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Exhibit 99.3
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EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
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Ladies and Gentlemen:
Orange and Rockland Utilities, Inc., a New York corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange its
6-1/2% Debentures due 2027 (Series E) (the "Old Debentures") for its 6-1/2%
Debentures due 2027 (Series F) (the "Exchange Debentures"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
Prospectus, dated January ___, 1998 (the "Prospectus"), proposed to be
distributed to all of the record holders of the Old Debentures. The Old
Debentures and the Exchange Debentures are collectively referred to herein as
the "Debentures."
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
________ __, 1998. The Letter of Transmittal accompanying the Prospectus is to
be used by holders of the Old Debentures to accept the Exchange Offer, and
contains instructions with respect to the delivery of certificates for Old
Debentures tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
__________ __, 1998 or on such later date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (confirmed in writing) or written notice to you before 9:00 A.M.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Debentures not
theretofore accepted for exchange, as specified in the Prospectus under the
caption "The Exchange Offer -- Expiration Date; Amendments." The Company will
give oral (confirmed in writing) or written notice of any amendment, termination
or nonacceptance to you as promptly as practicable.
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In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer" or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Debentures at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Old Debentures by causing
the Book-Entry Transfer Facility to transfer such Old Debentures into your
account in accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are to examine each of the Letters of Transmittal and the Old
Debentures (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents delivered or mailed to you
by or for holders of the Old Debentures to ascertain whether (i) the Letters of
Transmittal are properly completed and duly executed in accordance with the
instructions set forth therein, (ii) the Old Notes have otherwise been properly
tendered and (iii), if applicable, the other documents are properly completed
and duly executed. You need not pass on the legal sufficiency of any signature
or verify any signature guarantee.
4. With the approval of the Chief Executive Officer, any Senior Vice
President, the Treasurer or the Assistant Treasurer of the Company (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such an officer in writing, you are authorized to waive any
irregularities in connection with any tender of Old Debentures pursuant to the
Exchange Offer.
5. Tenders of Old Debentures may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The Exchange
Offer -- Procedures for Tendering" and Old Debentures shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Debentures which
Chief Executive Officer, any Senior Vice President, the Treasurer or the
Assistant Treasurer of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Debentures
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Debentures.
7. You shall accept tenders:
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(a) in cases where the Old Debentures are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only
when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Debentures
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Old Debentures where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Old
Debentures to the transfer agent for split-up and return any untendered Old
Debentures to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all Old
Debentures properly tendered and you, on behalf of the Company, will exchange
such Old Debentures for Exchange Debentures and cause such Old Debentures to be
cancelled. Delivery of Exchange Debentures will be made on behalf of the Company
by you at the rate of $1,000 principal amount of Exchange Debentures for each
$1,000 principal amount of the corresponding series of Old Debentures tendered
promptly after notice (such notice if given orally, to be confirmed in writing)
of acceptance of said Old Debentures by the Company; provided, however, that in
all cases, Old Debentures tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old
Debentures (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof) with any required signature guarantees and
any other required documents. You shall issue Exchange Debentures only in
denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Debentures tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Debentures
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Debentures
tendered shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Debentures tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -- Conditions" or otherwise, you shall as soon
as practicable after the expiration or termination of the Exchange
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Offer return those certificates for unaccepted Old Debentures (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
12. All certificates for reissued Old Debentures, unaccepted Old
Debentures or for Exchange Debentures shall be forwarded by (a) first-class
certified mail, return receipt requested under a blanket surety bond protecting
you and the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or in the section of the Prospectus
captioned "The Exchange Offer" or as may be subsequently agreed to in
writing by you and the Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates or the Old Debentures represented thereby
deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer; provided, however, that in no way will
your general duty to act in good faith be discharged by the foregoing;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you and reasonably
believed by you to be genuine and to have been signed by the proper party
or parties;
(e) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution
and validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or represented by a
proper person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any officer of the Company;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or
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omitted to be taken by you hereunder in good faith and in accordance with
the advice or opinion of such counsel; and
(h) shall not advise any person tendering Old Debentures pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Old
Debentures or Exchange Debentures.
15. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms
as may be approved from time to time by the Company, to all persons requesting
such documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: Investor Relations.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Assistant Treasurer of the Company and such
other person or persons as it may request, daily (and more frequently during the
week immediately preceding the Expiration Date and if otherwise requested) up to
and including the Expiration Date, as to the number of Old Debentures which have
been tendered pursuant to the Exchange Offer and the items received by you
pursuant to this Agreement, separately reporting and giving cumulative totals as
to items properly received and items improperly received. In addition, you will
also inform, and cooperate in making available to, the Company or any such other
person or persons upon oral request made from time to time prior to the
Expiration Date of such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation, the granting by
you to the Company and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide whether to
extend the Exchange Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Debentures tendered
and the aggregate principal amount of Old Debentures accepted, and deliver said
list to the Company. Upon receipt of said list, the Company will promptly
provide you with a calculation of the principal amount of Exchange Debentures to
be issued to each holder.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of Debentures. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
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19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined each
of them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and indemnification of
you as Exchange Agent, which shall be controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including reasonable attorney's fees and expenses, arising out of or in
connection with any act, omission, delay or refusal made by you in reliance upon
any signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Debentures reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Old Debentures; provided, however, that the Company shall
not be liable for indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your gross negligence or willful
misconduct. In no case shall the Company be liable under this indemnity with
respect to any claim against you unless the Company shall be notified by you, by
letter or cable or by facsimile confirmed by letter, of the written assertion of
a claim against you or of any other action commenced against you, promptly after
you shall have received any such written assertion or commencement of action.
The Company shall be entitled to participate at its own expense in the defense
of any such claim or other action, and, if the Company so elects, the Company
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company shall assume the defense of any such suit, the Company
shall not be liable for the fees and expenses of any counsel thereafter incurred
by you so long as the Company shall retain counsel reasonably satisfactory to
you to defend such suit.
22. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing Taxpayer
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that you are required to deduct 31% on
payments to holders who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. You shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in respect of the
exchange of Old Debentures, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Debentures; provided,
however, that you shall reimburse the Company for amounts refunded to you in
respect of your payment of any such transfer taxes, at such time as such refund
is received by you and, provided further, that if Exchange Debentures and/or
substitute Old Debentures not exchanged are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered holder
of the Old Debentures tendered in the Exchange
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Offer, or if tendered Old Notes are registered in the name of any person other
than the person signing the Letter of Transmittal, or if a transfer tax is
imposed for any reason other than the transfer of Old Debentures to the Company
or its order pursuant to the Exchange Offer, the amount of any such transfer
taxes (whether imposed on the registered holder or any other persons) will be
payable by the tendering holder and will not be reimbursed to you by the
Company. In no event, however, will the Exchange Agent be responsible for the
payment of any applicable transfer tax imposed for any reason other than the
exchange of Old Debentures.
24. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
_________________________
_________________________
_________________________
_________________________
Facsimile:
Attention:
If to the Exchange Agent:
The Bank of New York
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee Administration
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate after all obligations of the parties hereunder shall have been
fulfilled. Notwithstanding the foregoing, Paragraphs 19, 21 and 23 shall survive
the termination of this Agreement. Upon any termination of this Agreement, you
shall promptly deliver to the Company any certificates for Debentures, funds or
property then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
By: _____________________________
Name:
Title:
Accepted as the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: _______________________________
Name:
Title:
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