to one twenty-ninth of the interest rate per annum borne by the Debentures for each successive twelve month period (rounded to the nearest eight decimal places) in each case with accrued interest to the date fixed for redemption; provided, however, that none of the Debentures shall be redeemed prior to March 1, 2009, and, provided, further that in the thirtieth year the redemption price will be 100% of the principal amount without any premium. 2 3. LEGAL MATTERS Thelen Reid & Priest LLP has been selected to act as counsel for the Bidders and will deliver an opinion to the successful Bidder or Bidders (the "Purchasers"). Winthrop, Stimson, Putnam & Roberts and G. D. Caliendo, Senior Vice President, General Counsel and Secretary of the Company, will also deliver opinions to the Purchasers. The forms or content of such opinions are attached to the Terms of Purchase as Exhibits C, B and A thereto, respectively. The fees and disbursements of counsel for the Bidders are to be paid by the Purchaser, except as otherwise provided in the Terms of Purchase, which together with the bid constitutes the Purchase Agreement. Any prospective Bidder and the Representative of any group of prospective Bidders may obtain advice from counsel for the Bidders as to the amount of their fees and the estimated amount of their disbursements. 4. TERMS AND CONDITIONS RELATING TO BIDS Copies of the Statement of Terms and Conditions, the Form of Bid, the Terms of Purchase, the Bidding Prospectus and certain other documents may be obtained from Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York 10004-1490, Attention: Michael F. Cusick, Esq., telephone (212) 858-1238. 5. DUE DILIGENCE CONFERENCE CALL Company officers and counsel and counsel for the Bidders will conduct a due diligence conference call during which they will also review with prospective purchasers the Bidding Prospectus and the Statement of Terms and Conditions. Any prospective Bidder wishing to participate in the conference call may do so by contacting Michael F. Cusick, Esq. of Winthrop, Stimson, Putnam & Roberts at One Battery Park Plaza, New York, New York 10004-1490, telephone (212) 858-1238, before 10:00 A.M., New York Time on [ ], 1999. Telephonic notice to such prospective Bidders of the time of such conference call will be given by the Company no later than the business day preceding the date of such call. ORANGE AND ROCKLAND UTILITIES, INC. Dated: [ ], 1999 2 -----END PRIVACY-ENHANCED MESSAGE-----