Registration No.333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Consolidated Edison Company of New York, Inc.
(Exact name of Registrant as specified in its charter)
New York
13-5009340
(State of incorporation) (I.R.S.
Employer Identification No.)
4 Irving Place
New York, New York 10003
(212) 460-4600
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
JOAN S. FREILICH or PETER A. IRWIN, ESQ.
Executive Vice President and Associate General Counsel
Chief Financial Officer
4 Irving Place
New York, New York 10003
(212) 460-4600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Steven R. Loeshelle
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities 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, please check the following box.
If this Form is filed to register additional securities for 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.
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CALCULATION OF REGISTRATION FEE
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Title of Each Amount to be Proposed Maximum Proposed Maximum Amount of
Class Registered Offering Aggregate Registration Fee
of Securities to Price Per Unit Offering Price (1)
Be Registered (1)
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Debt Securities $500,000,000 (1) $500,000,000 $139,000
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(1)The proposed maximum offering price per unit will be determined, from time
to time, by the Registrant in connection with the issuance by the Registrant
of the Debt Securities registered hereunder. In no event will the aggregate
initial offering price of all securities pursuant to this Registration
Statement exceed $500,000,000. The Prospectus filed as part of this
Registration Statement also relates to $90,000,000 of Debt Securities
remaining available to be offered pursuant to Registration Statement
333-45745 and for which a registration fee was paid.
Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until 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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
filed as part of this Registration Statement may be used in connection with the
securities covered by Registration Statement 333-45745.
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PROSPECTUS
Consolidated Edison Company of New York, Inc.
Debt Securities
Consolidated Edison Company of New York, Inc. may offer and sell up
to $590,000,000 of our unsecured debt securities. We will establish the specific
terms of each series of our debt securities, their offering prices and how they
will be offered at the time we offer them, and we will describe them in one or
more supplements to this prospectus. This prospectus may not be used to offer
and sell our debt securities unless accompanied by a prospectus supplement. You
should read this prospectus and the related supplement before you invest in our
debt securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAVE THESE ORGANIZATIONS DETERMINED THAT THIS
PROPSECTUS IS ACCURATE OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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We will offer and sell our debt securities through one or more
underwriters. We will set forth in the related prospectus supplement the name of
the underwriters, the discount received by the underwriters from us as
compensation, our other expenses for the offering and sale of the debt
securities, and the net proceeds we receive from the sale. See "Plan of
Distribution."
The date of this Prospectus is November ___ , 1999.
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TABLE OF CONTENTS
About This Prospectus ......................................2
Where You Can Find More Information.........................2
Con Edison..................................................3
Use of Proceeds.............................................4
Ratio of Earnings to Fixed Charges..........................4
Description of Securities...................................4
Plan of Distribution.......................................12
Legal Matters..............................................13
Experts....................................................13
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we have filed with the
Securities and Exchange Commission using a "shelf" registration process. By
using this process, we may offer up to a total dollar amount of $590,000,000 of
our debt securities in one or more offerings. This prospectus provides you with
a general description of the debt securities we may offer. Each time we offer
debt securities, we will provide you with a supplement to this prospectus that
will describe the specific terms of that offering. The prospectus supplement may
also add, update or change the information contained in this prospectus. Before
you invest, you should carefully read this prospectus, the applicable prospectus
supplement and the information contained in the documents we refer to in this
prospectus under "Where You Can Find More Information."
References in this prospectus to the terms "we", "us" or other
similar terms mean Consolidated Edison Company of New York, Inc., unless the
context clearly indicates otherwise. We are also referred to in this prospectus
as Con Edison.
You should rely only on the information contained or incorporated by
reference in this prospectus and any accompanying prospectus supplement. We have
not authorized anyone else to provide you with any different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell securities in any jurisdiction
where the offer or sale is not permitted. The information contained in this
prospectus is current only as of the date of this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. We file such reports,
proxy statements and other information through the Commission's Electronic Data
Gathering, Analysis and Retrieval system and these filings are publicly
available through the Commission's Web site (http://www.sec.gov). You may read
and copy such material at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549;
at the Commission's New York Regional Office, 7 World Trade Center, 13th Floor,
New York, New York 10048; and at its Chicago Regional Office, Northwest Atrium
Center, 500 West Madison Street, 14th Floor, Chicago, Illinois 60661. You may
also obtain copies of such material at prescribed rates from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549. In addition, you may inspect such material at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, the
Chicago Stock Exchange, 120 South LaSalle Street, Chicago, Illinois 60605 and
the Pacific Stock Exchange, 301 Pine Street, San Francisco, California 94104.
The Commission allows us to "incorporate by reference" into this prospectus
the information we file with them. This means that we can disclose important
information to you by referring you to the documents containing the information.
The information we incorporate by reference is considered to be an important
part of this prospectus and should be read with the same care. Information that
we file later with the Commission that is incorporated by reference into this
prospectus will automatically update and supercede this information. We are
incorporating by reference into this prospectus the following documents that we
have filed with the Commission and any subsequent filings we make with the
Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 until the offering of the debt securities described in this
prospectus is completed:
Con Edison's Annual Report on Form 10-K for the year ended December 31, 1998,
Quarterly Reports on Form 10-Q for the quarterly periods ended March 31,
1999 and June 30, 1999, and
Current Report on Form 8-K, dated June 25, 1999.
This prospectus is part of a registration statement we have filed with the
Commission relating to our debt securities. As permitted by the Commission's
rules, this prospectus does not contain all of the information included in the
registration statement and the accompanying exhibits and schedules we file with
the Commission. You should read the registration statement and the exhibits and
schedules for more information about us and our debt securities. The
registration statement, exhibits and schedules are also available at the
Commission's Public Reference Section or through its Web site.
You may obtain a free copy of our filings with the Commission by writing or
telephoning us at our principal executive offices: Corporate Secretary,
Consolidated Edison Company of New York, Inc., 4 Irving Place, New York, New
York 10003 (Telephone No.: 212-460-6066).
CON EDISON
Con Edison, incorporated in New York State in 1884, provides electric
service to over 3 million electric customers in New York City (except part of
Queens) and most of Westchester County, New York. Con Edison also provides gas
service to over a million customers in Manhattan, the Bronx and parts of Queens
and Westchester, and steam service in part of Manhattan. Consolidated Edison,
Inc. ("CEI"), incorporated in New York State in 1997, became the holding company
for Con Edison on January 1, 1998. CEI completed its purchase of Orange and
Rockland Utilities, Inc. in July 1999 and agreed to purchase Northeast Utilities
in October 1999. Orange and Rockland provides electric service to approximately
250,000 customers and gas service to approximately 100,000 customers in New
York, New Jersey and Pennsylvania. Northeast Utilities subsidiaries provide
electric service to over 1.7 million customers in Connecticut, New Hampshire and
western Massachusetts. CEI expects to complete its purchase of Northeast
Utilities within 12 to 18 months.
USE OF PROCEEDS
Unless we inform you otherwise in a supplement to this prospectus,
we anticipate using any net proceeds received by us from the sale of the debt
securities for general corporate purposes, including:
Repayment of short term debt,
Repurchase, retirement or refinancing of other securities, and Funding
of construction expenditures.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth Con Edison's ratio of earnings to
fixed charges for the periods indicated:
Twelve Months Ended Year Ended December 31,
September 30, 1999 1998 1997 1996 1995 1994
4.38 4.36 4.09 4.18 4.20 4.58
The ratio of earnings to fixed charges has been computed based upon
net income plus Federal income tax, Federal income tax deferred, investment tax
credits deferred and fixed charges. Fixed charges include interest on long-term
debt and other interest expense, amortization of debt expense, discount and
premium, and the interest component of rentals.
DESCRIPTION OF SECURITIES
The debt securities are to be issued under an Indenture, dated as of
December 1, 1990, between Con Edison and The Chase Manhattan Bank, as Trustee
("Trustee"), (successor to The Chase Manhattan Bank (National Association)), as
amended and supplemented by a First Supplemental Indenture, dated as of March 6,
1996 (the Indenture, as amended and supplemented, is herein referred to as the
"Indenture"), copies of which are included as exhibits to the registration
statement of which this prospectus is a part. Con Edison may also enter into one
or more additional indentures with other trustees with respect to certain of the
debt securities. Any such indenture would contain covenants and other provisions
similar to those described below. Reference is made to the prospectus supplement
regarding any additional indentures under which Debt securities will be issued.
The debt securities will be unsecured general obligations of Con
Edison ranking equally and ratably in right of payment with the unsecured debt
securities of Con Edison issued under the Indenture that are not subordinated
obligations of Con Edison ("Subordinated Securities") and the unsecured
promissory notes of Con Edison issued as collateral for, and in consideration of
the net proceeds of, a like amount of tax-exempt revenue bonds issued by New
York State Energy Research and Development Authority; provided, however, that if
so provided in the prospectus supplement relating to a series of debt
securities, the debt securities will be Subordinated Securities.
There is no requirement that future issues of debt securities of Con
Edison be issued under the Indenture, and Con Edison will be free to employ
other indentures or documentation, containing provisions different from those
included in the Indenture or applicable to one or more issues of Securities, in
connection with future issues of such other debt securities.
The Indenture does not specifically restrict the ability of Con
Edison to engage in transactions which could have the effect of increasing the
ratio of debt to equity capitalization of Con Edison or a successor corporation.
For example, the Indenture does not limit the amount of indebtedness of Con
Edison, the payment of dividends by Con Edison or the acquisition by Con Edison
of any of the equity securities of Con Edison or CEI. The Indenture also permits
Con Edison to merge or consolidate or to transfer its assets, subject to certain
conditions (see "Consolidation, Merger and Sale" below). Con Edison must obtain
approvals from state and/or federal regulatory bodies to merge or consolidate
or, with limited exceptions, to issue securities or transfer assets.
The following summary of the Indenture does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
Indenture, including the definitions therein of certain terms.
General: The Indenture provides that the debt securities offered and
other unsecured debt securities of the Company, without limitation as to
aggregate principal amount (collectively the "Indenture Securities"), may be
issued in one or more series, in each case as authorized from time to time by
Con Edison.
Reference is made to the prospectus supplement relating to the debt
securities offered for the following terms:
(1) the title of the debt securities;
(2) the aggregate principal amount of the debt securities;
(3) the percentage of the principal amount representing the price for
which the debt securities shall be issued;
(4) the date or dates on which the principal of, and premium, if any, on
the debt securities shall be payable;
(5) the rate or rates (which may be fixed or variable) at which the debt
securities shall bear interest, if any, or the method by which such
rate or rates shall be determined;
(6) if the amount of payments of the principal of, premium, if any, or
interest, if any, on the debt securities may be determined with
reference to an index, formula or other method, the manner in which
such amounts shall be determined;
(7) the date or dates from which any such interest shall accrue, or the
method by which such date or dates shall be determined, the dates on
which any such interest shall be payable and any record dates
therefor;
(8) the place or places where the principal of, and premium, if any, and
interest, if any, on the debt securities shall be payable;
(9) the period or periods, if any, within which, the price or prices at
which, and the terms and conditions upon which the debt securities
may be redeemed, in whole or in part, at the option of Con Edison;
(10) the obligation, if any, of Con Edison to redeem, purchase or repay
the debt securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof and the period or
periods within which, the price or prices at which, and the terms
and conditions upon which the debt securities shall be redeemed,
purchased or repaid pursuant to such obligation;
(11) whether the debt securities are to be issued in whole or in part in
the form of one or more Global Securities and, if so, the identity
of the Depositary for such Global Security or Global Securities;
(12) if other than $1,000 or an integral multiple thereof, the
denominations in which the debt securities shall be issued;
(13) if other than the principal amount thereof, the portion of the
principal amount of the debt securities payable upon declaration of
acceleration of the maturity of the debt securities;
(14) any deletions from or modifications of or additions to the Events of
Default set forth in Section 6.01 of the Indenture pertaining to the
debt securities;
(15) the provisions, if any, relating to the cancellation and
satisfaction of the Indenture with respect to the debt securities
prior to the maturity thereof pursuant to Section 12.02 of the
Indenture (see "Satisfaction and Discharge of Indenture;
Defeasance");
(16) the terms, if any, upon which Con Edison may elect not to pay
interest on an interest payment date;
(17) the provisions, if any, relating to the subordination of the debt
securities pursuant to Article 15 of the Indenture (see
"Subordination"); and
(18) any other terms of the debt securities not inconsistent with the
provisions of the Indenture and not adversely affecting the rights
of any other series of Indenture Securities then outstanding.
(Section 2.03)
Con Edison may authorize the issuance and provide for the terms of a
series of Indenture Securities pursuant to a resolution of its Board of Trustees
or any duly authorized committee thereof or pursuant to a supplemental
indenture. The provisions of the Indenture described above permit Con Edison, in
addition to issuing Indenture Securities with terms different from those of
Indenture Securities previously issued, to "reopen" a previous issue of a series
of Indenture Securities and to issue additional Indenture Securities of such
series.
The Indenture Securities will be issued only in registered form
without coupons and, unless otherwise provided with respect to a series of
Indenture Securities, in denominations of $1,000 and integral multiples thereof.
(Section 2.02) Indenture Securities of a series may be issued in whole or in
part in the form of one or more Global Securities (see "Global Securities"). One
or more Global Securities will be issued in a denomination or aggregate
denominations equal to the aggregate principal amount of outstanding Indenture
Securities of the series to be represented by such Global Security or Global
Securities. (Section 2.01) No service charge will be made for any transfer or
exchange of Indenture Securities, but Con Edison may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 2.05)
One or more series of the Indenture Securities may be issued with
the same or various maturities at par or at a discount. Debt securities bearing
no interest or interest at a rate which at the time of issuance is below the
market rate ("Original Issue Discount Securities") will be sold at a discount
(which may be substantial) below their stated principal amount. Federal income
tax consequences and other special considerations applicable to any such
Original Issue Discount Securities will be described in the prospectus
supplement relating thereto.
Subordination: If the prospectus supplement relating to a particular
series of Indenture Securities so provides, such securities will be Subordinated
Securities and the payment of the principal of, premium, if any, and interest on
the Subordinated Securities will be subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness to the extent set forth
in the next paragraph. (Section 15.01)
In the event (a) of any distribution of assets of Con Edison in
bankruptcy, reorganization or receivership proceedings, or upon an assignment
for the benefit of creditors, or any other marshalling of assets and liabilities
of Con Edison, except for a distribution in connection with a consolidation,
merger, sale, transfer or lease permitted under the Indenture (see
"Consolidation, Merger and Sale"), or (b) the principal of any Senior
Indebtedness shall have been declared due and payable by reason of an event of
default with respect thereto and such event of default shall not have been
rescinded, then the holders of Subordinated Securities will not be entitled to
receive or retain any payment, or distribution of assets of Con Edison, in
respect of the principal of, premium, if any, and interest on the Subordinated
Securities until the holders of all Senior Indebtedness receive payment of the
full amount due in respect of the principal of, premium, if any, and interest on
the Senior Indebtedness or provision for such payment on the Senior Indebtedness
shall have been made. (Section 15.02)
Subject to the payment in full of all Senior Indebtedness, the
holders of the Subordinated Securities shall be subrogated to the rights of the
holders of the Senior Indebtedness to receive payments or distributions
applicable to the Senior Indebtedness until all amounts owing on the
Subordinated Securities shall be paid in full. (Section 15.03)
"Senior Indebtedness" means all indebtedness of Con Edison for the
repayment of money borrowed (whether or not represented by bonds, debentures,
notes or other securities) other than the indebtedness evidenced by the
Subordinated Securities and any indebtedness subordinated to, or subordinated on
parity with, the Subordinated Securities. "Senior Indebtedness" does not include
customer deposits or other amounts securing obligations of others to Con Edison.
(Section 15.01)
The Indenture does not limit the aggregate amount of Senior
Indebtedness that Con Edison may issue. As of September 30, 1999, $4.0 billion
of Senior Indebtedness was outstanding.
Redemption: If the prospectus supplement relating to a particular
series of Indenture Securities so provides, such securities will be subject to
redemption at the option of Con Edison. Notice of any redemption of Indenture
Securities shall be given to the registered holders of such securities not less
than 30 days nor more than 60 days prior to the date fixed for redemption. If
less than all of a series of Indenture Securities are to be redeemed, the
Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Indenture Securities of such series or portions
thereof to be redeemed.
Global Securities: The Indenture Securities of a series may be
issued in whole or in part in the form of one or more Global Securities that
will be deposited with, or on behalf of, the Depositary identified in the
prospectus supplement relating thereto. Unless and until it is exchanged in
whole or in part for Indenture Securities in definitive form, a Global Security
may not be transferred except as a whole by the Depositary for such Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. (Sections 2.01 and 2.05)
The specific terms of the depositary arrangement with respect to any
Indenture Securities of a series will be described in the prospectus supplement
relating thereto. Con Edison anticipates that the following provisions will
apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such
Global Security will credit, on its book entry registration and transfer system,
the respective principal amounts of the Indenture Securities represented by such
Global Security to the accounts of institutions that have accounts with such
Depositary ("participants"). The accounts to be credited shall be designated by
the underwriters through which such Indenture Securities were sold. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of beneficial
interests in such Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the Depositary
for such Global Security or by participants or persons that hold through
participants. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security, or its nominee, is
the owner of such Global Security, such Depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Indenture Securities
represented by such Global Security for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in a Global Security will not
be entitled to have Indenture Securities of the series represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of Indenture Securities of such series in definitive
form and will not be considered the owners or holders thereof under the
Indenture.
Payments of principal of, premium, if any, and interest, if any, on
Indenture Securities registered in the name of or held by a Depositary or its
nominee will be made to the Depositary or its nominee, as the case may be, as
the registered owner of the Global Security representing such Indenture
Securities. None of Con Edison, the Trustee or any paying agent for such
Indenture Securities will have any responsibility or liability for any aspect of
the records relating to, or payments made on account of, beneficial ownership
interests in a Global Security for such Indenture Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Con Edison expects that the Depositary for Indenture Securities of a
series, upon receipt of any payment of principal, premium, if any, or interest,
if any, in respect of a Global Security will credit immediately participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of such Depositary. Con Edison also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities registered in "street
name," and will be the responsibility of such participants.
If a Depositary for Indenture Securities of a series is at any time
unwilling or unable to continue as Depositary and a successor depositary is not
appointed by Con Edison within 90 days, Con Edison will issue Indenture
Securities of such series in definitive form in exchange for the Global Security
or Global Securities representing the Indenture Securities of such series. In
addition, Con Edison may at any time and in its sole discretion determine not to
have any Indenture Securities of a series represented by one or more Global
Securities and, in such event, will issue Indenture Securities of such series in
definitive form in exchange for the Global Security or Global Securities
representing such Indenture Securities. Further, if Con Edison so specifies with
respect to the Indenture Securities of a series, each person specified by the
Depositary of the Global Security representing Indenture Securities of such
series may, on terms acceptable to Con Edison and the Depositary for such Global
Security, receive Indenture Securities of the series in definitive form. In any
such instance, each person so specified by the Depositary of the Global Security
will be entitled to physical delivery in definitive form of Indenture Securities
of the series represented by such Global Security equal in principal amount to
such person's beneficial interest in the Global Security.
Payments and Paying Agents: Payment of principal of and premium, if
any, on Indenture Securities will be made against surrender of such Indenture
Securities at The Bank of New York, 101 Barclay Street, Stock Transfer Division,
New York, New York 10286. Unless otherwise indicated in the prospectus
supplement, payment of any installment of interest on Indenture Securities will
be made to the person in whose name such Indenture Security is registered at the
close of business on the record date for such interest. Unless otherwise
indicated in the prospectus supplement, payments of such interest will be made
at The Bank of New York, or by a check mailed to each holder of an Indenture
Security at such holder's registered address.
All moneys paid by Con Edison to a paying agent for the payment of
principal of, premium, if any, or interest, if any, on any Indenture Security
that remain unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will be repaid to Con Edison and the
holder of such Indenture Security entitled to receive such payment will
thereafter look only to Con Edison for payment thereof. (Section 12.05) However,
any such payment shall be subject to escheat pursuant to state abandoned
property laws.
Consolidation, Merger and Sale: The Indenture permits Con Edison,
without the consent of the holders of any of the Indenture Securities, to
consolidate with or merge into any other corporation or sell, transfer or lease
its assets as an entirety or substantially as an entirety to any person,
provided that: (i) the Successor is a corporation organized under the laws of
the United States of America or any state thereof; (ii) the Successor assumes
Con Edison's obligations under the Indenture and the Indenture Securities; (iii)
immediately after giving effect to the transaction, no Event of Default (see
"Default and Certain Rights on Default") and no event that, after notice or
lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing; and (iv) certain other conditions are met. (Section 11.02)
The Indenture does not restrict the merger of another corporation into Con
Edison.
Modification of the Indenture: The Indenture contains provisions
permitting Con Edison and the Trustee, without the consent of the holders of the
Indenture Securities, to establish, among other things, the form and terms of
any series of Indenture Securities issuable thereunder by one or more
supplemental indentures, and, with the consent of the holders of a majority in
aggregate principal amount of the Indenture Securities of any series at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture with respect
to Indenture Securities of such series, or modifying in any manner the rights of
the holders of the Indenture Securities of such series; provided, however, that
no such supplemental indenture shall (i) extend the fixed maturity, or the
earlier optional date of maturity, if any, of any Indenture Security of a
particular series or reduce the principal amount thereof or the premium thereon,
if any, or reduce the rate or extend the time of payment of interest thereon, or
make the principal thereof or premium, if any, or interest thereon payable in
any coin or currency other than that provided in the Indenture Security, without
the consent of the holder of each Indenture Security so affected, or (ii) reduce
the principal amount of Indenture Securities of any series, the holders of which
are required to consent to any such supplemental indenture, without the consent
of the holders of all Indenture Securities of such series outstanding
thereunder.(Sections 10.01 and 10.02)
Default and Certain Rights on Default: The Indenture provides that
the Trustee or the holders of 25% or more in aggregate principal amount of
Indenture Securities of a series outstanding thereunder may declare the
principal of all Indenture Securities of such series to be due and payable
immediately, if any Event of Default with respect to such series of Indenture
Securities shall occur and be continuing. However, if all defaults with respect
to Indenture Securities of such series (other than non-payment of accelerated
principal) are cured, the holders of a majority in aggregate principal amount of
the Indenture Securities of such series outstanding thereunder may waive the
default and rescind the declaration and its consequences. Events of Default with
respect to a series of Indenture Securities include (unless specifically deleted
in the supplemental indenture or Board Resolution under which such series of
Indenture Securities is issued, or modified in any such supplemental indenture):
(i) failure to pay interest when due on any Indenture Security of such
series, continued for 30 days;
(ii) failure to pay principal or premium, if any, when due on any
Indenture Security of such series;
(iii) failure to perform any other covenant of Con Edison in the Indenture
or the Indenture Securities of such series (other than a covenant
included in the Indenture or the Indenture Securities solely for the
benefit of series of Indenture Securities other than such series),
continued for 60 days after written notice from the Trustee or the
holders of 25% or more in aggregate principal amount of the
Indenture Securities of such series outstanding thereunder;
(iv) certain events of bankruptcy, insolvency or reorganization; and
(v) any other Event of Default as may be specified for such series.
(Section 6.01)
The Indenture provides that the holders of a majority in aggregate
principal amount of the Indenture Securities of any series outstanding
thereunder may, subject to certain exceptions, direct the time, method and place
of conducting any proceeding for any remedy available to, or exercising any
power or trust conferred upon, the Trustee with respect to Indenture Securities
of such series and may on behalf of all holders of Indenture Securities of such
series waive any past default and its consequences with respect to Indenture
Securities of such series, except a default in the payment of the principal of
or premium, if any, or interest on any of the Indenture Securities of such
series. (Section 6.06)
Holders of Indenture Securities of any series may not institute any
proceeding to enforce the Indenture unless the Trustee thereunder shall have
refused or neglected to act for 60 days after a request and offer of
satisfactory indemnity by the holders of 25% or more in aggregate principal
amount of the Indenture Securities of such series outstanding thereunder, but
the right of any holder of Indenture Securities of any series to enforce payment
of principal of or premium, if any, or interest on the holder's Indenture
Securities when due shall not be impaired. (Section 6.04)
The Trustee is required to give the holders of Indenture Securities
of any series notice of defaults with respect to such series (Events of Default
summarized above, exclusive of any grace period and irrespective of any
requirement that notice of default be given) known to it within 90 days after
the happening thereof, unless cured before the giving of such notice, but,
except for defaults in payments of principal of, premium, if any, or interest on
the Indenture Securities of such series, the Trustee may withhold notice if and
so long as it determines in good faith that the withholding of such notice is in
the interests of such holders. (Section 6.07)
Con Edison is required to deliver to the Trustee each year an
Officers' Certificate stating whether such officers have obtained knowledge of
any default by Con Edison in the performance of certain covenants and, if so,
specifying the nature thereof. (Section 4.06)
Concerning the Trustee: The Indenture provides that the Trustee
shall, prior to the occurrence of any Event of Default with respect to the
Indenture Securities of any series and after the curing or waiving of all Events
of Default with respect to such series which have occurred, perform only such
duties as are specifically set forth in the Indenture. During the existence of
any Event of Default with respect to the Indenture Securities of any series, the
Trustee shall exercise such of the rights and powers vested in it under the
Indenture with respect to such series and use the same degree of care and skill
in their exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs. (Section 7.01)
The Trustee may acquire and hold Indenture Securities and, subject
to certain conditions, otherwise deal with Con Edison as if it were not Trustee
under the Indenture. (Section 7.04)
The Chase Manhattan Bank, which is the Trustee under the Indenture,
is a participating bank under Con Edison's revolving credit agreements, and is a
depository for funds and performs other services for, and transacts other
banking business with, Con Edison in the normal course of business.
Satisfaction and Discharge of Indenture; Defeasance: The Indenture
may be discharged upon payment of the principal of, premium, if any, and
interest on all the Indenture Securities and all other sums due under the
Indenture. In addition, the Indenture provides that if, at any time after the
date of the Indenture, Con Edison, if so permitted with respect to Indenture
Securities of a particular series, shall deposit with the Trustee, in trust for
the benefit of the holders thereof, (i) funds sufficient to pay, or (ii) such
amount of obligations issued or guaranteed by the United States of America as
will, or will together with the income thereon without consideration of any
reinvestment thereof, be sufficient to pay all sums due for principal of,
premium, if any, and interest on the Indenture Securities of such series, as
they shall become due from time to time, and certain other conditions are met,
the Trustee shall cancel and satisfy the Indenture with respect to such series
to the extent provided therein. (Sections 12.01 and 12.02) The prospectus
supplement describing the Indenture Securities of such series will more fully
describe the provisions, if any, relating to such cancellation and satisfaction
of the Indenture with respect to such series.
Reports Furnished Securityholders: Con Edison will furnish the
holders of Indenture Securities copies of all annual financial reports
distributed to its stockholders generally as soon as practicable after the
mailing of such material to the stockholders. (Section 4.07)
PLAN OF DISTRIBUTION
Con Edison will offer the debt securities through one or more
underwriters. The names of the managing underwriter or underwriters and any
other underwriters, and the terms of the transaction, including compensation of
the underwriters and dealers, if any, will be set forth in the prospectus
supplement relating to the offering of the debt securities. Only underwriters
named in a prospectus supplement will be deemed to be underwriters in connection
with the debt securities described therein. Firms not so named will have no
direct or indirect participation in the underwriting of such debt securities,
although such a firm may participate in the distribution of such debt securities
under circumstances entitling it to a dealer's commission. It is anticipated
that any underwriting agreement pertaining to any debt securities will (1)
entitle the underwriters to indemnification by Con Edison against certain civil
liabilities under the Securities Act of 1933, as amended, or to contribution for
payments the underwriters may be required to make in respect thereof, (2)
provide that the obligations of the underwriters will be subject to certain
conditions precedent, and (3) provide that the underwriters generally will be
obligated to purchase all such debt securities if any are purchased. The
underwriters may engage in transactions with, or perform services for, Con
Edison in the ordinary course of business.
In connection with an offering made hereby, the underwriters may
purchase and sell the debt securities in the open market. These transactions may
include over-allotment and stabilizing transactions and purchases to cover short
positions created by the underwriters in connection with an offering.
Stabilizing transactions consist of certain bids or purchases for the purpose of
preventing or delaying a decline in the market price of the debt securities, and
short positions created by the underwriters involve the sale by the underwriters
of a greater aggregate principal amount of debt securities than they are
required to purchase from Con Edison. The underwriters also may impose a penalty
bid, whereby selling concessions allowed to broker-dealers in respect of the
debt securities sold in the offering may be reclaimed by the underwriters if
such debt securities are repurchased by the underwriters in stabilizing or
covering transactions. These activities may stabilize, maintain or otherwise
affect the market price of the debt securities, which may be higher than the
price that might otherwise prevail in the open market; and these activities, if
commenced, may be discontinued at any time. These transactions may be affected
in the over-the-counter market or otherwise.
The anticipated date of delivery of the debt securities will be as
set forth in the prospectus supplement relating to the offering of the debt
securities.
LEGAL MATTERS
The validity of the debt securities and certain other related legal
matters will be passed upon for Con Edison by Edwin W. Scott., Esq., Vice
President and Deputy General Counsel. Certain legal matters in connection with
the debt securities will be passed upon for the Underwriters by Dewey Ballantine
LLP, 1301 Avenue of the Americas, New York, New York 10019-6092.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to Con Edison's Annual Report on Form 10-K for the year ended December
31, 1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
II-15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable by Registrant for the sale of the Securities are
estimated as follows:
Securities and Exchange Commission
registration fee......................................... $139,000.00
Printing and engraving..................................... 80,000.00
Services of Independent Accountants........................ 100,000.00
Fees and expenses of Trustee .............................. 40,000.00
Rating agency fees ........................................ 200,000.00
Miscellaneous.............................................. 141,000.00
Total.................................................... $700,000.00
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Item 15. Indemnification of Directors and Officers.
Reference is made to sections 721 to 725 of the Business Corporation Law of
the State of New York ("BCL") which provide for indemnification of directors and
officers. In addition, pursuant to Section 15 of the By-Laws of Registrant,
Registrant shall indemnify, to the extent not prohibited by any law, any person
made, or threatened to be made, a party to an action or proceeding, whether
civil or criminal, including an investigation or legislative proceeding (and
including an action by or in the right of Registrant), by reason of the fact
that he is or was a Trustee or officer of Registrant against any and all
judgments, fines, amounts paid in settlement, and expenses, including attorneys'
fees, actually and reasonably incurred with respect to such action or proceeding
or related appeal. Section 15 further provides that no indemnification shall be
made to or on behalf of a Trustee or officer if a judgment or other final
adjudication adverse to the Trustee or officer establishes that his acts were
committed in bad faith or were the results of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he personally
gained in fact a financial profit or other advantage to which he was not legally
entitled.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act") may be permitted to Trustees, officers and
controlling persons of Registrant pursuant to the foregoing provisions, or
otherwise, Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by Registrant of expenses incurred or paid by a Trustee,
officer or controlling person of Registrant in the successful defense of any
action, suit or proceeding) is asserted against Registrant by such Trustee,
officer or controlling person in connection with the securities being
registered, Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
As permitted by Section 402 of the BCL, Article 10 of the Certificate of
Incorporation of Registrant provides that:
"A Trustee of the Company shall not be liable to the Company or any of its
stockholders for damages for any breach of duty in such capacity, except to the
extent elimination or limitation of liability is not permitted by applicable
law. Any repeal or modification of this Article shall not adversely affect any
right, immunity or protection of a Trustee of the Company existing or provided
hereunder with respect to any act or omission occurring prior to the repeal or
modification."
As permitted by Section 726 of the BCL, Registrant has insurance (a) to
indemnify Registrant for obligations it incurs for indemnification of its
Trustees and officers, and (b) to indemnify Trustees and officers of Registrant
for losses, costs and expenses incurred by them in actions brought against them
in connection with their acts as Trustees or officers for which they are not
indemnified by Registrant. No insurance payment will be made to any Trustee or
officer if a judgment or other final adjudication adverse to the Trustee or
officer establishes that his acts of active and deliberate dishonesty were
material to the cause of action so adjudicated, or that he personally gained in
fact a financial profit or other advantage to which he was not legally entitled.
Registrant has also purchased insurance coverage insuring the Trustees and
officers of Registrant against certain liabilities that could arise in
connection with administration of Registrant's employee benefit plans.
Section 7 of Registrant's Underwriting Agreement Basic Provisions, dated
November 1, 1999 (Exhibit 1.2 to this Registration Statement) provides for
indemnification of the Registrant's Trustees and officers who signed the
Registration Statement by the underwriters against certain liabilities which
might arise under the Act or otherwise from certain written information
furnished to Registrant by or on behalf of the underwriters.
Item 16. List of Exhibits.
1.1 - Form of Underwriting Agreement.
1.2 - Underwriting Agreement Basic Provisions, dated November 1, 1999.
4.1 - Indenture, dated as of December 1, 1990, between Consolidated
Edison Company of New York, Inc. ("Con Edison") and The Chase
Manhattan Bank (successor to The Chase Manhattan Bank (National
Association),("Chase"), as Trustee. (Incorporated by reference to
Exhibit 4(h) to Con Edison's Annual Report on Form 10-K for the
year ended December 31, 1990 -- Commission File No. 1-1217.)
4.2. - First Supplemental Indenture, dated as of March 6, 1996, between Con
Edison and Chase, as Trustee. (Incorporated by reference to Exhibit
4.13 to Con Edison's Annual Report on Form 10-K for the year ended
December 31, 1995 -- Commission File No. 1-1217.)
5 - Opinion and consent of Edwin W. Scott., Esq., Vice President and
Deputy General Counsel of Con Edison.
12.1 - Schedule of computation of ratio of earnings to fixed charges for
the years ended December 31, 1998, 1997, 1996, 1995 and 1994.
(Incorporated by reference to Exhibit 12 to Con Edison's Annual
Report on Form 10-K for the year ended December 31, 1998 --
Commission File No. 1-1217.)
12.2 - Schedule of computation of ratio of earnings to fixed charges for
the twelve month periods ended September 30, 1999 and 1998.
23.1 - Consent of PricewaterhouseCoopers LLP.
23.2 - Consent of Edwin W. Scott., Esq., Vice President and Deputy
General Counsel of Con Edison (included as part of Exhibit 5).
24 - Powers of Attorney.
25 - Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Chase, as Trustee.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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.
(h) See the second paragraph of Item 15.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all 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 City of New York and State of New York on the 4th day of
November, 1999.
Consolidated Edison Company of New York, Inc.
By Joan S. Freilich
Joan S. Freilich
Executive 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.
Name Title
Eugene R. McGrath* Chairman of the Board of Trustees
and Chief Executive Officer and
Trustee (Principal Executive Officer)
Joan S. Freilich* Executive Vice President and Chief
Financial Officer and Trustee
(Principal Financial Officer)
Hyman Schoenblum* Vice President and Controller
(Principal Accounting Officer)
E. Virgil Conway* Trustee
Gordon J. Davis* Trustee
Ruth M. Davis* Trustee
Ellen V. Futter* Trustee
Sally Hernandez-Pinero* Trustee
Peter W. Likins* Trustee
Robert G. Schwartz* Trustee
Richard A. Voell* Trustee
Stephen R. Volk* Trustee
- ---------------
* Joan S. Freilich, pursuant to Powers of Attorney (executed by each of the
officers and Trustees listed above, and filed as Exhibit 24 hereto), by signing
her name hereto does hereby sign and execute this Registration Statement on
behalf of each of the officers and Trustees named above and indicated as signing
above in the capacities in which the name of each appears above.
Joan S. Freilich
November 4, 1999 Joan S. Freilich
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
1.1 - Form of Underwriting Agreement. (Incorporated by reference to
Exhibit 1(a) to Registration Statement No. 33-47261.)
1.2 - Underwriting Agreement Basic Provisions, dated April 16, 1992.
(Incorporated by reference to Exhibit 1(b) to Registration
Statement No. 33-47261.)
4.1 - Indenture, dated as of December 1, 1990, between Consolidated
Edison Company of New York, Inc. ("Con Edison") and The Chase
Manhattan Bank (successor to The Chase Manhattan Bank (National
Association),("Chase"), as Trustee. (Incorporated by reference to
Exhibit 4(h) to Con Edison's Annual Report on Form 10-K for the
year ended December 31, 1990 -- Commission File No. 1-1217.)
4.2 - First Supplemental Indenture, dated as of March 6, 1996, between Con
Edison and Chase, as Trustee. (Incorporated by reference to Exhibit
4.13 to Con Edison's Annual Report on Form 10-K for the year ended
December 31, 1995 -- Commission File No. 1-1217.)
5 - Opinion and consent of Edwin W. Scott., Esq., Vice President and
Deputy General Counsel of Con Edison.
12.1 - Schedule of computation of ratio of earnings to fixed charges for
the years ended December 31, 1998, 1997, 1996, 1995 and 1994.
(Incorporated by reference to Exhibit 12 to Con Edison's Annual
Report on Form 10-K for the year ended December 31, 1998 --
Commission File No. 1-1217.)
12.2 - Schedule of computation of ratio of earnings to fixed charges for
the twelve month periods ended September 30, 1999 and 1998.
23.1 - Consent of PricewaterhouseCoopers LLP.
23.2 - Consent of Edwin W. Scott., Esq., Vice President and Deputy
General Counsel of Con Edison (included as part of Exhibit 5).
24 - Powers of Attorney.
25 - Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Chase, as Trustee.
UNDERWRITING AGREEMENT
[Date]
To the Representative Named
on the Signature Page Hereof:
Dear Sirs:
Subject to the terms and conditions stated or
incorporated by reference herein, Consolidated Edison Company of New York, Inc.
(the "Company") hereby agrees to sell to the Underwriters named in Schedule I
hereto (the "Underwriters") and the Underwriters hereby agree to purchase,
severally and not jointly, the principal amount set forth opposite their names
in Schedule I hereto of the securities specified in Schedule II hereto (the
"Designated Securities").
The representative named on the signature page hereof
(the "Representative") represents that the Underwriters have authorized the
Representative to enter into this Underwriting Agreement and to act hereunder on
their behalf.
Except as otherwise provided in Schedule II hereto
each of the provisions of the Company's Underwriting Agreement Basic Provisions,
dated November 1, 1999, as filed as Exhibit 1(b) to Registration Statement No.
333-_________ (the "Basic Provisions"), is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein. Unless otherwise
defined herein, terms defined in the Basic Provisions are used herein as therein
defined.
Payment for the Designated Securities will be made
against delivery thereof to the Representative for the accounts of the
respective Underwriters at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto.
3745
If the foregoing is in accordance with your
understanding, please sign and return to us counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the Basic Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company.
Very truly yours,
CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC.
By:
[name]
[title]
Confirmed and Accepted as of the date hereof on behalf of itself and each other
Underwriter, if any:
By:
[name]
[title]
- 3 -
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter
to be Purchased
SCHEDULE II
Title of Designated Securities:
Aggregate principal amount:
Price to Public:
Purchase Price by Underwriters:
Specified funds for, and manner of, payment of purchase price:
Indenture:
Indenture, dated as of December 1, 1990, between the Company and The Chase
Manhattan Bank (National Association), as Trustee, as amended and
supplemented by a First Supplemental Indenture, dated as of March 6, 1996.
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Sinking Fund Provisions:
Time of Delivery:
Closing Location:
Information furnished by or on behalf of the Underwriters for use in the
Prospectus for the Designated Securities:
Address of Representative:
Captions in the Prospectus referred to in Section 6(c)(xi) of the Basic
Provisions:
Modifications of Basic Provisions:
Other:
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
UNDERWRITING AGREEMENT BASIC PROVISIONS
November 1, 1999
Consolidated Edison Company of New York, Inc. (the "Company") may
from time to time enter into one or more underwriting agreements that provide
for the sale of certain of its securities. The basic provisions set forth herein
may be incorporated by reference in any such underwriting agreement relating to
a particular issue of Designated Securities (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as "this Agreement." Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as defined
therein.
The terms and rights of any particular issue of Designated
Securities shall be as specified in the Underwriting Agreement relating thereto
and (i) if the Designated Securities are equity securities, in or pursuant to
the provisions of the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), or (ii) if the Designated Securities are debt
securities, in or pursuant to the indenture (the "Indenture") identified in the
Underwriting Agreement. An Underwriting Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
I. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Designated Securities
has been filed with the Securities and Exchange Commission (the "Commission");
the registration statement has been declared effective by the Commission; and no
stop order suspending the effectiveness of the registration statement has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission. The Company proposes to file pursuant to Rule 424 under the
Securities Act of 1933 (the "Act") a prospectus supplement specifically relating
to the Designated Securities and has previously advised the Underwriters of all
information to be set forth therein. The term "Registration Statement" means the
registration statement as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Designated Securities, as first filed
with the Commission pursuant to Rule 424. The term "Preliminary Prospectus"
means a preliminary prospectus supplement specifically relating to the
Designated Securities together with the Basic Prospectus. As used herein, the
terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"Preliminary Prospectus" shall include in each case the material, if any,
incorporated by reference therein.
17532
(b) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder, and none of
the documents 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; and any further documents so filed and
incorporated by reference in the Prospectus, when said further documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to the
requirements of the Act and, if the Designated Securities are debt securities,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission under the Act and, if applicable, the
Trust Indenture Act; and the Registration Statement and the Prospectus do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, and the Prospectus, as
it may be amended or supplemented pursuant to Section 4 hereof, as of the Time
of Delivery will not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to: (i) any statements or omissions made in
reliance upon and in conformity with any information specified in the
Underwriting Agreement as furnished by or on behalf of the Underwriters for use
in the Prospectus for the Designated Securities ("Underwriter Information"),
and, if the Designated Securities are debt securities, (ii) any Form T-1
Statement of Eligibility and Qualification included as an exhibit to the
Registration Statement.
(d) Except as set forth or contemplated in the Prospectus, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change, on a
consolidated basis, in the capital stock, short-term debt or long-term debt of
the Company, or in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
(e) The Company has been duly formed and is validly existing and in
good standing under the laws of the State of New York. The Company has full
power and authority to conduct its business and, except as described in the
Registration Statement and Prospectus, possesses all material licenses and
approvals necessary for the conduct of its business.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable; and except as set forth or contemplated in the Prospectus, there
are no outstanding rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the Company, or any
contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company, any such
convertible or exchangeable securities or any such rights, warrants or options.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as rights of indemnification and contribution
hereunder may be limited by law or principles of public policy.
(h) If the Designated Securities are debt securities, the Indenture has
been duly authorized by the Company and qualified under the Trust Indenture Act
and, at the Time of Delivery (as defined in Section 3 hereof), will constitute a
valid and legally binding instrument, enforceable in accordance with its terms,
subject as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or effecting creditors' rights and to
general equity principles.
(i) If the Designated Securities are debt securities, the Designated
Securities have been duly authorized, and when executed by the Company,
authenticated in accordance with the Indenture and issued and delivered pursuant
to this Agreement, will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles. The Designated Securities
and the Indenture conform to the descriptions thereof in the Prospectus.
(j) If the Designated Securities are equity securities, the Designated
Securities have been duly authorized, and, when delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will have been duly
issued and will be fully paid and non-assessable and will conform to the
descriptions thereof in the Prospectus.
(k) The issue and sale of the Designated Securities and the compliance
by the Company with all of the provisions of the Designated Securities, the
Indenture (if applicable), and this Agreement and the consummation of the
transaction herein and therein contemplated, will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
any statute, any agreement or instrument to which the Company is a party or by
which it is bound or to which any of the property of the Company is subject, the
Certificate of Incorporation or the Company's by-laws, or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties. No consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Designated Securities
or the consummation by the Company of the other transactions contemplated by
this Agreement or the Indenture (if applicable) except such as have been, or
will have been prior to the Time of Delivery, obtained under the Act, the Trust
Indenture Act (if applicable) and the New York State Public Service Law and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters.
(l) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party, or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(m) The consolidated financial statements of the Company and its
subsidiaries set forth in the Registration and Prospectus fairly present the
financial condition of the Company and its subsidiaries as of the dates
indicated and the results of operations and changes in cash flows for the
periods therein specified in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein).
2. Upon the execution of the Underwriting Agreement applicable to any
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus.
3. One or more Global Securities (as defined in the Indenture specified in
the Underwriting Agreement) for the Designated Securities in the aggregate
principal amount of the Designated Securities shall be registered in the name of
Cede & Co. and delivered to The Depository Trust Company with instructions to
credit the Designated Securities to the account of, or as otherwise instructed
by, the Representative against payment by the Representative of the purchase
price therefor in the amount, the funds and manner specified in the Underwriting
Agreement, at the place, time and date specified in the Underwriting Agreement
or at such other place, time and date as the Representative and the Company may
agree in writing, said time and date being herein referred to as the "Time of
Delivery" for said Designated Securities.
4. The Company agrees with each of the Underwriters of the Designated
Securities:
(a) To prepare the Prospectus specifically relating to the Designated
Securities in a form approved by the Representative and to file the Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the date of this Agreement; after
the date of this Agreement and prior to the Time of Delivery for the Designated
Securities, to make no amendment or supplement to the Registration Statement or
Prospectus to which the Representative shall reasonably object in writing
promptly after reasonable notice thereof; to file timely all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Designated Securities, and during
the same period to advise the Representative, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed, or mailed for filing, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Designated Securities, of the suspension of the
qualification of the Designated Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose or of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order preventing
or suspending the use of any prospectus relating to the Designated Securities or
suspending any such qualification, to use promptly the Company's best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Designated Securities for
offering and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with those laws so as to permit the
continuance of sales and dealings therein in those jurisdictions for as long as
may be necessary to complete the distribution of the Designated Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To deliver to the Representative three signed copies of the
Registration Statement, and each amendment thereto, including exhibits thereto
and documents incorporated by reference therein, and to furnish to the
Underwriters copies of the Prospectus, and each amendment or supplement thereto,
in such quantities as the Representative may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Designated Securities and if at that
time any event shall have occurred as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when the Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during the same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify the Representative and upon its request
to file the document and to prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Representative may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus that will correct the statement or omission or
effect compliance;
(d) To make generally available to the Company's security holders as
soon as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) During the period beginning on the date of this Agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions for the Designated Securities, as notified to the Company by the
Representative, or (ii) the Time of Delivery for the Designated Securities, not
to offer, sell, contract to sell or otherwise dispose of any securities of the
Company that are substantially similar to the Designated Securities, without the
prior written consent of the Representative, other than securities issued (i)
upon conversions of the Company's outstanding securities in accordance with
their terms, or (ii) in connection with the Company's employee stock or dividend
reinvestment plans.
5. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's accountants in connection with the registration of
the Designated Securities under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
preliminary prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of typing, printing or producing this Agreement, any
Indenture, any Blue Sky and legal investment memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Designated
Securities; (iii) all expenses in connection with the qualification of the
Designated Securities for offering and sale under state securities laws as
provided in Section 4(b) hereof, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and any legal investment survey; (iv) any fees charged by
securities rating services for rating the Designated Securities; (v) the cost of
preparing the Designated Securities; (vi) all expenses in connection with the
listing of the Designated Securities on any stock exchange or with the National
Association of Securities Dealers Automated Quotation System; and (vii) all
other costs and expenses incident to the performance of the Company's
obligations hereunder that are not otherwise specifically provided for in this
Section 5. It is understood, however, that, except as provided in this Section
5, or in Section 7 and Section 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Designated Securities by them, and any advertising expenses
connected with any offers they may make.
6. The obligations of the Underwriters under this Agreement shall be
subject, in the discretion of the Underwriters, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery for the Designated Securities, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for filing by the
rules and regulations under the Act and in accordance with Section 4(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been instituted or threatened by the Commission; and all requests for
additional information on the part of the Commission since the date on which the
Registration Statement became effective shall have been complied with to the
reasonable satisfaction of the Representative.
(b) Dewey Ballantine, counsel for the Underwriters, shall have
furnished to the Underwriters such opinion or opinions, dated the Time of
Delivery for the Designated Securities, with respect to the Designated
Securities, the Registration Statement, the Prospectus and such other related
matters as the Representative may reasonably request.
(c) The General Counsel of the Company shall have furnished to the
Underwriters his written opinion, dated the Time of Delivery for the Designated
Securities, in form and substance satisfactory to the Representative, to the
effect that:
(i) The Company has been duly formed and is validly existing and in
good standing under the laws of the State of New York and has full power
and authority to conduct its business and, except as described in the
Registration Statement or in the Prospectus as then amended or
supplemented, to the best of his knowledge possesses all material licenses
and approvals necessary for the conduct of its business;
(ii) The Company has authorized equity capitalization as set forth, or
incorporated by reference, in the Prospectus;
(iii) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as rights of indemnification and contribution
hereunder may be limited by law or principles of public policy;
(iv) If the Designated Securities are debt securities, the Indenture
has been duly authorized, executed and delivered by the Company and
qualified under the Trust Indenture Act and constitutes a valid and
legally binding instrument, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(v) If the Designated Securities are debt securities, the Designated
Securities have been duly authorized, executed, issued and delivered by
the Company, and assuming due authentication in accordance with the
Indenture, constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance
with their terms, subject as to enforcement to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(vi) If the Designated Securities are equity securities, the Designated
Securities have been duly authorized, and, when delivered to and paid for
by the Underwriters in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable;
(vii) The issue and sale of the Designated Securities and the compliance
by the Company with all of the provisions of the Designated Securities, the
Indenture (if applicable) and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
any statute, agreement or instrument known to him to which the Company is a
party or by which it is bound or to which any of the property of the Company is
subject, the Certificate of Incorporation or the Company's by-laws, or any
order, rule or regulation known to him of any court, governmental agency or body
having jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court, governmental agency or body is
required for the issue and sale by the Company of the Designated
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement or the Indenture (if applicable), except
such as have been obtained under the Act, the Trust Indenture Act (if
applicable) and the New York State Public Service Law and such consents,
approvals, authorizations, registrations or qualifications, as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters;
(ix) The Registration Statement (exclusive of any Form T-1, as to which
he need express no opinion or belief) and the Prospectus (other than the
financial statements and related schedules therein, as to which he need
express no opinion or belief) comply as to form in all material respects
with the requirements of the Act and the rules and regulations thereunder;
and the documents incorporated by reference in the Prospectus at the Time
of Delivery (other than the financial statements and related schedules
therein, as to which he need express no opinion or belief) when they were
filed with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations
thereunder;
(x) He has no reason to believe that (A) the Registration Statement as
of the time it became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (B)
the Prospectus as of the date thereof contained, or as of the Time of
Delivery contains, an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances in which they
were made, not misleading; and
(xi) The statements contained in the Prospectus as amended or
supplemented under the captions specified in the Underwriting Agreement, insofar
as said statements constitute a summary of the documents referred to therein,
are accurate and fairly present the information required to be shown; to the
best of his knowledge, there are no legal or governmental proceedings pending,
or contemplated by governmental authorities, to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, in any such case, are required by the Act or
the Exchange Act or the rules and regulations thereunder to be described in the
Prospectus or the documents incorporated by reference therein that are not
described as so required; and he does not know of any contracts or documents of
a character required to be described in the Registration Statement or Prospectus
(or required to be filed under the Exchange Act if upon filing they would be
incorporated, in whole or in part, by reference therein) or to be filed as
exhibits to the Registration Statement that are not described and filed as
required;
(xii) Consolidated Edison, Inc. is exempt from the
provisions of the Public Utility Holding Company Act of 1935 except Section
9(a)(2) thereof;
(d) At 10:00 a.m., New York City time, at the Time of Delivery for the
Designated Securities, PricewaterhouseCoopers LLP shall have furnished to the
Representative a letter, dated the Time of Delivery, to the effect set forth in
Annex I hereto, and as to such other matters as the Representative may
reasonably request and in form and substance satisfactory to the Representative;
(e) Since the respective dates as of which information is given in the
Prospectus there shall not have been any material adverse change in the capital
stock or long-term debt of the Company, or in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries (taken as a whole), other than as set forth or
contemplated in the Prospectus as of the date of this Agreement, the effect of
which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus;
(f) Subsequent to the date of this Agreement, (i) no downgrading or
withdrawal shall have occurred in the rating accorded any securities of the
Company by Moody's Investors Service Inc., Standard & Poor's Ratings Group or
Fitch Investor Services, and (ii) neither Moody's Investors Service Inc.,
Standard & Poor's Rating Group nor Fitch Investor Services shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any securities of the Company;
(g) Subsequent to the date of this Agreement there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the declaration of a war
directly involving the United States of America, or the occurrence of any other
national calamity, or the outbreak or escalation of any conflict involving the
armed forces of the United States of America, if the effect of any such event
specified in this Section 6(g) in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Securities on the terms and in the manner contemplated in the
Prospectus; and
(h) The Company shall have furnished or caused to be furnished to the
Representative at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representative as to the accuracy of the representations and warranties of the
Company herein at and as of the Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to the
Time of Delivery, and as to the matters set forth in subsections (a) (the
statement that no stop order has been "threatened" by the Commission may be
qualified by the phrase "to the best of our knowledge," (e) and (f) (item (ii)
may be qualified by the phrase "to the best of our knowledge") of this Section
6.
(i) The Designated Securities shall have been approved for listing on
the stock exchanges, if any, specified in the Underwriting Agreement.
7. (a) The Company will indemnify each Underwriter and hold it harmless
against any losses, claims, damages or liabilities, joint or several, to which
any Underwriter may become subject, under the Act or otherwise, insofar as the
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue or allegedly untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by the Underwriter in connection with investigating or defending any
such action or claims, promptly as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or allegedly untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the Prospectus,
or any amendment or supplement thereto, in reliance upon and in conformity with
Underwriter Information.
(b) Each Underwriter will indemnify the Company and hold it harmless
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as the losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or allegedly untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that said untrue statement
or allegedly untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus or any
amendment or supplement thereto, in reliance upon and in conformity with
Underwriter Information; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) of this Section 7 of notice of the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under said subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party other than under said subsection. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to the indemnified
party, and, after notice from the indemnifying party to the indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to the indemnified party under said subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred by
the indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of its
counsel shall be at the expense of the indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
contrary, (ii) the indemnifying party has failed within a reasonable time to
retain counsel reasonably satisfactory to the indemnified party or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would, in the reasonable judgment of the indemnified
party, be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceeding, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
indemnified parties, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters and control
persons of Underwriters entitled to indemnification under subsection (e) of this
Section 7 shall be designated in writing by the Representative and any such
separate firm for the Company, its Trustees (directors) and officers and control
persons, if any, of the Company shall be designated in writing by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold an indemnified party harmless under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of said losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which said loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to the amount paid or payable by the indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and Underwriters of the
Designated Securities on the other in connection with the statements or
omissions that resulted in said losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or allegedly 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 the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters 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 above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by the indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Designated Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that said Underwriter has otherwise been required to pay
by reason of said untrue or allegedly untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of the fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to the Designated Securities and not joint. The foregoing provisions regarding
contribution shall apply except as otherwise required by applicable law.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and Trustee (director) of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
8. If, at the Time of Delivery, any one or more of the Underwriters shall
default in its obligation to purchase any of the Designated Securities, and the
aggregate principal amount or aggregate number of shares (as the case may be) of
the Designated Securities set forth opposite the name or names of the defaulting
Underwriter or Underwriters in Schedule I to the Underwriting Agreement is not
more than one-tenth of the aggregate principal amount or aggregate number of
shares (as the case may be) of the Designated Securities, the other Underwriters
shall be obligated severally in the proportions that the principal amount or
number of shares (as the case may be) of Designated Securities set forth
opposite their respective names in Schedule I to the Underwriting Agreement
bears to the aggregate principal amount or aggregate number of shares (as the
case may be) of Designated Securities set forth opposite the names of all the
non-defaulting Underwriters, or in such other proportions as the Underwriters
may agree, to purchase the Designated Securities as to which the defaulting
Underwriter or Underwriters so defaulted on that date; provided that in no event
shall the principal amount or number of shares (as the case may be) of
Designated Securities that any Underwriter has agreed to purchase pursuant to
this Agreement be increased pursuant to this Section 8 by an amount in excess of
one-ninth of the aggregate principal amount or aggregate number of shares (as
the case may be) of Designated Securities without the written consent of that
Underwriter. If any Underwriter or Underwriters shall default in its or their
obligation to purchase Designated Securities and the aggregate principal amount
or aggregate number of shares (as the case may be) of Designated Securities set
forth opposite the name or names of the defaulting Underwriter or Underwriters
in Schedule I to the Underwriting Agreement is more than one-tenth of the
aggregate principal amount or aggregate number of shares (as the case may be) of
Designated Securities, and arrangements satisfactory to the Underwriters and the
Company for the purchase of said Designated Securities are not made within 36
hours after the default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Sections 5 and 7 hereof. In any such case, either the Underwriters or the
Company shall have the right to postpone the Time of Delivery, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this Section 8 shall not
relieve any defaulting Underwriter from liability in respect of any default of
said Underwriter under this Agreement.
9. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any control person of any Underwriter, or the Company, or
any officer or Trustee (director) or control person of the Company, and shall
survive delivery of and payment for the Designated Securities and any
termination of this Agreement.
10. If any condition specified in Section 6 of this Agreement shall not
have been fulfilled when and as required to be fulfilled thereunder, then this
Agreement may be terminated by the Representative upon notice to the Company.
11. If this Agreement shall be terminated pursuant to Section 8 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Designated Securities except as provided in Section 5 and Section
7 hereof; but, if for any other reason Designated Securities are not delivered
by or on behalf of the Company as provided herein, the Company will reimburse
the Underwriters for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Designated Securities.
Unless the cause for non-delivery shall be a matter within the reasonable
control of the Company, the Company shall be under no further liability to any
Underwriter with respect to the Designated Securities except as provided in
Section 5 and Section 7 hereof.
12. In all dealings under this Agreement, the Company shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representative.
13. All statements, requests, notices and agreements under this Agreement
shall be in writing, or, if promptly confirmed in writing, by telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted, and if to the Underwriters shall
be sufficient in all respects if delivered or sent by registered mail to the
Representative at the address specified for the Representative in the
Underwriting Agreement; and if to the Company shall be sufficient in all
respects if delivered or sent by registered mail to the address of the Company
set forth in the Registration Statement, Attention:
Secretary.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 7 and
9 hereof, the officers and Trustees (directors) of the Company and each person,
if any, who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Designated Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. This Agreement shall be construed in accordance with the laws of the
State of New York.
17. This Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
ANNEX I
Pursuant to Section 6 (d) of the Underwriting Agreement, PricewaterhouseCoopers
LLP shall furnish a letter to the Representative to the effect that:
(i) they are independent accountants with respect to the Company within the
meaning of the Act and the rules and regulations adopted by the Securities
and Exchange Commission;
(ii) in their opinion, the consolidated financial statements audited by them
and incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the rules and regulations adopted by
the Securities and Exchange Commission with respect to registration
statements on Form S-3;
(iii) on the basis of a reading of the latest available unaudited consolidated
financial statements of the Company and the minute books of the Company,
and inquiries of certain officials of the Company who have responsibility
for financial and accounting matters (it being understood that the
foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards, and they would not necessarily
reveal matters of significance with respect to the comments made in such
letter, and accordingly that PricewaterhouseCoopers LLP makes no
representation as to the sufficiency of such procedures for the
Underwriters' purposes), nothing has come to their attention which caused
them to believe that (A) the unaudited consolidated financial statements
incorporated by reference in the Registration Statement, or from which
information set forth in the Registration Statement was taken, do not
comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to the Form 10-Q and the
rules and regulations adopted by the Securities and Exchange Commission,
or any material modifications should be made to the unaudited consolidated
financial statements for them to be in conformity with generally accepted
accounting principles, (B) for the twelve month period ended the date of
the latest available financial statements of the Company, there were any
decreases in operating revenues less fuel, purchased power and gas
purchased for resale, operating income or net income for common stock as
compared with the comparable prior period, except in all instances for
decreases that the Registration Statement discloses have occurred or may
occur, or decreases which are specified in such letter, identifying the
same and specifying the amount thereof or (C) at a specified date not more
than five days prior to the date of such letter, there was any change in
the capital stock or long-term debt of the Company, or decrease in its
common shareholders' equity, in each case as compared with amounts shown
in the most recent consolidated balance sheet incorporated by reference in
the Registration Statement, except in all instances for changes or
decreases that the Registration Statement discloses have occurred or may
occur, for payment of maturing installments of long-term debt and
preferred stock, for conversions of convertible preferred stock, for the
declaration of quarterly dividends or for the acquisition of preferred
stock or long-term debt for sinking fund purposes, or for changes or
decreases which are described in such letter, identifying the same and
specifying the amount thereof; and
(iv) they have compared the dollar amounts (or percentages or ratios derived
from such dollar amounts) and other financial information included or
incorporated by reference in the Registration Statement as reasonably
requested by the Underwriters (in each case to the extent that such
dollar amounts, percentages and other financial information are derived
from the accounting records of the Company subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the accounting
records of the Company, and have found such dollar amounts, percentages
and other financial information to be in agreement with such records,
except as otherwise specified in such letter.
November 4, 1999
Consolidated Edison Company
of New York, Inc.
4 Irving Place
New York, New York 10003
Re: Securities Being Registered Under the Securities Act of 1933
Ladies and Gentlemen:
I am the Vice President and Deputy General Counsel of Consolidated
Edison Company of New York, Inc. ("Con Edison"). I and other members of Con
Edison's Law Department have represented Con Edison in connection with the
filing by Con Edison with the Securities and Exchange Commission of a
Registration Statement on Form S-3 registering $500 million of unsecured debt
securities of Con Edison (the "Securities") for issuance from time to time
pursuant to Rule 415 under the Securities Act of 1933 (the "Registration
Statement"). The Securities are to be issued under the Indenture, dated as of
December 1, 1990, between Con Edison and The Chase Manhattan Bank (successor to
The Chase Manhattan Bank (National Association)), as Trustee (the "Trustee"), as
amended and supplemented by a First Supplemental Indenture, dated as of March 6,
1996 (the Indenture, as so amended and supplemented, is herein referred to as
the "Indenture").
I have examined such documents as I have deemed necessary for the purpose
of this opinion, including (a) the Certificate of Incorporation and the By-Laws
of Con Edison; (b) the Indenture; and (c) minutes of meetings of the Board of
Trustees of Con Edison. It is my opinion that the Securities will become the
legal, valid and binding obligations of Con Edison in accordance with their
terms upon:
1. the issuance of an order by the Public Service Commission of the
State of New York (the "PSC") authorizing Con Edison to issue the
Securities and the compliance therewith by Con Edison, and the
issuance by the PSC, to the extent required by the terms of the
order, of a letter to the effect that such order is no longer
subject to abrogation with respect to the Securities;
2. the due authorization and execution of the Securities by Con
Edison;
3. the due authentication and delivery of the Securities in
accordance with the Indenture; and
4. the receipt by Con Edison of payment for the Securities at the price
and in accordance with the terms set forth in the Registration
Statement and the supplement or supplements to the prospectus
constituting a part thereof.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to me under the caption "Legal Matters" in the
prospectus constituting a part of the Registration Statement. However, in giving
such consent, I do not thereby admit that I come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations thereunder.
Very truly yours,
Edwin W. Scott
Edwin W. Scott
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
Ratio of Earnings to Fixed Charges
Twelve Months Ended
(Thousands of Dollars)
SEPTEMBER SEPTEMBER
1999 1998
---------- ---------
Earnings
Net Income $718,914 $726,911
Federal Income Tax 885,419 340,920
Federal Income Tax Deferred (450,248) 70,620
Investment Tax Credits Deferred (8,351) (8,740)
---------- ----------
Total Earnings Before Federal Income Tax 1,145,734 1,129,711
Fixed Charges* 338,989 352,440
---------- ----------
Total Earnings Before Federal Income Tax
and Fixed Charges $1,484,723 $1,482,151
* Fixed Charges
Interest on Long-Term Debt $291,252 $299,387
Amort. of Debt Discount, Premium & Expense 13,687 13,361
Interest on Component of Rentals 18,213 18,346
Other Interest 15,837 21,346
---------- ----------
Total Fixed Charges $338,989 $352,440
Ratio of Earnings to Fixed Charges 4.38 4.21
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 23, 1999 except as to Note K, which is as of March 2, 1999 appearing on
page 39 of the Consolidated Edison Company of New York, Inc. Annual Report on
Form 10-K for the year ended December 31, 1998. We also consent to the reference
to us under the heading "Experts" in such Prospectus.
PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
New York, New York
November 4, 1999
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 20th day
of May, 1999.
Eugene R. McGrath
Eugene R. McGrath
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 24th day
of May, 1999.
Joan S. Freilich
Joan S. Freilich
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 24th day
of May, 1999.
Hyman Schoenblum
Hyman Schoenblum
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 24th day
of May, 1999.
E. Virgil Conway
E. Virgil Conway
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 25th day
of May, 1999.
Gordon J. Davis
Gordon J. Davis
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 25th day
of May, 1999.
Ruth M. Davis
Ruth M. Davis
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 25th day
of May, 1999.
Ellen V. Futter
Ellen V. Futter
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 25th day
of May, 1999.
Sally Hernandez-Pinero
Sally Hernandez-Pinero
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 25th day
of May, 1999.
Peter W. Likins
Peter W. Likins
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 25th day
of May, 1999.
Robert G. Schwartz
Robert G. Schwartz
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 24th day
of May, 1999.
Richard A. Voell
Richard A. Voell
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S
Freilich, Hyman Schoenblum and Peter A. Irwin, and each of them (with full power
to act without the others), the true and lawful attorney-in-fact and agent for
and on behalf of the undersigned, and in the undersigned's name, place and
stead, in the undersigned's capacity as a Trustee or Officer or both, as the
case may be, of Consolidated Edison Company of New York, Inc. ("Con Edison") to
sign the Registration Statement on Form S-3 to be filed by Con Edison with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933 of not to exceed $500 million of debt obligations of Con Edison, and any
and all amendments of such Registration Statement.
IN WITNESS WHEREOF, the undersigned has executed this instrument, this 25th day
of May, 1999.
Stephen R. Volk
Stephen R. Volk
-------------------------------------------------------------------
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 CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
(Exact name of obligor as specified in its charter)
New York 13-5009340
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
4 Irving Place
New York, New York 10003
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of the indenture securities)
GENERAL
Item 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.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
- 2 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939 (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference. On July
14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan
Bank (National Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, 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 3rd day of November,1999.
THE CHASE MANHATTAN BANK
By ________________________
William G. Keenan
Trust Officer
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Trust
Indenture Act 1939 (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference. On July
14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan
Bank (National Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, 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 3rd day of November, 1999.
THE CHASE MANHATTAN BANK
By _/s/William G. Keenan___
William G. Keenan
Trust Officer
- 3 -
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, 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 Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..........................................$ 15,364
Interest-bearing balances ................................. 3,811
Securities:
............................................................................
Held to maturity
securities................................................... 1,084
Available for sale
securities................................................. 49,894
Federal funds sold and securities purchased under
agreements to resell ......................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,839
Less: Allowance for loan and lease losses 2,642
Less: Allocated transfer risk reserve ......... 0
--------------
Loans and leases, net of unearned income,
allowance, and reserve .........................................129,197
Trading Assets
................................................................... 45,483
Premises and fixed assets (including capitalized
leases)............................................................. 3,124
Other real estate owned
....................................................... 242
Investments in unconsolidated subsidiaries and
associated companies............................................... 171
Customers' liability to this bank on acceptances
outstanding
.................................................................... 974
Intangible assets
................................................................... 2,017
Other assets
................................................................... 12,477
TOTAL ASSETS
................................................................. $291,476
=========
- 4 -
LIABILITIES
Deposits
In domestic offices ....................................... $102,273
Noninterest-bearing ..................................... $39,135
Interest-bearing ......................................... . 63,138
In foreign offices, Edge and Agreement,
subsidiaries and IBF's
................................................................ 74,586
Noninterest-bearing ........................................ $ 4,221
Interest-bearing ........................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase
............................................................... 41,039
Demand notes issued to the U.S. Treasury ........................ 1,000
Trading liabilities
.............................................................. 32,929
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ........... 4,353
With a remaining maturity of more than one year .
through three
years.......................................................... 14
With a remaining maturity of more than three years..... 92
Bank's liability on acceptances executed and outstanding 974
Subordinated notes and debentures ............................... 5,427
Other liabilities
..................................................................9,684
TOTAL LIABILITIES
......................................................... 272,371
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock
.................................................................. 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves ........................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities
......................................................... (179)
Accumulated net gains (losses) on cash flow hedges......... 0
Cumulative foreign currency translation adjustments......... 17
TOTAL EQUITY CAPITAL ........................................... 19,105
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TOTAL LIABILITIES AND EQUITY CAPITAL ...........................$291,476
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I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE )DIRECTORS
WILLIAM B. HARRISON, JR.)
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