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REGISTRATION NO. 33-
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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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CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
NEW YORK 14-0555980
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
(914) 452-2000
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN E. MACK III, CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
(914) 486-5239
OR
WILLIAM P. REILLY, ASSISTANT SECRETARY
ONE CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005-1401
(212) 344-5680
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copies of all communications to:
DAVID P. FALCK, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004-1490
(COUNSEL FOR THE UNDERWRITERS)
(212) 858-1438
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the Registration Statement becomes effective, when warranted by
market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER UNIT(1)(3) PRICE(1)(2)(3) FEE(4)
<S> <C> <C> <C> <C>
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Debt Securities and Common Stock, $5.00 par value, but
not in excess of $40 million aggregate initial
offering price of such Common Stock................. -- -- $80,000,000 $27,600
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Cumulative Preferred Stock, par value $100 per
share............................................... 250,000 $100.00 $25,000,000 $8,700
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Depositary Preferred Shares, each representing 1/4 of
a share of Cumulative Preferred Stock, par value
$100 per share, each evidenced by Depositary
Receipts............................................ 1,000,000 -- -- --
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Total.......................................................................................................... $36,300
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</TABLE>
(1) The amount to be registered, the proposed maximum offering price per unit
and the proposed maximum aggregate offering price for each class of the Debt
Securities and Common Stock, $5.00 par value, being registered have been
omitted in accordance with the General Instructions to Form S-3.
(2) In no event will the aggregate initial offering price of the Debt Securities
(excluding accrued interest) and Common Stock issued under this registration
statement exceed $80,000,000; nor will the aggregate initial offering price
of shares of Common Stock exceed $40,000,000.
(3) The proposed maximum offering price per unit and the proposed maximum
aggregate offering price for the Cumulative Preferred Stock being registered
have been estimated solely for the purpose of calculating the registration
fee.
(4) The amount of the registration fee in respect of the Debt Securities, the
Common Stock and the Cumulative Preferred Stock to be registered has been
calculated in accordance with Rule 457(o) under the Securities Act of 1933.
AMENDMENT FILED IN ACCORDANCE WITH RULE 473(a)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
PROSPECTUS
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
$80,000,000
OF
DEBT SECURITIES
AND/OR
COMMON STOCK
(PAR VALUE $5.00 PER SHARE)
AND
250,000 SHARES
OF
CUMULATIVE PREFERRED STOCK
(PAR VALUE $100 PER SHARE)
Central Hudson Gas & Electric Corporation ("Company") may offer from time
to time: (i) its Debt Securities ("Debt Securities"), consisting of its First
Mortgage Bonds ("New Bonds") and/or Unsecured Notes ("Unsecured Notes"); (ii)
its Cumulative Preferred Stock, par value $100 per share ("New Preferred
Stock"); and (iii) its Common Stock, par value $5.00 per share ("Additional
Common Stock"), each in amounts, at prices and on terms to be determined at the
time or times of sale. The New Bonds, Unsecured Notes, New Preferred Stock and
Additional Common Stock may be issued in one or more series or issuances. The
aggregate initial offering price of the Debt Securities and the Additional
Common Stock will not exceed $80,000,000 and the aggregate initial offering
price of shares of the Additional Common Stock will not exceed $40,000,000. The
number of shares of New Preferred Stock will not exceed 250,000. The New Bonds,
Unsecured Notes, New Preferred Stock and Additional Common Stock are
collectively referred to herein as the "Securities."
For each offering of Securities for which this Prospectus is being
delivered, there will be an accompanying Prospectus Supplement ("Prospectus
Supplement") that sets forth, (i) with respect to the Debt Securities, the
specific series designation, aggregate principal amount, rate (or method of
calculation) and time of payment of interest, initial public offering price,
maturity, repayment, redemption or repurchase terms, if any, credit enhancement,
if any, and other specific terms, if any, of the series of the Debt Securities
in respect of which this Prospectus and such Prospectus Supplement is being
delivered ("Offered Bonds", in the case of the New Bonds, or "Offered Notes," in
the case of the Unsecured Notes); (ii) with respect to New Preferred Stock, the
number of shares, the specific title and series, any dividend, liquidation or
redemption terms, the dividend payment dates, whether and to what extent the New
Preferred Stock may be offered in the form of depositary preferred shares, each
representing ownership of 1/4 of a share of New Preferred Stock ("Depositary
Preferred Shares"), and whether application will be made to list any such
Depositary Preferred Shares on the New York Stock Exchange, the initial public
offering price and other specific terms, if any, of the series of New Preferred
Stock in respect of which this Prospectus and such Prospectus Supplement is
being delivered; (iii) and with respect to Additional Common Stock, the number
of shares, the initial public offering price and the other specific terms, if
any, of the offering thereof in respect of which this Prospectus and such
Prospectus Supplement is being delivered. See "Description of the New Bonds,"
"Description of the Unsecured Notes," "Description of New Preferred Stock,"
"Description of Depositary Preferred Shares and Depositary Receipts," and
"Description of Common Stock" under the caption "Securities."
The outstanding shares of Common Stock are, and the Additional Common
Stock, subject to official notice of issuance, will be listed on the New York
Stock Exchange ("NYSE"). See "Securities -- Common Stock Dividends and Price
Range."
The Company may sell the Securities through underwriters or dealers,
directly to one or more purchasers or through agents. The Prospectus Supplement
will set forth the names of such underwriters, dealers or agents, if any, any
applicable commissions or discounts and the net proceeds to the Company from the
sale of the Securities thereby. See "Plan of Distribution," which also describes
possible indemnification arrangements for underwriters and agents.
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THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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THE DATE OF THIS PROSPECTUS IS , 1994
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IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AND OTHER SECURITIES OF THE COMPANY AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON
THE NYSE, IN RESPECT OF THE ADDITIONAL COMMON STOCK AND ANY DEPOSITARY PREFERRED
SHARES WHICH MAY BE LISTED ON SUCH EXCHANGE, OR OTHERWISE. SUCH STABILIZATION,
IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 ("1934 Act") and, in accordance therewith, files reports
and other information with the Securities and Exchange Commission
("Commission"). Certain information as of specified dates with respect to the
Company's directors, and certain other information with respect to the
remuneration paid by the Company to its directors and officers and with respect
to interests of management and others in certain transactions with the Company,
is disclosed in proxy statements distributed to shareholders of the Company and
filed by it with the Commission. Such reports, proxy statements and other
information filed with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511 and 7 World Trade Center, 13th Floor, New York, New
York 10048; and copies of such material can also be obtained at prescribed rates
from the Public Reference Section of the Commission at its principal office at
450 Fifth Street, N.W., Washington, D.C. 20549. In addition, certain securities
of the Company are listed on the NYSE, 20 Broad Street, New York, New York
10005, where reports, proxy materials and other information concerning the
Company can also be inspected.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents heretofore filed with the Commission pursuant to the 1934 Act (File
No. 1-3268):
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1993.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1994, June 30, 1994 and September 30, 1994.
3. The Company's Current Reports on Form 8-K, dated January 5, 1994,
January 24, 1994 and April 21, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of this offering made by this Prospectus shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents (such documents, and the documents enumerated
above, being hereinafter referred to as "Incorporated Documents"; provided,
however, that the documents enumerated above or subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act in each
year during which the offering made by this Prospectus is in effect prior to the
filing with the Commission of the Company's Annual Report on Form 10-K covering
such year shall not be Incorporated Documents or be incorporated by reference in
this Prospectus or be a part hereof from and after such filing of such Annual
Report on Form 10-K.
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Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Prospectus.
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The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference into such documents).
Requests for such copies should be directed to Mr. Steven V. Lant, Treasurer and
Assistant Secretary, Central Hudson Gas & Electric Corporation, 284 South
Avenue, Poughkeepsie, New York 12601-4879; telephone number (914) 486-5254.
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THE COMPANY
The Company was incorporated in 1926 under the Transportation Corporations
Law of the State of New York as a consolidation of several operating utilities
which had been accumulated under one management during the previous 26 years.
The Company supplies electric and gas service in the Mid-Hudson River Valley
region of New York State. The Company's principal executive office is located at
284 South Avenue, Poughkeepsie, New York 12601-4879 and its telephone number is
(914) 452-2000.
Total revenues and operating income before income taxes (expressed as
percentages), derived from electric and gas operations for each of the last
three years, were as follows:
<TABLE>
<CAPTION>
PERCENT OF PERCENT OF OPERATING
TOTAL REVENUES INCOME BEFORE INCOME TAXES
--------------------- --------------------------
ELECTRIC GAS ELECTRIC GAS
-------- ---- -------- ---
<S> <C> <C> <C> <C>
1993........................ 82% 18% 89% 11%
1992........................ 82% 18% 87% 13%
1991........................ 86% 14% 93% 7%
</TABLE>
For the year ended December 31, 1993, the Company served an average of
259,650 electric and 59,218 gas customers. Of the Company's total electric
revenues during that period, approximately 42% was derived from residential
customers, 30% from commercial customers, 22% from industrial customers and 6%
from other utilities and miscellaneous sources. Of the Company's total gas
revenues during that period, approximately 45% was derived from residential
customers, 30% from commercial customers, 4% from industrial customers, 14% from
interruptible customers and 7% from miscellaneous sources (including revenues
from transportation of customer-owned gas).
The Company's largest customer is International Business Machines
Corporation, which accounted for approximately 14% of the Company's total
electric revenues and approximately 8% of its total gas revenues for the year
ended December 31, 1993.
USE OF PROCEEDS
The Company is offering hereby the Securities, in the maximum amounts
described on the cover page of this Prospectus, on terms to be determined when
an agreement or agreements to sell any or all of same are made from time to
time.
As more fully set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of the Securities, together with funds from operations
and the proceeds of the sale of other securities, may be used by the Company for
(a) the payment of maturing issues of debt securities or the redemption of
outstanding debt securities when such redemptions result in an overall cost
savings to the Company; (b) redemption of one or more series of the Company's
Cumulative Preferred Stock, when such redemptions result in an overall cost
savings to the Company; (c) repaying commercial paper and/or short-term debt
outstanding at any time; and/or (d) financing the expenditures for its
construction program and for other corporate purposes. Excess proceeds, if any,
from the sale of the Securities will be temporarily invested in short-term
instruments pending application to the foregoing purposes. Any specific
securities acquired with the proceeds of sales of any Securities will be set
forth in the Prospectus Supplement relating to such Securities.
The Company estimates it will require additional funds for its construction
program and for other corporate purposes and expects to incur short-term
borrowings and may issue and sell additional securities as needed, in amounts
and of types presently undetermined.
Reference is made to the Incorporated Documents with respect to the
Company's construction program and other significant capital requirements and
its general financing plan and capabilities.
3
<PAGE> 5
RATIOS OF EARNINGS
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
TWELVE MONTHS
YEAR ENDED DECEMBER 31, ENDED
---------------------------------------- SEPTEMBER 30,
1989 1990 1991 1992 1993 1994
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges*......... 2.33 2.43 2.70 3.07 3.29 3.40**
</TABLE>
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* Year-end figures for 1989, 1990, 1991 and 1992 are restated to conform to
current (1993 and 1994) reporting which includes the interest portion of rent
expense as a component of interest charges.
** For the three and nine months ended September 30, 1994, such ratios are 3.36
and 3.66, respectively, which reflect the seasonal nature of the Company's
business.
For purposes of this ratio, (i) earnings consist of pretax income from
continuing operations to which fixed charges have been added; and (ii) fixed
charges consist of interest charges on first mortgage bonds, other long-term
debt, short-term debt, other interest charges, amortization of premium and
expense on debt and the portion of rents representative of the interest factor.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Company's ratio of earnings to fixed charges and preferred stock
dividends for each of the last five fiscal years is as follows:
<TABLE>
<CAPTION>
TWELVE MONTHS
YEAR ENDED DECEMBER 31, ENDED
---------------------------------------- SEPTEMBER 30,
1989 1990 1991 1992 1993 1994
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends*................ 1.96 2.04 2.22 2.49 2.65 2.74**
---- ---- ---- ---- ---- -----
</TABLE>
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* Year-end figures for 1989, 1990, 1991 and 1992 are restated to conform to
current (1993 and 1994) reporting which includes the interest portion of rent
expense as a component of interest charges.
** For the three and nine months ended September 30, 1994, such ratios are 2.72
and 2.98 respectively, which reflect the seasonal nature of the Company's
business.
For the purposes of this ratio, (i) earnings consist of pretax income from
continuing operations to which fixed charges have been added; and (ii) fixed
charges consist of interest charges on first mortgage bonds, other long-term
debt, short-term debt, other interest charges, preferred stock dividends,
amortization of premium and expense on debt and the portion of rents
representative of the interest factor. Preferred stock dividend requirements
have been adjusted to reflect the pretax earnings required to cover such
dividend requirements.
SECURITIES
DESCRIPTION OF THE NEW BONDS
General: The New Bonds are to be issued as one or more series of First
Mortgage Bonds ("Mortgage Bonds") under an Indenture of Mortgage, dated as of
January 1, 1927, between the Company and American Exchange Irving Trust Company
(now The Bank of New York), as trustee ("Mortgage Trustee"), as heretofore
supplemented and amended and as to be supplemented by one or more supplemental
indentures relating to the New Bonds. The Indenture of Mortgage, as heretofore
supplemented and amended and as to be supplemented by said supplemental
indenture or indentures, is hereinafter called the "Mortgage." The summaries
herein concerning the New Bonds and the Mortgage do not purport to be complete
and are qualified in their entirety by express reference to the Mortgage.
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Reference is made to the applicable Prospectus Supplement for the following
terms of the Offered Bonds (among others): (i) the designation and series of the
Offered Bonds; (ii) the percentage or percentages of their principal amount at
which such Offered Bonds will be issued; (iii) the date or dates on which the
Offered Bonds will mature; (iv) the rate or rates at which the Offered Bonds
will bear interest; (v) the times at which such interest will be payable; (vi)
the dates, if any, on which and the price or prices at which the Offered Bonds
will, pursuant to any mandatory sinking fund provisions, or may, pursuant to any
optional sinking fund provisions, be redeemed by the Company, and the other
detailed terms and provisions of such sinking funds; (vii) the date, if any,
after which and the price or prices at which the Offered Bonds will, pursuant to
any optional redemption or repurchase provisions, be redeemable or
repurchaseable at the option of the Company or the holders thereof and the other
detailed terms and provisions of such optional redemptions or repurchases;
(viii) whether the Offered Bonds are to be issued in whole or in part in
book-entry form, and accordingly will be represented by, one or more global
securities and, if so, the identity of the depositary for such global
securities; and (ix) any other special terms or provisions not inconsistent with
the terms of the Mortgage.
Form and Exchangeability: The New Bonds will be issuable only in fully
registered form, without coupons, and will be exchangeable for a like aggregate
principal amount of New Bonds of other authorized denominations of the same
series, unless otherwise specified in the applicable Prospectus Supplement.
The Company shall not be required to make exchanges of the New Bonds for a
period of 15 days next preceding any interest payment date, unless otherwise
specified in the applicable Prospectus Supplement.
In the event that all or substantially all of the properties of the Company
are taken by the power of eminent domain, the Company, except in certain
circumstances described in the Mortgage, is obligated to call all of the
outstanding Mortgage Bonds for redemption at the then applicable redemption
price (or if there is no applicable redemption price, then at 100% of their
principal amount), together with accrued interest to the date fixed for
redemption. Reference is made to the applicable Prospectus Supplement for the
redemption price which shall be applicable to the Offered Bonds in the event
that all or substantially all of the properties of the Company are taken by the
power of eminent domain.
The Mortgage provides that cash on deposit with the Trustee (on account of
or relating to (i) a net deficiency in the annual depreciation or replacement
reserve (as described under "Maintenance and Reserves" below), (ii) proceeds of
insurance, (iii) proceeds of released property, (iv) compensation received for a
partial taking of property by eminent domain, or (v) the basis for the issuance
of additional bonds) in certain circumstances is permitted, or required, to be
applied by the Company or the Trustee to the redemption or purchase of Mortgage
Bonds of any series. The applicable Prospectus Supplement will describe the
extent to which such provisions are applicable to the Offered Bonds, including
the applicable redemption price.
Security and Priority: The New Bonds will rank equally as to security with
the Mortgage Bonds of other series presently outstanding under the Mortgage
(except insofar as a sinking fund established in accordance with the provisions
of the Mortgage may afford additional security for the bonds of any particular
series) which is, in the opinion of Gould & Wilkie, the Company's counsel, a
valid, binding and direct lien on all real estate and property of the Company
(including franchises, easements, rights of way and other rights relating to
real estate) specifically or generally described or referred to in the Mortgage
as subject to the lien thereof and now owned by the Company, subject to no liens
or encumbrances, except (i) taxes for the current year and taxes and assessments
not yet due, (ii) certain encumbrances on easements or rights of way and certain
minor liens and encumbrances, which, in the opinion of said counsel, do not
materially affect the use of such property by the Company in the normal course
of its business, and (iii) any other liens or encumbrances defined in the
Mortgage as "excepted encumbrances." There are no obligations secured by a lien
on the property of the Company outstanding except those issued under the
Mortgage. The Mortgage contains provisions subjecting to the lien thereof such
property and franchises subsequently acquired.
Issuance of Mortgage Bonds: The New Bonds are of a series which is
unlimited in aggregate principal amount, except as otherwise provided in the
Mortgage, and except as may be provided in any subsequent supplemental
indenture. Additional Mortgage Bonds of the same or other series may be issued
under the Mortgage in principal amount unlimited except as aforesaid. Such
additional Mortgage Bonds may be so
5
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issued upon the basis (each a "Basis") of (1) 66 2/3% of the "net bondable value
of property additions," as that term is defined in the Mortgage; (2) 66 2/3% of
the amount by which such net bondable value is increased by the retirement or
reduction of "prior lien bonds," as that term is defined in the Mortgage; (3)
cash deposited with the Trustee; or (4) refunding or replacing a like aggregate
principal amount of any Mortgage Bonds theretofore issued under the Mortgage and
then retired.
As a further condition to the issuance of Mortgage Bonds upon the Bases
specified in clauses (1), (2) or (3) of the immediately preceding paragraph, the
Mortgage requires that the Company's "net earnings," as that term is defined in
the Mortgage, for 12 consecutive calendar months within the 15 calendar months
immediately preceding the date when the Mortgage Trustee receives any
application for authentication and delivery of such Mortgage Bonds must exceed
two times the interest charges for one year on (a) all Mortgage Bonds
outstanding under the Mortgage, (b) the Mortgage Bonds then applied for, (c) all
prior lien bonds to be outstanding immediately after the authentication of the
Mortgage Bonds then applied for, and (d) all indebtedness secured by any lien
prior to the lien of the Mortgage if the indebtedness secured thereby has been
assumed by the Company or if the Company customarily pays the interest on such
indebtedness. For the 12 months ended September 30, 1994, such ratio of net
earnings to interest charges was 6.67; and at such date the Company could have
issued $437 million of additional Mortgage Bonds upon the Bases specified in
clauses (1), (2) or (3) above and such "net earnings" limitation, assuming an
annual interest rate of 9%.
The amount of net bondable value of property additions at September 30,
1994 was approximately $223 million. Therefore, the amount of additional
Mortgage Bonds issuable with respect thereto upon the Basis specified in clause
(1) above was approximately $148 million. In addition, at September 30, 1994,
approximately $353 million of additional Mortgage Bonds could have been issued
upon the Basis specified in clause (4) above, against Mortgage Bonds which have
been retired.
Accordingly, as of September 30, 1994, the Company could have issued under
the applicable Bases and the "net earnings" limitation an aggregate of
approximately $501 million principal amount of additional Mortgage Bonds.
Cash deposited with the Mortgage Trustee against the issuance of Mortgage
Bonds may be withdrawn to the extent of 66 2/3% of the net bondable value of
property additions. At September 30, 1994, no cash was on deposit with the
Mortgage Trustee under said provision.
Reference is made to the applicable Prospectus Supplement for the Basis or
Bases under the Mortgage upon which the Offered Bonds are to be issued.
Maintenance and Reserves: The Company covenants to maintain the trust
estate (property subject to the lien of the Mortgage) in first class operating
condition. Upon demand by the Trustee on the written request of the holders of
at least 2% in principal amount of outstanding Mortgage Bonds, the Company shall
cause an independent engineer to examine the trust estate, and, if in the
opinion of such independent engineer, the trust estate has not been so
maintained, the Company shall remedy any such deficiency by making the
expenditures certified by the independent engineer as necessary for such
purpose. Until such independent engineer shall certify that such deficiency has
been remedied, there shall be deducted from the principal amount of Mortgage
Bonds otherwise issuable or cash otherwise withdrawable the amount stated in the
report of such independent engineer as necessary to remedy such deficiency in
maintenance less any sums which may have been expended to remedy the deficiency
since the date of such report.
The Company must maintain a proper reserve for renewals, replacements and
retirements of property and make periodic credits, at least annually thereto, by
charges to operating expenses, sufficient to provide adequately for losses by
reason of wear and tear, inadequacy and obsolescence or catastrophe not covered
by insurance. Such credits shall be not less than as may be required by accepted
accounting practice for like corporations or as may be prescribed by the Public
Service Commission of the State of New York or any other governmental agency
having jurisdiction. The Company shall annually furnish to the Mortgage Trustee
a certificate by an independent engineer as to the adequacy of the annual
depreciation accrual. The Company has furnished to the Mortgage Trustee the
annual opinions of independent engineers required by the Mortgage
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<PAGE> 8
that depreciation (as defined in the Mortgage) was not in excess of amounts
credited to depreciation or replacement reserves during the year under
consideration.
The New Bonds are not subject to the provisions of Article XXI of the
Mortgage, except that the New Bonds are subject to the redemption provisions of
such Article XXI because of the applicability of such Article to Mortgage Bonds
of all series so long as any Mortgage Bonds of any series created prior to 1994
are outstanding. Article XXI of the Mortgage, which will remain in effect so
long as any First Mortgage Bonds of any series created prior to 1994 are
outstanding, provides that, to the extent that the cost of property additions
during a year less the total amount of (i) cash withdrawn from moneys deposited
with the Mortgage Trustee as permitted by the Mortgage, plus (ii) cash expended
by the Company for property additions from insurance proceeds received on
account of loss of materials and supplies, or on account of any other loss under
$50,000, is less than the greater of:
(a) the sum of the amount credited to depreciation or replacement
reserves through charges to operating expense and the excess, if any, of
depreciation (as defined in the Mortgage) over amounts so credited as shown
by the certificate of an independent engineer, or
(b) an amount equal to 2% of the gross book value of depreciable
property,
the Company must annually deposit cash with the Mortgage Trustee unless such
deficiency is offset by a credit (the amount by which the foregoing cost of
property additions, less the amount in (i) and (ii) above, exceeds the greater
of (a) or (b) above) for each of the preceding two years. Such credits may be
used to offset such deficiency only to the extent of net bondable value of
property additions if, within the year with respect to which the deposit is made
and the two years next preceding, Mortgage Bonds have been issued on account of
property additions or cash withdrawn. At September 30, 1994, no cash was on
deposit with the Mortgage Trustee under the above provision.
Any cash deposited with the Mortgage Trustee in respect of any such net
deficiency may be withdrawn under circumstances specified in the Mortgage. Any
such cash not withdrawn, upon order of the Company, must be used to redeem or
purchase Mortgage Bonds (including the New Bonds) in accordance with the
provisions of the Mortgage. If any cash left on deposit with the Mortgage
Trustee for 12 consecutive months or more is in excess of $350,000, the amount
of such cash in excess of $250,000 must be applied by the Mortgage Trustee to
redeem or purchase Mortgage Bonds, subject to certain exceptions set forth in
the Mortgage.
There are no provisions in the Mortgage restricting the declaration of
dividends or requiring the maintenance of any asset ratio.
Modification of Mortgage: The Mortgage may be modified if approved by the
holders of not less than 75% in aggregate principal amount of the Mortgage Bonds
at the time outstanding which would be affected by the action proposed to be
taken, except that if any such action affects two or more series the approval of
75% of the aggregate principal amount of the Mortgage Bonds of such two or more
series at the time outstanding is required (the approval of the holders of 75%
of the principal amount of Mortgage Bonds of each of such series not being
required) provided that no such modification shall (1) extend the due dates of
principal or interest or (2) reduce the amount of principal, interest or premium
or (3) limit the right of a holder of a Mortgage Bond to institute suit for the
enforcement of payment of principal or interest in accordance with the terms of
the Mortgage Bonds, without the consent of the holder of each Mortgage Bond
which would be so affected; nor shall any such modification (a) reduce the
percentages of the principal amount of Bonds the holders of which are required
to consent to any supplemental indenture or (b) deprive any non-assenting holder
of a Mortgage Bond of a lien upon the property subject to the Mortgage for the
security of his or her Mortgage Bonds or (c) create any mortgage or pledge or
lien in the nature thereof ranking prior to or equal with the lien of the
Mortgage. In any event, modifications may not be made which would permit certain
actions to be taken with the approval of the holders of less than a majority of
the Mortgage Bonds outstanding, or which would permit the postponement of the
payment of interest without the approval of the holders of 75% of all the
Mortgage Bonds outstanding, or which would permit the postponement of interest
for more than 3 years.
The Mortgage may be modified as to matters which are not of a substantive
nature without the consent of the holders of any of the Mortgage Bonds
outstanding, including such modifications as shall be necessary to
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<PAGE> 9
effect the qualification of the Mortgage under the Trust Indenture Act of 1939,
as amended ("Trust Indenture Act"), or under any similar federal statute as may
be enacted, and including the addition to the Mortgage of certain other
provisions as may be expressly permitted by the Trust Indenture Act.
Events of Default, Remedies: The following events are defined as events of
default in the Mortgage:
(a) failure to pay principal of any of the Mortgage Bonds when due and
payable;
(b) failure for 30 days to pay interest due and payable on any of the
Mortgage Bonds;
(c) failure to pay interest upon or principal of any outstanding prior
lien bonds (none of which presently exist) continuing beyond the period of
grace specified in the prior lien mortgage securing same;
(d) certain acts of bankruptcy, insolvency or reorganization; and
(e) failure to perform any other covenant or agreement contained in
the Mortgage or in any of the Mortgage Bonds for a period of 60 days after
written notice to the Company by the Mortgage Trustee. Compliance with
Mortgage provisions is evidenced by periodic statements filed by the
Company with the Mortgage Trustee.
Upon the occurrence of any of such events of default, the Mortgage Trustee
may, and upon the written request of the holders of a majority in principal
amount of the Mortgage Bonds must, (1) declare the principal and interest
accrued thereon of all outstanding Mortgage Bonds due and payable for all
purposes under the Mortgage, and/or (2) upon being indemnified (as hereinafter
described), sell at public auction, in accordance with the laws of the State of
New York and the terms of the Mortgage, the whole of the trust estate as
provided by the terms of the Mortgage. However, if such default is cured, the
holders of a majority in principal amount of all Mortgage Bonds outstanding,
may, in writing, waive such default and its consequences and rescind such
declaration.
The Mortgage provides that the Mortgage Trustee, within 90 days after the
occurrence of a default thereunder, is required to give the holders of the
Mortgage Bonds notice of all defaults known to it, unless cured; provided,
however, that, except in the case of a default in the payment of the principal
of or interest on any of the Mortgage Bonds or in the payment of any sinking or
purchase fund installment, the Mortgage Trustee may withhold such notice if the
Mortgage Trustee determines that it is in the interest of the holders of the
Mortgage Bonds to do so.
The holders of a majority in principal amount of the Mortgage Bonds
outstanding have the right to direct the time, method and place of conducting
any proceeding for any remedy available to, or conferred by the Mortgage upon,
the Mortgage Trustee; provided, however, that the Mortgage Trustee may, if it
determines in good faith that such direction would unjustly prejudice the right
of non-assenting Mortgage Bondholders, decline to follow such direction.
The Mortgage Trustee, before proceeding to enforce any of the covenants
under the Mortgage, may request security and indemnity, adequate to its
satisfaction, against the costs, expenses and liabilities to be incurred in or
by reason of such enforcement action.
Upon occurrence of any of such events of default, the holders of 25% or
more of the principal amount of the Mortgage Bonds may declare the principal and
interest accrued thereon of all outstanding Mortgage Bonds due and payable for
all purposes under the Mortgage.
The Company is required to furnish annually to the Mortgage Trustee a
certificate as to the compliance by the Company with all conditions and
covenants under the Mortgage without regard to any period of grace or
requirement of notice provided under the Mortgage.
Concerning the Mortgage Trustee: The Company has entered into a revolving
credit arrangement with the Mortgage Trustee and a group of lenders under which
it may borrow funds from time to time. The Mortgage Trustee also acts as
depositary of part of the funds of the Company.
The Mortgage Trustee is trustee under a nuclear decommissioning trust for
the Company's interest in the Nine Mile 2 Plant described in the Incorporated
Documents.
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<PAGE> 10
DESCRIPTION OF THE UNSECURED NOTES
General: The Unsecured Notes will be issued under an indenture, dated as
of April 1, 1992 ("Indenture"), between the Company and First Trust of New York,
National Association (as successor trustee to Morgan Guaranty Trust Company of
New York), as Trustee ("Indenture Trustee"). The summaries herein concerning the
Unsecured Notes and the Indenture do not purport to be complete and are
qualified in their entirety by express reference to the Indenture.
The Indenture provides that, in addition to the $35 million aggregate
principal amount of debt securities previously issued thereunder and any
Unsecured Notes, additional debt securities (including both interest bearing and
original issue discount securities) may be issued thereunder, without limitation
as to the aggregate principal amount. The Unsecured Notes and all other debt
securities issued and hereafter to be issued under the Indenture are
collectively referred to as the "Indenture Securities." The Indenture does not
limit the amount of other debt, secured or unsecured, which may be issued by the
Company. The Unsecured Notes will rank pari passu with all other unsecured
indebtedness of the Company.
Reference is made to the applicable Prospectus Supplement for a description
of the following terms of the Offered Notes in respect of which this Prospectus
is being delivered: (i) the title of such Offered Notes; (ii) the limit, if any,
upon the aggregate principal amount of such Offered Notes; (iii) the rate or
rates, or the method of determination thereof, at which such Offered Notes will
bear interest, if any; the date or dates from which such interest will accrue;
the dates on which such interest will be payable ("Interest Payment Date"); and
the regular record dates for the interest payable on such Interest Payment
Dates; (iv) the obligation, if any, of the Company to redeem or purchase such
Offered Notes pursuant to any sinking fund or analogous provisions or at the
option of the holder thereof and the periods within which or the dates on which,
the prices at which and the terms and conditions upon which such Offered Notes
will be redeemed or purchased, in whole or in part, pursuant to such obligation;
(v) the periods within which or the dates on which, the prices at which and the
terms and conditions upon which such Offered Notes may be redeemed or
repurchased, if any, in whole or in part, at the option of the Company; (vi) if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which such Offered Notes will be issuable; (vii) whether such
Offered Notes are to be issued in whole or in part in the form of one or more
global Unsecured Notes and, if so, the identity of the depositary for such
global Unsecured Notes; (viii) the terms under which the Offered Notes may be
convertible into Common Stock or other securities of the Company and (ix) any
other terms of such Offered Notes not inconsistent with the provisions of the
Indenture.
Payment of Notes; Transfers, Exchanges: Except as may be provided in the
applicable Prospectus Supplement, interest, if any, on each Unsecured Note
payable on each Interest Payment Date will be paid to the person in whose name
such Unsecured Note is registered (the registered holder of any Indenture
Security being herein called a "Holder") as of the close of business on the
regular record date relating to such Interest Payment Date; provided, however,
that interest payable at maturity (whether at stated maturity, upon redemption
or otherwise, hereinafter "Maturity") will be paid to the person to whom the
principal of such Unsecured Note is paid. However, if there has been a default
in the payment of interest on any Unsecured Note, such defaulted interest may be
payable to the Holder of such Unsecured Note as of the close of business on a
date selected by the Indenture Trustee not more than 15 days and not less than
10 days prior to the date proposed by the Company for payment of such defaulted
interest.
Principal of and premium, if any, and interest, if any, on the Unsecured
Notes at Maturity will be payable upon presentation of the Unsecured Notes at
the principal corporate trust office of First Trust of New York, National
Association, or of any successor paying agent, in New York, New York. The
Company may change the place of payment on the Unsecured Notes, may appoint one
or more paying agents (including the Company) and may remove any paying agent,
all in its discretion. The applicable Prospectus Supplement, or a supplement
thereto, will identify any new place of payment and any paying agent appointed
and will disclose the removal of any paying agent effected prior to the date of
such Prospectus Supplement or supplement thereto.
The transfer of Unsecured Notes may be registered, and Unsecured Notes may
be exchanged for other Unsecured Notes of authorized denominations and of like
tenor and aggregate principal amount, at the
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<PAGE> 11
principal corporate trust office of First Trust of New York, National
Association, or any successor transfer agent and registrar, in New York, New
York. The Company may change the place for registration of transfer of the
Unsecured Notes, may appoint one or more additional security registrars or
transfer agents (including the Company) and may remove any security registrar or
transfer agent, all in its discretion. The applicable Prospectus Supplement, or
a supplement thereto, will identify any new place for registration of transfer
and any additional security registrar or transfer agent appointed and will
disclose the removal of any security registrar or transfer agent effected prior
to the date of such Prospectus Supplement or supplement thereto. No service
charge will be made for any transfer or exchange of the Unsecured Notes, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The Company will not be
required (a) to issue, register the transfer of, or exchange Unsecured Notes
during a period of 15 days prior to giving any notice of redemption or (b) to
issue, register the transfer of, or exchange any Unsecured Note selected for
redemption in whole or in part, except the unredeemed portion of any Unsecured
Note being redeemed in part.
Redemption: Any terms of the optional or mandatory redemption of Offered
Notes will be set forth in the applicable Prospectus Supplement. Except as shall
otherwise be provided with respect to Offered Notes redeemable at the option of
the Holder, such Offered Notes will be redeemable only upon notice, by mail, not
less than 30 nor more than 60 days prior to the date fixed for redemption and,
if less than all of the Offered Notes of any series, or any tranche thereof, are
to be redeemed, the particular Offered Notes will be selected by such method as
the Indenture Trustee deems fair and appropriate.
Any notice of optional redemption may state that such redemption shall be
conditional upon the receipt by the Indenture Trustee, on or prior to the date
fixed for such redemption, of money sufficient to pay the principal of and
premium, if any, and interest, if any, on such Unsecured Notes and that if such
money has not been so received, such notice will be of no force or effect and
the Company will not be required to redeem such Unsecured Notes.
Events of Default: The following constitute events of default under the
Indenture with respect to each series of Indenture Securities outstanding
thereunder:
(a) failure to pay any interest on any Indenture Security of such
series within 60 days after the same becomes due and payable;
(b) failure to pay any principal of or premium, if any, on any
Indenture Security of such series within three Business Days (as defined in
the Indenture) after the same becomes due and payable;
(c) failure to perform or breach of any covenant or warranty of the
Company in the Indenture (other than a covenant or warranty of the Company
in the Indenture solely for the benefit of one or more series of Indenture
Securities other than the Unsecured Notes), for 60 days after written
notice to the Company by the Indenture Trustee, or to the Company and the
Indenture Trustee by the Holders of at least 33% in principal amount of the
Indenture Securities of such series outstanding under the Indenture as
provided in the Indenture;
(d) a default under any evidence of indebtedness by the Company
(including a default with respect to any series of Unsecured Notes or
Mortgage Bonds), or a default under any instrument under which there may be
issued any such indebtedness (including the Indenture and the Mortgage), in
each case aggregating in excess of $5 million, which default shall
constitute a failure to pay the principal of such indebtedness when due and
payable (after the expiration of any applicable grace period) or shall have
resulted in the acceleration of when such indebtedness becomes due and
payable if (i) either the Indenture Trustee, or at least 10% in principal
amount of any outstanding series of Unsecured Notes, shall have given the
Company notice of such default and (ii) within 10 days of said notice, such
indebtedness is not discharged or such acceleration is not rescinded or
annulled;
(e) certain events of bankruptcy, insolvency or reorganization; and
(f) any other event of default specified with respect to Indenture
Securities of such series.
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Remedies: If an event of default with respect to any series of Indenture
Securities occurs and is continuing, then either the Indenture Trustee or the
Holders of not less than 33% in principal amount of the outstanding Indenture
Securities of such series may declare the principal amount (or if the Indenture
Securities of such series are discount notes or similar Indenture Securities,
such portion of the principal amount as may be specified in the applicable
Prospectus Supplement) of all of the Indenture Securities of such series to be
due and payable immediately; provided, however, that if such an event of default
occurs and is continuing with respect to more than one series of Indenture
Securities, the Indenture Trustee or the Holders of not less than 33% in
aggregate principal amount of the outstanding Indenture Securities of all such
series, considered as one class, may make such declaration of acceleration and
not the Holders of the Indenture Securities of any one of such series.
At any time after the declaration of acceleration with respect to the
Indenture Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained, the event or events of default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if
(a) the Company has paid or deposited with the Indenture Trustee a sum
sufficient to pay
(1) all overdue interest on all Indenture Securities of such
series;
(2) the principal of and premium, if any, on any Indenture
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Indenture Securities;
(3) interest upon overdue interest at the rate or rates prescribed
therefor in such Indenture Securities, to the extent that payment of
such interest is lawful; and
(4) all amounts due to the Indenture Trustee under the Indenture;
and
(b) any other event or events of default with respect to the Indenture
Securities of such series, other than the nonpayment of the principal of
the Indenture Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in the
Indenture.
If any such event of default with respect to the Indenture Securities of
any series occurs and is continuing, the Holders of a majority in principal
amount of the outstanding Indenture Securities of such series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee, with respect to the Indenture Securities of
such series; provided, however, that if such an event of default occurs and is
continuing with respect to more than one series of Indenture Securities, the
Holders of a majority in aggregate principal amount of the outstanding Indenture
Securities of all such series, considered as one class, will have the right to
make such direction, and not the Holders of the Indenture Securities of any one
of such series; and provided, further, that (a) such direction will not be in
conflict with any rule of law or with the Indenture and could not involve the
Indenture Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate, (b) the Indenture Trustee may take any other
action it deems proper which is not inconsistent with such direction, and (c)
the Indenture Trustee shall not be obligated to take any action unduly
prejudicial to Holders not joining in such direction. The right of a Holder of
any Indenture Security of such series to institute a proceeding with respect to
the Indenture is subject to certain conditions precedent, but each Holder has an
absolute right to receive payment of principal and premium, if any, and
interest, if any, when due and to institute suit for the enforcement of any such
payment. The Indenture provides that the Indenture Trustee, within 90 days after
the occurrence of any default thereunder with respect to the Indenture
Securities of a series, is required to give the Holders of the Indenture
Securities of such series notice of any default known to it, unless cured or
waived; provided, however, that, except in the case of a default in the payment
of principal of or premium, if any, or interest, if any, on any Indenture
Securities of such series, the Indenture Trustee may withhold such notice if the
Indenture Trustee determines that it is in the interest of
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<PAGE> 13
such Holders to do so; and provided, further, that in the case of such an event
of default of the character specified above in clause (c) under
"Securities -- Description of the Unsecured Notes -- Events of Default," no such
notice shall be given to such Holders until at least 75 days after the
occurrence thereof.
The Company will be required to furnish annually to the Indenture Trustee a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance.
Covenants: Maintenance of Property; Preservation of Rights; Consolidation,
or Merger, etc.; Negative Pledge: The Company will cause (or, with respect to
property owned in common with others, make reasonable effort to cause) all its
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order, ordinary wear and tear
excepted, and will cause (or with respect to property owned in common with
others make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried on in
connection therewith may be properly conducted; provided, however, that the
foregoing shall not prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
Subject to the provisions described in the next paragraph, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be
required to preserve any such right or franchise if, in the judgment of the
Company, (i) preservation thereof is no longer desirable in the conduct of the
business of the Company and (ii) the loss thereof does not adversely affect the
interests of the Holders in any material respect.
The Company will not consolidate with or merge into any other corporation
or corporations or convey, transfer or lease its properties and assets
substantially as an entirety to any person or persons unless (a) the corporation
or corporations formed by such consolidation or into which the Company is merged
or the person or persons which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety,
expressly assumes, by supplemental indenture, the due and punctual payment of
the principal of and premium, if any, and interest, if any, on all the
outstanding Indenture Securities and the performance of all of the covenants of
the Company under the Indenture, (b) immediately after giving effect to any such
transaction no event of default, and no event which after notice or lapse of
time would become an event of default, will have occurred and be continuing, and
(c) the Company will have delivered to the Indenture Trustee an Officers'
Certificate and an Opinion of Counsel as provided in the Indenture.
The Company will not incur or permit to exist any mortgage, lien, pledge,
charge or encumbrance of any kind (other than "Excepted Encumbrances") upon its
property (other than "Excepted Property") to secure indebtedness without equally
and ratably securing the outstanding Indenture Securities of all series,
including the Unsecured Notes; provided, however, that this restriction shall
not apply in certain circumstances, including the pledging by the Company of
assets in connection with the incurrences of indebtedness in aggregate principal
amount not exceeding 3% of the Company's net tangible utility assets at any time
outstanding. "Excepted Encumbrances" includes, among other things, the
following: (i) liens for taxes not delinquent and being contested in good faith
by the Company; (ii) easements, rights of way, restrictions or reservations in
the Company's property for, among other things, roads, utility transmission and
distribution facilities and other utility rights of way and immaterial defects
in title; (iii) purchase money mortgages on property acquired after the date of
the Indenture; (iv) liens existing on assets prior to the acquisition thereof;
(v) the lien of the Mortgage (accordingly, there is no restriction in the
Indenture on additional issuances of Mortgage Bonds); and (vi) liens arising out
of the refinancing, extension renewal or refunding of indebtedness secured by
any lien permitted as certain Excepted Encumbrances, including by any of the
foregoing clauses (iii), (iv) and (v). "Excepted Property" generally means
personal property used in the ordinary business of the Company, including cash,
accounts receivable, stock in trade, products generated or purchased by the
Company, office equipment, motor vehicles, fuel, and gas.
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Modification of Indenture: Without the consent of any Holders of Indenture
Securities, the Company and the Indenture Trustee may enter into one or more
supplemental indentures for any of the following purposes:
(a) to evidence the succession of another person to the Company and
the assumption by any such successor of the covenants of the Company in the
Indenture and the Indenture Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of outstanding Indenture Securities or to
surrender any right or power conferred upon the Company by the Indenture;
or
(c) to add any additional events of default with respect to all or any
series of outstanding Indenture Securities; or
(d) to change or eliminate any provision of the Indenture or to add
any new provision to the Indenture; provided that if such change,
elimination or addition will adversely affect the interests of the Holders
of Indenture Securities of any series in any material respect, such change,
elimination or addition will become effective with respect to such series
only when there is no Indenture Security of such series remaining
outstanding under the Indenture; or
(e) to provide collateral security for the Indenture Securities; or
(f) to establish the form or terms of Indenture Securities of any
series as permitted by the Indenture; or
(g) to evidence and provide for the acceptance of appointment of a
successor Indenture Trustee under the Indenture with respect to the
Indenture Securities of one or more series and to add to or change any of
the provisions of the Indenture as shall be necessary to provide for or to
facilitate the administration of the trusts under the Indenture by more
than one trustee; or
(h) to provide for the procedures required to permit the utilization
of a noncertificated system of registration for any series of Indenture
Securities; or
(i) to change any place where (1) the principal of and premium, if
any, and interest, if any, on Indenture Securities of any series, or any
tranche thereof, shall be payable, (2) any Indenture Securities of any
series, or any tranche thereof, may be surrendered for registration of
transfer, (3) Indenture Securities of any series, or any tranche thereof,
may be surrendered for exchange, and (4) notices and demands to or upon the
Company in respect of the Indenture Securities of any series, or any
tranche thereof, and the Indenture may be served; or
(j) to cure any ambiguity or inconsistency or to make any other
provisions with respect to matters or questions arising under the
Indenture, provided such provisions shall not adversely affect the
interests of the Holders of Indenture Securities of any series in any
material respect.
Without limiting the generality of the foregoing, if the Trust Indenture
Act is amended after the date of the Indenture to require changes to the
Indenture or the incorporation therein of additional provisions or permit
changes to, or the elimination of, provisions which, at the date of the
Indenture or at any time thereafter, are required by the Trust Indenture Act to
be contained in the Indenture, the Company and the Indenture Trustee may,
without the consent of any Holders, enter into one or more supplemental
indentures to effect or reflect any such change, incorporation or elimination.
The consent of the Holders of not less than a majority in principal amount
of the Indenture Securities of all series then outstanding under the Indenture,
considered as one class, is required for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the provisions of, the
Indenture pursuant to an indenture or supplemental indenture; provided, however,
that if less than all of the series of Indenture Securities outstanding under
the Indenture are directly affected by a supplemental indenture, then the
consent only of the Holders of a majority in aggregate principal amount of the
outstanding Indenture Securities of all series so directly affected, considered
as one class, will be required; and provided, further, that if the Indenture
Securities of any series shall have been issued in more than one tranche and if
the proposed supplemental
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indenture shall directly affect the rights of the Holders of Indenture
Securities of one or more, but less than all, of such tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the Indenture
Securities outstanding of all tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture will, without the consent of the Holder of each Indenture Security
outstanding under the Indenture of each such series or tranche directly affected
thereby, (a) change the stated maturity of, or any installment of principal of
or the rate of interest on (or the amount of any installment of interest on),
any Indenture Security, or reduce the principal thereof or redemption premium
thereon, if any, or change the amount payable upon acceleration of a discount
note or method of calculating the rate of interest thereon, or otherwise modify
certain terms of payment of the principal thereof or interest or premium
thereon, (b) reduce the percentage in principal amount of the Indenture
Securities outstanding under such series or tranche required to consent to any
supplemental indenture or waiver under the Indenture or to reduce the
requirements for quorum and voting, or (c) modify certain of the provisions in
the Indenture relating to supplemental indentures, waivers of certain covenants
and waivers of past defaults.
A supplemental indenture which changes or eliminates any covenant or other
provision of the Indenture which has expressly been included solely for the
benefit of one or more particular series of Indenture Securities or of one or
more tranches thereof, or which modifies the rights of the Holders of Indenture
Securities of such series or tranche with respect to such covenant or other
provision, shall be deemed not to affect the rights under the Indenture of the
Holders of any other Indenture Securities.
Defeasance: The Indenture Securities of any series, or any portion of the
principal amount thereof, will be deemed to have been paid for purposes of the
Indenture (except as to any surviving rights of registration of transfer or
exchange expressly provided for in the Indenture), and the entire indebtedness
of the Company in respect thereof will be deemed to have been satisfied and
discharged, if there shall have been irrevocably deposited with the Indenture
Trustee, in trust: (a) money in the amount which will be sufficient, or (b)
Government Obligations (as defined below), which do not contain provisions
permitting the redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide monies which, together with the
money, if any, deposited with or held by the Indenture Trustee, will be
sufficient, or (c) a combination of (a) and (b) which will be sufficient, to pay
when due the principal of and premium, if any, and interest, if any, due and to
become due on such Indenture Securities or portions thereof on and prior to the
maturity thereof. For this purpose, "Government Obligations" include direct
obligations of, or obligations unconditionally guaranteed by, the United States
of America entitled to the benefit of the full faith and credit thereof and
certificates, depositary receipts or other instruments which evidence a direct
ownership interest in such obligations or in any specific interest or principal
payments due in respect thereof.
As a condition to defeasing the Offered Notes as described above, the
Company is obligated to obtain a legal opinion to the effect that the defeasance
of the Offered Notes will be tax free to the Holders of the Offered Notes to be
defeased.
DESCRIPTION OF NEW PREFERRED STOCK
The following statements are brief summaries of certain provisions with
respect to the Serial Preferred Stock of the Company and the New Preferred Stock
contained in the Company's Restated Certificate of Incorporation, as amended and
as proposed to be amended ("Certificate of Incorporation"), filed as Exhibits to
the Registration Statement of which this Prospectus is a part. These summaries
do not purport to be complete and reference is made to said Exhibits for
complete statements of such provisions.
Terms of New Preferred Stock: Reference is made to the applicable
Prospectus Supplement which accompanies this Prospectus for the following terms
and other information with respect to the New Preferred Stock being offered
thereby: (1) the number of shares, and designation and series of such New
Preferred Stock; (2) the dividend rate or method of calculation thereof; and (3)
any redemption terms, sinking fund requirements, or other specific terms
applicable to the New Preferred Stock.
General: The Certificate of Incorporation authorizes a total of 31,200,000
shares, consisting of 1,200,000 shares of Serial Preferred Stock having a par
value of $100 per share ("Serial Preferred Stock")
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<PAGE> 16
and 30,000,000 shares of Common Stock having a par value of $5 per share
("Common Stock"). The Serial Preferred Stock is issuable from time to time in
one or more series. The number of shares of each such series to be issued shall
be determined by the Board of Directors of the Company. The New Preferred Stock
will constitute one or more new series of the Serial Preferred Stock of the
Company. In addition to the New Preferred Stock, there are presently authorized
eight series of Serial Preferred Stock of which an aggregate of 810,300 shares
were issued and outstanding as of September 30, 1994.
Dividend Rights: Before any dividends on the Common Stock shall be paid or
set apart for payment, holders of outstanding Serial Preferred Stock, including
the New Preferred Stock, are entitled to cumulative preferential dividends when
and as declared by the Board of Directors from the surplus of the Company at the
dividend rate (or method of calculation thereof) set forth in the applicable
Prospectus Supplement. Unless otherwise set forth in the applicable Prospectus
Supplement, dividend payment dates for the New Preferred Stock will be the first
days of January, April, July and October in each year. Unless otherwise set
forth in the applicable Prospectus Supplement, dividends shall accrue from the
date of original issuance. The holders of the New Preferred Stock shall not be
entitled to receive any dividends in excess of cumulative dividends and no
interest shall accrue upon dividends in arrears.
Dividends in full shall not be declared and set apart for payment or paid
on the Serial Preferred Stock of any series for any dividend period unless
dividends in full have been or are contemporaneously declared and set apart for
payment or paid on the Serial Preferred Stock of all series then outstanding for
all the dividend periods terminating on the same or an earlier date. When the
stated dividends are not paid in full the shares of all series of the Serial
Preferred Stock shall share ratably in the payment of dividends, including
accumulations, if any, in accordance with the sums which would be payable on
said shares if all dividends were declared and paid in full.
There is no provision restricting the repurchase or redemption of any
series of Serial Preferred Stock by the Company when dividends are in arrears.
Voting Rights: Unless at any time dividends on any series of New Preferred
Stock shall not have been paid for periods aggregating one year or more, the
holders of such stock will not, except as otherwise provided by law, have any
voting powers whatever with respect to such series of New Preferred Stock held
by them, except that the holders of such stock will be entitled to vote or act
separately as a class with respect to any proposal to authorize any amendment of
the Certificate of Incorporation which alters the preferences of outstanding
shares of such series of New Preferred Stock or which authorizes shares having
preferences which are in any respect superior to the preferences of the
outstanding shares of such series of New Preferred Stock or which increases the
authorized amount of the Serial Preferred Stock, and the consent or affirmative
vote of the holders of record of two-thirds of the outstanding shares of such
series of New Preferred Stock will be required for any such amendment. In case
at any time dividends on any series of New Preferred Stock shall not have been
paid in full for periods aggregating one year or more, then and until all
dividends accrued upon such series of New Preferred Stock shall have been paid,
the holders of such series of New Preferred Stock (a) will have the right,
together with the holders of all other Serial Preferred Stock in respect to
which the same right shall be conferred, to elect a majority of the members of
the Board of Directors of the Company, and (b) as to all matters other than the
election of directors, shall have the same voting rights as the holders of
Common Stock except as to matters with respect to which they are given the right
to vote separately as a class.
The voting rights of the New Preferred Stock will be substantially similar
to those of the other series of Serial Preferred Stock. The holders of the
Common Stock are entitled to one vote for each share of such Common Stock at all
shareholders' meetings. See "Securities -- Description of Common Stock -- Voting
Rights" below.
Liquidation Rights: The holders of each series of New Preferred Stock will
be entitled to receive before any payment or distribution of the assets of the
Company shall be made to the holders of the Common Stock (a)(i) an amount equal
to the then applicable optional redemption price for such series upon any
voluntary dissolution, liquidation or winding up of the Company resulting in a
distribution of assets to its shareholders, or (ii) if at the time such series
of New Preferred stock shall not be redeemable, the amount, if any, set forth in
the applicable Prospectus Supplement and (b) the sum of $100 per share upon any
involuntary dissolution,
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<PAGE> 17
liquidation or winding up of the Company resulting in a distribution of assets
to its shareholders, plus in each case accrued dividends, if any. The
consolidation or merger of the Company with or into any other corporation or
corporations shall not be deemed to be a dissolution, liquidation or winding up
of the Company unless the effect thereof shall be to cause a distribution of
assets among its shareholders. After such payments to the holders of the New
Preferred Stock and preferential payments, if any, to holders of other Serial
Preferred Stock, holders of Common Stock will be entitled to receive the
remaining assets of the Company in proportion to the number of shares held by
them respectively.
If the assets distributable upon the dissolution, liquidation or winding up
of the Company shall be insufficient to permit the payment to the holders of the
Serial Preferred Stock of the full amount payable thereon, then said assets
shall be distributed ratably among the holders of the respective series of
Serial Preferred Stock in accordance with the sums which would be payable on
such dissolution, liquidation or winding up, if all sums payable were discharged
in full.
Preemptive or Other Subscription Rights: No holder of any Serial Preferred
Stock has any preemptive rights.
Conversion Rights: None of the Serial Preferred Stock of any series has
any conversion rights.
Calls and Assessments: The New Preferred Stock when duly issued will be
fully paid and non-assessable and the holders of such shares will not be liable
to any further calls on unpaid installments or to assessments by the Company.
Additional Serial Preferred Stock: Additional Serial Preferred Stock may
be issued from time to time in series when authorized by the Company's Board of
Directors, up to the number of authorized but unissued shares of Serial
Preferred Stock set forth in the Certificate of Incorporation. The series
designation, dividend rate (or method of determining dividend rate), dividend
payment dates, amounts to be paid upon voluntary or involuntary dissolution,
liquidation or winding-up of the Company, redemption prices and terms, if any,
and other terms, restrictions and qualifications of each series shall be
determined by the Board of Directors to the extent not fixed by the Certificate
of Incorporation. The holders of any subsequent series of Serial Preferred Stock
shall not be given voting powers greater than those of the holders of the
presently outstanding Serial Preferred Stock or the New Preferred Stock or the
privilege of purchasing or subscribing for any shares of the Company or any
securities convertible into shares of the Company or of exchanging shares of
such series for shares of any other class or of any other series of the same or
any other class unless the same powers and privileges are given to the holders
of all of the Serial Preferred Stock then outstanding including the New
Preferred Stock.
Transfer Agent: The Transfer Agent and Registrar of the Serial Preferred
Stock is First Chicago Trust Company of New York, P.O. Box 2550, Jersey City,
New Jersey 07303-2550.
DESCRIPTION OF DEPOSITARY PREFERRED SHARES AND DEPOSITARY RECEIPTS
If Depositary Preferred Shares are issued in respect of the New Preferred
Stock, the Depositary Preferred Shares will be evidenced by certificates
("Depositary Receipts") issuable pursuant to a proposed agreement ("Deposit
Agreement") among the Company, a financial institution to be named in the
applicable Prospectus Supplement, as Depositary ("Depositary"), and the holders
from time to time of the Depositary Receipts. Each Depositary Preferred Share
will represent 1/4 of a share of the New Preferred Stock deposited under the
Deposit Agreement. Each owner of a Depositary Preferred Share will be entitled,
proportionally, to all of the rights and preferences of the New Preferred Stock
(including dividends and redemption, sinking fund, liquidation and voting
rights) contained in the Certificate of Incorporation and summarized under
"Securities -- Description of New Preferred Stock" herein and "Supplemental
Description of New Preferred Stock" in the applicable Prospectus Supplement.
Reference is made to the proposed form of Deposit Agreement which is filed
as an Exhibit to the Registration Statement of which this Prospectus is a part
for complete statements of the provisions of the
16
<PAGE> 18
Depositary Preferred Shares and Depositary Receipts and the following summary of
certain of the provisions thereof is qualified in its entirety by reference to
such exhibit.
Withdrawal of New Preferred Stock: Upon surrender at the office of the
Depositary, at the location to be set forth in the applicable Prospectus
Supplement, of Depositary Receipts and payment by the holder of record of such
Depositary Receipts of the fees and charges of the Depositary described in
"Charges of Depositary" below, and subject to the Deposit Agreement, an owner of
Depositary Preferred Shares is entitled to delivery at such office, to or upon
the order of such owner, of the New Preferred Stock and any other property at
the time represented by such Depositary Preferred Shares. Upon such surrender,
an owner of Depositary Preferred Shares will be entitled to receive whole shares
of the New Preferred Stock on a four-for-one basis and Depositary Receipts for
fractional interests in the New Preferred Stock. If the Depositary Receipts
delivered by the holder evidence a number of Depositary Preferred Shares in
excess of the number of whole shares of New Preferred Stock to be withdrawn, the
Depositary will deliver to such holder at the same time a new Depositary Receipt
evidencing such excess number of Depositary Preferred Shares.
Stock Exchange Listing: The New Preferred Stock will not be listed on any
stock exchange and it is anticipated that there will be no public trading market
for the New Preferred Stock except as may be represented by the Depositary
Preferred Shares. Reference is made to the applicable Prospectus Supplement for
information on whether application will be made to list any Depositary Preferred
Shares on the NYSE.
Issuance of Depositary Preferred Shares: Immediately following the
issuance of New Preferred Stock to be represented by Depositary Preferred
Shares, the Company will deposit such New Preferred Stock with the Depositary.
The Depositary will, upon deposit of such New Preferred Stock and subject to the
terms of the Deposit Agreement relating to transfer, execute and deliver to the
person specified by the depositor the number of Depositary Preferred Shares
issuable in respect of such deposit.
The Depositary may also require the assignment of dividends or other
property which may be or become payable in respect of the New Preferred Stock
presented for deposit or, in lieu of such assignment, a satisfactory indemnity
agreement. The New Preferred Stock may be deposited while the register of
stockholders of the Company is closed, subject to compliance with the Deposit
Agreement.
Redemption and Sinking Fund: The Depositary Preferred Shares are
redeemable simultaneously with and on the same terms and conditions as the
underlying New Preferred Stock whether pursuant to optional or mandatory
(including sinking fund, if any) redemption provisions. Whenever the Company
shall be required to or shall elect to redeem shares of the underlying New
Preferred Stock, the Depositary will redeem, as provided in the Deposit
Agreement and subject to the simultaneous redemption of the underlying shares of
New Preferred Stock, that number of Depositary Preferred Shares as shall
represent the number of shares of the New Preferred Stock to be redeemed by the
Company from the Depositary, subject to not less than 30 days' prior notice to
the owners of the Depositary Preferred Shares to be redeemed. In case less than
all of the Depositary Preferred Shares are to be redeemed, the Depositary
Preferred Shares to be redeemed shall be selected by the Depositary by lot or
substantially equivalent method. See "Securities -- Description of New Preferred
Stock" herein and "Supplemental Description of New Preferred Stock" in the
applicable Prospectus Supplement.
Dividends and Other Distributions: The Depositary will distribute all cash
dividends or other cash distributions received in respect of the New Preferred
Stock to the record holders of Depositary Receipts in proportion, insofar as
practicable, to the number of Depositary Preferred Shares owned by such holders.
Voting the Underlying New Preferred Stock: Upon receipt of notice of any
meeting at which the holders of the New Preferred Stock are entitled to vote,
the Depositary will mail the information contained in such notice of meeting to
the record holders of Depositary Receipts. The record holders of Depositary
Receipts on the record date will be entitled to instruct the Depositary in
writing as to the exercise of the voting rights pertaining to the amount of the
New Preferred Stock represented by their respective Depositary Preferred Shares.
Because the New Preferred Stock will have one vote per share, the holders of the
Depositary Preferred Shares will have 1/4th vote per share. The Depositary will
endeavor, insofar as practicable, to vote the amount
17
<PAGE> 19
of the New Preferred Stock represented by such Depositary Preferred Shares in
accordance with such instructions, and the Company has agreed to take all action
which may be deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will abstain from voting the New Preferred
Stock to the extent that it does not receive specific instructions from the
owners of the Depositary Preferred Shares. The owners of the Depositary
Preferred Shares shall have no greater voting rights than the holders of the New
Preferred Stock. The holders of New Preferred Stock will be entitled to vote, as
a class together with any other series of preferred stock of the Company
similarly affected, as provided above in "Securities -- Description of New
Preferred Stock -- Voting Rights."
Record Date: Whenever any cash dividend or other cash distribution becomes
payable, any distribution other than cash is made, or any rights, preferences or
privileges are at any time offered with respect to the underlying New Preferred
Stock, or the Depositary receives notice of any meeting at which holders of such
New Preferred Stock are entitled to vote, the Depositary will in each such
instance fix a record date (which shall be the same date as the record date for
the New Preferred Stock) for the determination of the holders of Depositary
Receipts who are entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting or to receive
notice of such meeting.
Amendment and Termination of the Deposit Agreement: The form of the
Depositary Receipts and any provision of the Deposit Agreement may at any time
be amended by agreement between the Company and the Depositary. Any amendment
which imposes or increases any fees, taxes or charges upon owners of Depositary
Preferred Shares (other than taxes and other charges, fees and telecopier or
delivery expenses payable by owners of Depositary Preferred Shares as stated
below under "Securities -- Description of Depositary Preferred Shares and
Depositary Receipts -- Charges of Depositary"), or which otherwise prejudices
any substantial existing right of the holders of Depositary Receipts, will not
take effect as to outstanding Depositary Receipts until the expiration of 90
days after notice of such amendment has been given to the record holders of
outstanding Depositary Receipts.
Whenever directed by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the holders of all
outstanding Depositary Preferred Shares at least 30 days prior to the date of
termination. Upon termination of the Deposit Agreement, the record holders of
outstanding Depositary Receipts shall exchange such Depositary Receipts for
shares of the underlying New Preferred Stock, provided that no fractional shares
of New Preferred Stock will be issued and, in lieu thereof, each holder
otherwise entitled to a fractional share of New Preferred Stock shall be paid
cash in an amount equal to the redemption price attributable to the fractional
shares. If any Depositary Receipts remain outstanding after the date of
termination, the Depositary thereafter will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the owners
thereof, and will not give any further notices (other than notices of such
termination) or perform any further acts under the Deposit Agreement except that
the Depositary will continue (i) to collect dividends and other distributions
pertaining to the New Preferred Stock held by the Depositary and (ii) to deliver
New Preferred Stock together with such dividends and distributions and the net
proceeds of any sales of rights, preferences, privileges or other property in
exchange for Depositary Receipts surrendered to the Depositary. At any time
after the expiration of two years from the date of termination, the Depositary
shall, at the direction of the Company, sell the New Preferred Stock then held
by it at public or private sale, at such place or places and upon such terms as
the Company deems proper and may thereafter hold the net proceeds of any such
sale, together with any money and other property then held by it, without
liability for interest thereon, for the pro rata benefit of the holders of
Depositary Receipts which have not been surrendered. Within 60 days after the
first anniversary of the date of such sale, the Depositary shall pay to the
Company any of such proceeds which have not been claimed by the holders of
Depositary Receipts.
Charges of Depositary: All charges in connection with the initial issuance
of the Depositary Preferred Shares will be borne by the Company. Pursuant to
Section 5.08 of the Deposit Agreement, the Company will pay all other fees and
charges of the Depositary except for fees of the Depositary for the withdrawal
of New Preferred Stock, taxes (including transfer taxes, if any) and other
governmental charges payable in connection with the Depositary Preferred Shares,
and such telecopier and delivery charges as are expressly provided in the
Deposit Agreement to be at the expense of holders of Depositary Receipts. All
such fees and charges
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<PAGE> 20
described in the preceding sentence shall be paid by the holders of Depositary
Receipts (except as otherwise provided in said Section 5.08).
To the extent the fees of the Depositary are not to be paid by the Company
pursuant to Section 5.08 of the Deposit Agreement, the Depositary will charge
the parties to whom Depositary Receipts or shares of New Preferred Stock are
delivered a fee of $25.00 for each transaction involving the withdrawal of New
Preferred Stock.
General: The Depositary will make available for inspection by owners of
Depositary Preferred Shares at its office, at the location to be set forth in
the applicable Prospectus Supplement, all reports and communications from the
Company which are made generally available to the holders of its New Preferred
Stock and will send to owners of Depositary Preferred Shares copies of all
notices and reports required to be sent to the owners of New Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement are limited to performance in good faith
of their duties thereunder and they are not obligated to prosecute or defend any
legal proceeding in respect of any Depositary Preferred Shares or underlying New
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
advice or information from counsel, accountants or other persons believed to be
competent and on documents believed to be genuine. The Depositary is not
responsible for any failure to carry out any instructions to vote, provided it
acts in good faith, and it may deal in any class of securities of the Company
and in the Depositary Preferred Shares.
The Depositary may from time to time appoint Depositary's Agents (which may
include the Company) for purposes of the Deposit Agreement.
The Depositary may resign or be removed by the Company, effective upon the
acceptance by its successor depositary of its appointment.
Unless otherwise set forth in the applicable Prospectus Supplement, the
Depositary will act as Transfer Agent and, if listed on the NYSE, the Registrar
of the Depositary Receipts.
COMMON STOCK DIVIDENDS AND PRICE RANGE
The following table sets forth the reported high and low sale prices of the
Company's Common Stock as reported by The Wall Street Journal for, and the
dividends per share declared in, the periods indicated:
<TABLE>
<CAPTION>
DIVIDEND
PER
YEAR HIGH LOW SHARE
- ----- ---- --- --------
<S> <C> <C> <C> <C>
1992(1Q).................................................... $28 7/8 25 7/8 .48
(2Q).................................................... 29 1/2 26 .50
(3Q).................................................... 30 1/4 28 1/4 .50
(4Q).................................................... 31 1/4 28 7/8 .50
1993(1Q).................................................... 34 1/4 30 5/8 .50
(2Q).................................................... 34 1/2 30 5/8 .515
(3Q).................................................... 35 5/8 34 .515
(4Q).................................................... 34 3/8 28 3/8 .515
1994(1Q).................................................... 30 1/8 27 7/8 .515
(2Q).................................................... 29 3/4 25 3/4 .52
(3Q).................................................... 27 5/8 23 .52
(4Q) (through November 1, 1994)......................... 24 7/8 22 7/8 --
</TABLE>
The Company and its principal predecessors have paid dividends on its Common
Stock in each year since 1903. While the Board of Directors of the Company
intends to continue the practice of paying dividends quarterly, the amounts and
dates of such dividends as may be declared will be based on all the facts and
19
<PAGE> 21
circumstances known at the time of consideration of such declaration. For a
recent closing sale price of the Common Stock, as reported on the NYSE, see the
cover page of the applicable Prospectus Supplement.
The Company maintains an Automatic Dividend Reinvestment and Stock Purchase
Plan ("Dividend Reinvestment Plan") available for shareholders of record. Under
the Dividend Reinvestment Plan, dividends on the shares owned by the shareholder
are automatically reinvested in the Company's Common Stock. The shareholder may
also make additional cash payments (not exceeding $10,000 per quarter) for the
purchase of Common Stock under the Dividend Reinvestment Plan. All expenses of
the Dividend Reinvestment Plan are paid by the Company. Shares are purchased on
behalf of participants in the Dividend Reinvestment Plan either on the open
market or directly from the Company, or a combination of both, as the Company
shall elect. Shares purchased directly from the Company consist of authorized
but unissued shares of Common Stock. The foregoing is only a summary of the
Dividend Reinvestment Plan. Details are contained in the Prospectus relating to
the Dividend Reinvestment Plan, which can be obtained by writing to the Director
of Shareholder Relations, Central Hudson Gas & Electric Corporation, 284 South
Avenue, Poughkeepsie, New York 12601-4879.
The Company has a Customer Stock Purchase Plan to provide its residential
customers with a convenient method of purchase and sale of shares of the
Company's Common Stock. Shares are purchased on behalf of participants in such
Plan either on the open market or directly from the Company, or a combination of
both, as the Company shall elect. Shares purchased directly from the Company
consist of authorized but unissued shares of Common Stock.
The Company also maintains for employees an Employee Stock Purchase Plan
which provides for the acquisition of shares of the Company's Common Stock in
the open market.
DESCRIPTION OF COMMON STOCK
The statements set forth below are brief summaries of certain provisions
contained in the Certificate of Incorporation, and in the Company's 4.85%
Promissory Notes, due December 1, 1995, which are exhibits to the Registration
Statement to which this Prospectus is a part. Such statements do not purport to
be complete and reference is made to said exhibits for complete statements of
such provisions.
Terms of Additional Common Stock: Reference is made to the applicable
Prospectus Supplement which accompanies this Prospectus for the following terms
and other information with respect to the Additional Common Stock being offered
thereby: (1) the number of shares of such Additional Common Stock; (2) the
initial public offering price; and (3) any other specific terms applicable to
the offering of such Additional Common Stock.
Dividend Rights: Subject to the limitations set forth in the following
paragraph, the Board of Directors may declare dividends upon the Common Stock
payable out of the retained earnings remaining after full cumulative dividends
upon the Company's Serial Preferred Stock shall have been paid or a sum
sufficient for the payment thereof shall have been set apart or appropriated for
such payment.
Limitations on the Payment of Dividends: The Company's 4.85% Promissory
Notes, due December 1, 1995, contain limitations upon the right of the Company
to declare or pay any dividend or make any other distribution on (other than
dividends or distributions payable in Common Stock), or acquire for a
consideration, any shares of its Common Stock unless specified conditions are
satisfied. At September 30, 1994, the amount of retained earnings available for
dividends on the Company's Common Stock under the provisions of said 4.85%
Promissory Notes was $73,615,759.
Voting Rights: The holders of the Common Stock are entitled to one vote
for each share of such Common Stock at all shareholders' meetings and, except as
hereinafter stated, have the only voting rights. Such voting rights are
non-cumulative.
As set forth in the Certificate of Incorporation, the holders of each
series of Serial Preferred Stock shall at all times be entitled to vote or act
separately as a class with respect to any proposal to authorize any amendment of
the Certificate of Incorporation which affects the preferences of outstanding
shares of each
20
<PAGE> 22
such series. In addition, if, at any time, dividends on any series of
outstanding Serial Preferred Stock shall not have been paid in full for periods
aggregating one year or more, then, and until full cumulative dividends thereon
shall have been paid, the holders of such series shall have certain voting
rights as specified in the Certificate of Incorporation, including the right to
elect a majority of the members of the Board of Directors of the Company. See
"Securities -- Description of New Preferred Stock -- Voting Rights" above.
Liquidation Rights: Upon the dissolution, liquidation or winding up of the
Company resulting in a distribution of assets to its shareholders, the holders
of the Common Stock are entitled to receive the remaining assets of the Company
in proportion to the number of shares held by them respectively, after the
payments have been made to the holders of each issue of the Serial Preferred
Stock as required by the Certificate of Incorporation.
Preemptive or other Subscription Rights: No holder of Common Stock or
outstanding Serial Preferred Stock has any preemptive rights.
Fair Price Provision: The Certificate of Incorporation contains a "fair
price" provision designed generally to assure that all shareholders receive the
same price and/or equal treatment for their shares of Common Stock upon an offer
for the Company's Common Stock under a proposed business combination. The
Company's "fair price" provision prohibits certain business combinations with
the controlling or substantial shareholder unless (i) the minimum price and
procedural requirements are satisfied, (ii) a majority of disinterested
directors approve the transaction, or (iii) the required supermajority
shareholder vote is obtained, consisting of the affirmative vote of at least 80%
of the Company's voting shares, in which vote at least two-thirds of the
disinterested shareholders approve the transaction. Such provision supplements
the "fair price" protection available under the New York Business Corporation
Law.
Stock Exchange Listing: The outstanding shares of Common Stock are, and
the Additional Common Stock to be offered hereby will be, subject to official
notice of issuance, listed on the NYSE.
Other Provisions: The par value of the Common Stock is $5.00 per share.
All of the outstanding Common Stock of the Company is, and the Additional Stock
to be offered hereby will be, fully paid and non-assessable.
Transfer Agent and Registrar: The Transfer Agent and Registrar of the
Common Stock is First Chicago Trust Company of New York, P.O. Box 2550, Jersey
City, New Jersey 07303-2550.
LEGAL OPINIONS AND EXPERTS
The legality of the Securities offered hereby and all legal matters in
connection therewith will be passed upon for the Company by Gould & Wilkie,
general counsel to the Company, One Chase Manhattan Plaza, New York, New York
and for any agent, dealer or underwriter by Winthrop, Stimson, Putnam & Roberts,
One Battery Park Plaza, New York, New York.
The statements herein as to matters of law and legal conclusions under "The
Company," "Securities -- Description of the New Bonds,"
"Securities -- Description of the Unsecured Notes," "Securities -- Description
of New Preferred Stock," "Securities -- Description of Depositary Preferred
Shares and Depositary Receipts," "Securities -- Common Stock Dividends and Price
Range" and "Securities -- Description of Common Stock" have been reviewed by
Gould & Wilkie and are set forth in reliance upon their opinion given upon their
authority as experts.
The consolidated financial statements of the Company incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1993 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
21
<PAGE> 23
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters or dealers;
(ii) directly to one or more purchasers; or (iii) through agents. Each
Prospectus Supplement sets forth the terms of the offering of the Securities
offered thereby, including the name or names of any underwriters, dealers or
agents, the initial public offering price or purchase price of such Securities,
the proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any discounts or concessions
allowed or reallowed or paid to dealers, any securities exchange on which Debt
Securities may be listed and the use of delayed delivery contracts, if any. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time. Only firms named
in a Prospectus Supplement are deemed to be underwriters, dealers or agents in
connection with the Securities offered thereby.
If underwriters are used in the sale of the Securities, such Securities
will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Such Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more underwriters. Any underwriters with respect to any of
the Securities will be named in the Prospectus Supplement relating thereto and,
if an underwriting syndicate is used, the managing underwriter or underwriters
will be named on the cover page of such Prospectus Supplement. Unless otherwise
set forth in the Prospectus Supplement, the obligations of the underwriters to
purchase any of the Securities will be subject to certain conditions precedent,
and the underwriters will be obligated to purchase all of such Securities if any
are purchased.
Subject to certain conditions, the Company may agree to indemnify the
several underwriters or agents and their controlling persons against certain
liabilities, including liabilities under the Securities Act of 1933, as amended,
arising out of or based upon, among other things, any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, this Prospectus, a Prospectus Supplement or the Incorporated
Documents or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. See the
applicable Prospectus Supplement.
Underwriters, dealers and agents may engage in transactions with or perform
services for the Company in the ordinary course of business.
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, OR, WITH RESPECT TO ANY SERIES OF SECURITIES, THE PROSPECTUS
SUPPLEMENT RELATING THERETO, AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR BY ANY OF THE UNDERWRITERS. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY THE
SECURITIES OFFERED THEREBY IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE
SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
22
<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses relating to the New Bonds (assuming an issuance of
$80,000,000) are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Filing fee, Securities and Exchange Commission................... $ 27,600
Printing of Registration Statement, Prospectus, Supplemental
Indenture and Bonds............................................ 60,000*
Mortgage recording tax........................................... 800,000
Auditor's fee and expenses....................................... 25,000*
Expenses in connection with qualification of securities under
blue sky laws including counsel fees........................... 12,000*
Legal services -- Company's counsel.............................. 100,000*
Authentication and delivery of Bonds and Mortgage Trustee's fees
and expenses including counsel fees............................ 45,000*
Agents' counsel fee.............................................. 40,000*
Rating agencies fees............................................. 60,000*
Miscellaneous disbursements...................................... 17,000*
----------
Total.................................................. $1,186,600*
==========
</TABLE>
------------
* Estimated
Estimated expenses relating to the Unsecured Notes (assuming an issuance of
$80,000,000) are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Filing fee, Securities and Exchange Commission................... $ 27,600
Printing of Registration Statement, Prospectus, Unsecured Notes
Indenture and Unsecured Notes.................................. 60,000*
Auditor's fees and expenses...................................... 25,000*
Expenses in connection with qualification of securities under
blue sky laws including counsel fees........................... 12,000*
Legal services -- Company's counsel.............................. 100,000*
Authentication and delivery of Unsecured Notes and Indenture
Trustee's fees and expenses including counsel fees............. 40,000*
Agents' counsel fee.............................................. 40,000*
Rating agencies fees............................................. 60,000*
Miscellaneous disbursements...................................... 17,000*
----------
Total.................................................. $ 381,600*
==========
</TABLE>
------------
* Estimated
II-1
<PAGE> 25
Estimated expenses relating to the New Preferred Stock (assuming an
issuance of 250,000 shares), other than underwriting discounts and commissions,
are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Filing fee, Securities and Exchange Commission................... $ 8,700
Printing of Registration Statement, Prospectus, Stock
Certificates and related papers................................ 35,000*
Auditor's fees and expenses...................................... 50,000*
Expenses in connection with qualification of securities under
blue sky laws including counsel fees........................... 25,000*
Legal services -- Company's counsel.............................. 75,000*
Establishment of Depositary...................................... 25,000*
Rating agencies fees............................................. 30,000*
Miscellaneous disbursements...................................... 8,250*
----------
Total.................................................. $ 256,950*
==========
</TABLE>
------------
* Estimated
Estimated expenses relating to the Additional Common Stock (assuming an
issuance of an amount of $40,000,000 in initial aggregate offering price), other
than underwriting discounts and commissions, are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Filing fee, Securities and Exchange Commission................... $ 13,800
Printing of Registration Statement, Prospectus and related
papers......................................................... 55,000*
Auditor's fees and expenses...................................... 25,000*
Expenses in connection with qualification of securities under
blue sky laws including counsel fees........................... 20,000*
Legal services -- Company's counsel.............................. 55,000*
New York Stock Exchange Listing fee.............................. 5,250**
Miscellaneous disbursements...................................... 10,000*
----------
Total.................................................. $ 184,050*
==========
</TABLE>
------------
* Estimated
** Assumes an issuance of 1,500,000 shares
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are in certain cases entitled,
pursuant to provisions contained in Sections 721 through 726 of the New York
Business Corporation Law ("BCL"), Article II, Section 13, of the Bylaws of the
Registrant, and the Registrant's Retirement Income Plan and Disability Plan, to
indemnification against expenses and liabilities arising from their acts or
omissions. The Bylaws of the Registrant contain provisions that the Registrant
shall indemnify, to the full extent permitted by law, any person made, or
threatened to be made, a party to any action or proceedings, whether civil or
criminal, by reason of the fact that such person is or was a director or officer
of the Registrant. The Registrant has entered into an indemnification agreement
with each of its directors and officers. Each such agreement relates to
indemnification by the Registrant to the full extent authorized or permitted by
law for any civil or criminal action or proceeding arising by reason of that
individual's role as a director or officer of the Board of Directors or as an
officer or employee of the Registrant or service with any other corporation,
partnership, joint venture, trust, employee benefit plan or enterprise in any
such capacity at the request of the Registrant. In addition, the Registrant's
Certificate of Incorporation exempts directors from certain liabilities arising
out of events
II-2
<PAGE> 26
occurring on and after April 6, 1988, pursuant to Section 402(b) of the BCL. The
Registrant, pursuant to authority granted by the BCL, has purchased liability
insurance on behalf of itself and its directors and officers in connection with
the corporate responsibilities of such directors and officers.
The form of underwriting agreement to which the offering contained in this
Registration Statement relates also provides that the underwriters named therein
will, under certain circumstances, indemnify the Registrant, its directors and
officers, and any person who controls any thereof.
ITEM 16. EXHIBITS
Following is the list of Exhibits, as required by Item 601 of Regulation
S-K, filed as part of the Registration Statement, including Exhibits
incorporated herein by reference:
<TABLE>
<CAPTION>
PREVIOUSLY FILED*
-------------------------------------------------------
WITH THE
FOLLOWING PERIODIC
(REGULATION S-K) WITH REPORT OF THE
ITEM 601 REGISTRATION COMPANY (FILE AS
DESIGNATION EXHIBIT STATEMENT NO. NO. 1-3268) EXHIBIT
- ---------------- ------- ------------- ------------------ -------
<S> <C> <C> <C> <C>
(1)(a) -- Form of Distribution Agreement.
(b) -- Form of Preferred Stock
Underwriting Agreement
(c) -- Form of Common Stock
Underwriting Agreement
(4) -- Instruments defining the rights
of security holders:
(i)1 -- Restated Certificate of 10-Q Report for quarter ended (3)1
Incorporation of the Company September 30, 1993
under Section 807 of the
Business Corporation Law, filed
August 14, 1989.
(i)2 -- Certificate of Amendment to the 10-Q Report for quarter ended (3)2
Restated Certificate of September 30, 1993
Incorporation of the Company
under Section 805 of the
Business Corporation Law, filed
April 5, 1990.
(i)3 -- Certificate of Amendment of the 10-Q Report for quarter ended (3)3
Certificate of Incorporation of September 30, 1993
the Company under Section 805 of
the Business Corporation Law,
filed October 19, 1993.
(i)4 -- Form of the Company's 4.85% 2-66511 1.9
Promissory Notes.
(i)5 -- Bylaws in effect on the date of 10-Q Report for quarter ended (3)(iii)
this Registration Statement. March 31, 1994
+(i)6 -- Indenture dated as of January 1, 10-K/A Report for year ended 4(ii)1
1927 between the Registrant and December 31, 1992
American Exchange Irving Trust
Company (now The Bank of New
York), as Trustee.
-- Supplemental Indentures to
Indenture dated as of January 1,
1927:
NUMBER DATED AS OF
------ -----------
+(i)7 First March 1, 1935 10-K/A Report for year ended 4(ii)2
December 31, 1992
+(i)8 Second June 1, 1937 10-K/A Report for year ended 4(ii)3
December 31, 1992
</TABLE>
II-3
<PAGE> 27
<TABLE>
<CAPTION>
PREVIOUSLY FILED*
-------------------------------------------------------
WITH THE
FOLLOWING PERIODIC
(REGULATION S-K) WITH REPORT OF THE
ITEM 601 REGISTRATION COMPANY (FILE AS
DESIGNATION EXHIBIT STATEMENT NO. NO. 1-3268) EXHIBIT
- ---------------- ------- ------------- ------------------ -------
<S> <C> <C> <C> <C> <C>
+(i)9 Third April 1, 1940 10-K/A Report for year ended 4(ii)4
December 31, 1992
+(i)10 Fourth March 1, 1941 10-K/A Report for year ended 4(ii)5
December 31, 1992
+(i)11 Fifth December 1, 1950 10-K/A Report for year ended 4(ii)6
December 31, 1992
+(i)12 Sixth December 1, 1952 10-K/A Report for year ended 4(ii)7
December 31, 1992
+(i)13 Seventh October 1, 1954 10-K/A Report for year ended 4(ii)8
December 31, 1992
+(i)14 Eighth May 15, 1958 10-K/A Report for year ended 4(ii)9
December 31, 1992
(i)15 Ninth December 1, 1967 10-K/A Report for year ended 4(ii)10
December 31, 1992
(i)16 Tenth January 15, 1969 2-65127 2.12
(i)17 Eleventh June 1, 1970 2-67537 1.13
(i)18 Twelfth February 1, 1972 10-K/A Report for year ended 4(ii)13
December 31, 1992
(i)19 Thirteenth April 15, 1974 10-K/A Report for year ended 4(ii)14
December 31, 1992
(i)20 Fourteenth November 1, 1975 10-K/A Report for year ended 4(ii)15
December 31, 1992
(i)21 Fifteenth June 1, 1977 10-K/A Report for year ended 4(ii)16
December 31, 1992
(i)22 Sixteenth September 15, 1979 2-67537 1.18
(i)23 Seventeenth May 15, 1980 2-69640 4(ii)18
(i)24 Eighteenth November 15, 1980 10-K/A Report for year ended 4(ii)19
December 31, 1992
(i)25 Nineteenth August 15, 1981 10-K/A Report for year ended 4(ii)20
December 31, 1992
(i)26 Twentieth September 1, 1982 10-K/A Report for year ended 4(ii)21
December 31, 1992
(i)27 Twenty-First November 22, 1982 10-K/A Report for year ended 4(ii)22
December 31, 1992
(i)28 Twenty-Second May 24, 1984 10-K/A Report for year ended 4(ii)23
December 31, 1992
(i)29 Twenty-Third June 15, 1985 10-K/A Report for year ended 4(ii)24
December 31, 1992
(i)30 Twenty-Fourth September 1, 1986 10-K/A Report for year ended 4(ii)25
December 31, 1992
(i)31 Twenty-Fifth December 1, 1988 10-K/A Report for year ended 4(ii)26
December 31, 1992
(i)32 Twenty-Sixth May 1, 1991 10-K/A Report for year ended 4(ii)27
December 31, 1992
(i)33 Twenty-Seventh May 15, 1992 10-K/A Report for year ended 4(ii)28
December 31, 1992
</TABLE>
Prospectus Supplement Dated May 28, 1992 (To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal amount of First Mortgage Bonds, designated
Secured Medium-Term Notes, Series A, and the Prospectus Dated April 13, 1992,
relating to $125,000,000 principal amount of Registrant's debt securities
attached thereto, as filed pursuant to Rule 424(b) in connection with
Registration Statement No. 33-46624, and, as applicable to a tranche of such
Secured Medium-Term Notes, one of the following:
(a) Pricing Supplement No. 1, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
II-4
<PAGE> 28
(b) Pricing Supplement No. 2, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(c) Pricing Supplement No. 3, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(d) Pricing Supplement No. 4, Dated August 20, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(e) Pricing Supplement No. 5, Dated August 20, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(f) Pricing Supplement No. 6, Dated July 26, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(g) Pricing Supplement No. 7, Dated July 26, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<TABLE>
<S> <C>
(i)34 -- Form of Supplemental Mortgage Indenture between Registrant and The Bank of New
York, as Trustee, which contains forms of New Bonds.
*(i)35 -- Unsecured Note Indenture between Registrant and First Trust of New York, National
Association (as successor trustee to Morgan Guaranty Trust Company of New York), as
Trustee, dated as of April 1, 1992 (previously filed with the Company's Current
Report on Form 8-K, dated May 27, 1992, as Exhibit (4)(ii)29).
</TABLE>
Prospectus Supplement Dated May 28, 1992 (To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal amount of Medium-Term Notes, Series A, and
the Prospectus Dated April 13, 1992, relating to $125,000,000 principal amount
of Registrant's debt securities attached thereto, as filed pursuant to Rule
424(b) in connection with Registration Statement No. 33-46624, and, as
applicable to a tranche of such Medium-Term Notes, one of the following:
(a) Pricing Supplement No. 1, Dated June 26, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(b) Pricing Supplement No. 2, Dated October 6, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<TABLE>
<S> <C>
(i)36 -- Forms of Unsecured Notes.
(i)37 -- Form of Certificate of Amendment of the Certificate of Incorporation of the Company
pursuant to Section 805 of the Business Corporation Law.
(i)38 -- Form of Deposit Agreement among Registrant, a financial institution to be named, as
Depositary, and Holders of Depositary Receipts.
(5) -- Opinion of counsel re legality.
(12) -- Statement showing the Computation of the Ratio of Earnings to Fixed Charges and the
Computation of the Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
(23) -- Consents of experts and counsel.
(a) -- Consent of Price Waterhouse.
(b) -- Consent of Gould & Wilkie (contained in their opinion, a copy of which is filed as
Exhibit (5)).
(24) -- Power of attorney for each officer and director signing the Registration Statement.
(25) -- Statement of eligibility of trustee.
(a) -- Statement of eligibility of trustee (Statement of Eligibility and Qualification on
Form T-1 of The Bank of New York under the Mortgage Indenture).
(b) -- Statement of eligibility of trustee (Statement of Eligibility and Qualification on
Form T-1 of First Trust of New York, National Association, under the Unsecured Note
Indenture).
(27) --Financial Data Schedule.
</TABLE>
II-5
<PAGE> 29
- ------------
* Incorporated herein by reference.
+ This Exhibit has heretofore been classified as a basic document under previous
Rule 24(b) of the SEC Rules of Practice.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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 ("Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in the first paragraph of Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-6
<PAGE> 30
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF POUGHKEEPSIE, AND STATE OF NEW YORK, ON THE 7TH DAY
OF NOVEMBER, 1994.
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(Registrant)
By JOHN E. MACK III
----------------------------------
(John E. Mack III,
Chairman of the Board and Chief
Executive Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------- -------------------
<S> <C> <C>
Principal Executive Officer
or Officers and Director:
JOHN E. MACK III Chairman of the Board and November 7, 1994
--------------------------------------- Chief Executive Officer
(John E. Mack III) and Director
JOHN F. DRAIN, Vice President -- Finance and
Controller (Principal Financial Officer and
Principal Accounting Officer); L. WALLACE
CROSS, JACK EFFRON, RICHARD H. EYMAN,
FRANCES D. FERGUSSON, HEINZ K. FRIDRICH,
EDWARD F.X. GALLAGHER, PAUL J. GANCI,
CHARLES LAFORGE, HOWARD C. ST. JOHN and
EDWARD P. SWYER, Directors
By JOHN E. MACK III
------------------------------------
(John E. Mack III, Attorney-in-Fact)
November 7, 1994
</TABLE>
II-7
<PAGE> 31
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
PREVIOUSLY FILED*
-------------------------------------------------------
WITH THE
FOLLOWING PERIODIC
(REGULATION S-K) WITH REPORT OF THE
ITEM 601 REGISTRATION COMPANY (FILE AS
DESIGNATION EXHIBIT STATEMENT NO. NO. 1-3268) EXHIBIT
- ---------------- ------- ------------- ------------------ -------
<S> <C> <C> <C> <C> <C>
(1)(a) -- Form of Distribution Agreement.
(b) -- Form of Preferred Stock
Underwriting Agreement
(c) -- Form of Common Stock
Underwriting Agreement
(4) -- Instruments defining the rights
of security holders:
(i)1 -- Restated Certificate of 10-Q Report for quarter ended (3)1
Incorporation of the Company September 30, 1993
under Section 807 of the
Business Corporation Law, filed
August 14, 1989.
(i)2 -- Certificate of Amendment to the 10-Q Report for quarter ended (3)2
Restated Certificate of September 30, 1993
Incorporation of the Company
under Section 805 of the
Business Corporation Law, filed
April 5, 1990.
(i)3 -- Certificate of Amendment of the 10-Q Report for quarter ended (3)3
Certificate of Incorporation of September 30, 1993
the Company under Section 805 of
the Business Corporation Law,
filed October 19, 1993.
(i)4 -- Form of the Company's 4.85% 2-66511 1.9
Promissory Notes.
(i)5 -- Bylaws in effect on the date of 10-Q Report for quarter ended (3)(iii)
this Registration Statement. March 31, 1994
+(i)6 -- Indenture dated as of January 1, 10-K/A Report for year ended 4(ii)1
1927 between the Registrant and December 31, 1992
American Exchange Irving Trust
Company (now The Bank of New
York), as Trustee.
-- Supplemental Indentures to
Indenture dated as of January 1,
1927:
NUMBER DATED AS OF
------ -----------
+(i)7 First March 1, 1935 10-K/A Report for year ended 4(ii)2
December 31, 1992
+(i)8 Second June 1, 1937 10-K/A Report for year ended 4(ii)3
December 31, 1992
+(i)9 Third April 1, 1940 10-K/A Report for year ended 4(ii)4
December 31, 1992
+(i)10 Fourth March 1, 1941 10-K/A Report for year ended 4(ii)5
December 31, 1992
+(i)11 Fifth December 1, 1950 10-K/A Report for year ended 4(ii)6
December 31, 1992
+(i)12 Sixth December 1, 1952 10-K/A Report for year ended 4(ii)7
December 31, 1992
+(i)13 Seventh October 1, 1954 10-K/A Report for year ended 4(ii)8
December 31, 1992
+(i)14 Eighth May 15, 1958 10-K/A Report for year ended 4(ii)9
December 31, 1992
</TABLE>
<PAGE> 32
<TABLE>
<CAPTION>
PREVIOUSLY FILED*
-------------------------------------------------------
WITH THE
FOLLOWING PERIODIC
(REGULATION S-K) WITH REPORT OF THE
ITEM 601 REGISTRATION COMPANY (FILE AS
DESIGNATION EXHIBIT STATEMENT NO. NO. 1-3268) EXHIBIT
- ---------------- ------- ------------- ------------------ -------
<S> <C> <C> <C> <C> <C>
(i)15 Ninth December 1, 1967 10-K/A Report for year ended 4(ii)10
December 31, 1992
(i)16 Tenth January 15, 1969 2-65127 2.12
(i)17 Eleventh June 1, 1970 2-67537 1.13
(i)18 Twelfth February 1, 1972 10-K/A Report for year ended 4(ii)13
December 31, 1992
(i)19 Thirteenth April 15, 1974 10-K/A Report for year ended 4(ii)14
December 31, 1992
(i)20 Fourteenth November 1, 1975 10-K/A Report for year ended 4(ii)15
December 31, 1992
(i)21 Fifteenth June 1, 1977 10-K/A Report for year ended 4(ii)16
December 31, 1992
(i)22 Sixteenth September 15, 1979 2-67537 1.18
(i)23 Seventeenth May 15, 1980 2-69640 4(ii)18
(i)24 Eighteenth November 15, 1980 10-K/A Report for year ended 4(ii)19
December 31, 1992
(i)25 Nineteenth August 15, 1981 10-K/A Report for year ended 4(ii)20
December 31, 1992
(i)26 Twentieth September 1, 1982 10-K/A Report for year ended 4(ii)21
December 31, 1992
(i)27 Twenty-First November 22, 1982 10-K/A Report for year ended 4(ii)22
December 31, 1992
(i)28 Twenty-Second May 24, 1984 10-K/A Report for year ended 4(ii)23
December 31, 1992
(i)29 Twenty-Third June 15, 1985 10-K/A Report for year ended 4(ii)24
December 31, 1992
(i)30 Twenty-Fourth September 1, 1986 10-K/A Report for year ended 4(ii)25
December 31, 1992
(i)31 Twenty-Fifth December 1, 1988 10-K/A Report for year ended 4(ii)26
December 31, 1992
(i)32 Twenty-Sixth May 1, 1991 10-K/A Report for year ended 4(ii)27
December 31, 1992
(i)33 Twenty-Seventh May 15, 1992 10-K/A Report for year ended 4(ii)28
December 31, 1992
</TABLE>
Prospectus Supplement Dated May 28, 1992 (To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal amount of First Mortgage Bonds, designated
Secured Medium-Term Notes, Series A, and the Prospectus Dated April 13, 1992,
relating to $125,000,000 principal amount of Registrant's debt securities
attached thereto, as filed pursuant to Rule 424(b) in connection with
Registration Statement No. 33-46624, and, as applicable to a tranche of such
Secured Medium-Term Notes, one of the following:
(a) Pricing Supplement No. 1, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(b) Pricing Supplement No. 2, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(c) Pricing Supplement No. 3, Dated June 4, 1992 (To Prospectus Dated April 13,
1992, as supplemented by a Prospectus Supplement Dated May 28, 1992) filed
pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(d) Pricing Supplement No. 4, Dated August 20, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<PAGE> 33
(e) Pricing Supplement No. 5, Dated August 20, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(f) Pricing Supplement No. 6, Dated July 26, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(g) Pricing Supplement No. 7, Dated July 26, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<TABLE>
<S> <C>
(i)34 -- Form of Supplemental Mortgage Indenture between Registrant and The Bank of New
York, as Trustee, which contains forms of New Bonds.
*(i)35 -- Unsecured Note Indenture between Registrant and First Trust of New York, National
Association (as successor trustee to Morgan Guaranty Trust Company of New York), as
Trustee, dated as of April 1, 1992 (previously filed with the Company's Current
Report on Form 8-K, dated May 27, 1992, as Exhibit (4)(ii)29).
</TABLE>
Prospectus Supplement Dated May 28, 1992 (To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal amount of Medium-Term Notes, Series A, and
the Prospectus Dated April 13, 1992, relating to $125,000,000 principal amount
of Registrant's debt securities attached thereto, as filed pursuant to Rule
424(b) in connection with Registration Statement No. 33-46624, and, as
applicable to a tranche of such Medium-Term Notes, one of the following:
(a) Pricing Supplement No. 1, Dated June 26, 1992 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
(b) Pricing Supplement No. 2, Dated October 6, 1993 (To Prospectus Dated April
13, 1992, as supplemented by a Prospectus Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in connection with Registration Statement No.
33-46624.
<TABLE>
<S> <C>
(i)36 -- Forms of Unsecured Notes.
(i)37 -- Form of Certificate of Amendment of the Certificate of Incorporation of the Company
pursuant to Section 805 of the Business Corporation Law.
(i)38 -- Form of Deposit Agreement among Registrant, a financial institution to be named, as
Depositary, and Holders of Depositary Receipts.
(5) -- Opinion of counsel re legality.
(12) -- Statement showing the Computation of the Ratio of Earnings to Fixed Charges and the
Computation of the Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
(23) -- Consents of experts and counsel.
(a) -- Consent of Price Waterhouse.
(b) -- Consent of Gould & Wilkie (contained in their opinion, a copy of which is filed as
Exhibit (5)).
(24) -- Power of attorney for each officer and director signing the Registration Statement.
(25) -- Statement of eligibility of trustee.
(a) -- Statement of eligibility of trustee (Statement of Eligibility and Qualification on
Form T-1 of The Bank of New York under the Mortgage Indenture).
(b) -- Statement of eligibility of trustee (Statement of Eligibility and Qualification on
Form T-1 of First Trust of New York, National Association, under the Unsecured Note
Indenture).
(27) -- Financial Data Schedule.
</TABLE>
- ------------
* Incorporated herein by reference.
+ This Exhibit has heretofore been classified as a basic document under previous
Rule 24(b) of the SEC Rules of Practice.
<PAGE> 1
EXHIBIT (1)(a)
WSP&R
DRAFT
11/3/94
Central Hudson Gas & Electric Corporation
$80,000,000
Secured Medium-Term Notes, Series B
Medium-Term Notes, Series B
DISTRIBUTION AGREEMENT
______ __, 199_
New York, New York
Kidder, Peabody & Co. Incorporated
10 Hanover Square
New York, New York 10005
Smith Barney Inc.
1345 Avenue of the Americas
New York, New York 10105
Dear Sirs:
Central Hudson Gas & Electric Corporation, a New York
corporation (the "Company"), confirms its agreement with each of you with
respect to the issue and sale by the Company of up to $85,000,000 aggregate
principal amount of its Secured Medium-Term Notes, Series B (the "Secured
Notes"), and its Medium-Term Notes, Series B (the "Unsecured Notes"). The
Secured Notes and the Unsecured Notes are hereinafter collectively referred to
as the "Notes".
The Company proposes to issue the Secured Notes under its
Indenture of Mortgage, dated as of January 1, 1927, to American Exchange Irving
Trust Company (The Bank of New York, successor), as trustee (the "Mortgage
Trustee"), as heretofore supplemented and as it is to be further supplemented
by the Twenty-Eighth Supplemental Indenture, dated as of _____ __, 1994,
providing for the Secured Notes (the "Supplemental Indenture") to be in
substantially the form heretofore delivered to the Agents. As used herein,
"Mortgage" shall mean such Indenture of Mortgage
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<PAGE> 2
as heretofore supplemented until such Indenture of Mortgage is further
supplemented by the Supplemental Indenture; thereafter "Mortgage" shall mean
such Indenture of Mortgage as so further supplemented. The Company proposes to
issue the Unsecured Notes under its Indenture (the "Indenture") dated as of
April 1, 1992 to First Trust of New York, National Association ("First Trust")
as successor to Morgan Guaranty Trust Company of New York, as trustee (the
"Indenture Trustee").
The Notes will be issued in minimum denominations of $1,000
and integral multiples thereof (unless otherwise specified by the Company),
will be issued only in fully registered form and will have the annual interest
rates, maturities and, if appropriate, other terms set forth in a supplement or
supplements to the Prospectus referred to below. The Notes will be issued, and
the terms thereof established, in accordance with the Mortgage, in the case of
the Secured Notes, and the Indenture, in the case of the Unsecured Notes, and,
in the case of Notes sold pursuant to Section 2(a), the Administrative
Procedures for the Secured Notes and the Unsecured Notes, attached hereto as
Exhibits A and B, respectively (the "Procedures"). The Procedures may only be
amended by written agreement of the Company and you after notice to, and with
the approval of, the Mortgage Trustee, with respect to the Procedures for the
Secured Notes, and the Indenture Trustee, with respect to the Procedures for
the Unsecured Notes. For the purposes of this Agreement, the term "Agent"
shall refer to either of you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (together, the "Agents"),
the term "Purchaser" shall refer to either of you acting solely as principal
pursuant to Section 2(b) and not as agent, and the term "you" shall refer to
you together at any time either of you is acting in both such capacities or in
either such capacity.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, you as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (File No. 33- ), including a
basic prospectus, which has become effective, for the registration
under the Act of (i) up to $80,000,000 aggregate initial offering
price of (x) debt securities, including the Notes, and (y) shares of
the Company's common stock, $5.00 par value, and (ii) up to 250,000
shares of the Company's serial preferred stock, par value $100 per
share (collectively, the "Securities"). Such registration statement,
as amended at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(ix) or (x) under the Act and complies in all
other material respects with said Rule. The Company has
-2-
<PAGE> 3
included in such registration statement, or has filed or will file
with the Commission pursuant to the applicable paragraph of Rule 424
under the Act, a supplement or supplements to the form of prospectus
included in such registration statement relating to the Secured Notes
and the plan of distribution thereof, and a supplement or supplements
to the form of prospectus relating to the Unsecured Notes and the plan
of distribution thereof (either of such supplements being hereinafter
called a "Prospectus Supplement"). In connection with the sale of
Notes, the Company proposes to file with the Commission pursuant to
the applicable paragraph of Rule 424 under the Act further supplements
to the Prospectus Supplement providing for the specification of or a
change in the interest rates, if any, maturity dates, issuance prices,
redemption terms and prices, if any, and, if appropriate, other terms
of the Notes sold pursuant hereto or the offering thereof (any such
supplement being hereinafter called a "Pricing Supplement").
(b) At each of the following times: (i) as of the
Execution Time, (ii) on the Effective Date, (iii) when any supplement
to the Prospectus is filed with the Commission, (iv) as of the date of
any Terms Agreement (as defined by Section 2(b)) and (v) at the date
of delivery by the Company of any Notes sold hereunder (a "Closing
Date") (1) the Registration Statement, as amended as of any such time,
and the Prospectus, as supplemented as of any such time, the Mortgage
and the Indenture, each as amended or supplemented as of any such
time, complied or will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the respective rules
thereunder; (2) the Registration Statement, as amended as of any such
time, did not or will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and
(3) the Prospectus, as supplemented as of any such time, will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility and
Qualification (Forms T-1) under the Trust Indenture Act of the
Mortgage Trustee and the Indenture Trustee, (B) any information
contained in any Prospectus Supplement relating to The Depository
Trust Company ("DTC") or DTC's book-entry system or (C) the
information contained in or omitted from the Registration Statement or
the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by
either of you
-3-
<PAGE> 4
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Effective Date" shall
mean the later of (i) each date that the Registration Statement and
any post-effective amendment or amendments thereto became or become
effective or (ii) the time and date of the filing of the Company's
most recent Annual Report on Form 10-K. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in the Registration
Statement at the Effective Date (unless such basic prospectus has been
amended by the Company subsequent to the Effective Date, in which case
"Basic Prospectus" shall mean the form of basic prospectus as so
amended). "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement and as it may be further
amended or supplemented at the particular time referred to.
"Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as it may be amended at the
particular time referred to. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amended",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to
be incorporated therein by reference.
(d) Neither the Company nor any of its Subsidiaries (as
hereinafter defined) has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Registration Statement and the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which has
had or is reasonably likely to have a material adverse effect on the
financial position, stockholders' equity or results of
-4-
<PAGE> 5
operations of the Company and its Subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Registration
Statement and the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other
than pursuant to any stock purchase, dividend reinvestment, savings,
bonus, incentive, or similar plan, conversions of convertible
securities into common stock or shares of capital stock issued and to
be issued by either or both of Central Hudson Enterprises Corporation
and Central Hudson Cogeneration, Inc. pursuant to respective
subscription agreements in effect at the Execution Time,) or long-term
debt (other than any redemptions or purchases of First Mortgage Bonds,
normal amortization of debt premium and discount, bank or finance
company borrowings and repayments in the ordinary course, or
additional issuances or repurchases of commercial paper) of the
Company or its Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, 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, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus.
(e) Each of CH Resources, Inc., Central Hudson
Enterprises Corporation, Central Hudson Cogeneration, Inc., Phoenix
Development Company, Inc., Greene Point Development Corporation
(collectively the "Subsidiaries") and the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus and is duly qualified to
do business in each jurisdiction in which it owns or leases real
property or in which the conduct of its business requires such
qualification except where the failure to be so qualified, considering
all such cases in the aggregate, does not involve a material risk to
the business, properties, financial position or results of operations
of the Company and its Subsidiaries taken as a whole; and all of the
outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company subject to no
security interest, other encumbrance or adverse claim.
(f) The creation, issuance and sale of the Secured Notes
have been duly and validly authorized by the Company and, when issued
within the limitations set forth in the order of the Public Service
Commission of the State of New York referred to in subsection (h)
below and executed and authenticated in accordance with the provisions
of the
-5-
<PAGE> 6
Mortgage and delivered and paid for by the purchasers thereof, the
Secured Notes will constitute valid and legally binding obligations of
the Company entitled to the benefits and security afforded by the
Mortgage equally and ratably with the bonds outstanding thereunder;
the Mortgage has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, to general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and to an implied covenant of good
faith and fair dealing; and the Secured Notes and the Mortgage conform
to the descriptions thereof in the Registration Statement and the
Prospectus.
(g) The creation, issuance and sale of the Unsecured
Notes have been duly and validly authorized by the Company and, when
issued within the limitations set forth in the order of the Public
Service Commission of the State of New York referred to in subsection
(h) below and executed and authenticated in accordance with the
provisions of the Indenture and delivered and paid for by the
purchasers thereof, the Unsecured Notes will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture equally and ratably with the securities
outstanding thereunder; the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting the enforcement of creditors' rights generally, to
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
to an implied covenant of good faith and fair dealing; and the
Unsecured Notes and the Indenture conform to the descriptions thereof
in the Registration Statement and the Prospectus.
(h) The issue and sale of the Notes and the compliance by
the Company with all of the provisions of the Notes, the Mortgage, the
Indenture, this Agreement and any Terms 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 indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject (except
that, for purposes of this representation and warranty, compliance
with any financial covenant
-6-
<PAGE> 7
requiring an arithmetic computation (not determinable at the Execution
Time) in respect of any Notes shall be measured at the time of the
establishment of the terms of such Notes), nor will such action result
in any violation of the provisions of the Company's Certificate of
Incorporation, as amended, or the Bylaws of the Company or any statute
or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its property or
assets; and 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 Notes or the
consummation by the Company of the other transactions contemplated by
this Agreement or any Terms Agreement or the Mortgage or the Indenture
except such as have been obtained prior to the Execution Time under
the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the public
offering of the Notes, and except for filings with and the order from
the Public Service Commission of the State of New York authorizing the
issuance and sale by the Company of the Notes subject to certain
conditions set forth therein, which order has been obtained and is in
full effect.
(i) 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 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.
(j) There are no contracts or documents of the Company or
any of its Subsidiaries that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement by the Act or by the rules and regulations
thereunder that have not been so described or filed.
2. Appointment of Agents; Solicitation by the Agents of
Offers to Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms
and conditions set forth herein, the Company hereby authorizes, on an exclusive
basis, each of the Agents to act as its agent to solicit offers for the
purchase of all or part of the Notes from the Company. On the basis of the
representations and warranties, and subject to the terms and
-7-
<PAGE> 8
conditions set forth herein, each of the Agents agrees, as agent of the
Company, to use its reasonable best efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the
Prospectus (and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to
reject any offer to purchase Notes, in whole or in part. In addition, the
Company reserves the right, in its sole discretion, to instruct the Agents to
suspend at any time, for any period of time or permanently, the solicitation of
offers to purchase the Notes. Upon receipt of instructions from the Company,
the Agents will forthwith suspend solicitations of offers to purchase Notes
from the Company until such time as the Company has advised them that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission on the
Closing Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent pursuant to this subsection, in an amount equal
to that percentage specified in Schedule I hereto of the aggregate principal
amount of the Notes sold by the Company. Such commission shall be payable as
specified in the Procedures.
Subject to the provisions of this Section 2 and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent as
agent for the Company at such times and in such amounts as such Agent deems
advisable. The Company may from time to time offer Notes for sale otherwise
than through an Agent; provided, however, that so long as this Agreement shall
be in effect the Company shall not solicit or accept offers to purchase Notes
through any agent other than an Agent.
(b) Subject to the terms and conditions stated herein,
whenever the Company and either of you determine that the Company shall sell
Notes directly to either of you as Purchaser, each such sale of Notes shall be
made in accordance with the terms of this Agreement and, unless otherwise
agreed by the Company and the Purchaser, any supplemental agreement relating
thereto between the Company and the Purchaser. Each such supplemental
agreement (which shall be substantially in the form of Exhibit C hereto) is
herein referred to as a "Terms Agreement". The Purchaser's commitment to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each Terms Agreement shall describe the Notes to be purchased by the Purchaser
pursuant thereto, specify the principal amount of such Notes, the price to be
paid to the Company for such Notes, the rate at which interest will be paid on
the Notes, the Closing Date for such Notes, the place of delivery of the Notes
and payment therefor, the method of payment and any modification of the
requirements for the delivery of the opinions of counsel, the certificates from
the Company or its
-8-
<PAGE> 9
officers, and the letter from the Company's independent public accountants,
pursuant to Section 6(b). Such Terms Agreement shall also specify the period
of time referred to in Section 4(m).
Delivery of the certificates for Notes sold to the Purchaser
pursuant to any Terms Agreement shall be made as agreed to between the Company
and the Purchaser as set forth in the respective Terms Agreement, not later
than the Closing Date set forth in such Terms Agreement, against payment of
funds to the Company in the net amount due to the Company for such Notes by the
method and in the form set forth in the respective Terms Agreement.
3. Offering and Sale of Notes. Each Agent and the Company
agree to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the
Notes, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus (except for (i) periodic or
current reports filed under the Exchange Act, (ii) a Pricing
Supplement or (iii) a supplement relating to an offering of Securities
other than the Notes) unless the Company has furnished each of you a
copy for your review prior to filing and given each of you a
reasonable opportunity to comment on any such proposed amendment or
supplement. Subject to the foregoing sentence, the Company will cause
each supplement to the Prospectus to be filed with the Commission
pursuant to the applicable paragraph of Rule 424 within the time
period prescribed. The Company will promptly advise each of you (i)
when the Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424, (ii) when, prior to the
termination of the offering of the Notes, any amendment of the
Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
-9-
<PAGE> 10
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company promptly will (i)
notify each of you to suspend solicitation of offers to purchase Notes
(and, if so notified by the Company, each of you shall forthwith
suspend such solicitation and cease using the Prospectus as then
supplemented), (ii) prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (iii) supply any supplemented Prospectus to each
of you in such quantities as you may reasonably request; provided,
however, that should any such event relate solely to activities of
you, then you shall assume the expense of preparing and furnishing any
such amendment or supplement. If such amendment or supplement, and
any documents, certificates and opinions furnished to each of you
pursuant to paragraph (g) of this Section 4 in connection with the
preparation of filing of such amendment or supplement are satisfactory
in all respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an
amendment to the Registration Statement, if such an amendment is
required, resume your obligation to solicit offers to purchase Notes
hereunder.
(c) During the term of this Agreement, the Company will
timely file all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act. In
addition, on the date on which the Company (or as soon as practicable
thereafter) makes any announcement to the general public concerning
earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a document
filed pursuant to the Exchange Act, the Company will furnish to each
of you the information contained in such announcement. The Company
will notify each of you of any downgrading in the rating of the
Secured Notes, the Unsecured Notes or any other debt securities of the
Company, or any public announcement of placement of the Secured Notes,
the Unsecured Notes or any other debt securities of the Company on
what is commonly termed a "watch list" for possible downgrading, by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), promptly after the
Company learns of any such downgrading or public announcement.
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<PAGE> 11
(d) As soon as practicable, the Company will make
generally available to its security holders and to each of you an
earnings statement or statements of the Company and its Subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(e) The Company will furnish to each of you and your
counsel, without charge (except as otherwise provided herein), a
reasonable number of copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes, and upon your request will
arrange for the determination of the legality of the Notes for
purchase by institutional investors; provided, however, that 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,
to pay filing fees and other expenses in connection therewith in the
aggregate exceeding $7,500, or to comply with any other requirement
reasonably deemed by the Company to be unduly burdensome.
(g) During the term of this Agreement, the Company shall
furnish to each of you (i) copies of all annual, quarterly and other
reports furnished to stockholders, (ii) copies of all annual,
quarterly and current reports (without exhibits but including
documents incorporated by reference therein) of the Company filed with
the Commission under the Exchange Act and (iii) such other information
concerning the Company as you may reasonably request from time to
time.
(h) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident to the performance
of its obligations under this Agreement, including the fees and
disbursements of its accountants and counsel, the cost of printing or
other production and delivery of the Registration Statement, the
Prospectus, all amendments thereof and supplements thereto, the
Mortgage, the Indenture, this Agreement and all other documents
relating to the offering, the cost of preparing, printing, packaging
and delivering the Notes, the fees and disbursements, including fees
of counsel, incurred pursuant to Section 4(f), the fees and
disbursements of the Mortgage Trustee and the Indenture Trustee and
the fees of any ratings agency that rates the Secured Notes or the
Unsecured Notes, (ii) reimburse each of you on a monthly basis for all
reasonable out-of-pocket expenses incurred by you in connection with
this Agreement (including, but not limited
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<PAGE> 12
to, advertising expenses), in the aggregate not to exceed $2,500 per
Agent for the term of this Agreement, and (iii) pay the reasonable
fees and expenses of your counsel incurred in connection with this
Agreement.
(i) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be a new making to you of the
representations and warranties of the Company in Section 1 (except
that such representations and warranties shall be deemed to relate
solely to the Registration Statement as then amended and to the
Prospectus as then amended and supplemented to relate to such Notes).
(j) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by (i) an amendment
or supplement relating to any offering of Securities other than the
Notes or (ii) a Pricing Supplement) the Company will deliver or cause
to be delivered promptly to each of you a certificate of the Company,
signed by any of the Chairman of the Board and Chief Executive
Officer, the President and Chief Operating Officer, any Vice President
having responsibilities for financial matters or the Controller and
Treasurer of the Company, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form
reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 5(d) but modified to relate to the last day of
the fiscal quarter for which financial statements of the Company were
last filed with the Commission and to the Registration Statement and
the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement.
(k) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by (i) an amendment
or supplement relating to any offering of Securities other than the
Notes or (ii) a Pricing Supplement), the Company shall furnish or
cause to be furnished promptly to each of you a written opinion of
Gould & Wilkie, counsel for the Company, satisfactory to each of you,
dated the date of the effectiveness of such amendment or the date of
the filing of such supplement, in form satisfactory to each of you, of
the same tenor as the opinion referred to in Section 5(b), but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement or, in lieu of such
opinion, such counsel may furnish each of you with a letter to the
effect that you may rely on such counsel's last opinion to the same
extent as though it were dated the date of such letter authorizing
reliance (except that
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<PAGE> 13
statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement).
(l) Except as otherwise provided in subsection (n) of
this Section 4, each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by (i) an amendment
or supplement relating to any offering of Securities other than the
Notes or (ii) a Pricing Supplement) to set forth amended or
supplemental financial information (derived from the accounting
records of the Company subject to the internal controls of the
Company's accounting system or derived directly from such records by
computation), the Company shall cause its independent public
accountants promptly to furnish each of you a letter, dated the date
of the effectiveness of such amendment or the date of the filing of
such supplement, in form satisfactory to each of you, of the same
tenor as the letter referred to in Section 5(e) with such changes as
may be necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date
of such letter.
(m) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior consent of the
Purchaser thereunder, issue or announce the proposed issuance of any
of its debt securities, including the Notes, with maturities or other
terms substantially similar to the Notes being purchased pursuant to
such Terms Agreement.
(n) The Company shall not be required to comply
with the provisions of subsections (j), (k) and (l) of this Section 4
during any period (which may occur from time to time during the term
of this Agreement) for which the Company has instructed the Agents to
suspend the solicitation of offers to purchase Notes; provided that,
during any such period, any Purchaser does not then hold any Notes
purchased pursuant to a Terms Agreement. Whenever the Company has
instructed the Agents to suspend the solicitation of offers to
purchase Notes for any such period, however, prior to instructing the
Agents to resume the solicitation of offers to purchase Notes or prior
to entering into any Terms Agreement, the Company shall be required to
comply with the provisions of subsections (j), (k) and (l) of this
Section 4, but only to the extent of delivering or causing to be
delivered the most recent certificate, opinion or letter, as the case
may be, which would have otherwise been required under each such
subsection unless the Agents otherwise reasonably request that such
documents in respect of prior periods be delivered.
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<PAGE> 14
(o) As soon as practicable after the Execution Time, the
Company will make all recordings, registrations and filings necessary
to perfect and preserve the lien of the Mortgage and the rights
created under the Supplemental Indenture.
[(p) At such time as the Public Service Commission of the
State of New York has issued an order authorizing the Company to issue
debt securities, including Notes, as to which a Public Service
Commission of the State of New York order is not in effect as of the
date hereof, the Company shall furnish or cause to be furnished to
each of you a written opinion of Gould & Wilkie, counsel to the
Company, satisfactory to each of you, of the same tenor as the opinion
referred to in Section 5(b)(xi), with respect to any such order of the
Public Service Commission of the State of New York issued after the
date hereof authorizing the Company to issue debt securities,
including Notes.]
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes shall be
subject to (i) the accuracy of the representations and warranties on the part
of the Company contained herein as of the Execution Time, on the Effective Date
and when any supplement to the Prospectus is filed with the Commission, (ii)
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, (iii) the performance by the Company of its
obligations hereunder and (iv) the following additional conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424, the Prospectus, and any
such supplement, shall have been filed in the manner and within the
time period required by Rule 424; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to each Agent the
opinion of Gould & Wilkie, counsel for the Company, dated the
Execution Time, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and governmental) to own its properties
and conduct its business as described in the Prospectus, as
amended or supplemented, and is duly qualified to do business
in each jurisdiction in which it owns or leases real property
or in which the conduct of its business requires such
qualification except where the failure to be so qualified,
considering all such cases in the aggregate, does not involve
a material risk to the
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<PAGE> 15
business, properties, financial position or results of
operations of the Company; provided, however, that at such
time, if ever, that the Subsidiaries together constitute 10%
or more of the consolidated assets of the Company or
contribute 10% or more of the consolidated net income of the
Company for the then most recent 12-month period, the Agents
may request that Gould & Wilkie include in any written opinion
to them required by this Section 5(b) or Section 4(k) an
opinion to the effect that each of the Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and
governmental) to own its properties and conduct its business
as described in the Prospectus, as amended or supplemented,
and is duly qualified to do business in each jurisdiction in
which it owns or leases real property or in which the conduct
of its business requires such qualification except where the
failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the
Company and the Subsidiaries taken as a whole; and all of the
outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and are owned beneficially by the
Company subject to no security interest, other encumbrance, or
adverse claim.
(ii) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company is a party or of which any property of the
Company is the subject which, if determined adversely to the
Company, would individually or in the aggregate have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the
Company and its Subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The Mortgage has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act, and (assuming the due
recordation and filing of the Supplemental Indenture, if the
Supplemental Indenture has been executed and delivered on or
prior to the date of such opinion) constitutes a valid and
legally binding
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<PAGE> 16
instrument enforceable in accordance with its terms, subject,
(i) as to enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights
generally, to general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and to an implied covenant of good faith and
fair dealing, (ii) to laws relating to or affecting certain of
the remedies to enforce the security provided thereby, which
laws, however, in such counsel's opinion, do not render
insufficient the remedies necessary for the practical
realization of the benefits of such security, and (iii) to the
limitations regarding after-acquired property of the Company
as set forth in subclauses (1) and (2) of paragraph (vii)
below.
(v) The creation, issuance and sale of the
Secured Notes have been duly and validly authorized by the
Company and, when issued within the limitations set forth in
the order from the Public Service Commission of the State of
New York referred to in paragraph (xiv) below and executed and
authenticated in accordance with the provisions of the
Mortgage and delivered to and paid for by the purchasers
thereof in accordance with this Agreement, the Secured Notes
will constitute valid and legally binding obligations of the
Company, (and assuming the due recordation and filing of the
Supplemental Indenture) enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting the enforcement of
creditors' rights generally, to general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and to an implied covenant of
good faith and fair dealing, and will be entitled to the
benefits and security afforded by the Mortgage equally and
ratably with the bonds outstanding thereunder (except insofar
as a sinking fund established in accordance with the
provisions of the Mortgage may afford additional security for
the bonds of any particular series); and the Secured Notes and
the Mortgage conform as to legal matters to the descriptions
of the terms thereof contained in the Registration Statement
and the Prospectus.
(vi) The Company has good and marketable title to
all real estate and other property described or referred to in
the Mortgage (except such property as has been duly released
therefrom or duly retired in the ordinary course of business),
except as set forth in paragraph (vii) below and except for
certain
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<PAGE> 17
qualifications with respect to rights of way not owned in fee,
other defects which the Company has the right to cure by
eminent domain proceedings if the property is necessary for
its corporate purposes and certain other minor qualifications,
none of which, in the opinion of such counsel, materially
affects use of such property by the Company in the normal
course of its business.
(vii) The Mortgage, as supplemented and amended
through the first twenty-seven supplements, creates, and
(assuming due recordation and filing of the Supplemental
Indenture) through the Supplemental Indenture will create, a
binding and direct lien on all real estate and other property
of the Company (including easements, rights of way and other
rights relating to real estate and franchises) specifically or
generally described or referred to in the Mortgage, as so
supplemented and amended, as subject to the lien thereof and
owned by the Company at the time of the actual issuance of the
Secured Notes, subject to no liens or encumbrances, except (A)
taxes for the current year and taxes and assessments not yet
due, (B) certain encumbrances on easements or rights of way
and certain minor liens and encumbrances, which, in the
opinion of such counsel, do not materially affect the use of
such property by the Company in the normal course of its
business, and (C) liens or encumbrances defined in the
Mortgage as "excepted encumbrances"; provided that, (1) the
provisions of the Mortgage subjecting to the lien thereof (x)
after-acquired real property of the Company in some cases may
not be effective against creditors or purchasers for value
without notice whose rights to such property attach prior to
recording of a supplemental indenture specifically subjecting
such property to the lien of the Mortgage and (y)
after-acquired fixtures and personal property in some cases
may not be effective against holders of purchase money
security interests in such property, and (2) the provisions of
the Mortgage subjecting after-acquired property of the Company
to the lien thereof may be affected by laws relating to the
preferential transfers of property during certain periods
prior to commencement of bankruptcy, insolvency or similar
proceedings.
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting the
enforcement of creditors' rights generally, to general
equitable principles
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<PAGE> 18
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and to an implied covenant of
good faith and fair dealing; and the Indenture has been duly
qualified under the Trust Indenture Act.
(ix) The creation, issuance and sale of the
Unsecured Notes have been duly and validly authorized by the
Company and, when issued within the limitations set forth in
the order from the Public Service Commission of the State of
New York referred to in paragraph (xiv) below and executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers
thereof in accordance with this Agreement, the Unsecured Notes
will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights
generally, to general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and to an implied covenant of good faith and
fair dealing, and will be entitled to the benefit provided by
the Indenture equally and ratably with the securities
outstanding thereunder (except insofar as a sinking fund
established in accordance with the provisions of the Indenture
may afford additional benefit for the securities of any
particular series); and the Unsecured Notes and the Indenture
conform as to legal matters to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(x) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the
Notes, the Mortgage, the Indenture and this Agreement and the
consummation of the transactions therein and herein
contemplated (except as to compliance with any financial
covenant requiring an arithmetic computation not determinable
at the Execution Time as to which such counsel need express no
opinion) will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
material other agreement or instrument known, as of the date
of such opinion, to such counsel to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the
Company's Certificate of Incorporation, as amended, or the
Bylaws of the Company or any statute or
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any order, rule or regulation known, as of the date of such
opinion, to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
properties.
(xi) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body having jurisdiction over the
Company or any of its properties is required for the issue and
sale of the Notes or the consummation by the Company of the
other transactions contemplated by this Agreement, the
Supplemental Indenture or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the public offering of the
Notes, and except for filings with and the order from the
Public Service Commission of the State of New York authorizing
the issuance and sale by the Company of the Notes subject to
certain conditions set forth therein, which order has been
obtained and, to the best knowledge of such counsel, is in
full force and effect.
(xii) The Registration Statement, at the Effective
Date, and the Prospectus, as of the date of such opinion
(except as to the financial statements and other financial or
statistical data contained or incorporated by reference
therein and except as to any information contained in any
Prospectus Supplement relating to DTC or DTC's book-entry
system as to which such counsel need express no opinion)
comply as to form in all material respects with all applicable
requirements of the Act, and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, the Exchange Act and the
applicable instructions, rules and regulations of the
Commission thereunder; on the basis of information received
from the Commission, at the date of such opinion, the
Registration Statement has become effective under the Act,
and, to the best knowledge of such counsel, no proceedings for
a stop order with respect thereto have been instituted or are
pending or threatened under Section 8 of the Act; and based on
such counsel's participation in the preparation of the
Registration Statement and Prospectus and its services as
general counsel to the Company (but such opinion may state
that such counsel did not independently check or verify the
correctness of the statements made by the Company or factual
information included in the Registration Statement and
Prospectus, and thereby may assume the correctness
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<PAGE> 20
thereof, except insofar as such statements or information
relate to such counsel or are stated in the Registration
Statement or Prospectus as having been made on their authority
as experts), no facts have come to the attention of such
counsel to cause them to believe, and such counsel have no
reason to believe, that the Registration Statement, at the
Effective Date, 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 (except as to the financial statements or other
financial or statistical data contained in or incorporated by
reference in the Registration Statement and the Prospectus and
except as to any information contained in any Prospectus
Supplement relating to DTC or DTC's book-entry system), or
that the Prospectus, as of the date of such opinion, includes
an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (except as to the financial
statements or other financial or statistical data contained in
or incorporated by reference in the Registration Statement and
the Prospectus and except as to any information contained in
any Prospectus Supplement relating to DTC or DTC's book-entry
system).
(xiii) The Company is not subject to the provisions
of the Public Utility Holding Company Act of 1935 and the
Company's gas distribution activities are exempt from the
Natural Gas Act.
(xiv) The Public Service Commission of the State of
New York has issued an appropriate order with respect to the
issuance and sale of the Notes in accordance with this
Agreement; to the best knowledge of such counsel, such order
is still in full force and effect; the issuance and sale of
the Notes in accordance with this Agreement and subject to the
limitations set forth in such order will conform with the
terms of such order.
As to factual matters (including relating to the Company's
financial condition) included in said opinion, such counsel may rely
upon certificates of public officials as of a recent date, the
warranties and representations of the Company set forth in this
Agreement, and certificates of the Company made pursuant to the
provisions of this Agreement.
(c) Each Agent shall have received from Winthrop,
Stimson, Putnam & Roberts, counsel for the Agents, an opinion, dated
the Execution Time, with respect to the
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issuance and sale of the Notes, the Mortgage, the Indenture, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Agents may reasonably
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by any of the Chairman of the Board
and Chief Executive Officer, the President and Chief Operating
Officer, any Vice President having responsibilities for financial
matters or the Controller and Treasurer of the Company, dated the
Execution Time, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) The representations and warranties of the
Company in this Agreement are true and correct in all material
respects and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed
or satisfied as a condition to the obligation of the Agents to
solicit offers to purchase the Notes.
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened.
(iii) (1) Neither the Company nor any of its
Subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus,
any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, which has had or is reasonably likely
to have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company
and its Subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Registration Statement and the
Prospectus and (2) since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock
(other than pursuant to any stock purchase, dividend
reinvestment, savings, bonus, incentive, or similar plan,
conversions of convertible securities into common stock, or
shares of capital stock issued and to be issued to the Company
by either or both of Central Hudson Enterprises Corporation and
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<PAGE> 22
Central Hudson Cogeneration, Inc. pursuant to respective
subscription agreements in effect at the Execution Time,) or
long- term debt (other than any redemptions or purchases of
First Mortgage Bonds, normal amortization of debt premium and
discount, bank or finance company borrowings and repayments in
the ordinary course, or additional issuances or repurchases of
commercial paper) of the Company or its Subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, 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, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus.
(e) At the Execution Time, Price Waterhouse LLP shall have
furnished to each Agent a letter, dated as of the Execution Time, in
form and substance satisfactory to the Agents, stating in effect that:
(i) They are independent accountants with respect to
the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(ii) In their opinion the financial statements and
schedules of the Company included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1993,
which are incorporated by reference in the Prospectus and
examined by such firm, comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act, and the respective published rules
and regulations thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards)
consisting of: (A) reading the amounts included in the Annual
Report appearing in the table captioned "Five-Year Summary of
Consolidated Operations and Selected Financial Information"
for the five years ended December 31, 1993 (the "Audited
Amounts") which were derived from the financial statements for
such years as examined by such accountants (the "Audited
Statements"), (B) performing the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the unaudited
condensed interim financial statements of the Company included
in the Registration Statement and the Prospectus (the
"Unaudited Statements"), and reading any more recent unaudited
interim financial data of the Company, (C) reading the minutes
of meetings of the shareholders, Board of Directors and
Committees of the Board of
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<PAGE> 23
Directors of the Company held during the period from December
31, 1993 as set forth in the minutes book through a specified
date not more than five business days prior to the date of
such letter; and (D) making inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters regarding the specific items for which
representations are requested in Sections 5(e)(iii)(1) to
5(e)(iii)(4), nothing has come to their attention as a result
of the foregoing procedures that caused them to believe that:
(1) the Unaudited Statements incorporated by
reference in the Registration Statement and the
Prospectus do not comply in form in all material
respects with the applicable accounting requirements
and with the published rules and regulations of the
Commission with respect to financial statements
included or incorporated in Quarterly Reports on Form
10-Q under the Exchange Act; or that any material
modifications should be made to said Unaudited
Statements for them to be in conformity with
generally accepted accounting principles;
(2) the Audited Amounts were not derived
from the Audited Statements;
(3) at the date of the latest available
monthly unconsolidated balance sheet (as adjusted to
reflect the relevant activity of the Subsidiaries
through said date) of the Company read by such
accountants, there was any change in the capital
stock or long-term debt of the Company, or any
decrease in the total shareholders' equity, as
compared with amounts shown on the latest balance
sheet included in the Audited Statements, except, in
all instances, for changes or decreases which are
described in such letter; or
(4) for the period subsequent to the date of
the Audited Statements to the date of the latest
available monthly unconsolidated income statement (as
adjusted to reflect the relevant activity of the
Subsidiaries through said date) of the Company read
by such accountants, there were any decreases, as
compared with the corresponding period of the
previous year, in total operating revenues or net
income of the Company, except, in all instances, for
changes or decreases which are described in such
letter.
(iv) They have compared certain dollar amounts (or
percentages derived from such dollar amounts) and other
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<PAGE> 24
financial information specified by the Agents (A) which appear
in the Prospectus under the caption "Ratio of Earnings to
Fixed Charges", (B) which appear or are incorporated by
reference in the Company's Annual Report on Form 10-K
incorporated by reference in the Registration Statement and
the Prospectus under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations" or
(C) which appear in any of the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Registration
Statement and the Prospectus under the captions "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" and "Ratio of Earnings to Fixed Charges" (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 computation) to the accounting records of the
Company or schedules prepared from data in such records and
have found such dollar amounts, percentages and other
financial information to be in agreement.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Each Agent shall have received copies of the Letters
of Representations between the Company, the respective Trustee and
DTC, satisfactory to each of you, summarizing DTC's agreement to hold,
safekeep and effect book-entry transfers of the Notes.
(g) On and as of each Closing Date with respect to the
sale by the Company of Secured Notes, counsel for the Agents shall
have received copies of all documents required to be delivered to the
Mortgage Trustee under the Mortgage by the Company in connection with
the issuance of Secured Notes on such date.
(h) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agents and counsel for the Agents,
this Agreement and all obligations of any Agent hereunder may be canceled at
any time by the Agents. Notice of such cancellation
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<PAGE> 25
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
The documents required to be delivered by this Section 5 at
the Execution Time shall be delivered at the office of Gould & Wilkie, One
Chase Manhattan Plaza, New York, New York 10005-1401.
6. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to purchase any Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein as of the date of any related Terms Agreement and as of the Closing Date
for such Notes, to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
the purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and
except to the extent modified by such Terms Agreement, the Purchaser
shall have received, appropriately updated, (i) a certificate of the
Company, dated as of the Closing Date, to the effect set forth in
Section 5(d), (ii) the opinion of Gould & Wilkie, counsel for the
Company, dated as of the Closing Date, substantially to the effect set
forth in Section 5(b), (iii) the opinion of Winthrop, Stimson, Putnam
& Roberts, counsel for the Purchaser, dated as of the Closing Date,
substantially to the effect set forth in Section 5(c) and (iv) the
letter of Price Waterhouse, independent public accountants for the
Company, dated as of the Closing Date, substantially to the effect set
forth in Section 5(e); provided, however, that references to the
Registration Statement and the Prospectus in such certificate,
opinions and letter shall be to the Registration Statement and the
Prospectus as then amended and supplemented.
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and any Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement shall
not be in all material respects reasonably satisfactory in form and substance
to the Purchaser and its counsel, such Terms Agreement and all obligations of
the Purchaser thereunder and with respect to the
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<PAGE> 26
Notes subject thereto may be canceled at, or any time prior to, the respective
Closing Date by the Purchaser. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. The Company agrees that any person who has agreed to purchase and
pay for any Note, including a Purchaser and any person who purchases pursuant
to a solicitation by any of the Agents, shall have the right to refuse to
purchase such Note if, at the Closing Date therefor, either (a) any condition
set forth in Section 5 or 6, as applicable, shall not be satisfied or (b)
subsequent to the agreement to purchase such Note, there shall have occurred
(i) any change in or affecting the business or properties of the Company and
its Subsidiaries, considered as one enterprise, the effect of which, in the
reasonable judgment of such person, has a material adverse effect on the
investment quality of such Note or (ii) any event described in paragraphs (ii),
(iii), (iv) or (v) of Section 9(b).
8. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each of you against all losses, claims, damages or
liabilities, joint or several, to which you may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus and any other prospectus relating to the Notes, 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 of you for any legal or other expenses reasonably incurred by each of you
in connection with investigating or defending any such action or claim;
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 alleged untrue statement or omission or alleged
omission made in any preliminary prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other prospectus
relating to the Notes or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by either of
you expressly for use in the Prospectus.
(b) Each of you will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, any preliminary
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<PAGE> 27
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Notes, 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 such untrue statement or alleged untrue statement or omission or
alleged omission was made in any preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Notes, or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by you expressly for use therein; 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) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such 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 satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. Any losses,
claims, damages or liabilities for which an indemnified party is entitled to
indemnification or contribution under this Section 8 shall be paid by the
indemnifying party to the indemnified party as such losses, claims, damages or
liabilities are incurred.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party 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 such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
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<PAGE> 28
appropriate to reflect the relative benefits received by the Company on the one
hand and you on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as other equitable considerations, including relative fault.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or you 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 you agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if you 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 such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any who
controls any of you within the meaning of the Act or the Exchange Act; and the
obligations of you under this Section 8 shall be in addition to any liability
which you may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act or the Exchange
Act.
9. Termination. (a) This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be
terminated by either the Company as to either of you or either of you insofar
as this Agreement relates to such of you, giving written notice of such
termination to such of you or the Company, as the case may be. This Agreement
shall so terminate at the close of business on the first business day following
the receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other party
hereto, except as provided in the third paragraph of Section 2(a), Section
4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination
in the absolute discretion of the Purchaser, by
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<PAGE> 29
notice given to the Company prior to delivery of any payment for Notes to be
purchased thereunder, if prior to such time (i) the Purchaser shall exercise
its right to refuse to purchase the Notes which are the subject of such Terms
Agreement in accordance with the provisions of Section 7, or (ii) there shall
have occurred any outbreak or escalation of hostilities or other national or
international calamity or crisis, the effect of which shall be such as to make
it, in the reasonable judgment of the Purchaser, impractical to market the
Notes or enforce contracts for the sale of the Notes, or (iii) trading in any
securities of the Company shall have been suspended by the Commission or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New York
authorities, or (iv) if the rating assigned by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) to the Secured Notes or the Unsecured Notes or any other debt
securities of the Company as of the date of the applicable Terms Agreement
shall have been lowered since that date or if any such rating agency shall have
publicly announced that it has placed the Secured Notes or the Unsecured Notes
or any other debt securities of the Company on what is commonly termed a "watch
list" for possible downgrading, or (v) the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus prepared and issued
by the Company, or the exceptions set forth in any letter of Price Waterhouse
furnished pursuant to Section 5(e) hereof, shall have made it, in the judgment
of the Purchaser, impracticable or inadvisable to market the Secured Notes or
the Unsecured Notes or enforce contracts for the sale of the Secured Notes or
the Unsecured Notes.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of you set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of you or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of the
third paragraph of Section 2(a) and Sections 4(h) and 8 hereof shall survive
the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to any of you, will be
mailed, delivered or telegraphed and confirmed to such of you, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed
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<PAGE> 30
and confirmed to it at 284 South Avenue, Poughkeepsie, New York 12601-4879,
Attention: Treasurer.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
14. Counterparts. This Agreement may be executed in
counterparts, which together shall constitute one and the same instrument. If
signed in counterparts, this Agreement shall not become effective unless at
least one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
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<PAGE> 31
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
By: ____________________________________
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
KIDDER, PEABODY & CO. INCORPORATED
By: ______________________________
Title:
SMITH BARNEY INC.
By: ______________________________
Title:
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<PAGE> 32
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold by such Agent:
<TABLE>
<CAPTION>
Commission
Term Rate
---- ----------
<S> <C>
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years up to and including 30 years .750%
</TABLE>
Address for Notice to You:
Notices to Kidder, Peabody & Co. Incorporated shall be
directed to it at 60 Broad Street, New York, New York 10005, attention of Peter
Abramenko - MTN Desk.
Notices to Smith Barney Inc. shall be directed to it at 1345
Avenue of the Americas, 47th Floor, New York, New York 10105, attention of
Manager - Capital Transactions.
I-1
<PAGE> 33
EXHIBIT A
WSP&R
DRAFT
11/3/94
Central Hudson Gas & Electric Corporation
Secured Medium-Term Notes, Series B
Administrative Procedures
Secured Medium-Term Notes, Series B (the "Secured Notes"), are
to be offered on a continuing basis by Central Hudson Gas & Electric
Corporation (the "Company"). Kidder, Peabody & Co. Incorporated and Smith
Barney Inc., as agents (each an "Agent" and collectively the "Agents"), have
agreed to use their reasonable best efforts to solicit offers to purchase the
Secured Notes. The Secured Notes are being sold pursuant to a Distribution
Agreement between the Company and the Agents dated __________, 199_ (the
"Distribution Agreement") to which these administrative procedures are attached
as an exhibit.
The Secured Notes will be issued under the Company's Indenture
of Mortgage, dated as of January 1, 1927, to American Exchange Irving Trust
Company (The Bank of New York ("BNY"), successor), as trustee (the "Mortgage
Trustee"), as heretofore supplemented and as it is to be further supplemented
by the Twenty-Eighth Supplemental Indenture dated as of _________, 199_ (the
"Supplemental Indenture") providing for the issuance of the Secured Notes
(collectively, the "Mortgage"). BNY will act as the paying agent (the "Paying
Agent") for the payment of principal of and premium, if any, and interest on
the Secured Notes and will perform, as the Paying Agent, unless otherwise
specified, the other duties specified herein.
The Secured Notes will rank equally and ratably with all other
bonds outstanding or hereafter issued under the Mortgage (except insofar as a
sinking fund established in accordance with the provisions of the Mortgage may
afford additional security for the bonds of any particular series). The
Secured Notes have been registered with the Securities and Exchange Commission
(the "Commission") and will bear interest at fixed rates.
Each Secured Note will be represented by either a Global
Security (as defined hereinafter) delivered to BNY as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC
(a "Book-Entry Note") or a certificate delivered to the holder thereof or a
person
<PAGE> 34
designated by such holder (a "Certificated Note"). Except as set forth in the
Prospectus (as defined in Section 1(c) of the Distribution Agreement), (i) each
Secured Note will be initially issued as a Book-Entry Note and (ii) an owner of
a Book-Entry Note will not be entitled to receive a certificate representing
such Secured Note.
The procedures to be followed during, and the specific terms
of, the solicitation of offers by the Agents and the sale as a result thereof
by the Company are explained below. Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part I hereof and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Administrative procedures applicable
to both Book-Entry Notes and Certificated Notes are set forth in Part III
hereof. Administrative responsibilities, document control and record-keeping
functions will be handled for the Company by its Controller and Treasurer. The
Company will advise the Agents and the Mortgage Trustee in writing of those
persons handling administrative responsibilities with whom the Agents and the
Mortgage Trustee are to communicate regarding offers to purchase Secured Notes
and the details of their delivery.
To the extent the procedures set forth below conflict with the
provisions of the Secured Notes, the Mortgage or the Distribution Agreement,
the relevant provisions of the Secured Notes, the Mortgage and the Distribution
Agreement shall control. Unless otherwise defined herein, terms defined in the
Mortgage shall be used herein as therein defined. "Business Day" means any
day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in New York, New York, or any other location
specified as a place of payment under the Mortgage or the Secured Notes, are
generally authorized or required by law, regulation or executive order to
remain closed.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, BNY will perform
the custodial, document control and administrative functions described below,
in accordance with its respective obligations under a Letter of Representations
to be delivered from the Company and BNY to DTC and a Medium-Term Note
Certificate Agreement between BNY and DTC, dated as of (August 17, 1989) (the
"MTN Certificate Agreement"), and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security")
A-2
<PAGE> 35
representing up to $80,000,000 principal amount of all
such Secured Notes that have the same interest rate,
date of maturity ("Maturity Date"), redemption
provisions, if any, or provisions for the repayment or
purchase by the Company at the option of the Holder, if
any, and other terms and provisions (collectively, the
"Terms"). Each Global Security shall be authenticated
on the settlement date therefor and will be dated and
issued as of the date of such authentication by the
Mortgage Trustee. No Global Security will represent
any Certificated Note.
Identification The Company has arranged with the
Numbers: CUSIP Service Bureau of Standard & Poor's Corporation
(the "CUSIP Service Bureau") for the reservation of one
series of CUSIP numbers (including tranche numbers),
which series consists of approximately 900 CUSIP
numbers and relates to Global Securities representing
the Book-Entry Notes. The Company has obtained from
the CUSIP Service Bureau a written list of such series
of reserved CUSIP numbers and has delivered to DTC and
the Mortgage Trustee a written list of 900 CUSIP
numbers of such series. The Company will assign CUSIP
numbers to Global Securities as described below under
Settlement Procedure "B". It is expected that DTC will
notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has assigned to Global
Securities. At any time when fewer than 100 of the
reserved CUSIP numbers of the series remain unassigned
to Global Securities, the Mortgage Trustee shall so
advise the Company and, if it deems necessary, the
Company will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-Entry
Notes. Upon obtaining such additional CUSIP numbers,
the Company shall deliver a list of such additional
CUSIP numbers to the Mortgage Trustee and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security
Register maintained under the Mortgage. It is expected
that the beneficial owner of a Book-Entry Note
A-3
<PAGE> 36
(or one or more indirect participants in DTC designated
by such owner) will designate one or more participants
in DTC (with respect to such Secured Note, the
"Participants") to act as agent or agents for such
owner in connection with the book-entry system
maintained by DTC, and it is expected that DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner in such
Secured Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Secured Note will be recorded through the records of
such Participants or through the separate records of
such Participants and one or more indirect participants
in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferees and transferors of such Secured Note.
Consolidations: Upon receipt of instructions from the Company, BNY may
deliver to DTC and the CUSIP Service Bureau at any time
a written notice of consolidation (a copy of which
shall be attached to the resulting Global Security)
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent Book-Entry
Notes having the same Terms and for which interest has
been paid to the same date, (ii) a date, occurring at
least thirty days after such written notice is
delivered and at least thirty days before the next
Interest Payment Date (as defined below) for such
Book-Entry Notes, on which such Global Securities shall
be exchanged for a single replacement Global Security
and (iii) a new CUSIP number to be assigned to such
replacement Global Security. Upon receipt of such a
notice, it is expected that DTC will send to its
participants (including BNY) a written reorganization
notice to the effect that such exchange will occur on
such date. Prior to the specified exchange date, BNY
will deliver to the CUSIP Service Bureau a
A-4
<PAGE> 37
written notice setting forth such exchange date and the
new CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified
exchange date, BNY will exchange such Global Securities
for a single Global Security bearing the new CUSIP
number, and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service
Bureau procedures, be canceled and not reassigned until
the Book-Entry Notes represented by such exchanged
Global Securities have matured or been redeemed.
Maturities: Each Book-Entry Note will mature on a date not less
than one year nor more than 30 years after the date of
settlement for such Secured Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 or any amount in excess thereof which is an
integral multiple of $1,000. Global Securities will be
denominated in principal amounts not in excess of
$80,000,000.
Interest: General. Interest on each Book-Entry Note will accrue
from and including the original issue date of, or the
last date to which interest has been paid on, the
Global Security representing such Secured Note. Each
payment of interest on a Book-Entry Note will include
interest accrued to but excluding the Interest Payment
Date or the Maturity Date or, upon earlier redemption
or repayment, the date of such redemption or repayment
(the "Redemption Date"), as the case may be. Interest
payable on the Maturity Date or the Redemption Date of
a Book-Entry Note will be payable to the person to whom
the principal of such Secured Note is payable.
Standard & Poor's Corporation will use the information
received in the pending deposit message described under
Settlement Procedure "C" below in order to include the
amount of any interest payable and certain other
information regarding the related Global Security in
the appropriate weekly bond report published by
Standard & Poor's Corporation.
A-5
<PAGE> 38
Record Dates. The record date with respect to any
Interest Payment Date shall be the December 15 or June
15, as the case may be (whether or not a Business Day)
immediately preceding such Interest Payment Date (each,
a "Regular Record Date").
Interest Payment Dates. Interest payments on
Book-Entry Notes will be made semi-annually on January
1 and July 1 of each year (each, an "Interest Payment
Date") and on the Maturity Date or the Redemption Date;
provided, however, that in the case of a Book-Entry
Note issued between a Regular Record Date and an
Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Regular Record Date.
Payments of Payment of Interest Only. Promptly after each Regular
Principal and Record Date, the Paying Agent will deliver to the
Interest: Company and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each Global
Security on the following Interest Payment Date (other
than an Interest Payment Date coinciding with the
Maturity Date) and the total of such amounts. It is
expected that DTC will confirm the amount payable on
each Global Security on such Interest Payment Date by
reference to the appropriate (daily or weekly) bond
reports published by Standard & Poor's Corporation.
The Company will pay to the Paying Agent the total
amount of interest due on such Interest Payment Date
(other than on the Maturity Date), and the Paying Agent
will pay such amount to DTC at the times and in the
manner set forth under "Manner of Payment" below. If
any Interest Payment Date for a Book-Entry Note is not
a Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date.
Payments on Maturity Date, Etc. On or about the first
Business Day of each month, the Paying Agent will
deliver to the Company and DTC a written list of
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<PAGE> 39
principal and interest to be paid on each Global
Security maturing either on the Maturity Date or the
Redemption Date in the following month. The Company
and DTC will confirm with the Paying Agent the amounts
of such principal and interest payments with respect to
each such Global Security on or about the fifth
Business Day preceding the Maturity Date or the
Redemption Date, as the case may be, of such Global
Security. The Company will pay to the Paying Agent the
principal amount of such Global Security, together with
interest due on such Maturity Date or Redemption Date.
The Paying Agent will pay such amounts to DTC at the
times and in the manner set forth below under "Manner
of Payment". If the Maturity Date or the Redemption
Date of a Global Security representing Book-Entry Notes
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and
no interest shall accrue on such payment for the period
from and after such Maturity Date or the Redemption
Date. Promptly after payment to DTC of the principal
and interest due at the Maturity Date or the Redemption
Date of such Global Security, the Paying Agent will
cancel such Global Security in accordance with the
terms of the Mortgage.
Manner of Payment. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or on the Maturity Date or the Redemption
Date shall be paid by the Company to the Paying Agent
in immediately available funds for use by the Paying
Agent no later than 9:30 A.M. (New York City time) on
such date. The Company will make such payment on such
Global Securities by wire transfer to the Paying Agent
or by the Paying Agent's debiting the account of the
Company maintained with the Paying Agent. The Company
will confirm such instructions in writing to the Paying
Agent. Prior to 10:00 A.M. (New York City time) on
each Maturity Date or Redemption Date or as soon as
possible thereafter, the Paying Agent will pay by
separate wire transfer (using Fedwire message entry
instructions in a form previously agreed to with DTC)
A-7
<PAGE> 40
to an account at the Federal Reserve Bank of New York
previously agreed to with DTC, in funds available for
immediate use by DTC, each payment of principal
(together with interest thereon) due on Global
Securities on any Maturity Date or Redemption Date. On
each Interest Payment Date, interest payments shall be
made to DTC in same day funds in accordance with
existing arrangements between the Paying Agent and DTC.
Thereafter, on each such date, it is expected that DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Paying Agent shall have any
responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on
the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other person responsible for forwarding payments
and materials directly to the beneficial owner of such
Secured Note.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Secured Note shall constitute
"settlement" with respect to such Secured Note. All
orders accepted by the Company will be settled on the
fifth Business Day following the date of sale of a
Book-Entry Note unless the Company, the Mortgage
Trustee and the purchaser agree to settlement on
another day that shall be no earlier than the next
Business Day.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Note sold by the Company through an Agent, as agent,
shall be as follows:
A-8
<PAGE> 41
A. Such Agent will advise the Company by telephone,
followed by facsimile transmission, of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest rate.
4. Interest Payment Dates.
5. Redemption provisions, if any, or
provisions for the repayment or purchase by
the Company at the option of the Holder, if
any.
6. Settlement date.
7. Issue price.
8. Agent's commission, determined as provided
in Section 2(a) of the Distribution
Agreement.
B. The Company will assign a CUSIP number to such
Book-Entry Note and will advise BNY by facsimile
transmission or other mutually acceptable means
of the information set forth in Settlement
Procedure "A" above and the name of such Agent
and the CUSIP number assigned to such Book-Entry
Note. The Company will notify the Agent of such
CUSIP number by telephone as soon as practicable.
Each such communication by the Company shall
constitute a representation and warranty by the
Company to BNY and each Agent that (i) such
Secured Note is then, and at the time of issuance
and sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) the Global
Security representing such Secured Note will
conform with the terms of the Mortgage pursuant
to which such Secured Note and Global Security
are issued and (iii) upon authentication and
delivery of such Global Security, the aggregate
principal amount of all Secured Notes
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<PAGE> 42
initially offered issued under the Mortgage
together with the Unsecured Notes (as defined in
the Distribution Agreement) will not exceed
$80,000,000 (except for Global Securities or
Secured Notes represented by and authenticated
and delivered in exchange for or in lieu of
Secured Notes in accordance with the Mortgage).
C. BNY will enter a pending deposit message through
DTC's Participant Terminal System, providing the
following settlement information to DTC, which
shall route such information to such Agent and
Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. CUSIP number of the Global Security
representing such Secured Note.
3. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
D. The Mortgage Trustee will complete and
authenticate the Global Security representing
such Secured Note.
E. It is expected that DTC will credit such Secured
Note to BNY's participant account at DTC.
F. BNY will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
to (i) debit such Secured Note to BNY's
participant account and credit such Secured Note
to such Agent's participant account and (ii)
debit such Agent's settlement account and credit
BNY's settlement account for an amount equal to
the price of such Secured Note less such Agent's
commission. The entry of such a deliver order
shall constitute a representation and warranty by
BNY to DTC that (a) the Global Security
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<PAGE> 43
representing such Book-Entry Note has been issued
and authenticated and (b) BNY is holding such
Global Security pursuant to the MTN Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Secured Note to
such Agent's participant account and credit such
Secured Note to the participant accounts of the
Participants with respect to such Secured Note
and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of
such Agent for an amount equal to the price of
such Secured Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures
"F" and "G" will be settled in accordance with
SDFS operating procedures in effect on the
settlement date.
I. BNY will, upon confirming receipt of such funds
from the Agent, wire transfer to the account of
the Company maintained at The Bank of New York
(for credit to Central Hudson Gas & Electric
Corporation, Account No. 8751004282) in
immediately available funds in the amount
transferred to BNY in accordance with Settlement
Procedure "F".
J. Such Agent will confirm the purchase of such
Secured Note to the purchaser either by
transmitting to the Participants with respect to
such Secured Note a confirmation order or orders
through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
Settlement For orders of Book-Entry Notes solicited by an Agent,
Procedures as agent, and accepted by the Company for settlement
Timetable: on the first Business Day after the sale date,
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<PAGE> 44
Settlement Procedures "A" through "J" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 5:00 P.M. on the sale date
D 3:00 P.M. on the sale date
E 8:05 A.M. on the settlement date
F-G 3:00 P.M. on the settlement date
H 4:45 P.M. on the settlement date
I-J 5:00 P.M. on the settlement date
</TABLE>
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A," "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M. and 12:00 Noon on the first
Business Day after the sale date with respect to
Settlement Procedures "A" and "B," respectively, and no
later than 5:00 P.M. on the first Business Day after
the sale date, with respect to Settlement Procedure
"C". Settlement Procedure "D" shall occur no later
than 3:00 P.M. on the last Business Day prior to the
settlement date. Settlement Procedures "H" and "I" are
subject to extension in accordance with any extension
of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, the Company will instruct BNY to deliver to
DTC a cancellation message to such effect by no later
than 12:00 Noon on the Business Day immediately
preceding the scheduled settlement date and BNY will
enter such message no later than 2:00 P.M. through
DTC's Participation Terminal System.
Monthly Monthly, the Mortgage Trustee will
Reports: send to the Company a statement setting forth the
principal amount of Secured Notes outstanding as of
that date under
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<PAGE> 45
the Mortgage and setting forth a brief description of
any sales of which the Company has advised the Mortgage
Trustee but which have not yet been settled.
Failure to If BNY or the Agent fails to enter
Settle: an SDFS deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "F" or "G," BNY may
upon the approval of the Company deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable, a withdrawal message instructing DTC to
debit such Secured Note to BNY's participant account,
provided that BNY's participant account contains a
principal amount of the Global Security representing
such Secured Note that is at least equal to the
principal amount to be debited. If a withdrawal
message is processed with respect to all the Book-Entry
Notes represented by a Global Security, BNY will mark
such Global Security "canceled", make appropriate
entries in BNY's records and send such canceled Global
Security to the Company. The CUSIP number assigned to
such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not
reassigned until the Book-Entry Notes represented by
such Global Security have matured or been redeemed. If
a withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Notes
represented by a Global Security, BNY will exchange
such Global Security for another Global Security, which
shall represent the Book-Entry Notes previously
represented by the surrendered Global Security with
respect to which a withdrawal message has not been
processed and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Secured Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such Participants
and, in turn, the Agent for such Secured Note may enter
SDFS deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to
Settlement
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<PAGE> 46
Procedures "G" and "F", respectively. Thereafter, BNY
will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
If such failure shall have occurred for any reason
other than a default by the Agent in the performance of
its obligations hereunder or under the Distribution
Agreement, then the Company will reimburse such Agent
or BNY as applicable on an equitable basis for the loss
of the use of funds during the period when they were
credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure
to settle with respect to one or more, but not all, of
the Book-Entry Notes to have been represented by a
Global Security, the Mortgage Trustee will provide, in
accordance with Settlement Procedure "D," for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
BNY will serve as registrar in connection with the Certificated Notes.
Maturities: Each Certificated Note will mature on a date not less
than one year and not more than 30 years after the date
of delivery by the Company of such Secured Note.
Price to Each Certificated Note will be issued at the percentage
Public: of principal amount specified in the Prospectus
relating to such Secured Note.
Denominations: The denomination of any Certificated Note will be a
minimum of $1,000 or any amount
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<PAGE> 47
in excess thereof which is an integral multiple of
$1,000.
Registration: Certificated Notes will be issued only in fully
registered form.
Interest: General. Interest on each Certificated Note will
accrue from and including the original issue date of,
or the last date to which interest has been paid on,
such Secured Note. Each payment of interest on a
Certificated Note will include interest accrued to but
excluding the Interest Payment Date or the Maturity
Date or, upon earlier redemption, the Redemption Date,
as the case may be. Interest payable on the Maturity
Date or the Redemption Date of a Certificated Note will
be payable to the person to whom the principal of such
Secured Note is payable.
Record Dates. Unless otherwise set forth in the
applicable Pricing Supplement, the record dates with
respect to the Interest Payment Dates shall be the
Regular Record Dates.
Interest Payment Dates. Interest payments on
Certificated Notes will be made semi-annually on each
Interest Payment Date and on the Maturity Date or the
Redemption Date; provided, however, that in the case of
a Certificated Note issued between a Regular Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Regular Record Date.
Payments of Interest will be payable to the person in whose name
Principal and a Certificated Note is registered at the close of
Interest: business on the Regular Record Date next
preceding an Interest Payment Date; provided, however,
that, in the case of a Certificated Note originally
issued between a Regular Record Date and an Interest
Payment Date, the first payment of interest will be
made on the Interest Payment Date following the next
succeeding Regular Record Date to the person in whose
name such Secured Note was registered at the close of
business on such next Regular Record Date. Unless
other arrangements are made acceptable to
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<PAGE> 48
the Company, all interest payments (excluding interest
payments made on the Maturity Date or the Redemption
Date) on a Certificated Note will be made by check
mailed to the person entitled thereto as provided
above.
BNY will pay the principal amount of each Certificated
Note on the Maturity Date upon presentation of such
Certificated Note to BNY. Such payment, together with
payment of interest due on the Maturity Date, will be
made from funds deposited with BNY by the Company.
BNY will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
Within 10 days following each Regular Record Date, the
Mortgage Trustee will inform the Company of the total
amount of the interest payments to be made by the
Company on the next succeeding Interest Payment Date.
The Mortgage Trustee will provide monthly to the
Company a list of the principal and interest to be paid
on Certificated Notes maturing in the next succeeding
month.
Settlement: The settlement date with respect to any offer to
purchase Certificated Notes accepted by the Company
will be a date on or before the fifth Business Day next
succeeding the date of acceptance unless otherwise
agreed by the purchaser, the Mortgage Trustee and the
Company and shall be specified upon acceptance of such
offer. The Company will instruct the Mortgage Trustee
to effect delivery of each Certificated Note no later
than 1:00 P.M. (New York City time) on the settlement
date to the Presenting Agent (as defined under
"Preparation of Pricing Supplement" in Part III below)
for delivery to the purchaser.
Settlement For each offer to purchase a Certificated Note that
Procedures: is accepted by the Company, the Presenting Agent will
provide (unless provided by the purchaser directly to
the Company) by telephone and facsimile transmission
or other mutually acceptable
A-16
<PAGE> 49
means the following information to the Company:
1. Name in which such Secured Note is to be
registered (the "Registered Owner").
2. Address of the Registered Owner and, if
different, address for payment of principal and
interest.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount.
5. Maturity Date.
6. Interest rate.
7. Interest Payment Dates.
8. Redemption provisions, if any, or provisions for
the repayment or repurchase by the Company at the
option of the Holder, if any.
9. Settlement date.
10. Issue price.
11. Agent's commission, determined as provided in
Section 2(a) of the Distribution Agreement.
The Presenting Agent will advise the Company of the
foregoing information (unless provided by the purchaser
directly to the Company) for each offer to purchase a
Certificated Note solicited by such Agent and accepted
by the Company in time for the Mortgage Trustee to
prepare and authenticate the required Certificated
Note. Before accepting any offer to purchase a
Certificated Note to be settled in less than three
Business Days, the Company shall verify that the
Mortgage Trustee will have adequate time to prepare and
authenticate such Secured Note. After receiving from
the Presenting Agent the details for each offer to
purchase a Certificated Note that has been accepted by
the Company, the Company will, after recording the
details and any necessary
A-17
<PAGE> 50
calculations, provide appropriate documentation to the
Mortgage Trustee, including the information provided by
the Presenting Agent necessary for the preparation and
authentication of such Secured Note.
Note Deliveries Upon receipt of appropriate documentation and
and Cash Payment: instructions, the Company will cause the Mortgage
Trustee to prepare and authenticate the pre-printed
4-ply Certificated Note packet containing the following
documents in forms approved by the Company, the
Presenting Agent and the Mortgage Trustee:
1. Note with customer receipt.
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Mortgage Trustee.
Each Certificated Note shall be authenticated on the
settlement date therefor. The Mortgage Trustee will
authenticate each Certificated Note and deliver it
(with the confirmation) to the Presenting Agent (and
deliver the stubs as indicated above), all in
accordance with written or electronic instructions (or
oral instructions confirmed in writing (which may be
given by facsimile transmission) on the next Business
Day) from the Company. Delivery by the Mortgage
Trustee of each Certificated Note will be made in
accordance with said instructions against receipts
therefor and in connection with contemporaneous receipt
by the Company from the Presenting Agent on the
settlement date in immediately available funds of an
amount equal to the issue price of such Secured Note
less the Presenting Agent's commission.
Upon verification ("Verification") by the Presenting
Agent that a Certificated Note has been prepared and
properly authenticated by the Mortgage Trustee and
registered in the name of the purchaser in the proper
principal amount and other terms in accordance with the
aforementioned confirmation, payment will
A-18
<PAGE> 51
be made to the Company by the Presenting Agent the same
day as the Presenting Agent's receipt of the
Certificated Note in immediately available funds. Such
payment shall be made by the Presenting Agent only upon
prior receipt by the Presenting Agent of immediately
available funds from or on behalf of the purchaser
unless the Presenting Agent decides, at its option, to
advance its own funds for such payment against
subsequent receipt of funds from the purchaser.
Upon delivery of a Certificated Note to the Presenting
Agent, Verification by the Presenting Agent and the
giving of instructions for payment, the Presenting
Agent shall promptly deliver such Secured Note to the
purchaser.
In the event any Certificated Note is incorrectly
prepared, the Mortgage Trustee shall promptly issue a
replacement Certificated Note in exchange for such
incorrectly prepared Secured Note.
Failure If the Presenting Agent, at its own
to Settle: option, has advanced its own funds for payment against
subsequent receipt of funds from the purchaser, and if
the purchaser shall fail to make payment for the
Certificated Note on the Settlement Date therefor, the
Presenting Agent will promptly notify the Mortgage
Trustee and the Company by telephone, promptly
confirmed in writing (but no later than the next
Business Day). In such event, the Company shall
promptly provide the Mortgage Trustee with appropriate
documentation and instructions consistent with these
procedures for the return of the Certificated Note to
the Mortgage Trustee and the Presenting Agent will
promptly return the Certificated Note to the Mortgage
Trustee. Upon (i) confirmation from the Mortgage
Trustee in writing (which may be given by facsimile
transmission) that the Mortgage Trustee has received
the Certificated Note and upon (ii) confirmation from
the Presenting Agent in writing (which may be given by
facsimile transmission) that the Presenting Agent has
not received payment from the purchaser (the matters
referred
A-19
<PAGE> 52
to in clauses (i) and (ii) are referred to hereinafter
as the "Confirmations"), the Company will promptly pay
to the Presenting Agent an amount in immediately
available funds equal to the amount previously paid by
the Presenting Agent in respect of such Secured Note.
Assuming receipt of the Certificated Note by the
Mortgage Trustee and of the Confirmations by the
Company, such payment will be made on the settlement
date, if reasonably practical, and in any event not
later than the Business Day following the date of
receipt of the Certificated Note and Confirmations. If
a purchaser shall fail to make payment for the
Certificated Note for any reason other than the failure
of the Presenting Agent to provide the necessary
information to the Company as described above for
settlement or to provide a confirmation to the
purchaser within a reasonable period of time as
described above or otherwise to satisfy its obligation
hereunder or in the Distribution Agreement, and if the
Presenting Agent shall have otherwise complied with its
obligations hereunder and in the Distribution
Agreement, the Company will reimburse the Presenting
Agent on an equitable basis for its loss of the use of
funds during the period when they were credited to the
account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which the failure occurred, the Mortgage
Trustee will void such Secured Note, make appropriate
entries in its records and send such canceled Secured
Note to the Company; and upon such action, the
Certificated Note will be deemed not to have been
issued, authenticated and delivered.
PART III: ADMINISTRATIVE PROCEDURES APPLICABLE TO BOTH
BOOK-ENTRY NOTES AND CERTIFICATED NOTES
Calculation of Interest on Secured Notes (including interest for
Interest: partial periods) will be calculated on the basis of a
360-day year of twelve thirty-day months.
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<PAGE> 53
(Examples of interest calculations are as follows: The
period from August 15, 1990 to February 15, 1991 equals
6 months and 0 days, or 180 days; the interest payable
equals 180/360 times the annual rate of interest times
the principal amount of the Secured Note. The period
from September 17, 1990 to February 15, 1991 equals 4
months and 28 days, or 148 days; the interest payable
equals 148/360 times the annual rate of interest times
the principal amount of the Secured Note.)
Procedure for The Company and the Agents will discuss from time
Rate Setting to time the aggregate amount of, the issuance price of,
and Posting: and the interest rates to be borne by, Secured Notes
that may be sold as a result of the solicitation of
offers by the Agents. If the Company decides to set
prices of, and rates borne by, any Secured Notes in
respect of which the Agents are to solicit offers
(the setting of such prices and rates to be referred to
herein as "posting") or if the Company decides to
change prices or rates previously posted by it, it
will promptly advise the Agents of the prices and
rates to be posted.
Acceptance If the Company posts prices and rates
of Offers: as provided above, each Agent as agent for and on
behalf of the Company, shall promptly accept offers
received by such Agent to purchase Secured Notes at the
prices and rates so posted, subject to (i) any
instructions from the Company received by such Agent
concerning the aggregate principal amount of such
Secured Notes to be sold at the prices and rates so
posted or the period during which such posted prices
and rates are to be in effect, (ii) any instructions
from the Company received by such Agent changing or
revoking any posted prices and rates, (iii) compliance
with the securities laws of the United States and all
other jurisdictions and (iv) such Agent's right to
reject any such offer as provided below.
If the Company does not post prices and rates and an
Agent receives an offer to purchase Secured Notes or,
if while posted prices and rates are in effect, an
Agent receives an offer to purchase Secured
A-21
<PAGE> 54
Notes on terms other than those posted by the Company,
such Agent will promptly advise the Company of each
such offer other than offers rejected by such Agent as
provided below. The Company will have the sole right
to accept any such offer to purchase Secured Notes.
The Company may reject any such offer in whole or in
part.
Each Agent may, in its discretion reasonably exercised,
reject any offer to purchase Secured Notes received by
it in whole or in part.
Preparation If any offer to purchase a Secured Note is accepted by
of Pricing the Company, the Company with the approval of the Agent
Supplement: that presented such offer (the "Presenting Agent"),
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Secured Note
and will arrange to have a copy electronically
filed with the Commission in accordance with the
applicable paragraph of Rule 424 under the Act and the
provisions of Regulation S-T thereunder, and will
supply at least 10 copies thereof (or additional copies
if requested) to the Presenting Agent. The Presenting
Agent will cause a Prospectus and Pricing Supplement to
be delivered to the purchaser of such Secured Note.
In each instance that a Pricing Supplement is prepared,
the Agents will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will
be destroyed.
Suspension of The Company may instruct the Agents to suspend at
Solicitation; any time, for any period of time or
Amendment or permanently, the solicitation of offers to
Supplement of purchase Secured Notes. Upon receipt of such
Prospectus: instructions from the Company, the Agents will
forthwith suspend solicitation of offers to purchase
Secured Notes from the Company until such time as the
Company has advised them that such solicitation
may be resumed.
If the Company decides to amend or supplement the
Registration Statement (as defined in Section 1(c) of
the
A-22
<PAGE> 55
Distribution Agreement) or the Prospectus (except for a
supplement relating to an offering of securities other
than the Secured Notes), it will promptly advise the
Agents and the Mortgage Trustee and will furnish the
Agents with the proposed amendment or supplement in
accordance with the terms of, and its obligations
under, the Distribution Agreement. The Company will,
consistent with such obligations, promptly advise each
Agent and the Mortgage Trustee whether orders
outstanding at the time each Agent suspends
solicitation may be settled and whether copies of such
Prospectus and Prospectus Supplement as in effect at
the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made in
the event that the Company determines that such orders
may not be settled or that copies of such Prospectus,
Prospectus Supplement and Pricing Supplement may not be
so delivered.
The Company will file with the Commission any
supplement to the Prospectus relating to the Secured
Notes, provide the Agents with copies of any such
supplement, and confirm to the Agents that such
supplement has been filed with the Commission pursuant
to the applicable paragraph of Rule 424.
Confirmation: For each offer to purchase a Secured Note solicited by
an Agent and accepted by or on behalf of the Company,
the Presenting Agent will issue a confirmation to the
purchaser, with a copy to the Company, setting forth
the details set forth above and delivery and payment
instructions.
Paying Agent Not Nothing herein shall be deemed to
to Risk Funds: require the Mortgage Trustee to risk or expend its own
funds in connection with any payment to the Company,
DTC, the Agents or the purchaser or a holder, it being
understood by all parties that payments made by the
Mortgage Trustee to the Company, DTC, the Agents or a
holder shall be made only to the extent that
A-23
<PAGE> 56
funds are provided to the Mortgage Trustee for such
purpose.
Authenticity The Company will cause the Mortgage Trustee to furnish
of Signatures: the Agents from time to time with the specimen
signatures of each of the Mortgage Trustee's
officers, employees or agents who has been authorized
by the Mortgage Trustee's to authenticate Secured
Notes, but the Agents will have no obligation or
liability to the Company or the Mortgage Trustee in
respect of the authenticity of the signature of any
officer, employee or agent of the Company or the
Mortgage Trustee on any such Secured Note.
Payment of Each Agent shall forward to the Company, on a
Expenses: monthly basis, a statement of the reasonable
out-of-pocket expenses incurred by such Agent during
that month which are reimbursable to it pursuant to the
terms of the Distribution Agreement. The Company will
remit payment to the Agents currently on a monthly
basis.
Delivery of A copy of the Prospectus, Prospectus Supplement and
Prospectus: Pricing Supplement relating to a Secured Note must
accompany or precede the earliest of any written offer
of such Secured Note, confirmation of the purchase of
such Secured Note or payment for such Secured Note by
its purchaser. If notice of a change in the terms of
the Secured Notes is received by an Agent between
the time an order for a Secured Note is placed and the
time written confirmation thereof is sent by such Agent
to a customer or his agent, such confirmation shall be
accompanied by a Prospectus, Prospectus Supplement and
Pricing Supplement setting forth the terms in effect
when the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement of Prospectus"
above, each Agent will deliver a Prospectus, Prospectus
Supplement and Pricing Supplement as herein described
with respect to each Secured Note sold by it.
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<PAGE> 57
EXHIBIT B
WSP&R
DRAFT
11/3/94
Central Hudson Gas & Electric Corporation
Medium-Term Notes, Series B
Administrative Procedures
Medium-Term Notes, Series B (the "Unsecured Notes"), are to be
offered on a continuing basis by Central Hudson Gas & Electric Corporation (the
"Company"). Kidder, Peabody & Co. Incorporated and Smith Barney Inc., as
agents (each an "Agent" and collectively the "Agents"), have agreed to use
their reasonable best efforts to solicit offers to purchase the Unsecured
Notes. The Unsecured Notes are being sold pursuant to a Distribution Agreement
between the Company and the Agents dated _______, 199_ (the "Distribution
Agreement") to which these administrative procedures are attached as an
exhibit.
The Unsecured Notes will be issued under the Company's
Indenture, dated as of April 1, 1992 (the "Indenture"), to First Trust of New
York, National Association ("First Trust"), as successor to Morgan Guaranty
Trust Company of New York, as trustee (the "Indenture Trustee"). First Trust
will act as the paying agent (the "Paying Agent") for the payment of principal
and premium, if any, and interest on the Unsecured Notes and will perform, as
the Paying Agent, unless otherwise specified, the other duties specified
herein.
The Unsecured Notes will rank equally and ratably with all
other unsecured and unsubordinated indebtedness of the Company. The Unsecured
Notes have been registered with the Securities and Exchange Commission (the
"Commission") and will bear interest at either fixed rates ("Fixed Rate Notes")
or variable rates ("Floating Rate Notes").
Each Unsecured Note will be represented by either a Global
Security (as defined hereinafter) delivered to First Trust, as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to the
holder thereof or a person designated by such holder (a "Certificated Note").
Except as set forth in the Prospectus (as defined in Section 1(c) of the
Distribution Agreement), (i) each Unsecured Note will be initially issued as a
Book-Entry Note and (ii) an owner of a
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Book-Entry Note will not be entitled to receive a certificate representing such
Unsecured Note.
The procedures to be followed during, and the specific terms
of, the solicitation of offers by the Agents and the sale as a result thereof
by the Company are explained below. Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part I hereof and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Administrative procedures applicable
to both Book-Entry Notes and Certificated Notes are set forth in Part III
hereof. Administrative responsibilities, document control and record-keeping
functions will be handled for the Company by its Controller and Treasurer. The
Company will promptly advise the Agents and the Indenture Trustee in writing of
those persons handling administrative responsibilities with whom the Agents and
the Indenture Trustee are to communicate regarding offers to purchase Unsecured
Notes and the details of their delivery.
To the extent the procedures set forth below conflict with the
provisions of the Unsecured Notes, the Indenture or the Distribution Agreement,
the relevant provisions of the Unsecured Notes, the Indenture and the
Distribution Agreement shall control. Unless otherwise defined herein, terms
defined in the Indenture shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, First Trust will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations to be delivered from the Company and First Trust to DTC and a
Medium-Term Note Certificate Agreement between First Trust, National
Association, and DTC, dated as of January 31, 1991 (the "MTN Certificate
Agreement"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined
under "Settlement" below) for one or more
Book-Entry Notes, the Company will issue
a single global security in fully
registered form without coupons (a
"Global Security") representing up to
$80,000,000 principal amount of all such
Unsecured Notes that have the same date
of maturity, ("Maturity Date"),
redemption provisions, if any, provisions
for the repayment or purchase by the
Company at the option of the Holder, if
any, Interest Payment Dates,
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Original Issue Date, and, in the case of
Fixed Rate Notes, interest rate, and, in
the case of Floating Rate Notes, Initial
Interest Rate, Base Rate, Index Maturity,
Interest Reset Period, Interest Reset
Dates, Rate Determination Dates, Interest
Payment Period, Spread or Spread
Multiplier, if any, Minimum Interest
Rate, if any, and Maximum Interest Rate,
if any (in each case, and for all
purposes of these administrative
procedures, as defined in the Prospectus)
(collectively, the "Terms"). Each Global
Security will be dated and issued as of
the date of its authentication by the
Indenture Trustee. No Global Security
will represent any Certificated Note.
Identification The Company has arranged with the
Numbers: CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of one series of
CUSIP numbers (including tranche
numbers), which series consists of
approximately 900 CUSIP numbers and
relates to Global Securities representing
the Book-Entry Notes. The Company has
obtained from the CUSIP Service Bureau a
written list of such series of reserved
CUSIP numbers and has delivered to DTC
and the Indenture Trustee a written list
of 900 CUSIP numbers of such series. The
Company will assign CUSIP numbers to
Global Securities as described below
under Settlement Procedure "B". It is
expected that DTC will notify the CUSIP
Service Bureau periodically of the CUSIP
numbers that the Company has assigned to
Global Securities. At any time when
fewer than 100 of the reserved CUSIP
numbers of the series remain unassigned
to Global Securities, the Indenture
Trustee shall so advise the Company and,
if it deems necessary, the Company will
reserve additional CUSIP numbers for
assignment to Global Securities
representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers,
the Company shall deliver a list of such
additional CUSIP numbers to the Indenture
Trustee and DTC.
Registration: Each Global Security will be registered
in the name of Cede & Co., as nominee for
DTC, on the Security Register maintained
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<PAGE> 60
under the Indenture. It is expected that
the beneficial owner of a Book-Entry Note
(or one or more indirect participants in
DTC designated by such owner) will
designate one or more participants in DTC
(with respect to such Unsecured Note, the
"Participants") to act as agent or agents
for such owner in connection with the
book-entry system maintained by DTC, and
it is expected that DTC will record in
book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such beneficial owner in such
Unsecured Note in the account of such
Participants. The ownership interest of
such beneficial owner in such Unsecured
Note will be recorded through the records
of such Participants or through the
separate records of such Participants and
one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferees and transferors of
such Unsecured Note.
Consolidations: Upon receipt of written instructions from
the Company, First Trust may deliver to
DTC and the CUSIP Service Bureau at any
time a written notice of consolidation (a
copy of which shall be attached to the
resulting Global Security) specifying (i)
the CUSIP numbers of two or more
Outstanding Global Securities that
represent Book-Entry Notes having the
same Terms and for which interest has
been paid to the same date, (ii) a date,
occurring at least thirty days after such
written notice is delivered and at least
thirty days before the next Interest
Payment Date for such Book-Entry Notes,
on which such Global Securities shall be
exchanged for a single replacement Global
Security and (iii) a new CUSIP number to
be assigned to such replacement Global
Security. Upon receipt of such a notice,
it is expected that DTC will send to its
participants (including First Trust) a
written reorganization notice to the
effect that such exchange will occur on
such date.
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Prior to the specified exchange date,
First Trust will deliver to the CUSIP
Service Bureau a written notice setting
forth such exchange date and the new
CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the
Global Securities to be exchanged will no
longer be valid. On the specified
exchange date, First Trust will exchange
such Global Securities for a single
Global Security bearing the new CUSIP
number, and the CUSIP numbers of the
exchanged Global Securities will, in
accordance with CUSIP Service Bureau
procedures, be canceled and not
reassigned until the Book-Entry Notes
represented by such exchanged Global
Securities have matured or been redeemed.
Maturities: Each Book-Entry Note will mature on a
date not less than one year nor more than
30 years after the date of settlement for
such Unsecured Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of $1,000 or any amount
in excess thereof that is an integral
multiple of $1,000. Global Securities
will be denominated in principal amounts
not in excess of $80,000,000.
Interest: General. Interest on each Book-Entry
Note will accrue from and including the
original issue date of, or the last date
to which interest has been paid on, the
Global Security representing such
Unsecured Note. Each payment of interest
on a Book-Entry Note will include
interest accrued to but excluding the
Interest Payment Date (provided that, in
the case of Floating Rate Notes that
reset daily or weekly, interest payments
will include interest accrued to but
excluding the Regular Record Date (as
defined below) immediately preceding the
Interest Payment Date) or the Maturity
Date or, upon earlier redemption or
repayment, the date of such redemption or
repayment (the "Redemption Date"), as the
case may be. Interest payable on the
Maturity Date or the Redemption Date of a
Book-Entry Note will be payable to the
person to whom the principal of such
Unsecured Note is payable. Standard &
Poor's Corporation will use the
information received in the
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<PAGE> 62
pending deposit message described under
Settlement Procedure "C" below in order
to include the amount of any interest
payable and certain other information
regarding the related Global Security in
the appropriate weekly bond report
published by Standard & Poor's
Corporation.
Record Dates. The record date with
respect to any Interest Payment Date
shall be the December 15 or June 15, as
the case may be (whether or not a
Business Day) immediately preceding such
Interest Payment Date (each a "Regular
Record Date").
Fixed Rate Book-Entry Notes. Interest
payments on Fixed Rate Book-Entry Notes
will be made semi-annually on January 1
and July 1 of each year and on the
Maturity Date or the Redemption Date;
provided, however, that in the case of a
Fixed Rate Book-Entry Note issued between
a Regular Record Date and an Interest
Payment Date, the first interest payment
will be made on the Interest Payment Date
following the next succeeding Regular
Record Date.
Floating Rate Book-Entry Notes. Interest
payments will be made on Floating Rate
Book-Entry Notes monthly, quarterly,
semi-annually or annually. Unless
otherwise agreed upon, interest will be
payable, in the case of Floating Rate
Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of
each month; with a quarterly Interest
Payment Period, on the third Wednesday of
March, June, September and December of
each year; with a semi-annual Interest
Payment Period, on the third Wednesday of
the two months specified pursuant to
Settlement Procedure "A" below; and with
an annual Interest Payment Period, on the
third Wednesday of the month specified
pursuant to Settlement Procedure "A"
below; provided, however, that if an
Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day
that is not a Business Day (as defined in
the Prospectus) with respect to such
Floating Rate Book-Entry Notes, such
Interest Payment Date will be the next
succeeding Business Day with
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respect to such Floating Rate Book-Entry
Notes, except in the case of a Floating
Rate Book-Entry Note for which the rate
base is LIBOR, if such Business Day is in
the next succeeding calendar month, in
which event such Interest Payment Date
will be the immediately preceding
Business Day; provided further, however,
that in the case of a Floating Rate
Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date
the first interest payment will be made
on the Interest Payment Date following
the next succeeding Regular Record Date.
Payments of Payment of Interest Only. Promptly
Principal and after each Regular Record Date, the
Interest: Paying Agent will deliver to the Company
and DTC a written notice specifying by
CUSIP number the amount of interest to be
paid on each Global Security on the
following Interest Payment Date (other
than an Interest Payment Date coinciding
with the Maturity Date) and the total of
such amounts. It is expected that DTC
will confirm the amount payable on each
Global Security on such Interest Payment
Date by reference to the appropriate
(daily or weekly) bond reports published
by Standard & Poor's Corporation. The
Company will pay to the Paying Agent the
total amount of interest due on such
Interest Payment Date (other than on the
Maturity Date), and the Paying Agent will
pay such amount to DTC at the times and
in the manner set forth under "Manner of
Payment" below. If any Interest Payment
Date for a Book-Entry Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding
Business Day, except that, if such
Unsecured Note is a LIBOR Note and such
next succeeding Business Day is in the
next succeeding calendar month, such
payment will be made on the immediately
preceding Business Day; and no interest
shall accrue on such payment for the
period from and after such Interest
Payment Date.
Payments on Maturity Date, Etc. On or
about the first Business Day of each
month, the Paying Agent will deliver to
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the Company and DTC a written list of
principal and, to the extent known at
such time, interest to be paid on each
Global Security maturing either on the
Maturity Date or the Redemption Date in
the following month. The Company and DTC
will confirm with the Paying Agent the
amounts of such principal and interest
payments with respect to each such Global
Security on or about the fifth Business
Day preceding the Maturity Date or the
Redemption Date, as the case may be, of
such Global Security. The Company will
pay to the Paying Agent the principal
amount of such Global Security, together
with interest due on such Maturity Date
or Redemption Date in the manner set
forth below under "Manner of Payment".
The Paying Agent will pay such amounts to
DTC at the times and in the manner set
forth below under "Manner of Payment".
If the Maturity Date or the Redemption
Date of a Global Security representing
Book-Entry Notes is not a Business Day,
the payment due on such day shall be made
on the next succeeding Business Day,
except that, if such Unsecured Note is a
LIBOR Note and such next succeeding
Business Day is in the next succeeding
calendar month, such payment will be made
on the immediately preceding Business
Day; and no interest shall accrue on such
payment for the period from and after
such Maturity Date or the Redemption
Date. Promptly after payment to DTC of
the principal and interest due at the
Maturity Date or the Redemption Date of
such Global Security, the Paying Agent
will cancel such Global Security in
accordance with the terms of the
Indenture.
Manner of Payment. The total amount of
any principal and interest due on Global
Securities on any Interest Payment Date
or on the Maturity Date or the Redemption
Date shall be paid by the Company to the
Paying Agent in immediately available
funds for use by the Paying Agent no
later than 9:30 A.M. (New York City time)
on such date. The Company will make such
payment on such Global Securities by wire
transfer to the Paying Agent or by the
Paying Agent's debiting the account of
the Company maintained with the Paying
Agent.
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The Company will confirm such
instructions in writing to the Paying
Agent. Prior to 10:00 A.M. (New York
City time) on each Maturity Date or
Redemption Date or as soon as reasonably
possible thereafter, the Paying Agent
will pay by separate wire transfer (using
Fedwire message entry instructions in a
form previously agreed to with DTC) to an
account at the Federal Reserve Bank of
New York previously agreed to with DTC,
in funds available for immediate use by
DTC, each payment of principal (together
with interest thereon) due on Global
Securities on any Maturity Date or
Redemption Date. On each Interest
Payment Date, interest payments shall be
made to DTC in same day funds in
accordance with existing arrangements
between the Paying Agent and DTC.
Thereafter, on each such date, it is
expected that DTC will pay, in accordance
with its SDFS operating procedures then
in effect, such amounts in funds
available for immediate use to the
respective Participants in whose names
the Book-Entry Notes represented by such
Global Securities are recorded in the
book-entry system maintained by DTC.
Neither the Company nor the Paying Agent
shall have any responsibility or
liability for the payment by DTC to such
Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any
taxes required under applicable law to be
withheld from any interest payment on a
Book-Entry Note will be determined and
withheld by the Participant, indirect
participant in DTC or other person
responsible for forwarding payments and
materials directly to the beneficial
owner of such Unsecured Note.
Settlement: The receipt by the Company of immediately
available funds in payment for a
Book-Entry Note and the authentication
and issuance of the Global Security
representing such Unsecured Note shall
constitute "settlement" with respect to
such Unsecured Note. All orders accepted
by the Company will be settled on the
fifth Business Day following the date of
sale of a Book-Entry Note unless the
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Company, the Indenture Trustee and the
purchaser agree to settlement on another
day that shall be no earlier than the
next Business Day.
Settlement Settlement Procedures with regard to
Procedures: each Book-Entry Note sold by the Company
through an Agent, as agent, shall be as
follows:
A. Such Agent will advise the
Company by telephone, followed by
facsimile transmission, of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed
Rate Book-Entry Note,
the interest rate, or,
in the case of a
Floating Rate Book-Entry
Note, the Initial
Interest Rate (if known
at such time), Base
Rate, Index Maturity,
Interest Reset Period,
Interest Reset Dates,
Rate Determination
Dates, Interest
Payment Period, Spread or
Spread Multiplier (if
any), Minimum Interest
Rate (if any) and
Maximum Interest Rate
(if any).
4. Interest Payment Dates.
5. Redemption provisions,
if any, or provisions
for the repayment or
purchase by the Company
at the option of the
Holder, if any.
6. Settlement date.
7. Issue price.
8. Agent's commission,
determined as provided
in Section 2(a) of the
Distribution Agreement.
B. The Company will assign a CUSIP
number to such Book-Entry Note
and will advise First Trust by
facsimile transmission or other
mutually
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acceptable means of the
information set forth in
Settlement Procedure "A" above,
the name of such Agent and the
CUSIP number assigned to such
Book-Entry Note. The Company
will notify the Agent of such
CUSIP number by telephone as soon
as practicable. Each such
communication by the Company
shall constitute a representation
and warranty by the Company to
First Trust and each Agent that
(i) such Unsecured Note is then,
and at the time of issuance and
sale thereof will be, duly
authorized for issuance and sale
by the Company, (ii) the Global
Security representing such
Unsecured Note will conform with
the terms of the Indenture
pursuant to which such Unsecured
Note and Global Security are
issued and (iii) upon
authentication and delivery of
such Global Security, the
aggregate principal amount of all
Unsecured Notes initially offered
issued under the Indenture will
not exceed $80,000,000 (except
for Global Securities or
Unsecured Notes represented by
and authenticated and delivered
in exchange for or in lieu of
Unsecured Notes in accordance
with the Indenture).
C. First Trust will enter a pending
deposit message through DTC's
Participant Terminal System,
providing the following
settlement information to DTC,
which shall route such
information to such Agent and
Standard & Poor's Corporation:
1. The information set
forth in Settlement
Procedure "A".
2. Identification of such
Unsecured Note as a Fixed
Rate Book-Entry Note or a
Floating Rate Book-Entry
Note.
3. Initial Interest Payment
Date for such Unsecured
Note, number of days by
which such date succeeds
the related Regular
Record Date (which, in
the case of Floating Rate
Notes that
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reset daily or weekly,
shall be the DTC Record
Date, which is the date
five calendar days
immediately preceding
the applicable Interest
Payment Date and, in the
case of all other
Unsecured Notes, shall
be the Regular Record
Date as defined in the
Unsecured Note) and
amount of interest
payable on such Interest
Payment Date.
4. CUSIP number of the
Global Security
representing such
Unsecured Note.
5. Whether such Global
Security will represent
any other Book-Entry
Note (to the extent
known at such time).
D. The Indenture Trustee will
complete and authenticate the
Global Security representing such
Unsecured Note.
E. It is expected that DTC will
credit such Unsecured Note to
First Trust's participant account
at DTC.
F. First Trust will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit such
Unsecured Note to First Trust's
participant account and credit
such Unsecured Note to such
Agent's participant account and
(ii) debit such Agent's
settlement account and credit
First Trust's settlement account
for an amount equal to the price
of such Unsecured Note less such
Agent's commission. The entry of
such a deliver order shall
constitute a representation and
warranty by First Trust to DTC
that (a) the Global Security
representing such Book-Entry Note
has been issued and authenticated
and (b) First Trust is holding
such Global Security pursuant to
the MTN Certificate Agreement.
G. Such Agent will enter an SDFS
deliver order through DTC's
Participant
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Terminal System instructing DTC
(i) to debit such Unsecured Note
to such Agent's participant
account and credit such Unsecured
Note to the participant accounts
of the Participants with respect
to such Unsecured Note and (ii)
to debit the settlement accounts
of such Participants and credit
the settlement account of such
Agent for an amount equal to the
price of such Unsecured Note.
H. Transfers of funds in accordance
with SDFS deliver orders
described in Settlement
Procedures "F" and "G" will be
settled in accordance with SDFS
operating procedures in effect on
the settlement date.
I. First Trust will, upon confirming
receipt of such funds from the
Agent, wire transfer to the
account of the Company maintained
at Morgan Guaranty Trust Company
of New York (for credit to
Central Hudson Gas & Electric
Corporation, Account No.
01046148) in immediately
available funds in the amount
transferred to Morgan in
accordance with Settlement
Procedure "F".
J. Such Agent will confirm the
purchase of such Unsecured Note
to the purchaser either by
transmitting to the Participants
with respect to such Unsecured
Note a confirmation order or
orders through DTC's
institutional delivery system or
by mailing a written confirmation
to such purchaser.
Settlement For orders of Book-Entry Notes
Procedures solicited by an Agent, as agent,
Timetable: and accepted by the Company for
settlement on the first Business Day
after the sale date, Settlement
Procedures "A" through "J" set forth
above shall be completed as soon as
possible but not later than the
respective times (New York City time) set
forth below:
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Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 5:00 P.M. on the sale date
D 3:00 P.M. on the sale date
E 8:05 A.M. on the settlement date
F-G 3:00 P.M. on the settlement date
H 4:45 P.M. on the settlement date
I-J 5:00 P.M. on the settlement date
If a sale is to be settled more than one
Business Day after the sale date,
Settlement Procedures "A", "B" and "C"
shall be completed as soon as practicable
but no later than 11:00 A.M. and 12:00
Noon on the first Business Day after the
sale date with respect to Settlement
Procedures "A" and "B", respectively, and
no later than 5:00 P.M. on the first
Business Day after the sale date, with
respect to Settlement Procedure "C". If
the Initial Interest Rate for a Floating
Rate Book-Entry Note has not been
determined at the time that Settlement
Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed
as soon as such rate has been determined
but no later than 12:00 Noon and 2:00
P.M., respectively, on the second
Business Day before the settlement date.
Settlement Procedure "D" shall occur no
later than 3:00 P.M. on the last Business
Day prior to the settlement date.
Settlement Procedures "H" and "I" are
subject to extension in accordance with
any extension of Fedwire closing
deadlines and in the other events
specified in the SDFS operating
procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is
rescheduled or canceled, the Company will
instruct First Trust by no later than
12:00 Noon on the Business Day
immediately preceding the scheduled
settlement date to deliver to DTC through
DTC's Participant Terminal System a
cancellation message to such effect and
First Trust will enter such message, by no
later than 2:00 P.M. on such Business
Day, through DTC's Participation Terminal
System.
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Monthly Monthly, the Indenture Trustee will
Reports: send to the Company a statement setting
forth the principal amount of Unsecured
Notes outstanding as of that date under
the Indenture and setting forth a brief
description of any sales of which the
Company has advised the Indenture Trustee
but which have not yet been settled.
Failure to If First Trust or the Agent fails to
Settle: enter an SDFS deliver order with respect
to a Book-Entry Note pursuant to
Settlement Procedure "F" or "G," First
Trust may upon the approval of the
Company deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable, a withdrawal message
instructing DTC to debit such Unsecured
Note to First Trust's participant
account, provided that First Trust's
participant account contains a principal
amount of the Global Security
representing such Unsecured Note that is
at least equal to the principal amount to
be debited. If a withdrawal message is
processed with respect to all the
Book-Entry Notes represented by a Global
Security, First Trust will mark such
Global Security "canceled", make
appropriate entries in First Trust's
records and send such canceled Global
Security to the Company. The CUSIP
number assigned to such Global Security
shall, in accordance with CUSIP Service
Bureau procedures, be canceled and not
reassigned until the Book-Entry Notes
represented by such Global Security have
matured or been redeemed. If a
withdrawal message is processed with
respect to one or more, but not all, of
the Book-Entry Notes represented by a
Global Security, First Trust will
exchange such Global Security for another
Global Security, which shall represent
the Book-Entry Notes previously
represented by the surrendered Global
Security with respect to which a
withdrawal message has not been processed
and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry
Note is not timely paid to the
Participants with respect to such
Unsecured Note by the beneficial
purchaser thereof (or a person, including
an
B-15
<PAGE> 72
indirect participant in DTC, acting on
behalf of such purchaser), such
Participants and, in turn, the Agent for
such Unsecured Note may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders
entered pursuant to Settlement Procedures
"G" and "F", respectively. Thereafter,
First Trust will deliver the withdrawal
message and take the related actions
described in the preceding paragraph. If
such failure shall have occurred for any
reason other than a default by the Agent
in the performance of its obligations
hereunder or under the Distribution
Agreement, then the Company will
reimburse such Agent or First Trust, as
applicable, on an equitable basis for the
loss of the use of funds during the
period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating
procedures then in effect. In the event
of a failure to settle with respect to
one or more, but not all, of the
Book-Entry Notes to have been represented
by a Global Security, the Indenture
Trustee will provide, in accordance with
Settlement Procedure "D," for the
authentication and issuance of a Global
Security representing the other
Book-Entry Notes to have been represented
by such Global Security and will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
First Trust will serve as registrar in connection with the Certificated
Notes.
Maturities: Each Certificated Note will mature on a
date not less than one year and not more
than 30 years after the date of delivery
by the Company of such Unsecured Note.
Price to Each Certificated Note will be issued
B-16
<PAGE> 73
Public: at the percentage of principal amount
specified in the Prospectus relating to
the Unsecured Notes.
Denominations: The denomination of any Certificated Note
will be a minimum of $1,000 or any amount
in excess thereof which is an integral
multiple of $1,000.
Registration: Certificated Notes will be issued only in
fully registered form.
Interest: General. Interest on each Certificated
Note will accrue from and including the
original issue date of, or the last date
to which interest has been paid on, such
Unsecured Note. Each payment of interest
on a Certificated Note will include
interest accrued to but excluding the
Interest Payment Date (provided that, in
the case of Floating Rate Notes that
reset daily or weekly, interest payments
will include interest accrued to but
excluding the Regular Record Date
immediately preceding the Interest
Payment Date) or the Maturity Date or,
upon earlier redemption, the Redemption
Date, as the case may be. Interest
payable on the Maturity Date or the
Redemption Date of a Certificated Note
will be payable to the person to whom the
principal of such Unsecured Note is
payable.
Record Dates. Unless otherwise set forth
in the applicable Pricing Supplement, the
record dates with respect to the Interest
Payment Dates shall be the Regular Record
Dates.
Fixed Rate Certificated Notes. Unless
otherwise specified pursuant to
"Settlement Procedures" below, interest
payments on Fixed Rate Certificated Notes
will be made semi-annually on January 1
and April 1 and on the Maturity Date or
the Redemption Date; provided, however,
that in the case of a Fixed Rate
Certificated Note issued between a
Regular Record Date and an Interest
Payment Date, the first interest payment
will be made on the Interest Payment Date
following the next succeeding Regular
Record Date.
B-17
<PAGE> 74
Floating Rate Certificated Notes.
Interest payments will be made on
Floating Rate Certificated Notes monthly,
quarterly, semi-annually or annually.
Unless otherwise agreed upon, interest
will be payable, in the case of Floating
Rate Certificated Notes with a monthly
Interest Payment Period, on the third
Wednesday of each month; with a quarterly
Interest Payment Period, on the third
Wednesday of March, June, September and
December of each year; with a semi-annual
Interest Payment Period, on the third
Wednesday of the two months specified
pursuant to "Settlement Procedures"
below; and with an annual Interest
Payment Period, on the third Wednesday of
the month specified pursuant to
"Settlement Procedures below; provided,
however, that if an Interest Payment Date
for Floating Rate Certificated Notes
would otherwise be a day that is not a
Business Day with respect to such
Floating Rate Certificated Notes, such
Interest Payment Date will be the next
succeeding Business Day with respect to
such Floating Rate Certificated Notes,
except in the case of a Floating Rate
Certificated Note for which the rate base
is LIBOR, if such Business Day is in the
next succeeding calendar month, in which
event such Interest Payment Date will be
the immediately preceding Business Day;
provided further, however, that in the
case of a Floating Rate Certificated Note
issued between a Regular Record Date and
an Interest Payment Date, the first
interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Payments of Interest will be payable to the person
Principal and in whose name a Certificated Note is
Interest: registered at the close of business on
the Regular Record Date next preceding an
Interest Payment Date; provided, however,
that, in the case of a Certificated Note
originally issued between a Regular
Record Date and an Interest Payment Date,
the first payment of interest will be
made on the Interest Payment Date
following the next succeeding Regular
Record Date to the person in whose name
such Unsecured Note was registered at the
close of business on such next Regular
Record Date. Unless
B-18
<PAGE> 75
other arrangements are made acceptable to
the Company, all interest payments
(excluding interest payments made on the
Maturity Date or the Redemption Date) on
a Certificated Note will be made by check
mailed to the person entitled thereto as
provided above.
First Trust will pay the principal amount
of each Certificated Note on the Maturity
Date upon presentation of such
Certificated Note to First Trust at the
principal corporate trust office of First
Trust in New York, New York. Such
payment, together with payment of
interest due on the Maturity Date, will
be made from funds deposited with First
Trust by the Company.
First Trust will be responsible for
withholding taxes on interest paid on
Certificated Notes as required by
applicable law.
Within 10 days following each Regular
Record Date, the Indenture Trustee will
inform the Company of the total amount of
the interest payments to be made by the
Company on the next succeeding Interest
Payment Date. The Indenture Trustee will
provide monthly to the Company a list of
the principal and interest to be paid on
Certificated Notes maturing in the next
succeeding month.
Settlement: The settlement date with respect to any
offer to purchase Certificated Notes
accepted by the Company will be a date on
or before the fifth Business Day next
succeeding the date of acceptance unless
otherwise agreed by the purchaser, the
Indenture Trustee and the Company and
shall be specified upon acceptance of
such offer. The Company will instruct
the Indenture Trustee to effect delivery
of each Certificated Note no later than
1:00 P.M. (New York City time) on the
settlement date to the Presenting Agent
(as defined under "Preparation of Pricing
Supplement" in Part III below) for
delivery to the purchaser.
Settlement For each offer to purchase a Certi-
B-19
<PAGE> 76
Procedures: ficated Note that is accepted by the
Company, the Presenting Agent will
provide (unless provided by the purchaser
directly to the Company) by telephone and
facsimile transmission or other mutually
acceptable means the following
information to the Company:
1. Name in which such Unsecured Note
is to be registered (the
"Registered Owner").
2. Address of the Registered Owner
and, if different, address for
payment of principal and
interest.
3. Taxpayer identification number of
the Registered Owner.
4. Principal amount.
5. Maturity Date.
6. In the case of Fixed Rate
Certificated Note, the interest
rate, or, in the case of a
Floating Rate Certificated Note,
the Initial Interest Rate (if
known at such time), Base Rate,
Index Maturity, Interest Reset
Period, Interest Reset Dates,
Rate Determination Dates,
Interest Payment Period, Spread
or Spread Multiplier (if any),
Minimum Interest Rate (if any)
and Maximum Interest Rate (if
any).
7. Interest Payment Dates.
8. Redemption provisions, if any, or
provisions for the repayment or
repurchase by the Company at the
option of the Holder, if any.
9. Settlement date.
10. Issue price.
11. Agent's commission, determined as
provided in Section 2(a) of the
Distribution Agreement.
The Presenting Agent will advise the
Company of the foregoing information
(unless provided by the purchaser
directly
B-20
<PAGE> 77
to the Company) for each offer to
purchase a Certificated Note solicited by
such Agent and accepted by the Company in
time for the Indenture Trustee to prepare
and authenticate the required
Certificated Note. Before accepting any
offer to purchase a Certificated Note to
be settled in less than three Business
Days, the Company shall verify that the
Indenture Trustee will have adequate time
to prepare and authenticate such
Unsecured Note. After receiving from the
Presenting Agent the details for each
offer to purchase a Certificated Note
that has been accepted by the Company,
the Company will, after recording the
details and any necessary calculations,
provide appropriate documentation to the
Indenture Trustee, including the
information provided by the Presenting
Agent necessary for the preparation and
authentication of such Unsecured Note.
Note Deliveries Upon receipt of appropriate
and Cash Payment: documentation and instructions, the
Company will cause the Indenture Trustee
to prepare and authenticate the
pre-printed 4-ply Certificated Note
packet containing the following documents
in forms approved by the Company, the
Presenting Agent and the Indenture
Trustee:
1. Note with customer receipt.
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Indenture
Trustee.
Each Certificated Note shall be
authenticated on the settlement date
therefor. The Indenture Trustee will
authenticate each Certificated Note and
deliver it (with the confirmation) to the
Presenting Agent (and deliver the stubs
as indicated above), all in accordance
with written or electronic instructions
(or oral instructions confirmed in
writing (which may be given by facsimile
transmission) on the next Business Day)
from the Company. Delivery by the
Indenture Trustee of each Certificated
Note will be made in accordance with said
instructions against receipts therefor
and in connection with contemporaneous
receipt
B-21
<PAGE> 78
by the Company from the Presenting Agent
on the settlement date in immediately
available funds of an amount equal to the
issue price of such Unsecured Note less
the Presenting Agent's commission.
Upon verification ("Verification") by the
Presenting Agent that a Certificated Note
has been prepared and properly
authenticated by the Indenture Trustee
and registered in the name of the
purchaser in the proper principal amount
and other terms in accordance with the
aforementioned confirmation, payment will
be made to the Company by the Presenting
Agent the same day as the Presenting
Agent's receipt of the Certificated Note
in immediately available funds. Such
payment shall be made by the Presenting
Agent only upon prior receipt by the
Presenting Agent of immediately available
funds from or on behalf of the purchaser
unless the Presenting Agent decides, at
its option, to advance its own funds for
such payment against subsequent receipt
of funds from the purchaser.
Upon delivery of a Certificated Note to
the Presenting Agent, Verification by the
Presenting Agent and the giving of
instructions for payment, the Presenting
Agent shall promptly deliver such
Unsecured Note to the purchaser.
In the event any Certificated Note is
incorrectly prepared, the Indenture
Trustee shall promptly issue a
replacement Certificated Note in exchange
for such incorrectly prepared Unsecured
Note.
Failure If the Presenting Agent, at its own
to Settle: option, has advanced its own funds for
payment against subsequent receipt of
funds from the purchaser, and if the
purchaser shall fail to make payment for
the Certificated Note on the settlement
date therefor, the Presenting Agent will
promptly notify the Indenture Trustee and
the Company by telephone, promptly
confirmed in writing (but no later than
the next Business Day). In such event,
the Company shall promptly provide the
Indenture Trustee with appropriate
documentation and instructions consistent
B-22
<PAGE> 79
with these procedures for the return of
the Certificated Note to the Indenture
Trustee and the Presenting Agent will
promptly return the Certificated Note to
the Indenture Trustee. Upon (i)
confirmation from the Indenture Trustee
in writing (which may be given by
facsimile transmission) that the
Indenture Trustee has received the
Certificated Note and upon (ii)
confirmation from the Presenting Agent in
writing (which may be given by facsimile
transmission) that the Presenting Agent
has not received payment from the
purchaser (the matters referred to in
clauses (i) and (ii) are referred to
hereinafter as the "Confirmations"), the
Company will promptly pay to the
Presenting Agent an amount in immediately
available funds equal to the amount
previously paid by the Presenting Agent
in respect of such Unsecured Note.
Assuming receipt of the Certificated Note
by the Indenture Trustee and of the
Confirmations by the Company, such
payment will be made on the settlement
date, if reasonably practical, and in any
event not later than the Business Day
following the date of receipt of the
Certificated Note and Confirmations. If
a purchaser shall fail to make payment
for the Certificated Note for any reason
other than the failure of the Presenting
Agent to provide the necessary
information to the Company as described
above for settlement or to provide a
confirmation to the purchaser within a
reasonable period of time as described
above or otherwise to satisfy its
obligation hereunder or in the
Distribution Agreement, and if the
Presenting Agent shall have otherwise
complied with its obligations hereunder
and in the Distribution Agreement, the
Company will reimburse the Presenting
Agent on an equitable basis for its loss
of the use of funds during the period
when they were credited to the account of
the Company.
Immediately upon receipt of the
Certificated Note in respect of which the
failure occurred, the Indenture Trustee
will void such Unsecured Note, make
appropriate entries in its records and
send such cancelled Unsecured Note to the
B-23
<PAGE> 80
Company; and upon such action, the
Certificated Note will be deemed not to
have been issued, authenticated and
delivered.
PART III: ADMINISTRATIVE PROCEDURES APPLICABLE TO BOTH
BOOK-ENTRY NOTES AND CERTIFICATED NOTES
Calculation of Fixed Rate Notes. Interest
Interest: on Fixed Rate Notes (including interest
for partial periods) will be calculated
on the basis of a 360-day year of twelve
thirty-day months. (Examples of interest
calculations are as follows: The period
from August 15, 1990 to February 15, 1991
equals 6 months and 0 days, or 180 days;
the interest payable equals 180/360 times
the annual rate of interest times the
principal amount of the Unsecured Note.
The period from September 17, 1990 to
February 15, 1991 equals 4 months and 28
days, or 148 days; the interest payable
equals 148/360 times the annual rate of
interest times the principal amount of
the Unsecured Note.)
Floating Rate Notes. Interest rates on
Floating Rate Notes will be determined as
set forth in the form of such Unsecured
Notes. Interest on Floating Rate Notes
will be calculated on the basis of actual
days elapsed and a year of 360 days
except that, in the case of Floating Rate
Notes for which the rate base is the
Treasury Rate, interest will be
calculated on the basis of the actual
number of days in the year.
Procedure for The Company and the Agents will
Rate Setting discuss from time to time the
and Posting: aggregate amount of, the issuance price
of, and the interest rates to be borne
by, Unsecured Notes that may be sold as a
result of the solicitation of offers by
the Agents. If the Company decides to
set prices of, and rates borne by, any
Unsecured Notes in respect of which the
Agents are to solicit offers (the setting
of such prices and rates to be referred
to herein as "posting") or if the Company
decides to change prices or rates
previously posted by it, it will promptly
B-24
<PAGE> 81
advise the Agents of the prices and rates
to be posted.
Acceptance If the Company posts prices and rates
of Offers: as provided above, each Agent as agent
for and on behalf of the Company, shall
promptly accept offers received by such
Agent to purchase Unsecured Notes at the
prices and rates so posted, subject to
(i) any instructions from the Company
received by such Agent concerning the
aggregate principal amount of such
Unsecured Notes to be sold at the prices
and rates so posted or the period during
which such posted prices and rates are to
be in effect, (ii) any instructions from
the Company received by such Agent
changing or revoking any posted prices
and rates, (iii) compliance with the
securities laws of the United States and
all other jurisdictions and (iv) such
Agent's right to reject any such offer as
provided below.
If the Company does not post prices and
rates and an Agent receives an offer to
purchase Unsecured Notes or, if while
posted prices and rates are in effect, an
Agent receives an offer to purchase
Unsecured Notes on terms other than those
posted by the Company, such Agent will
promptly advise the Company of each such
offer other than offers rejected by such
Agent as provided below. The Company
will have the sole right to accept any
such offer to purchase Unsecured Notes.
The Company may reject any such offer in
whole or in part.
Each Agent may, in its discretion
reasonably exercised, reject any offer to
purchase Unsecured Notes received by it
in whole or in part.
Preparation If any offer to purchase an Unsecured
of Pricing Note is accepted by the Company,
Supplement: the Company, with the approval of the
Agent that presented such offer (the
"Presenting Agent"), will prepare a
pricing supplement (a "Pricing
Supplement") reflecting the terms of such
Unsecured Note and will arrange to have a
B-25
<PAGE> 82
copy electronically filed with the
Commission in accordance with the
applicable paragraph of Rule 424 under
the Act and the provision of Regulation
S-T thereunder and will supply at least
10 copies thereof (or additional copies
if requested) to the Presenting Agent.
The Presenting Agent will cause a
Prospectus and Pricing Supplement to be
delivered to the purchaser of such
Unsecured Note.
In each instance that a Pricing
Supplement is prepared, the Agents will
affix the Pricing Supplement to
Prospectuses prior to their use.
Outdated Pricing Supplements (other than
those retained for files) will be
destroyed.
Procedures For When the Company has determined to
Rate Changes: change the interest rates of Unsecured
Notes being offered, it will promptly
advise the Agents and the Agents will
forthwith suspend solicitation of offers.
The Agents will telephone the Company
with recommendations as to the changed
interest rates. At such time as the
Company has advised the Agents of the new
interest rates, the Agents may resume
solicitation of offers. Until such time
only "indications of interest" may be
recorded.
Suspension of The Company may instruct the Agents to
Solicitation; suspend at any time, for any period of
Amendment or time or permanently, the solicitation
Supplement of of offers to purchase Unsecured Notes.
Prospectus: Upon receipt of such instructions from
the Company, the Agents will forthwith
suspend solicitation of offers to
purchase Unsecured Notes from the Company
until such time as the Company has
advised them that such solicitation may
be resumed.
If the Company decides to amend or
supplement the Registration Statement (as
defined in Section 1(c) of the
Distribution Agreement) or the Prospectus
(except for a supplement relating to an
offering of securities other than the
Unsecured Notes), it will promptly advise
the Agents and the Indenture Trustee and
will furnish the Agents and the Indenture
Trustee with the proposed amendment or
supplement in accordance with the terms
B-26
<PAGE> 83
of, and its obligations under, the
Distribution Agreement. The Company
will, consistent with such obligations,
promptly advise each Agent and the
Indenture Trustee whether orders
outstanding at the time each Agent
suspends solicitation may be settled and
whether copies of such Prospectus and
Prospectus Supplement as in effect at the
time of the suspension, together with the
appropriate Pricing Supplement, may be
delivered in connection with the
settlement of such orders. The Company
will have the sole responsibility for
such decision and for any arrangements
that may be made in the event that the
Company determines that such orders may
not be settled or that copies of such
Prospectus, Prospectus Supplement and
Pricing Supplement may not be so
delivered.
The Company will file with the Commission
for filing therewith any supplement to
the Prospectus relating to the Unsecured
Notes, provide the Agents with copies of
any such supplement, and confirm to the
Agents that such supplement has been
filed with the Commission pursuant to the
applicable paragraph of Rule 424.
Confirmation: For each offer to purchase an Unsecured
Note solicited by an Agent and accepted
by or on behalf of the Company, the
Presenting Agent will issue a
confirmation to the purchaser, with a
copy to the Company, setting forth the
details set forth above and delivery and
payment instructions.
Trustee/Paying Agent
Not to Risk Funds: Nothing herein shall be deemed to require
the Indenture Trustee or Paying Agent to
risk or expend its own funds in
connection with any payment to the
Company, DTC, the Agents or the purchaser
or a holder, it being understood by all
parties that payments made by the
Indenture Trustee/Paying Agent to the
Company, DTC, the Agents or a purchaser
or holder shall be made only to the
extent that funds are provided to the
Indenture Trustee/Paying Agent for such
purpose.
Authenticity The Company will cause the Indenture
B-27
<PAGE> 84
of Signatures: Trustee to furnish the Agents from time
to time with the specimen signatures of
each of the Indenture Trustee's officers,
employees or agents who has been
authorized by the Indenture Trustee to
authenticate Unsecured Notes, but the
Agents will have no obligation or
liability to the Company or the Indenture
Trustee in respect of the authenticity of
the signature of any officer, employee or
agent of the Company or the Indenture
Trustee on any such Unsecured Note.
Payment of Each Agent shall forward to the
Expenses: Company, on a monthly basis, a statement
of the reasonable out-of-pocket expenses
incurred by such Agent during that month
which are reimbursable to it pursuant to
the terms of the Distribution Agreement.
The Company will remit payment to the
Agents currently on a monthly basis.
Delivery of A copy of the Prospectus, Prospectus
Prospectus: Supplement and Pricing Supplement
relating to an Unsecured Note must
accompany or precede the earliest of any
written offer of such Unsecured Note,
confirmation of the purchase of such
Unsecured Note or payment for such
Unsecured Note by its purchaser. If
notice of a change in the terms of the
Unsecured Notes is received by an Agent
between the time an order for an
Unsecured Note is placed and the time
written confirmation thereof is sent by
such Agent to a customer or his agent,
such confirmation shall be accompanied by
a Prospectus, Prospectus Supplement and
Pricing Supplement setting forth the
terms in effect when the order was
placed. Subject to "Suspension of
Solicitation; Amendment or Supplement of
Prospectus" above, each Agent will
deliver a Prospectus, Prospectus
Supplement and Pricing Supplement as
herein described with respect to each
Unsecured Note sold by it.
B-28
<PAGE> 85
EXHIBIT C
WSP&R
DRAFT
11/3/94
TERMS AGREEMENT
Central Hudson Gas & Electric Corporation
284 South Avenue
Poughkeepsie, New York 12601-4879
Attention:
Subject in all respects to the terms and conditions of the
Distribution Agreement (the "Distribution Agreement"), dated _________ __,
199_, among Kidder, Peabody & Co. Incorporated and Smith Barney Inc. and
Central Hudson Gas & Electric Corporation (the "Company"), the undersigned
agrees to purchase the following principal amount of the Company's
______________ Medium-Term Notes, Series B (the "Notes"):
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount
[plus accrued interest
from , 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
C-1
<PAGE> 86
of the Distribution Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Distribution
Agreement:
Book-Entry Notes
or Certificated Notes:
This Agreement shall be governed by and construed in
accordance with the laws of New York.
[Insert name of Purchaser(s)]
By___________________________
Title:
Accepted: , 199_
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
By___________________________
Title:
C-2
<PAGE> 1
EXHIBIT (1)(b)
WSP&R
DRAFT
11/3/94
_______ SHARES
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
[____________ DEPOSITARY PREFERRED SHARES
EACH REPRESENTING 1/4TH OF A SHARE OF]
PREFERRED STOCK
(PAR VALUE $100 PER SHARE)
UNDERWRITING AGREEMENT
__________ __, 199_
Kidder, Peabody & Co. Incorporated
Smith Barney Inc.
As Underwriters
c/o Kidder, Peabody & Co. Incorporated
10 Hanover Square
New York, N.Y. 10005
Dear Sirs:
The undersigned, CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(the "Company"), hereby agrees with KIDDER, PEABODY & CO. INCORPORATED and
SMITH BARNEY INC., as Underwriters, as follows:
1. Underwriters. The term "Underwriters" as used herein
shall mean the firms to which this Agreement is addressed. All obligations of
the Underwriters herein are several and not joint.
2. Description of Preferred Stock. The Company proposes
to issue and sell severally to the Underwriters _______ shares of its serial
preferred stock, par value $100 per share, designated "_____% [Redeemable]
[Cumulative] Preferred Stock" (the "Shares") [as evidenced by
__________________ depositary receipts each representing 1/4th of a Share (the
"Depositary Shares")].
<PAGE> 2
[The Shares are to be deposited pursuant to a Deposit
Agreement dated as of ________, 199_ (the "Deposit Agreement"), among the
Company, ______________________, as depositary (with its successors, the
"Depositary"), and the holders from time to time of the Depositary Shares. The
Depositary Shares are to be issued pursuant to the Deposit Agreement with
respect to the Shares so deposited. The Shares, the Depositary Shares and the
Deposit Agreement are more fully described in the Prospectus hereinafter
mentioned.]
3. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (File No. 33- ), including a
basic prospectus, which has become effective, for the registration
under the Act of (x) up to $80,000,000 aggregate initial offering
price of (i) debt securities and (ii) shares of the Company's common
stock, $5.00 par value and (y) up to 250,000 shares of the Company's
serial preferred stock, par value $100 per share, including the Shares
[and the Depositary Shares] (collectively, the "Securities"). The
Company may have filed one or more amendments to such registration
statement, and may have used a Preliminary Prospectus, each of which
has been previously furnished to you. Such registration statement, as
amended at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(ix) or (x) under the Act and complies in all
other material respects with said Rule. The Company has included in
such registration statement, or has filed or will file with the
Commission pursuant to the applicable paragraph of Rule 424 under the
Act, a supplement or supplements to the form of prospectus included in
such registration statement relating to the Shares [and the Depositary
Shares] and the offering thereof (hereinafter called a "Prospectus
Supplement").
(b) (1) The Registration Statement, at the Effective
Date, and the Prospectus, at the time it is first filed with the
Commission and on the Closing Date, complied or will comply, as the
case may be, in all material respects with the applicable requirements
of the Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and in each case the applicable published rules and
regulations thereunder; (2) the Registration Statement, at the
Effective Date, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and
(3) the Prospectus, at the time it is first filed with the Commission
and on the Closing Date,
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<PAGE> 3
will not and each Preliminary Prospectus, at the time it was first
filed with the Commission, did not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in
writing to the Company by either of you specifically for use in
connection with the preparation of the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Effective Date" shall
mean the later of (i) each date that the Registration Statement and
any post-effective amendment or amendments thereto became or become
effective or (ii) the time and date of the filing of the Company's
most recent Annual Report on Form 10-K. "Basic Prospectus" shall mean
the form of basic prospectus relating to the Securities contained in
the Registration Statement at the Effective Date (unless such basic
prospectus has been amended by the Company subsequent to the Effective
Date, in which case "Basic Prospectus" shall mean the form of basic
prospectus as so amended). "Preliminary Prospectus" shall mean the
Basic Prospectus as supplemented by any preliminary prospectus
supplement which describes the Shares [and the Depositary Shares] and
the offering thereof and is used prior to the filing of the
Prospectus. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement and as it may be further
amended or supplemented at the particular time referred to.
"Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as it may be amended at the
particular time referred to. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amended", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the
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<PAGE> 4
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(d) Price Waterhouse, who are certifying certain
financial statements incorporated by reference in the Prospectus, are
independent accountants with respect to the Company within the meaning of the
Act and the applicable published rules and regulations thereunder.
(e) Neither the Company nor any of its Subsidiaries (as
hereinafter defined) has sustained since the date of the latest audited
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
which has had or is reasonably likely to have a material adverse effect on the
financial position, stockholders' equity or results of operations of the
Company and its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock (other
than pursuant to any stock purchase, dividend reinvestment, savings bonus,
incentive, or similar plan, conversions of convertible securities into common
stock or shares of capital stock issued and to be issued by either or both of
Central Hudson Enterprises Corporation and Central Hudson Cogeneration, Inc.
pursuant to respective subscription agreements in effect at the date of this
Agreement) or long-term debt (other than any redemption or purchases of First
Mortgage Bonds, normal amortization of debt premium and discount, bank or
finance company borrowings and repayments in the ordinary course, or additional
issuances or repurchases of commercial paper) of the Company or its
Subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, 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, otherwise than as set
forth or contemplated in the Registration Statement and the Prospectus.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and is duly
qualified to do business in each jurisdiction in which it owns or leases real
property or in which the conduct of its business requires such qualification
except where the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or
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<PAGE> 5
results of operations of the Company; each of CH Resources, Inc., Central
Hudson Enterprises Corporation, Central Hudson Cogeneration, Inc., Phoenix
Development Company, Inc., Greene Point Development Corporation (collectively
the "Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and all of
the outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable and are
owned beneficially by the Company subject to no security interest, other
encumbrance or adverse claim.
(g) An order of the Public Service Commission of the
State of New York (the "PSC") authorizing the issuance and sale of the Shares
[and the Depositary Shares] has been obtained; such order (hereinafter called
the "Order") is in full force and effect and is sufficient to authorize the
transaction contemplated hereby; and no other approval, authorization, consent
or order of any other governmental or regulatory agency, board or body (other
than under the Act and the securities or "blue sky" laws of the various states)
is required for the issuance and sale of the Shares.
(h) The issuance and sale of the Shares [and the
Depositary Shares] and the compliance by the Company with all of the provisions
of the Shares [, the Depositary Shares, the Deposit Agreement] and this
Agreement and the consummation of the transactions therein and herein
contemplated and the fulfillment of the terms thereof and hereof will not
result in a breach by the Company of, or constitute a default under, any other
agreement or obligation of the Company, or its charter or by-laws, or violate
any order of any court, regulatory body or administrative agency entered in any
proceeding to which the Company is now a party.
(i) The Shares [and the Depositary Shares] have been duly
authorized and, when issued and paid for as contemplated hereby, will be
validly issued, fully paid and nonassessable and conform to the description
thereof in the Prospectus.
4. Purchase of Shares. On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the number of [Depositary] Shares set forth in Schedule A attached
hereto after the name of each such Underwriter, at $_____ per [Depositary]
Share. Delivery of the [Depositary] Shares for the account of the Underwriters
shall be made against payment of the purchase price to the Company or its order
by certified or official bank check or checks in New York Clearing House funds.
The [Depositary] Shares (registered in such names and in such
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<PAGE> 6
denominations as the Underwriters shall request at least two full business days
prior to the Closing Date) [and the Shares] will be made available for checking
and packaging at First Chicago Trust Company of New York, 30 West Broadway, New
York, New York 10007-2192 at least one full business day prior to the Closing
Date. [If the Depositary Shares are delivered at the Closing Date in temporary
form, the Company will cause definitive Depositary Shares to be prepared and
delivered promptly.]
5. Public Offering. The Underwriters have advised the
Company that they propose to make a public offering of the [Depositary] Shares
as soon as practicable. The Underwriters are contemporaneously advising the
Company of the details of the offering, including the initial offering price to
the public and the concessions, if any, to dealers, brokers and others, as are
needed to complete the Registration Statement.
6. Time and Place of Closing. Delivery of the
[Depositary] Shares and payment therefor shall be made simultaneously at the
office of Gould & Wilkie, One Chase Manhattan Plaza, New York, New York 10005
at 11:00 A.M. (New York City time) on _________, 199_ or at such time on such
later date not later than ______, 199_, as shall be agreed upon in writing by
the Company and the Underwriters (the "Closing Date").
7. Default by Underwriters. If either Underwriter shall
fail to purchase and pay for the [Depositary] Shares which such Underwriter has
agreed to purchase and pay for (otherwise than by reason of any failure on the
part of the Company to comply with any of the provisions contained herein),
then the Company shall immediately give notice to the non-defaulting
Underwriter of the default of such Underwriter, and the non-defaulting
Underwriter shall have the right within 24 hours after the receipt of such
notice by it to determine to purchase, or to procure one or more others,
members of the National Association of Securities Dealers, Inc. ("NASD") and
satisfactory to the Company, to purchase, upon the terms herein set forth, the
number of [Depositary] Shares which the defaulting Underwriter so agreed to
purchase. If such non-defaulting Underwriter shall determine to exercise such
right, it shall give written notice to the Company of the determination in this
regard within 24 hours after it shall have received notice of any such default,
and thereupon the Closing Date shall be postponed for such period, not
exceeding three full business days, as the Company shall determine, in order
that the required changes in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. If in the event of
such a default the non-defaulting Underwriter shall fail to give such notice,
or shall within such 24-hour period give written notice to the Company that no
others will exercise such right, then this Agreement may be terminated by the
Company, upon like notice given to the non-defaulting Underwriter, within a
further period of 24 hours, without liability on the part of any non-defaulting
Underwriter or the Company. If in such case the Company shall
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<PAGE> 7
not elect to terminate this Agreement, it shall have the right, irrespective of
such default:
(a) To require the non-defaulting Underwriter to purchase
and pay for the respective number of [Depositary] Shares which it had
severally agreed to purchase as hereinabove provided and, in addition,
to require such Underwriter to purchase and pay for the number of
[Depositary] Shares which the defaulting Underwriter shall have so
failed to purchase up to 10% of the respective number of [Depositary]
Shares which such non-defaulting Underwriter had otherwise agreed to
purchase, and/or
(b) To procure one or more others, members of the NASD,
to purchase, upon the terms herein set forth, the number of
[Depositary] Shares which such defaulting Underwriter so agreed to
purchase or that portion thereof which the remaining Underwriter shall
not be obligated to purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the Underwriters within
such further period of 24 hours, and thereupon the Closing Date shall be
postponed for such period, not exceeding three full business days, as the
Company shall determine, in order that the required changes in the Registration
Statement and in the Prospectus or any other documents or arrangements may be
effected.
Any action taken by the Company under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
8. Covenants of the Company. The Company agrees
that:
(a) As soon as possible after the execution of this
Agreement, the Company shall file with the PSC any papers and take any other
action required to be taken prior to the issuance and sale of the Shares [and
the Depositary Shares] by the Order, and will advise the Underwriters and
confirm the advice in writing with reasonable promptness that any such papers
have been filed and any such action has been taken.
(b) The Company will furnish to the Underwriters as many
copies of the Prospectus and each Preliminary Prospectus as the Underwriters
may reasonably request for the purposes contemplated by the Act, except as
provided in subparagraph (d) hereof. The Company will also furnish to the
Underwriters and their counsel a reasonable number of additional copies of the
Registration Statement (including exhibits thereto) as the Underwriters may
from time to time request.
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<PAGE> 8
(c) The Company will pay all expenses in connection with
(i) the preparation and filing by it of the Registration Statement, any
Preliminary Prospectus and the Prospectus, and each amendment and supplement
thereto, (ii) the issuance and delivery of the Shares [and the Depositary
Shares] contemplated by this Agreement [and the Deposit Agreement], (iii) the
qualification of the Shares under the laws of various jurisdictions to the
extent provided in subparagraph (i) of this paragraph 8 (including fees and
disbursements of counsel related thereto), (iv) the printing of the
Registration Statement, any Preliminary Prospectus and the Prospectus, the Blue
Sky Memorandum [, the Deposit Agreement] and this Agreement, (v) the furnishing
to the Underwriters of copies of the Registration Statement, any Preliminary
Prospectus and the Prospectus and each amendment and supplement thereto, in
such numbers as the Underwriters shall reasonably request, and will pay all
taxes, other than transfer taxes, on the issuance of the Shares [and the
Depositary Shares]. The Company shall not, however, be required to pay any
amount for any expenses of any of the Underwriters except that in the event
this Agreement shall be terminated pursuant to paragraphs 7 or 12 hereof, the
Company shall reimburse the Underwriters for all reasonable out-of-pocket
expenses of the Underwriters incurred in connection with the proposed purchase
of the [Depositary] Shares not exceeding $10,000, and the reasonable fee and
disbursements of Winthrop, Stimson, Putnam & Roberts, who are acting on behalf
of the Underwriters in their purchase of the [Depositary] Shares; the
Underwriters agree to pay said expenses, fees and disbursements in any other
event. The Company shall not in any event be liable to any of the Underwriters
for damages on account of loss of anticipated profits.
(d) If, at any time when a prospectus relating to the
Shares [and the Depositary Shares] is required to be delivered under the Act,
if any event relating to or affecting the Company or of which the Company shall
be advised in writing by the Underwriters shall occur that should be set forth
in a supplement to or an amendment of the Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing when it is
delivered to a purchaser, the Company will forthwith, at its expense, prepare
and file and furnish to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Prospectus,
which will supplement or amend the Prospectus so that, as supplemented or
amended, it will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading. In case any Underwriter is required to deliver a
Prospectus after the expiration of nine months from the effective date of this
Agreement, the Company, upon the request of the Underwriters, will furnish to
the Underwriters, at the expense of such Underwriter, a reasonable quantity of
a supplemented Prospectus or supplements to the Prospectus
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<PAGE> 9
complying with Section 10 of the Act. For the purposes of this subparagraph
(d), the Company will furnish such reasonable information with respect to
itself as the Underwriters may, from time to time, request, and the
Underwriters, at their own expense, may visit any of the properties of the
Company and inspect its books of account at any reasonable time. So long as
any Underwriter is required to deliver a Prospectus pursuant to this
subparagraph (d), the Company will, at its expense, prepare and continue to
file with the Commission all documents required to be filed by it pursuant to
Sections 13, 14 or 15(d) of the Exchange Act.
The Company will not at any time when a prospectus relating to
the Shares [and the Depositary Shares] is required to be delivered under the
Act file or make any amendment or supplement to the Registration Statement or
Prospectus of which the Underwriters shall not have been previously advised and
furnished a copy, or to which the Underwriters shall object on the ground that
such amendment or supplement will be, or will make the Prospectus, misleading
in the light of the circumstances existing when it is delivered to a purchaser
or that it contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein or in the
Prospectus not misleading.
(e) The Company will make generally available to its
security holders and to each Underwriter, as soon as practicable, an earnings
statement or statements (which need not be audited) of the Company and its
Subsidiaries on a consolidated basis which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(f) The Company will apply the proceeds from the sale of
the [Depositary] Shares as set forth under the caption "Use of Proceeds" in the
Prospectus.
(g) The Company will use its best efforts promptly to do
and perform all things to be done and performed by it hereunder prior to the
Closing Date and to satisfy all conditions precedent to the delivery by it of
the Shares. [and the Depositary Shares]. At or prior to the Closing Date, the
Company will deliver to the Underwriters and also to counsel for the
Underwriters such documents, appropriately signed or certified, if so
requested, relating to the issuance and validity of the Shares [and the
Depositary Shares] as counsel for the Underwriters may reasonably request.
(h) The Company will use its best efforts to cause any
post-effective amendments to the Registration Statement to become effective as
promptly as possible; the Company will promptly advise or confirm to the
Underwriters in writing when any such post-effective amendment has become
effective or any supplement to the Prospectus has been filed, of any request by
the Commission for amendments or supplements to the Registration
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<PAGE> 10
Statement, any Preliminary Prospectus or the Prospectus or for additional
information, and of the issuance of any stop order under the Act with respect
to the Registration Statement or the institution or threat of any other
proceedings of which the Company shall have received notice which might prevent
or delay the sale of the [Depositary] Shares, and will use all reasonable
efforts to cause any stop order or other proceedings to be withdrawn; the
Company will cause the Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Underwriters of
such timely filing; and the Company will not file any amendment or supplement
to the Registration Statement (other than a prospectus supplement relating to
Securities other than the Shares), any Preliminary Prospectus or the Prospectus
to which the Underwriters shall reasonably object by notice to the Company
after having been furnished a copy a reasonable time prior to the filing.
(i) The Company will use its best efforts to qualify the
Shares [and the Depositary Shares] for offer and sale under the securities or
"blue sky" laws of such states as the Underwriters may designate, provided that
the Company shall not be required to qualify as a foreign corporation or a
dealer in securities in any state where it is not now so qualified, to take any
action which would subject it generally to the service of process in any state
where it is not now so subject, to pay filing fees and other expenses in
connection therewith in the aggregate exceeding $10,000, or to meet other
requirements deemed by the Company to be unduly burdensome.
[(j) The Company will file with the New York Stock
Exchange an application, and will take all other action requested by such
Exchange, for listing upon notice of issuance of the [Depositary] Shares on the
New York Stock Exchange at the Closing Date.]
(k) The Company will not, during the 90 days following
the date of this agreement, except with the prior written consent of the
Underwriters, offer for sale, sell or otherwise dispose of any shares of its
serial preferred stock other than the Shares.
9. Conditions of Underwriter's Obligations. The
obligations of the several Underwriters to purchase and pay for the
[Depositary] Shares shall be subject to the following conditions:
(a) That all filings of the Prospectus and any
supplements thereto required by Rule 424 under the Act shall have been timely
made and no stop order suspending the effectiveness of the Registration
Statement or any amendment thereof shall be in effect at the Closing Date, and
no proceeding for that purpose shall then be pending before or, to the
knowledge of the Company or the Underwriters, threatened by the Commission; and
the
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<PAGE> 11
Underwriters shall have received, prior to payment for the [Depositary] Shares,
a certificate dated the Closing Date, signed by the Chairman of the Board and
Chief Executive Officer, the President and Chief Operating Officer or a
Vice-President of the Company, to the effect that no such stop order is in
effect and that no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission; and any request for
additional information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the satisfaction of Winthrop, Stimson, Putnam & Roberts, as counsel for
the Underwriters.
(b) That the Order shall remain in full force and effect,
and the Underwriters shall have received a certificate dated the Closing Date,
signed by the Chairman of the Board and Chief Executive Officer, the President
and Chief Operating Officer or a Vice- President of the Company, to the effect
that the Order is in effect and no proceedings to revoke or modify the same are
pending before or, to the knowledge of the Company, threatened by the PSC.
(c) That all legal proceedings taken and all legal
opinions rendered in connection with the issuance and sale of the Shares [and
the Depositary Shares] shall be satisfactory to Winthrop, Stimson, Putnam &
Roberts, as counsel for the Underwriters.
(d) That, at or prior to the Closing Date, the
Underwriters shall have received from Gould & Wilkie, as counsel for the
Company, an opinion dated the Closing Date in form and substance satisfactory
to Winthrop, Stimson, Putnam & Roberts, as counsel for the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York, with power and authority (corporate and governmental) to
own its properties and conduct its business as described in the
Prospectus and is duly qualified to do business in each jurisdiction
in which it owns or leases real property or in which the conduct of
its business requires such qualification except where the failure to
be so qualified, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial
position or results of operations of the Company;
(ii) A Certificate of Amendment to the Company's Restated
Certificate of Incorporation, as amended, authorizing and establishing
the terms of the Shares has been duly filed in the office of the
Secretary of State of the State of New York and is effective; the
Shares [and the Depositary Shares] have been duly and validly
authorized and, when issued, delivered and paid for in accordance with
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<PAGE> 12
this Agreement, will be validly issued, fully paid and nonassessable;
and the certificates for the Shares [and the Depositary Shares] comply
as to form with Section 508 of the New York Business Corporation Law;
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Company; [the Deposit Agreement has been
duly authorized, executed and delivered by the Company and, when it
has been duly authorized, executed and delivered by the Depositary,
will be a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting the enforcement of
creditors' rights generally, to general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and to an implied covenant of good
faith and fair dealing;]
(iv) The authorization, issuance and sale of the Shares [and
the Depositary Shares], as provided in this Agreement [and the Deposit
Agreement], have been duly approved by the Order, which, to the best
of the knowledge of such counsel, is in full force and effect at the
Closing Date, and the approval of no other governmental authority,
federal, state or otherwise (other than under the Act and the
securities or "blue sky" laws of the various states), is required in
connection with the issuance and sale of the Shares [and the
Depositary Shares];
(v) The Registration Statement, at the Effective Date, and
the Prospectus, as of the date it was filed with the Commission under
Rule 424(b), and any amendment thereof or supplement thereto (except
in each case that such opinion need not pass upon the financial
statements and other financial and statistical data contained or
incorporated by reference therein) complied as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder and, with respect to the documents or portions
thereof filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12 of
Form S-3, the Exchange Act and the applicable published instructions,
rules and regulations of the Commission thereunder; on the basis of
information received from the Commission, at the Closing Date, the
Registration Statement is effective under the Act, and, to the best
knowledge of said counsel, no proceedings for a stop order with
respect thereto are pending or threatened under Section 8 of the Act;
based on such counsel's participation in the preparation of the
Registration Statement and Prospectus and its services as general
counsel to the Company (but such opinion may state that such counsel
did not independently check or verify the
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<PAGE> 13
correctness of the statements made by the Company or factual
information included in the Registration Statement and Prospectus, and
thereby may assume the correctness thereof, except insofar as such
statements or information relate to such counsel or are stated in the
Registration Statement or Prospectus as having been made on their
authority as experts), no facts have come to the attention of such
counsel to cause them to believe, and such counsel have no reason to
believe, that the Registration Statement, at the Effective Date,
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 (except as to the financial
statements and other financial or statistical data contained or
incorporated by reference therein), or that the Prospectus, as of the
date it was filed with the Commission under Rule 424(b) and as of the
Closing Date, contained or contains, as the case may be, an untrue
statement of a material fact or omitted or omits, as the case may be,
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (except as to the financial
statements and other financial or statistical data contained or
incorporated by reference therein);
(vi) The statements in the Registration Statement and
Prospectus as to matters of law and legal conclusions under the
captions "The Company," ["Recent Developments -- ____________"] [,
"Description of Depositary Shares"] and "Description of New Preferred
Stock" have been reviewed by such counsel, and such matters of law and
legal conclusions are correct and have been made therein on the
authority of such counsel as experts;
(vii) The Shares [and the Depositary Shares] conform as to
legal matters to the statements concerning them in the Registration
Statement and Prospectus, and the summary of the terms and provisions
thereof appearing in the Registration Statement and Prospectus
constitutes a proper summary thereof.
(viii) The issuance and sale of the Shares [and the
Depositary Shares] and the compliance by the Company with all of the
provisions of this Agreement [and the Deposit Agreement] and the
consummation of the transactions herein contemplated (except as to
compliance with any financial covenants requiring an arithmetic
computation, as to which such counsel need express no opinion) and the
fulfillment of the terms hereof will not result in a breach by the
Company of, or constitute a default under, any material agreement or
instrument of the Company known, as of the date of such opinion, to
such counsel to which the Company is a party, or its charter or
by-laws, or violate any order known, as of the date of such opinion,
to such counsel of any court,
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<PAGE> 14
regulatory body or administrative agency entered in any proceeding
to which the Company is now a party.
(ix) No shareholders of the Company are entitled to
preemptive rights or other similar rights to subscribe for the Shares
[or the Depositary Shares].
(e) That the Underwriters shall have received on the
Closing Date from Winthrop, Stimson, Putnam & Roberts, as counsel for the
Underwriters in connection with this transaction, an opinion in form and
substance satisfactory to the Underwriters with respect to the sufficiency of
all corporate proceedings and other legal matters relating to the Shares [and
the Depositary Shares] and the form of the Registration Statement and the
Prospectus.
(f) That the Underwriters shall have received letters of
Price Waterhouse LLP, addressed to the Board of Directors of the Company and
the Underwriters, dated, respectively, the date this Agreement is executed and
the Closing Date, stating in effect that (i) they are independent accountants
with respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder; (ii) in their opinion the financial
statements of the Company included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1993, which is incorporated by reference in the
Prospectus, comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and regulations
thereunder and of the Exchange Act and the published rules and regulations
thereunder; (iii) on the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of: (A) reading the
amounts included in the Prospectus appearing in the table captioned "Selected
Financial Information" (excluding the "As Adjusted" amounts appearing therein)
for the years ended December 31, 1991, 1992 and 1993 (the "Audited Amounts")
which were derived from the financial statements for such years as examined by
such accountants (the "Audited Statements"); (B) performing the procedures
specified by the American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed interim financial statements
of the Company incorporated by reference in the Registration Statement and the
Prospectus (the "Unaudited Statements"), and reading any more recent unaudited
interim financial data of the Company, (C) reading the minutes of meetings of
the shareholders, Board of Directors and Executive Committee held during the
period from December 31, 1993 to specified dates not more than five business
days prior to the dates of such letters; and (D) making inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters regarding the specific items for which representations are requested
below, nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that (1) the Audited Amounts were not
derived
-14-
<PAGE> 15
from the Audited Statements, (2) the Unaudited Statements incorporated by
reference in the Registration Statement and the Prospectus do not comply in
form in all material respects with the applicable accounting requirements and
with the published rules and regulations of the Commission with respect to
financial statements included or incorporated in Quarterly Reports on Form 10-Q
under the Exchange Act; or that any material modifications should be made to
said Unaudited Statements for them to be in conformity with generally accepted
accounting principles; (3) at the date of the latest available balance sheet
read by such accountants, and at a subsequent specified date not more than five
business days prior to the dates of such letters, there was any change in the
capital stock or long term debt of the Company, or any decrease in total
shareholders' equity, as compared with amounts shown on the latest balance
sheet included in the Audited Statements or (4) for the ________- month period
and for the twelve-month period ended on the date of the latest available
income statement read by such accountants, there were any decreases, as
compared with the corresponding periods of the previous year, in total
operating revenues or net income of the Company; except, in all instances, for
changes or decreases, which have occurred or may occur that are disclosed in
the Registration Statement or which are the result of dividends paid in the
ordinary course of business; and (iv) they have carried out certain procedures
and made certain findings, as specified in such letters, with respect to such
other items included or incorporated by reference in the Registration Statement
and the Prospectus as the Underwriter may have reasonably requested.
(g) That the Company shall not have filed any amendment
to the Registration Statement or supplement to the Prospectus after the
effective date of this Agreement and before the Closing Date of which the
Underwriters shall not previously have been advised or which shall be
unsatisfactory in substance to the Underwriters or unsatisfactory in form to
Winthrop, Stimson, Putnam & Roberts, as counsel for the Underwriters.
(h) That the representations and warranties of the
Company herein contained shall be true and correct at the Closing Date, and the
Company shall have performed all of its obligations under this Agreement as are
to be performed by it at or prior to such date; and the Underwriters shall
receive at the Closing Date a certificate dated the Closing Date and signed by
the Chairman of the Board and Chief Executive Officer, the President and Chief
Operating Officer or a Vice-President and the principal financial officer of
the Company to such effect.
[(i) That the [Depositary] Shares shall have been duly
listed, or approved for listing upon official notice of issuance, on the New
York Stock Exchange.]
(j) That the Company shall have furnished to the
Underwriters such further certificates and documents in
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<PAGE> 16
connection with its obligations hereunder as the Underwriters shall reasonably
request.
Each letter referred to in subparagraphs (d), (e) and (f) of
this paragraph 9 may state that it is solely for the information of the Board
of Directors of the Company and the Underwriters and is not to be quoted or
referred to in whole or in part in the Registration Statement or Prospectus or
otherwise in connection with the registration under the Act or the sale of the
Shares [and the Depositary Shares].
All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to Winthrop, Stimson, Putnam & Roberts, as counsel for the
Underwriters. The Company will furnish the Underwriters with such conformed
copies of such opinions, certificates, letters and documents as the
Underwriters shall reasonably request.
10. Conditions of Company's Obligations. The
obligation of the Company to deliver the Shares shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date, and no
proceedings for that purpose shall be pending before, or threatened by, the
Commission at such date.
(b) The Order shall remain in full force and effect on
the Closing Date, and no proceedings to revoke or modify the same shall be
pending before, or threatened by, the PSC at such date.
11. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act, from and
against any and all losses, claims, damages, liabilities or expenses (including
reasonable attorneys' fees) arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or in any Preliminary Prospectus or in the Prospectus (as amended or
supplemented if the Company shall have made any amendments or supplements
thereto) or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or omission
or alleged untrue statement or omission based upon information furnished herein
or in writing to the Company by any Underwriter for use in connection with the
preparation of the Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement to either thereof. This indemnity
insofar as it relates to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or of any person controlling such Underwriter) on
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<PAGE> 17
account of any losses, claims, damages or liabilities arising from the sale of
[Depositary] Shares by such Underwriter to any person if a copy of the
Prospectus, as the same may then be amended or supplemented, shall not have
been sent or given by or on behalf of such Underwriter to such person with or
prior to the delivery of the securities involved, to the extent that the
Prospectus, if so sent or given, would have cured the untrue statement or
omission in the Preliminary Prospectus giving rise to the loss, claim, damage
or liability. The Company agrees promptly to notify the Underwriters of the
commencement of any litigation or proceedings against the Company or any of its
officers or directors in connection with the issuance and sale of the
[Depositary] Shares.
(b) Each Underwriter agrees that promptly upon the
receipt of notice of the commencement of any action against such Underwriter or
against any person so controlling such Underwriter in respect of which
indemnity or reimbursement may be sought from the Company on account of its
agreement in subparagraph (a) above, timely notice will be given to the Company
in writing of the commencement thereof, but the omission so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to any such controlling person
otherwise than on account of the indemnity and reimbursement agreement
contained in said subparagraph (a). Thereupon, the Company shall be entitled
to participate in and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to such Underwriter or to such controlling
person (who shall not, except with the consent of such Underwriter or such
controlling person, be counsel to the Company), and shall in any event be
liable to pay all fees and expenses thereof. After notice from the Company to
such Underwriter or to such controlling person of the Company's election so to
assume the defense thereof, the Company shall not be liable to such Underwriter
or to such controlling person under subparagraph (a) above for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by any such Underwriter or any such controlling person, in connection
with the defense thereof other than reasonable costs of investigation.
(c) Each Underwriter agrees to indemnify and hold
harmless the Company, its directors, its officers who signed the Registration
Statement, and each person who controls any thereof within the meaning of
Section 15 of the Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with respect to losses, claims, damages,
liabilities or expenses arising out of or based upon any untrue statement or
omission or alleged untrue statement or omission based upon information
furnished herein or in writing to the Company by such Underwriter for use in
connection with the preparation of the Registration Statement, Preliminary
Prospectus or Prospectus or any amendment or supplement to any thereof. In
case any action shall be brought against the Company, or any such director,
-17-
<PAGE> 18
officer or controlling person in respect of which he or it may seek indemnity
or reimbursement from any Underwriter on account of the agreement of such
Underwriter contained in this subparagraph (c), the Company or such person
against whom such action shall be brought shall notify the Underwriters of the
commencement thereof, and such Underwriter shall have the rights and duties
given to the Company, and the Company shall have the rights and duties given to
the Underwriter, by the next preceding subparagraph (b). The Underwriters
agree promptly to notify the Company of the commencement of any litigation or
proceedings against them or either of them in connection with the issuance and
sale of the [Depositary] Shares.
(d) If the indemnification provided for in subparagraph
(a) or (c) above is unavailable or insufficient to hold harmless an indemnified
party under subparagraph (a) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages, liabilities or expenses referred to in
subparagraph (a) or (c) above, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the [Depositary] Shares or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above, but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such damages 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, in each
case, as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if their respective
obligations to contribute pursuant to this subparagraph (d) were to be
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 in the first sentence
of this subparagraph (d). The amount paid by an indemnified party as a result
of the losses, claims, damages, liabilities or expenses referred to in the
first sentence of this subparagraph (d) shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the
-18-
<PAGE> 19
subject of the contribution provisions of this subparagraph (d).
Notwithstanding the provisions of this subparagraph (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the [Depositary] Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
statement or omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subparagraph (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
12. Termination. (a) If, at the Closing Date, any of
the conditions specified in paragraph 9 of this Agreement shall not have been
fulfilled, this Agreement may be terminated by the Underwriters upon delivery
of written notice thereof to the Company, and, unless so terminated, the
several obligations of the Underwriters hereunder shall continue in full force
and effect.
(b) If, at the Closing Date, any of the conditions
specified in paragraph 10 of this Agreement shall not have been fulfilled, this
Agreement may be terminated by the Company upon delivery of written notice
thereof to the Underwriters, and, unless so terminated, the obligations of the
Company hereunder shall continue in full force and effect.
(c) This Agreement may be terminated by the Company in
accordance with the provisions of paragraph 7 hereof.
(d) This Agreement may be terminated at any time prior to
the Closing Date by the Underwriters upon delivery of written notice thereof to
the Company, if, prior to such time, (i) there shall have occurred any general
suspension of trading in securities on the New York Stock Exchange, or there
shall have been established by the New York Stock Exchange or by the Commission
or by any federal or state agency or by the decision of any court any
limitation on prices for such trading or any restrictions on the distribution
of securities, (ii) there shall have been declared a general moratorium on
commercial banking activities in New York by either federal or state
authorities, or (iii) there shall have occurred, subsequent to the date of this
Agreement, any new outbreak of hostilities or escalation of existing
hostilities or other national or international calamity or crisis, the effect
of which shall be such as to make it, in the reasonable judgment of the
Underwriters, impractical to market the [Depositary] Shares or enforce
contracts for the sale of the Shares. This Agreement may also be terminated at
any time prior to the Closing Date if, in the reasonable judgment of the
Underwriters, the subject matter of any amendment or supplement to the
Registration Statement or Prospectus, or any change in the
-19-
<PAGE> 20
rating assigned to any securities of the Company, renders it either inadvisable
to proceed with the public offering of the [Depositary] Shares or inadvisable
to proceed with the delivery of the [Depositary] Shares to be purchased
hereunder. Any termination of this Agreement pursuant to this paragraph 12
shall be without liability of any party to any other party, except as otherwise
provided in paragraphs 8(c) and 11 of this Agreement.
13. Miscellaneous. The respective representations,
warranties, indemnities and agreements (except insofar as fulfilled on or
before the Closing Date) of the Company or its officers and of the Underwriters
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Company, its
officers and directors, or any controlling person, and shall survive delivery
of any payment for the [Depositary] Shares. The provisions of paragraph 11
hereof shall survive the termination or cancellation of this Agreement.
The validity and interpretation of this Agreement shall be
governed by the laws of the State of New York. This Agreement shall inure to
the benefit of the Company, the Underwriters, the officers and directors of the
Company (and with respect to the provisions of paragraph 11 hereof, each
controlling person referred to therein), and their respective successors,
assigns, executors and administrators. Nothing in this Agreement is intended
or shall be construed to give to any other person, firm or corporation a legal
or equitable right, remedy or claim under or in respect of this Agreement or
any provision herein contained. The term "successors" and "assigns" as used in
this Agreement shall not include any purchaser of any [Depositary] Shares from
either of the Underwriters.
14. Notices. All communications hereunder shall be in
writing and if to the Underwriters, shall be mailed, with first class postage
prepaid, or delivered to the address appearing on page 1 hereof, or, if to the
Company, shall be so mailed or delivered to it at 284 South Avenue,
Poughkeepsie, N.Y. 12601-4879.
15. Counterparts. This Agreement may be executed in
counterparts, which together shall constitute one and the same instrument. If
signed in counterparts, this Agreement shall not become effective unless at
least one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
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<PAGE> 21
Please sign and return to us the enclosed duplicate of this
letter, whereupon this letter will become a binding agreement between the
Company and the Underwriters, in accordance with its terms.
Very truly yours,
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
By:
--------------------------------
Chairman of the Board
and Chief Executive Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
KIDDER, PEABODY & CO. INCORPORATED
By:
------------------------------
Managing Director
SMITH BARNEY INC.
By:
-----------------------------
Managing Director
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<PAGE> 22
SCHEDULE A
Number of
[Depositary] Shares
Name of Underwriter to be purchased
- ------------------- -------------------
Kidder, Peabody & Co. Incorporated
Smith Barney Inc.
--------------------
Total
<PAGE> 1
EXHIBIT (1)(c)
WSP&R
DRAFT
11/3/94
_______ SHARES
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
COMMON STOCK
($5.00 PAR VALUE)
UNDERWRITING AGREEMENT
__________ __, 199_
Kidder, Peabody & Co. Incorporated
Smith Barney Inc.
As Underwriters
c/o Kidder, Peabody & Co. Incorporated
10 Hanover Square
New York, N.Y. 10005
Dear Sirs:
The undersigned, CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(the "Company"), hereby agrees with KIDDER, PEABODY & CO. INCORPORATED and
SMITH BARNEY INC., as Underwriters, as follows:
1. Underwriters. The term "Underwriters" as used herein
shall mean the firms to which this Agreement is addressed. All obligations of
the Underwriters herein are several and not joint.
2. Description of Common Stock. The Company proposes to
issue and sell severally to the Underwriters _______ shares of its Common
Stock, $5.00 par value (the "Shares"). The Company has also granted to the
several Underwriters an option to purchase up to _______ additional shares of
Common Stock, $5.00 par value, on the terms and for the purposes set forth in
paragraph 13 hereof.
3. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter that:
<PAGE> 2
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (File No. 33- ), including a
basic prospectus, which has become effective, for the registration
under the Act of (i) up to $80,000,000 aggregate initial offering
price of (x) debt securities and (y) shares of the Company's common
stock, $5.00 par value, including the Shares, and (ii) up to 250,000
shares of the Company's serial preferred stock, par value $100 per
share (collectively, the "Securities"). The Company may have filed
one or more amendments to such registration statement, and may have
used a Preliminary Prospectus, each of which has been previously
furnished to you. Such registration statement, as amended at the date
of this Agreement, meets the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and complies in all other material
respects with said Rule. The Company has included in such
registration statement, or has filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424 under the Act, a
supplement or supplements to the form of prospectus included in such
registration statement relating to the Shares and the offering thereof
(hereinafter called a "Prospectus Supplement").
(b) (1) The Registration Statement, at the Effective
Date, and the Prospectus, at the time it is first filed with the
Commission and on the Closing Date, complied or will comply, as the
case may be, in all material respects with the applicable requirements
of the Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and in each case the applicable published rules and
regulations thereunder; (2) the Registration Statement, at the
Effective Date, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and
(3) the Prospectus, at the time it is first filed with the Commission
and on the Closing Date, will not and each Preliminary Prospectus, at
the time it was first filed with the Commission, did not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration
Statement, any Preliminary Prospectus or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by either of you
specifically for use in connection with the preparation of the
Registration Statement, any Preliminary Prospectus or the Prospectus
(or any supplement thereto).
-2-
<PAGE> 3
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Effective Date" shall
mean the later of (i) each date that the Registration Statement and
any post-effective amendment or amendments thereto became or become
effective or (ii) the time and date of the filing of the Company's
most recent Annual Report on Form 10-K. "Basic Prospectus" shall mean
the form of basic prospectus relating to the Securities contained in
the Registration Statement at the Effective Date (unless such basic
prospectus has been amended by the Company subsequent to the Effective
Date, in which case "Basic Prospectus" shall mean the form of basic
prospectus as so amended). "Preliminary Prospectus" shall mean the
Basic Prospectus as supplemented by any preliminary prospectus
supplement which describes the Shares and the offering thereof and is
used prior to the filing of the Prospectus. "Prospectus" shall mean
the Basic Prospectus as supplemented by the Prospectus Supplement and
as it may be further amended or supplemented at the particular time
referred to. "Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including incorporated
documents, exhibits and financial statements, as it may be amended at
the particular time referred to. "Rule 415" and "Rule 424" refer to
such rules under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amended", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Prospectus, the Prospectus Supplement or the Prospectus,
as the case may be, deemed to be incorporated therein by reference.
(d) Price Waterhouse, who are certifying certain
financial statements incorporated by reference in the Prospectus, are
independent accountants with respect to the Company within the meaning of the
Act and the applicable published rules and regulations thereunder.
(e) Neither the Company nor any of its Subsidiaries (as
hereinafter defined) has sustained since the date of the latest audited
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus, any
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<PAGE> 4
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, which has had or is reasonably
likely to have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
Subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Registration Statement and the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other than
pursuant to any stock purchase, dividend reinvestment, savings bonus,
incentive, or similar plan, conversions of convertible securities into common
stock or shares of capital stock issued and to be issued by either or both of
Central Hudson Enterprises Corporation and Central Hudson Cogeneration, Inc.
pursuant to respective subscription agreements in effect at the date of this
Agreement) or long-term debt (other than any redemption or purchases of First
Mortgage Bonds, normal amortization of debt premium and discount, bank or
finance company borrowings and repayments in the ordinary course, or additional
issuances or repurchases of commercial paper) of the Company or its
Subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, 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, otherwise than as set
forth or contemplated in the Registration Statement and the Prospectus.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and is duly
qualified to do business in each jurisdiction in which it owns or leases real
property or in which the conduct of its business requires such qualification
except where the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of the Company; each of CH
Resources, Inc., Central Hudson Enterprises Corporation, Central Hudson
Cogeneration, Inc., Phoenix Development Company, Inc., Greene Point Development
Corporation (collectively the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company subject to no security
interest, other encumbrance or adverse claim.
-4-
<PAGE> 5
(g) An order of the Public Service Commission of the
State of New York (the "PSC") authorizing the issuance and sale of the Shares
has been obtained; such order (hereinafter called the "Order") is in full force
and effect and is sufficient to authorize the transaction contemplated hereby;
and no other approval, authorization, consent or order of any other
governmental or regulatory agency, board or body (other than under the Act and
the securities or "blue sky" laws of the various states) is required for the
issuance and sale of the Shares.
(h) The issuance and sale of the Shares and the
compliance by the Company with all of the provisions of the Shares and this
Agreement and the consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not result in a breach by the Company of,
or constitute a default under, any other agreement or obligation of the
Company, or its charter or by-laws, or violate any order of any court,
regulatory body or administrative agency entered in any proceeding to which the
Company is now a party.
(i) The Shares have been duly authorized and, when issued
and paid for as contemplated hereby, will be validly issued, fully paid and
nonassessable and conform to the description thereof in the Prospectus.
4. Purchase of Shares. On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the number of Shares set forth in Schedule A attached hereto after the
name of each such Underwriter, at $_____ per share. Delivery of the Shares
for the account of the Underwriters shall be made against payment of the
purchase price to the Company or its order by certified or official bank check
or checks in New York Clearing House funds. The Shares (registered in such
names and in such denominations as the Underwriters shall request at least two
full business days prior to the Closing Date) will be made available for
checking and packaging at First Chicago Trust Company of New York, 30 West
Broadway, New York, New York 10007-2192 at least one full business day prior to
the Closing Date.
5. Public Offering. The Underwriters have advised the
Company that they propose to make a public offering of the Shares as soon as
practicable. The Underwriters are contemporaneously advising the Company of
the details of the offering, including the initial offering price to the public
and the concessions, if any, to dealers, brokers and others, as are needed to
complete the Registration Statement.
6. Time and Place of Closing. Delivery of the Shares
and payment therefor shall be made simultaneously at the office of Gould &
Wilkie, One Chase Manhattan Plaza, New York, New York
-5-
<PAGE> 6
10005 at 11:00 A.M. (New York City time) on _________, 199_ or at such time on
such later date not later than ______, 199_, as shall be agreed upon in writing
by the Company and the Underwriters (the "Closing Date").
7. Default by Underwriters. If either Underwriter shall
fail to purchase and pay for the Shares which such Underwriter has agreed to
purchase and pay for (otherwise than by reason of any failure on the part of
the Company to comply with any of the provisions contained herein), then the
Company shall immediately give notice to the non-defaulting Underwriter of the
default of such Underwriter, and the non-defaulting Underwriter shall have the
right within 24 hours after the receipt of such notice by it to determine to
purchase, or to procure one or more others, members of the National Association
of Securities Dealers, Inc. ("NASD") and satisfactory to the Company, to
purchase, upon the terms herein set forth, the number of Shares which the
defaulting Underwriter so agreed to purchase. If such non- defaulting
Underwriter shall determine to exercise such right, it shall give written
notice to the Company of the determination in this regard within 24 hours after
it shall have received notice of any such default, and thereupon the Closing
Date shall be postponed for such period, not exceeding three full business
days, as the Company shall determine, in order that the required changes in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If in the event of such a default the
non-defaulting Underwriter shall fail to give such notice, or shall within such
24-hour period give written notice to the Company that no others will exercise
such right, then this Agreement may be terminated by the Company, upon like
notice given to the non-defaulting Underwriter, within a further period of 24
hours, without liability on the part of any non-defaulting Underwriter or the
Company. If in such case the Company shall not elect to terminate this
Agreement, it shall have the right, irrespective of such default:
(a) To require the non-defaulting Underwriter to purchase
and pay for the respective number of Shares which it had severally
agreed to purchase as hereinabove provided and, in addition, to
require such Underwriter to purchase and pay for the number of Shares
which the defaulting Underwriter shall have so failed to purchase up
to 10% of the respective number of Shares which such non-defaulting
Underwriter had otherwise agreed to purchase, and/or
(b) To procure one or more others, members of the NASD,
to purchase, upon the terms herein set forth, the number of Shares
which such defaulting Underwriter so agreed to purchase or that
portion thereof which the remaining Underwriter shall not be obligated
to purchase pursuant to the foregoing clause (a).
-6-
<PAGE> 7
In the event the Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the Underwriters within
such further period of 24 hours, and thereupon the Closing Date shall be
postponed for such period, not exceeding three full business days, as the
Company shall determine, in order that the required changes in the Registration
Statement and in the Prospectus or any other documents or arrangements may be
effected.
Any action taken by the Company under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
8. Covenants of the Company. The Company agrees
that:
(a) As soon as possible after the execution of this
Agreement, the Company shall file with the PSC any papers and take any other
action required to be taken prior to the issuance and sale of the Shares by the
Order, and will advise the Underwriters and confirm the advice in writing with
reasonable promptness that any such papers have been filed and any such action
has been taken.
(b) The Company will furnish to the Underwriters as many
copies of the Prospectus and each Preliminary Prospectus as the Underwriters
may reasonably request for the purposes contemplated by the Act, except as
provided in subparagraph (d) hereof. The Company will also furnish to the
Underwriters and their counsel a reasonable number of additional copies of the
Registration Statement (including exhibits thereto) as the Underwriters may
from time to time request.
(c) The Company will pay all expenses in connection with
(i) the preparation and filing by it of the Registration Statement, any
Preliminary Prospectus and the Prospectus, and each amendment and supplement
thereto, (ii) the issuance and delivery of the Shares contemplated by this
Agreement, (iii) the qualification of the Shares under the laws of various
jurisdictions to the extent provided in subparagraph (i) of this paragraph 8
(including fees and disbursements of counsel related thereto), (iv) the
printing of the Registration Statement, any Preliminary Prospectus and the
Prospectus, the Blue Sky Memorandum and this Agreement, (v) the furnishing to
the Underwriters of copies of the Registration Statement, any Preliminary
Prospectus and the Prospectus and each amendment and supplement thereto, in
such numbers as the Underwriters shall reasonably request, and will pay all
taxes, other than transfer taxes, on the issuance of the Shares. The Company
shall not, however, be required to pay any amount for any expenses of any of
the Underwriters except that in the event this Agreement shall be terminated
pursuant to paragraphs 7 or 12 hereof, the Company shall reimburse the
Underwriters for all reasonable out-of-pocket expenses of the Underwriters
incurred in connection with the
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<PAGE> 8
proposed purchase of the Shares not exceeding $10,000, and the reasonable fee
and disbursements of Winthrop, Stimson, Putnam & Roberts, who are acting on
behalf of the Underwriters in their purchase of the Shares; the Underwriters
agree to pay said expenses, fees and disbursements in any other event. The
Company shall not in any event be liable to any of the Underwriters for damages
on account of loss of anticipated profits.
(d) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, if any event relating to or
affecting the Company or of which the Company shall be advised in writing by
the Underwriters shall occur that should be set forth in a supplement to or an
amendment of the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing when it is delivered to a purchaser,
the Company will forthwith, at its expense, prepare and file and furnish to the
Underwriters a reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus, which will supplement or amend the
Prospectus so that, as supplemented or amended, it will not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading. In
case any Underwriter is required to deliver a Prospectus after the expiration
of nine months from the effective date of this Agreement, the Company, upon the
request of the Underwriters, will furnish to the Underwriters, at the expense
of such Underwriter, a reasonable quantity of a supplemented Prospectus or
supplements to the Prospectus complying with Section 10 of the Act. For the
purposes of this subparagraph (d), the Company will furnish such reasonable
information with respect to itself as the Underwriters may, from time to time,
request, and the Underwriters, at their own expense, may visit any of the
properties of the Company and inspect its books of account at any reasonable
time. So long as any Underwriter is required to deliver a Prospectus pursuant
to this subparagraph (d), the Company will, at its expense, prepare and
continue to file with the Commission all documents required to be filed by it
pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
The Company will not at any time when a prospectus relating to
the Shares is required to be delivered under the Act file or make any amendment
or supplement to the Registration Statement or Prospectus of which the
Underwriters shall not have been previously advised and furnished a copy, or to
which the Underwriters shall object on the ground that such amendment or
supplement will be, or will make the Prospectus, misleading in the light of the
circumstances existing when it is delivered to a purchaser or that it contains
an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein or in the Prospectus not
misleading.
-8-
<PAGE> 9
(e) The Company will make generally available to its
security holders and to each Underwriter, as soon as practicable, an earnings
statement or statements (which need not be audited) of the Company and its
Subsidiaries on a consolidated basis which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(f) The Company will apply the proceeds from the sale of
the Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
(g) The Company will use its best efforts promptly to do
and perform all things to be done and performed by it hereunder prior to the
Closing Date and to satisfy all conditions precedent to the delivery by it of
the Shares. At or prior to the Closing Date, the Company will deliver to the
Underwriters and also to counsel for the Underwriters such documents,
appropriately signed or certified, if so requested, relating to the issuance
and validity of the Shares as counsel for the Underwriters may reasonably
request.
(h) The Company will use its best efforts to cause any
post-effective amendments to the Registration Statement to become effective as
promptly as possible; the Company will promptly advise or confirm to the
Underwriters in writing when any such post-effective amendment has become
effective or any supplement to the Prospectus has been filed, of any request by
the Commission for amendments or supplements to the Registration Statement, any
Preliminary Prospectus or the Prospectus or for additional information, and of
the issuance of any stop order under the Act with respect to the Registration
Statement or the institution or threat of any other proceedings of which the
Company shall have received notice which might prevent or delay the sale of the
Shares, and will use all reasonable efforts to cause any stop order or other
proceedings to be withdrawn; the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission pursuant
to Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Underwriters of such timely filing; and the Company will
not file any amendment or supplement to the Registration Statement (other than
a prospectus supplement relating to Securities other than the Shares), any
Preliminary Prospectus or the Prospectus to which the Underwriters shall
reasonably object by notice to the Company after having been furnished a copy a
reasonable time prior to the filing.
(i) The Company will use its best efforts to qualify the
Shares for offer and sale under the securities or "blue sky" laws of such
states as the Underwriters may designate, provided that the Company shall not
be required to qualify as a foreign corporation or a dealer in securities in
any state where it is not now so qualified, to take any action which would
subject it generally to the service of process in any state where it is not now
so subject, to pay filing fees and other expenses in
-9-
<PAGE> 10
connection therewith in the aggregate exceeding $10,000, or to meet other
requirements deemed by the Company to be unduly burdensome.
(j) The Company will file with the New York Stock
Exchange an application, and will take all other action requested by such
Exchange, for listing upon notice of issuance of the Shares on the New York
Stock Exchange at the Closing Date.
(k) The Company will not, during the 90 days following
the date of this Agreement, except with the prior written consent of the
Underwriters, offer for sale, sell or otherwise dispose of any shares of its
common stock, other than the Shares and any Option Shares as described under
paragraph 13 hereof and other than pursuant to any stock purchase,
reinvestment, savings, bonus, incentive, or similar plan or conversions of
convertible securities into common stock.
9. Conditions of Underwriter's Obligations. The
obligations of the several Underwriters to purchase and pay for the Shares
shall be subject to the following conditions:
(a) That all filings of the Prospectus and any
supplements thereto required by Rule 424 under the Act shall have been timely
made and no stop order suspending the effectiveness of the Registration
Statement or any amendment thereof shall be in effect at the Closing Date, and
no proceeding for that purpose shall then be pending before or, to the
knowledge of the Company or the Underwriters, threatened by the Commission; and
the Underwriters shall have received, prior to payment for the Shares, a
certificate dated the Closing Date, signed by the Chairman of the Board and
Chief Executive Officer, the President and Chief Operating Officer or a
Vice-President of the Company, to the effect that no such stop order is in
effect and that no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission; and any request for
additional information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the satisfaction of Winthrop, Stimson, Putnam & Roberts, as counsel for
the Underwriters.
(b) That the Order shall remain in full force and effect,
and the Underwriters shall have received a certificate dated the Closing Date,
signed by the Chairman of the Board and Chief Executive Officer, the President
and Chief Operating Officer or a Vice- President of the Company, to the effect
that the Order is in effect and no proceedings to revoke or modify the same are
pending before or, to the knowledge of the Company, threatened by the PSC.
(c) That all legal proceedings taken and all legal
opinions rendered in connection with the issuance and sale of the
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<PAGE> 11
Shares shall be satisfactory to Winthrop, Stimson, Putnam & Roberts, as counsel
for the Underwriters.
(d) That, at or prior to the Closing Date, the
Underwriters shall have received from Gould & Wilkie, as counsel for the
Company, an opinion dated the Closing Date in form and substance satisfactory
to Winthrop, Stimson, Putnam & Roberts, as counsel for the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York, with power and authority (corporate and governmental) to
own its properties and conduct its business as described in the
Prospectus and is duly qualified to do business in each jurisdiction
in which it owns or leases real property or in which the conduct of
its business requires such qualification except where the failure to
be so qualified, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial
position or results of operations of the Company;
(ii) The Shares have been duly and validly authorized and,
when issued, delivered and paid for in accordance with this Agreement,
will be validly issued, fully paid and nonassessable;
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Company;
(iv) The authorization, issuance and sale of the Shares, as
provided in this Agreement, have been duly approved by the Order,
which, to the best of the knowledge of such counsel, is in full force
and effect at the Closing Date, and the approval of no other
governmental authority, federal, state or otherwise (other than under
the Act and the securities or "blue sky" laws of the various states),
is required in connection with the issuance and sale of the Shares;
(v) The Registration Statement, at the Effective Date, and
the Prospectus, as of the date it was filed with the Commission under
Rule 424(b), and any amendment thereof or supplement thereto (except
in each case that such opinion need not pass upon the financial
statements and other financial and statistical data contained or
incorporated by reference therein) complied as to form in all material
respects with the requirements of the Act and the applicable published
rules and regulations thereunder and, with respect to the documents or
portions thereof filed with the Commission pursuant to the Exchange
Act, and incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, the Exchange Act and the applicable published
instructions, rules and regulations of the Commission thereunder; on
the
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<PAGE> 12
basis of information received from the Commission, at the Closing
Date, the Registration Statement is effective under the Act, and, to
the best knowledge of said counsel, no proceedings for a stop order
with respect thereto are pending or threatened under Section 8 of the
Act; based on such counsel's participation in the preparation of the
Registration Statement and Prospectus and its services as general
counsel to the Company (but such opinion may state that such counsel
did not independently check or verify the correctness of the
statements made by the Company or factual information included in the
Registration Statement and Prospectus, and thereby may assume the
correctness thereof, except insofar as such statements or information
relate to such counsel or are stated in the Registration Statement or
Prospectus as having been made on their authority as experts), no
facts have come to the attention of such counsel to cause them to
believe, and such counsel have no reason to believe, that the
Registration Statement, at the Effective Date, 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 (except as to the financial statements and
other financial or statistical data contained or incorporated by
reference therein), or that the Prospectus, as of the date it was
filed with the Commission under Rule 424(b) and as of the Closing
Date, contained or contains, as the case may be, an untrue statement
of a material fact or omitted or omits, as the case may be, to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (except as to the financial statements and
other financial or statistical data contained or incorporated by
reference therein);
(vi) The statements in the Registration Statement and
Prospectus as to matters of law and legal conclusions under the
captions "The Company," ["Recent Developments -- _____________ "]
"Common Stock Dividends and Price Range" and "Description of Common
Stock" have been reviewed by such counsel, and such matters of law and
legal conclusions are correct and have been made therein on the
authority of such counsel as experts;
(vii) The Shares conform as to legal matters to the
statements concerning them in the Registration Statement and
Prospectus, and the summary of the terms and provisions thereof
appearing in the Registration Statement and Prospectus constitutes a
proper summary thereof.
(viii) The issuance and sale of the Shares and the compliance
by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated (except as to
compliance with any financial covenants requiring an arithmetic
computation, as to which
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<PAGE> 13
such counsel need express no opinion) and the fulfillment of the terms
hereof will not result in a breach by the Company of, or constitute a
default under, any material agreement or instrument of the Company
known, as of the date of such opinion, to such counsel to which the
Company is a party, or its charter or by-laws, or violate any order
known, as of the date of such opinion, to such counsel of any court,
regulatory body or administrative agency entered in any proceeding to
which the Company is now a party.
(ix) No shareholders of the Company are entitled to
preemptive rights or other similar rights to subscribe for the Shares.
(e) That the Underwriters shall have received on the
Closing Date from Winthrop, Stimson, Putnam & Roberts, as counsel for the
Underwriters in connection with this transaction, an opinion in form and
substance satisfactory to the Underwriters with respect to the sufficiency of
all corporate proceedings and other legal matters relating to the Shares and
the form of the Registration Statement and the Prospectus.
(f) That the Underwriters shall have received letters of
Price Waterhouse LLP, addressed to the Board of Directors of the Company and
the Underwriters, dated, respectively, the date this Agreement is executed and
the Closing Date, stating in effect that (i) they are independent accountants
with respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder; (ii) in their opinion the financial
statements of the Company included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1993, which is incorporated by reference in the
Prospectus, comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and regulations
thereunder and of the Exchange Act and the published rules and regulations
thereunder; (iii) on the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of: (A) reading the
amounts included in the Prospectus appearing in the table captioned "Selected
Financial Information" (excluding the "As Adjusted" amounts appearing therein)
for the years ended December 31, 1991, 1992 and 1993 (the "Audited Amounts")
which were derived from the financial statements for such years as examined by
such accountants (the "Audited Statements"); (B) performing the procedures
specified by the American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed interim financial statements
of the Company incorporated by reference in the Registration Statement and the
Prospectus (the "Unaudited Statements"), and reading any more recent unaudited
interim financial data of the Company, (C) reading the minutes of meetings of
the shareholders, Board of Directors and Executive Committee held during the
period from December 31, 1993 to specified dates not more than five business
days prior to the
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<PAGE> 14
dates of such letters; and (D) making inquiries of certain officials of the
Company who have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below, nothing has
come to their attention as a result of the foregoing procedures that caused
them to believe that (1) the Audited Amounts were not derived from the Audited
Statements, (2) the Unaudited Statements incorporated by reference in the
Registration Statement and the Prospectus do not comply in form in all material
respects with the applicable accounting requirements and with the published
rules and regulations of the Commission with respect to financial statements
included or incorporated in Quarterly Reports on Form 10-Q under the Exchange
Act; or that any material modifications should be made to said Unaudited
Statements for them to be in conformity with generally accepted accounting
principles; (3) at the date of the latest available balance sheet read by such
accountants, and at a subsequent specified date not more than five business
days prior to the dates of such letters, there was any change in the capital
stock or long term debt of the Company, or any decrease in total shareholders'
equity, as compared with amounts shown on the latest balance sheet included in
the Audited Statements or (4) for the ________-month period and for the
twelve-month period ended on the date of the latest available income statement
read by such accountants, there were any decreases, as compared with the
corresponding periods of the previous year, in total operating revenues or net
income of the Company; except, in all instances, for changes or decreases,
which have occurred or may occur that are disclosed in the Registration
Statement or which are the result of dividends paid in the ordinary course of
business; and (iv) they have carried out certain procedures and made certain
findings, as specified in such letters, with respect to such other items
included or incorporated by reference in the Registration Statement and the
Prospectus as the Underwriter may have reasonably requested.
(g) That the Company shall not have filed any amendment
to the Registration Statement or supplement to the Prospectus after the
effective date of this Agreement and before the Closing Date of which the
Underwriters shall not previously have been advised or which shall be
unsatisfactory in substance to the Underwriters or unsatisfactory in form to
Winthrop, Stimson, Putnam & Roberts, as counsel for the Underwriters.
(h) That the representations and warranties of the
Company herein contained shall be true and correct at the Closing Date, and the
Company shall have performed all of its obligations under this Agreement as are
to be performed by it at or prior to such date; and the Underwriters shall
receive at the Closing Date a certificate dated the Closing Date and signed by
the Chairman of the Board and Chief Executive Officer, the President and Chief
Operating Officer or a Vice-President and the principal financial officer of
the Company to such effect.
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<PAGE> 15
(i) That the Shares shall have been duly listed, or
approved for listing upon official notice of issuance, on the New York Stock
Exchange.
(j) That the Company shall have furnished to the
Underwriters such further certificates and documents in connection with its
obligations hereunder as the Underwriters shall reasonably request.
Each letter referred to in subparagraphs (d), (e) and (f) of
this paragraph 9 may state that it is solely for the information of the Board
of Directors of the Company and the Underwriters and is not to be quoted or
referred to in whole or in part in the Registration Statement or Prospectus or
otherwise in connection with the registration under the Act or the sale of the
Shares.
All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to Winthrop, Stimson, Putnam & Roberts, as counsel for the
Underwriters. The Company will furnish the Underwriters with such conformed
copies of such opinions, certificates, letters and documents as the
Underwriters shall reasonably request.
10. Conditions of Company's Obligations. The
obligation of the Company to deliver the Shares shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date, and no
proceedings for that purpose shall be pending before, or threatened by, the
Commission at such date.
(b) The Order shall remain in full force and effect on
the Closing Date, and no proceedings to revoke or modify the same shall be
pending before, or threatened by, the PSC at such date.
11. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act, from and
against any and all losses, claims, damages, liabilities or expenses (including
reasonable attorneys' fees) arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or in any Preliminary Prospectus or in the Prospectus (as amended or
supplemented if the Company shall have made any amendments or supplements
thereto) or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or omission
or alleged untrue statement or omission based upon information furnished herein
or in writing to
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<PAGE> 16
the Company by any Underwriter for use in connection with the preparation of
the Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement to either thereof. This indemnity insofar as it
relates to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account of any
losses, claims, damages or liabilities arising from the sale of Shares by such
Underwriter to any person if a copy of the Prospectus, as the same may then be
amended or supplemented, shall not have been sent or given by or on behalf of
such Underwriter to such person with or prior to the delivery of the securities
involved, to the extent that the Prospectus, if so sent or given, would have
cured the untrue statement or omission in the Preliminary Prospectus giving
rise to the loss, claim, damage or liability. The Company agrees promptly to
notify the Underwriters of the commencement of any litigation or proceedings
against the Company or any of its officers or directors in connection with the
issuance and sale of the Shares.
(b) Each Underwriter agrees that promptly upon the
receipt of notice of the commencement of any action against such Underwriter or
against any person so controlling such Underwriter in respect of which
indemnity or reimbursement may be sought from the Company on account of its
agreement in subparagraph (a) above, timely notice will be given to the Company
in writing of the commencement thereof, but the omission so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to any such controlling person
otherwise than on account of the indemnity and reimbursement agreement
contained in said subparagraph (a). Thereupon, the Company shall be entitled
to participate in and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to such Underwriter or to such controlling
person (who shall not, except with the consent of such Underwriter or such
controlling person, be counsel to the Company), and shall in any event be
liable to pay all fees and expenses thereof. After notice from the Company to
such Underwriter or to such controlling person of the Company's election so to
assume the defense thereof, the Company shall not be liable to such Underwriter
or to such controlling person under subparagraph (a) above for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by any such Underwriter or any such controlling person, in connection
with the defense thereof other than reasonable costs of investigation.
(c) Each Underwriter agrees to indemnify and hold
harmless the Company, its directors, its officers who signed the Registration
Statement, and each person who controls any thereof within the meaning of
Section 15 of the Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with respect to losses, claims, damages,
liabilities or expenses arising out of or based upon any untrue statement or
omission or alleged untrue statement or omission based upon
-16-
<PAGE> 17
information furnished herein or in writing to the Company by such Underwriter
for use in connection with the preparation of the Registration Statement,
Preliminary Prospectus or Prospectus or any amendment or supplement to any
thereof. In case any action shall be brought against the Company, or any such
director, officer or controlling person in respect of which he or it may seek
indemnity or reimbursement from any Underwriter on account of the agreement of
such Underwriter contained in this subparagraph (c), the Company or such person
against whom such action shall be brought shall notify the Underwriters of the
commencement thereof, and such Underwriter shall have the rights and duties
given to the Company, and the Company shall have the rights and duties given to
the Underwriter, by the next preceding subparagraph (b). The Underwriters
agree promptly to notify the Company of the commencement of any litigation or
proceedings against them or either of them in connection with the issuance and
sale of the Shares.
(d) If the indemnification provided for in subparagraph
(a) or (c) above is unavailable or insufficient to hold harmless an indemnified
party under subparagraph (a) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages, liabilities or expenses referred to in
subparagraph (a) or (c) above, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such damages 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, in each
case, as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if their respective
obligations to contribute pursuant to this subparagraph (d) were to be
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 in the first sentence
of this subparagraph (d). The amount paid by an indemnified party as a
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<PAGE> 18
result of the losses, claims, damages, liabilities or expenses referred to in
the first sentence of this subparagraph (d) shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of the
contribution provisions of this subparagraph (d). Notwithstanding the
provisions of this subparagraph (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
subparagraph (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
12. Termination. (a) If, at the Closing Date, any of
the conditions specified in paragraph 9 of this Agreement shall not have been
fulfilled, this Agreement may be terminated by the Underwriters upon delivery
of written notice thereof to the Company, and, unless so terminated, the
several obligations of the Underwriters hereunder shall continue in full force
and effect.
(b) If, at the Closing Date, any of the conditions
specified in paragraph 10 of this Agreement shall not have been fulfilled, this
Agreement may be terminated by the Company upon delivery of written notice
thereof to the Underwriters, and, unless so terminated, the obligations of the
Company hereunder shall continue in full force and effect.
(c) This Agreement may be terminated by the Company in
accordance with the provisions of paragraph 7 hereof.
(d) This Agreement may be terminated at any time prior to
the Closing Date by the Underwriters upon delivery of written notice thereof to
the Company, if, prior to such time, (i) there shall have occurred any general
suspension of trading in securities on the New York Stock Exchange, or there
shall have been established by the New York Stock Exchange or by the Commission
or by any federal or state agency or by the decision of any court any
limitation on prices for such trading or any restrictions on the distribution
of securities, (ii) there shall have been declared a general moratorium on
commercial banking activities in New York by either federal or state
authorities, or (iii) there shall have occurred, subsequent to the date of this
Agreement, any new outbreak of hostilities or escalation of existing
hostilities or other national or international calamity or crisis, the effect
of which shall be such as to make it, in the reasonable judgment of the
Underwriters, impractical to market the Shares or enforce contracts for the
sale of the
-18-
<PAGE> 19
Shares. This Agreement may also be terminated at any time prior to the Closing
Date if, in the reasonable judgment of the Underwriters, the subject matter of
any amendment or supplement to the Registration Statement or Prospectus, or any
change in the rating assigned to any securities of the Company, renders it
either inadvisable to proceed with the public offering of the Shares or
inadvisable to proceed with the delivery of the Shares to be purchased
hereunder. Any termination of this Agreement pursuant to this paragraph 12
shall be without liability of any party to any other party, except as otherwise
provided in paragraphs 8(c) and 11 of this Agreement.
13. Over-allotment Option. (a) In addition to the
shares of Common Stock being sold by the Company and described as the "Shares"
in paragraph 2 hereof (herein referred to as the "Firm Shares"), the Company
hereby grants to the several Underwriters an option to purchase up to an
aggregate of _________ additional shares of Common Stock (the "Option Shares")
at the same purchase price as the Firm Shares solely for the purpose of
covering over-allotments made by the Underwriters in connection with the sale
and distribution of the Firm Shares. No Option Shares shall be sold or
delivered unless the Firm Shares previously have been, or simultaneously are,
sold and delivered. Paragraphs 4 and 6 hereof shall be deemed to apply only to
the purchase, sale and delivery of the Firm Shares, and references in those two
sections to the "Shares" shall be deemed to be references to the "Firm Shares."
Except as otherwise provided in this paragraph 13, all other references in this
Agreement to the "Shares" shall be deemed to include the Firm Shares and the
Option Shares.
(b) The option granted hereunder may be exercised from
time to time within 30 days after the effective date of this Agreement, in each
case, upon notice (confirmed in writing) by the Underwriters to the Company
setting forth the aggregate number of Option Shares to be purchased by the
several Underwriters, which number shall represent all or any portion of the
Option Shares not previously purchased pursuant to this paragraph 13. Each
time the option is exercised, each Underwriter, severally and not jointly,
agrees to purchase from the Company the number of Option Shares which shall be
the same percentage of the total number of Option Shares to be purchased by the
several Underwriters as the number of Firm Shares to be purchased by such
Underwriter is of the total number of Firm Shares to be purchased by the
several Underwriters. The right to purchase the Option Shares or any portion
thereof may be surrendered and terminated at any time upon notice by the
Underwriters to the Company. The "Closing Date," as defined in paragraph 6
hereof, shall be deemed to be the "Initial Closing Date," and the times for the
delivery of and payment for the purchases of Option Shares are herein
collectively referred to as the "Option Closing Dates," each an "Option Closing
Date" (one or more of which may be the Initial Closing Date). The Option
Closing Date with respect to a particular purchase of Option
-19-
<PAGE> 20
Shares shall be determined by the Underwriters, but shall be no earlier than 2
or later than 10 business days after notice is given by the Underwriters to the
Company of the election to purchase such Option Shares. With respect to each
Option Closing Date, the preparation, registration, checking and delivery of,
and payment for, the corresponding Option Shares shall occur or be made in the
same manner as provided in paragraphs 4 and 6, except as the Underwriters and
the Company may otherwise agree in writing.
(c) The conditions to the several Underwriters'
obligations set forth in paragraph 9 hereof shall be deemed to be conditions to
the several Underwriters' obligations to purchase and pay for the Shares to be
purchased on each of the Initial Closing Date and each Option Closing Date, as
the case may be; references in that paragraph and in paragraphs 3 and 12
hereof to the "Closing Date" shall be deemed to be references to the Initial
Closing Date or the applicable Option Closing Date, as the case may be, and
references to the "Shares" in paragraph 9 hereof shall be deemed to be
references to the Firm Shares or Option Shares to be purchased at such Initial
Closing Date or Option Closing Date. A termination of this Agreement as to the
Option Shares after the Initial Closing Date will not terminate this Agreement
as to the Firm Shares.
14. Miscellaneous. The respective representations,
warranties, indemnities and agreements (except insofar as fulfilled on or
before the Closing Date) of the Company or its officers and of the Underwriters
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Company, its
officers and directors, or any controlling person, and shall survive delivery
of any payment for the Shares. The provisions of paragraph 11 hereof shall
survive the termination or cancellation of this Agreement.
The validity and interpretation of this Agreement shall be
governed by the laws of the State of New York. This Agreement shall inure to
the benefit of the Company, the Underwriters, the officers and directors of the
Company (and with respect to the provisions of paragraph 11 hereof, each
controlling person referred to therein), and their respective successors,
assigns, executors and administrators. Nothing in this Agreement is intended
or shall be construed to give to any other person, firm or corporation a legal
or equitable right, remedy or claim under or in respect of this Agreement or
any provision herein contained. The term "successors" and "assigns" as used in
this Agreement shall not include any purchaser of any Shares from either of the
Underwriters.
15. Notices. All communications hereunder shall be in
writing and if to the Underwriters, shall be mailed, with first class postage
prepaid, or delivered to the address appearing on
-20-
<PAGE> 21
page 1 hereof, or, if to the Company, shall be so mailed or delivered to it at
284 South Avenue, Poughkeepsie, N.Y. 12601-4879.
16. Counterparts. This Agreement may be executed in
counterparts, which together shall constitute one and the same instrument. If
signed in counterparts, this Agreement shall not become effective unless at
least one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
Please sign and return to us the enclosed duplicate of this
letter, whereupon this letter will become a binding agreement between the
Company and the Underwriters, in accordance with its terms.
Very truly yours,
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
By:
--------------------------------
Chairman of the Board
and Chief Executive Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
KIDDER, PEABODY & CO. INCORPORATED
By:
-----------------------------
Managing Director
SMITH BARNEY INC.
By:
-----------------------------
Managing Director
-21-
<PAGE> 22
SCHEDULE A
Number of Shares
Name of Underwriter to be purchased
- ------------------- ----------------
Kidder, Peabody & Co. Incorporated
Smith Barney Inc. ----------------
Total
<PAGE> 1
EXHIBIT (4)(i)34
SUPPLEMENTAL INDENTURE
BETWEEN
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
AND
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY),
TRUSTEE.
DATED AS OF ,
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS, [ % SERIES DUE ]
[DESIGNATED SECURED MEDIUM-TERM NOTES, SERIES ]
SUPPLEMENTING
INDENTURE OF MORTGAGE
DATED AS OF JANUARY 1, 1927
<PAGE> 2
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
Cross Reference Sheet showing the location of the provisions inserted
pursuant to Sections 310 to 318(a) inclusive of the Trust Indenture Act of
1939; all of said provisions, except as otherwise noted, are contained in the
Fourth Supplemental Indenture, Exhibit (4)(i)5 (incorporated herein by
reference to Exhibit 4(ii)4 in Registrant's Annual Report on Form 10 K/A for
fiscal year ended December 31, 1992).
<TABLE>
<CAPTION>
Trust Indenture Act of 1939 Fourth Supplemental Indenture
--------------------------- -----------------------------
<S> <C>
SECTION 310(a) SECTION 14.01
310(b) 14.12
311(a) 14.13
311(b) 14.13
312(a) 7.03
312(b) 7.03
312(c) 7.03
313(a) 7.01
313(b) 7.01
313(c) 7.01
313(d) 7.01
314(a) 7.02
314(b) 6.10*
314(c) 18.03
314(d) 10.04**
314(e) 18.03
315(a) 14.03
315(b) 11.03
315(c) 14.02
315(d) 14.03
315(e) 11.21
316(a) 11.08
316(b) 11.20
316(c) ***
317(a) 11.07
317(b) 6.02
318(a) 18.05
</TABLE>
* Amended by and as set forth in Section 91.10 of the Ninth Supplemental
Indenture (incorporated herein by reference as Exhibit (4)(i)10).
** Amended by Section 51.03 of the Fifth Supplemental Indenture
(incorporated herein by reference as Exhibit (4)(i)6); and further
amended by Section 83.06 and 83.07 of the Eighth Supplemental
Indenture (incorporated herein by reference as Exhibit (4)(i)9); and
further amended by and as set forth in Section 91.12 of said Ninth
Supplemental Indenture.
*** Included as alternate Section 2.04 of form of Supplemental Mortgage
Indenture filed herewith as Exhibit (4)(i)34.
NOTE: This Cross Reference Sheet shall not, for any purpose, be deemed to be
a part of the Fourth Supplemental Indenture.
<PAGE> 3
TABLE OF CONTENTS*
PAGE
Parties
Recitals
Granting Clauses
Habendum
Grant in Trust
ARTICLE I
Creation and Issue of First Mortgage Bonds
Section 1.01. Creation of bonds of % Series due
Section 1.02. Not limited in amount
Section 1.03. Redemption rates and provisions
Section 1.04. Exchangeability of bonds of New Series
Charge for exchange of such bonds
Section 1.05. Execution of the bonds of the New Series
Section 1.06. Form of fully registered bond of the New Series
Form of Trustee's Certificate
Section 1.07. Initial Issuance of $ principal amount of
bonds of the New Series
**[Article I
Creation and Issue of First Mortgage Bonds
Section 1.01. Creation of a series of bonds designated "Secured
Medium-Term Notes, Series "]
ARTICLE II
Miscellaneous Provisions
Section 2.01. Covenants of the Company
Section 2.02. The Indenture as heretofore supplemented
and amended to continue in full force
and effect
Section 2.03. Recordation and filing of
Supplemental Indenture
***[Section 2.04. Record date for amendment, supplement or
waiver]
Section 2.05. Definition of "Business Day"
Section 2.06. Supplemental Indenture to be
executed in a number of counterparts
Section 2.07. If any provision of Supplemental Indenture
invalid other provisions not to be affected
Signature and Seals
Acknowledgments
****[Exhibit "A" Form of Bond of the New Bonds
Form of Trustee's Certificate]
* This Table of Contents is not a part of the Supplemental
Indenture as executed and recorded.
** These provisions will be inserted in lieu of the preceding Article I
(except that Sections 1.05 and 1.07 would be retained and renumbered
Sections 1.02 and 1.03) in any supplemental indenture relating to the
issuance of First Mortgage Bonds which are designated "Secured
Medium-Term Notes, Series "
*** This provision may be inserted as an additional section in any
supplemental indenture relating to the issuance of First Mortgage
Bonds which are designated
<PAGE> 4
"Secured Medium-Term Notes, Series ". Unless so inserted, Sections
2.05, 2.06 and 2.07 would be renumbered 2.04, 2.05 and 2.06
respectively.
**** This Exhibit will be inserted in any supplemental indenture relating
to the issuance of First Mortgage Bonds which are designated "Secured
Medium-Term Notes, Series ".
<PAGE> 5
SUPPLEMENTAL INDENTURE, dated as of the day of
, by and between Central Hudson Gas & Electric Corporation (hereinafter
sometimes called the "Company"), a corporation organized and existing under and
by virtue of the laws of the State of New York and having its principal office
and place of business (residence) at 284 South Avenue, in the City of
Poughkeepsie, County of Dutchess, and State of New York, party of the first
part, and The Bank of New York (formerly Irving Trust Company) (hereinafter
sometimes called the "Trustee"), a corporation organized and existing under and
by virtue of the laws of the State of New York and having its principal office
and place of business (residence) at No. 101 Barclay Street, in the Borough of
Manhattan, City and State of New York, as Trustee, party of the second part.
Whereas, the Company executed and delivered its Indenture of Mortgage
(hereinafter referred to as the "Original Indenture"), dated as of January 1,
1927, to the Trustee (under its then name, American Exchange Irving Trust
Company) to secure its First and Refunding Mortgage Bonds (now First Mortgage
Bonds), issuable in series, and unlimited in aggregate principal amount except
as therein provided, and has executed and delivered certain indentures
supplemental thereto and amendatory thereof, to wit: the Supplemental Indenture
dated as of March 1, 1935, the Second Supplemental Indenture dated as of June
1, 1937, the Third Supplemental Indenture dated as of April 1, 1940, the Fourth
Supplemental Indenture dated as of March 1, 1941, the Fifth Supplemental
Indenture dated as of December 1, 1950, the Sixth Supplemental Indenture dated
as of December 1, 1952, the Seventh Supplemental Indenture dated as of October
1, 1954, the Eighth Supplemental Indenture dated as of May 15, 1958, the Ninth
Supplemental Indenture dated as of December 1, 1967, the Tenth Supplemental
Indenture dated as of January 15, 1969, the Eleventh Supplemental Indenture
dated as of June 1, 1970, the Twelfth Supplemental Indenture dated as of
February 1, 1972, the Thirteenth Supplemental Indenture dated as of April 15,
1974, the Fourteenth Supplemental Indenture dated as of November 1, 1975, the
Fifteenth Supplemental Indenture dated as of June 1, 1977, the Sixteenth
Supplemental Indenture dated as of September 15, 1979, the Seventeenth
Supplemental Indenture dated as of May 15, 1980, the Eighteenth Supplemental
Indenture dated as of November 15, 1980, the Nineteenth Supplemental Indenture
dated as of August 15, 1981, the Twentieth Supplemental Indenture dated as of
September 1, 1982, the Twenty-First Supplemental Indenture dated as of November
22, 1982, the Twenty-Second Supplemental Indenture dated as of May 24, 1984,
the Twenty-Third Supplemental Indenture dated as of June 15, 1985, the
Twenty-Fourth Supplemental Indenture dated as of September 1, 1986, the
Twenty-Fifth Supplemental Indenture dated as of December 1, 1988, the
Twenty-Sixth Supplemental Indenture dated as of May 1, 1991, the Twenty-Seventh
Supplemental Indenture dated as of May 15, 1992* (the Original Indenture as
heretofore supplemented and amended and as hereby supplemented and as the same
hereafter may be supplemented or amended being hereinafter sometimes referred
to as the "Mortgage"); and
Whereas, there are now issued and outstanding under the Mortgage
$4,500,000 principal amount of First Mortgage Bonds 6 1/4% Series due 2007,
$16,700,000 principal amount of First Mortgage Bonds, 8.375% Series due 2028,
$30,000,000 principal amount of First Mortgage Bonds, 8 3/4% Series due 2001,
$70,000,000 principal amount of First Mortgage Bonds, 9 1/4% Series due 2021,
and $81,000,000 principal amount of First Mortgage Bonds, Secured Medium-Term
Notes, Series A, in the following tranches: $25,000,000 principal amount of
7.70% due June 12, 2000, $8,000,000 principal amount of 7.97% due June 11,
2003, $8,000,000 principal amount of 7.97% due June 13, 2003, $10,000,000
principal amount of 8.12% due August 29, 2022, $10,000,000 principal amount of
8.14% due August 29, 2022, $10,000,000 principal amount of 6.10% due April 28,
2000, and $10,000,000 principal amount of 6.46% due August 11, 2003,** which
are all of the bonds presently outstanding under the Mortgage; and
Whereas, the Company desires, pursuant to the provisions of the
Mortgage, to provide for the creation of a new series of bonds under the
Mortgage to be designated " " and to specify the date of the bonds of
such series, the date or dates of maturity thereof, the rate of interest, the
place or places where payable, the terms and rates of redemption, the form
thereof, and such other provisions and agreements in respect thereof as are
provided or permitted by the Mortgage; and
__________________________________
* Here will be inserted reference to any additional supplemental
indentures.
** Here will be inserted reference to any additional outstanding series of
bonds.
<PAGE> 6
Whereas, the Company now owns property covered by the lien of the
Mortgage in the Counties of Albany, Columbia, Dutchess, Greene, Orange, Oswego,
Putnam, Sullivan, Ulster and Westchester in the State of New York; and
Whereas, the Company desires, pursuant to the provisions of the
Mortgage, to convey, transfer and assign to the Trustee, and to subject to the
lien of the Mortgage, with the same force and effect as though included in the
granting clauses thereof, additional properties acquired by the Company
subsequently to the date of the Supplemental Indenture, and for
the further assurance to the Trustee of title to the properties covered or to
be covered by the lien of the Mortgage; and
Whereas, the Company, in pursuance of resolutions of its Board of
Directors adopted at a meeting thereof duly called and held, has duly
authorized and directed the execution and delivery to the Trustee of this
Supplemental Indenture, in the form and terms hereof and for the
purposes herein set forth; and
Whereas, all acts and things prescribed by law and by the charter and
by-laws of the Company have been done and complied with to make this
Supplemental Indenture and the ,
, when issued in accordance with the Original Indenture, as supplemented and
amended, and this Supplemental Indenture, the valid and binding
obligations of the Company, and the execution and delivery hereof and of such
Bonds have been in all respects duly authorized;
Now, Therefore, This Indenture Witnesseth, that for and in
consideration of the premises and of the purchase and acceptance of the bonds
by the holders thereof, and of the sum of One Dollar, lawful money of the
United States of America, to it in hand paid by the Trustee, party of the
second part, at or before the ensealing and delivery of these presents, the
receipt whereof is hereby acknowledged, and in order further to secure the due
and punctual payment of the principal and interest of all the bonds issued and
to be issued under the Original Indenture, as well as under any indenture
supplemental thereto, and at any time outstanding, according to their tenor and
effect, and the fulfillment of the covenants, promises and agreements contained
in said bonds and in the Original Indenture, as supplemented and amended, and
herein, said Central Hudson Gas & Electric Corporation, party of the first part
hereto, by these presents does hereby grant, bargain, sell, release, convey and
confirm, mortgage, assign, transfer, and set over, unto the said Trustee, its
successors and assigns;
All properties acquired by the Company since , and now
owned by the Company including all real estate, and/or rights to the use
thereof wheresoever situated;
Together with all buildings, improvements and fixtures on said real
estate and each and every parcel thereof;
Also all gas or electric transmission lines acquired or built since
and now owned by the Company;
And without limiting or restricting the granting clauses contained in
the Original Indenture, as heretofore supplemented and amended, all other
property real, personal and mixed, of every kind, character and description
(other than property of the same character as is expressly excepted and
excluded from the Mortgage, and from the lien and operation thereof) and all
rights, privileges and franchises, now owned or hereafter acquired by the
Company or in which it has any interest, it being hereby agreed by the Company
that all such after-acquired property shall be as fully embraced within the
lien of the Mortgage as if such property were owned by the Company and
specifically described in the granting clauses of the Original Indenture and
conveyed thereby;
Together with all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property
or any part thereof, with the reversion and reversions, remainder and
remainders, tolls, rents, revenues, issues, income product and profits thereof,
and all the estate, right, title, interest and claim whatsoever, at law as well
as in equity, which the Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel thereof;
To Have and To Hold all and singular the above described mortgaged
premises unto the Trustee, its successors and assigns, of and for its and their
own proper use and benefit;
In Trust, Nevertheless, upon the trusts, uses and purposes reserved,
created, declared and expressed in the Mortgage, and with all the powers and
upon all the terms,
-2-
<PAGE> 7
covenants and conditions therein set forth, in the same manner and for the same
trusts, uses and purposes, as if said real estate and property had been
specifically described in the granting clauses of the Original Indenture.
ARTICLE I
Creation and Issue of First Mortgage Bonds,
% Series Due
Section 1.01. The Company hereby creates a series of bonds to be
issued under the Mortgage and hereunder, which are designated "First Mortgage
Bonds, % Series due "(herein called either the "New Bonds" or the
"Bonds"). The New Bonds shall be fully registered bonds without coupons and
shall be dated as of the , next preceding the date of issue thereof,
unless such date of issue shall be , in which case such fully registered
bonds shall be dated as of such date of issue, provided, however, that if such
fully registered bonds shall be authenticated and delivered upon a transfer of,
or in exchange or substitution for, and Bond or Bonds upon which interest is in
default, such Bonds shall be dated as of the last interest payment date upon
which interest has been paid on the New Bonds so surrendered for transfer,
exchange or substitution. The New Bonds shall mature on ,
, shall bear interest from the date of each of such Bonds at the rate of %
per annum, payable on , commencing , shall be payable, as to
principal and interest, at or from the office or agency of the Company, in the
Borough of Manhattan, in the City and State of New York, and shall [be
redeemable as hereinafter provided] [not be redeemable]. The New Bonds shall
be in the denomination of $1,000 each, or any multiple of $1,000 each, and
shall be numbered consecutively upwards.
The principal of and interest on the New Bonds, as well as any premium
thereon in case of redemption thereof, shall be payable in coin or currency of
the United States of America which at the time of payment is legal tender for
public and private debts.
Section 1.02. The maximum aggregate principal amount of New Bonds
which may be issued and outstanding is unlimited, except as otherwise provided
in the Mortgage, and except as may be provided in any subsequent supplemental
indenture.
Section 1.03. [[On or after ,] the Company may at its option
redeem, as a whole at any time, or in part from time to time, [on any interest
payment date], the New Bonds upon payment in each case of the following
redemption prices (expressed in percentages of the principal amount), together
with interest to the date fixed for redemption:
Redemption Dates Redemption
(Inclusive) Price
----------- -----
[Redemption terms, if any, to be added]
The notice of such redemption, if required to be published as provided
in the Mortgage, shall be published in at least one daily newspaper printed in
the English language, published and of general circulation in the Borough of
Manhattan, in the City and State of New York, at least once a week for four
successive weeks, beginning not less than thirty days prior to the date fixed
for such redemption.]
[The Company may not at its option redeem the New Bonds prior to
maturity.]
The provisions of Articles IX, X and (to the extent set forth in this
Supplemental Indenture) XXI of the Fourth Supplemental Indenture with respect
to the redemption of bonds shall apply to the redemption of the New Bonds.
[The "then applicable" redemption price applicable to the new Bonds
for purposes of Section 10.08 of the Fourth Supplemental Indenture shall be
[100% of the principal amount thereof] [insert alternative redemption terms],
together with accrued interest to the date fixed for redemption.]***
__________________________________
*** Here may be inserted one or more additional provisions which
modify, alter or otherwise affect the provisions of the
Mortgage (e.g., Sections 10.05, 10.07 and 21.01) relating to
the redemption or purchase of bonds in certain
circumstances.
-3-
<PAGE> 8
Section 1.04. New Bonds, when surrendered to the Trustee, together
with written instruments of transfer in form approved by the Company and the
Trustee and duly executed by the registered holders of such bonds, may be
exchanged, at the option of the holders thereof, for a fully registered bond or
bonds of any other authorized denomination of the same series and of an
aggregate principal amount equal to the principal amount of the bonds so
surrendered for exchange.
Such exchange shall be subject to the changes provided for in Section
2.09 of the Fourth Supplemental Indenture, as amended by the Ninth Supplemental
Indenture. The Company shall not be required to make exchanges of the New
Bonds for a period of fifteen days next preceding any interest payment date of
the New Bonds.
Section 1.05. The New Bonds shall, from time to time, be executed and
the seal of the Company affixed thereto on behalf of the Company in the manner
and with the effect provided in Section 2.08 of the Fourth Supplemental
Indenture, as amended by the Ninth Supplemental Indenture and by the Tenth
Supplemental Indenture.
Section 1.06. The text of the New Bonds and of the Trustee's
certificate to be endorsed on all bonds of said series are to be substantially
in the following forms, respectively, the blanks therein to be appropriately
filled:
[FORM OF BOND]
No._____ $_____
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
FIRST MORTGAGE BOND, % SERIES DUE (DUE )
For Value Received, Central Hudson Gas & Electric Corporation
(hereinafter termed the "Company"), a corporation of the State of New York,
promises to pay to ............ or registered assigns, ...... dollars in coin
or currency of the United States of America which at the time of payment is
legal tender for public and private debts, at or from the office or agency of
the Company, in the Borough of Manhattan, in the City and State of New York, on
the day of , unless this bond shall have been duly called for previous
redemption and payment provided therefor, and to pay interest thereon from the
date of this bond at the rate of % per annum in like coin or currency, on
the , commencing , at said office or agency, until the
principal of this bond shall have become due and payable.
This bond is one of a duly authorized issue of registered bonds
without coupons of the Company issued and to be issued in denominations of
various principal amounts, and the maximum aggregate principal amount of such
bonds which may be issued is unlimited. All of said bonds are issued and to be
issued pursuant to, and are equally and ratably secured (except insofar as a
sinking fund established in accordance with the provisions of the Indenture of
Mortgage, dated January 1, 1927, hereinafter referred to, as supplemented and
amended, may afford additional security for the bonds of any particular series)
by a certain Indenture of Mortgage, dated January 1, 1927, duly made, executed
and delivered by the Company to American Exchange Irving Trust Company (now
called The Bank of New York), as Trustee, as supplemented and amended, to which
Indenture and indentures supplemental thereto reference is hereby made for a
description of the property mortgaged, the nature and extent of the security,
the rights of the holders of the bonds and of the Trustee in respect thereof,
the duties and immunities of the Trustee, and the terms and conditions upon
which the bonds are secured. Said bonds are issuable in series, which bonds of
different series may mature at different times, may bear interest at different
rates, may be redeemable at different times and rates, and may otherwise vary
as provided in said Indenture and indentures supplemental thereto. Bonds of
the series of which this is one are known as the First Mortgage Bonds, %
Series due , of the Company, which series is created by a
Supplemental Indenture, dated as of , by the Company to The Bank of New
York, as Trustee. The bonds of this series are in the denomination of $1,000,
or any multiple of $1,000, each.
[Bonds of this series may be redeemed prior to maturity at the option
of the Company [on or after ], as whole at any time, or in part from time
to time, [on any interest payment date], upon payment in each case of the
following redemption prices (expressed in percentages of the principal amount)
together with accrued interest to the date fixed for redemption:
Redemption Dates Redemption
_________________________________
in certain circumstances.
-4-
<PAGE> 9
Inclusive Price
--------- -----
[Redemption terms, if any, to be added.]
[The Company may not at its option redeem this bond prior to maturity.]
The provisions of Article IX, Article X and (to the extent set forth
in the Supplemental Indenture) Article XXI of the Fourth
Supplemental Indenture, to which reference is hereby made, with respect to the
redemption of bonds shall apply to the redemption of bonds of this series.
[During the term of this bond, the "then applicable" redemption price for
purposes of Section 10.08 of the Fourth Supplemental Indenture applicable to
the bonds of this series shall be [100% of the principal amount thereof]
[insert alternative redemption terms], together with accrued interest to the
date fixed for redemption.]****
In case default be made in the payment of any interest on any of said
bonds or in respect of any other condition, covenant or agreement provided
therein or in said Indenture, as supplemented and amended, the principal of all
of said bonds may become due and payable as provided in said Indenture, as
supplemented and amended.
The Indenture, as supplemented and amended, contains provisions
permitting the Company and the Trustee, with the consent of the holders of not
less than 75% in aggregate principal amount of the bonds at the time
outstanding which would be affected by the action proposed to be taken, and
which shall be determined and evidenced as provided therein, or, in case the
rights under the Indenture, as supplemented and amended, of the holders of only
one series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in principal amount of the outstanding bonds of
such series affected, except that if any such action would affect the bonds of
two or more series, then with the consent of the holders of not less than 75%
in aggregate principal amount of outstanding bonds of such two or more series,
which need not include 75% in principal amount of outstanding bonds of each
such series, determined and evidenced as provided in the Fifth Supplemental
Indenture, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture,
as supplemented and amended, or modifying in any manner the rights of the
holders of the bonds and coupons thereunto appertaining; provided, however,
that the bondholders shall have no power to consent to: (i) an extension of the
fixed maturity of any bonds, or a reduction of the rate or extension of the
time for payment of interest thereon, or a reduction of the principal amount
thereof, or a reduction of the amount payable upon redemption thereof, or,
except as otherwise provided in said Fifth Supplemental Indenture, a limitation
of the right of a bondholder to institute suit for the enforcement of payment
of principal or interest in accordance with the terms of said bonds, without
the consent of the holder of each bond which would be so affected, or (ii) a
reduction of the aforesaid percentage of bonds, the holders of which are
required to consent to any supplemental indenture without the consent of the
holders of all bonds outstanding, or (iii) a deprivation of any not-assenting
bondholder of a lien upon the property subject to the Indenture, as
supplemented and amended, for the security of his bonds (subject only to the
lien of taxes, assessments or governmental charges not then delinquent and to
any mortgage or other liens existing upon such property which are prior thereto
at the date of the calling of a bondholders' meeting called to consider such
consent), or (iv) the creation by the Company of any mortgage or pledge or lien
in the nature thereof, ranking prior to or equal with the lien of the
Indenture, as supplemented and amended, on any of the mortgaged property,
without the consent of the holders of all bonds outstanding; nor may any
supplemental indenture (a) authorize the holders of less than a majority in
principal amount of all the bonds at the time outstanding (i) to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred upon the Trustee, under
the Indenture, as supplemented and amended, or (ii) on behalf of the holders of
all the bonds to consent to the waiver of any past default and its
consequences; or (b) authorize (i) the holders of less than 75% in principal
amount of all the bonds at the time outstanding to consent to the postponement
of any interest payment, or (ii) the postponement of any interest payment for a
period exceeding three years from its due date. Any such consent by the
__________________________________
**** Here may be inserted one or more additional provisions which
modify, alter or otherwise affect the provisions of the
Mortgage (e.g., Sections 10.05, 10.07 and 21.01) relating to
the redemption or purchase of bonds in certain
circumstances.
-5-
<PAGE> 10
holder of this bond (unless effectively revoked as provided in said Fifth
Supplemental Indenture) shall be conclusive and binding upon such holder and
upon all future holders of this bond, irrespective of whether or not any
notation of such waiver or consent is made upon this bond. No reference herein
to the Indenture, and indentures supplemental thereto, and no provisions of
this bond or of the Indenture, or indentures supplemental thereto, shall affect
or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this bond at the time and place and at
the rate and in the coin or currency herein prescribed.
This bond is transferable in the manner and subject to the limitations
set forth in said Indenture on the books of the Company maintained for that
purpose at the principal office of the Trustee in the Borough of Manhattan, in
the City and State of New York, upon surrender and cancellation of this bond
accompanied by delivery of a written instrument of transfer in form approved by
the Company and the Trustee and executed by the registered owner hereof in
person, or by his attorney duly authorized, and, thereupon, a new fully
registered bond or bonds of the same series and for a like aggregate principal
amount will be issued to the transferee in exchange herefor as provided in said
Indenture, as supplemented and amended, and upon payment, if the Company shall
require, of the charges therein prescribed. The Company and the Trustee may
deem and treat the person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment and for all other purposes,
and the Company and the Trustee shall not be affected by any notice to the
contrary.
As provided in said Indenture, as supplemented and amended, this bond
is exchangeable, at the option of the holder, upon payment of the charges
therein provided, for a fully registered bond or bonds of any other authorized
denomination of the same series as this bond and of an aggregate principal
amount equal to the principal amount of this bond so surrendered for exchange.
The Company shall not be required to make an exchange of this bond for a period
of fifteen days next preceding any interest payment date hereof.
No owner or holder of this bond shall assert against any incorporator,
stockholder, officer or director, present or future, of the Company, or of any
predecessor or successor corporation, as such, any personal liability with
respect to this bond or the interest hereon, in any manner whatsoever, all such
liability being hereby expressly waived and released.
This bond shall not be valid or obligatory for any purpose unless and
until authenticated by the certificate, endorsed hereon, of the Trustee under
said Indenture, as supplemented and amended.
IN WITNESS WHEREOF, Central Hudson Gas & Electric Corporation has
caused this bond to be signed in its corporate name with the facsimile
signature of its Chairman of the Board or its President or one of its
Vice-Presidents and a facsimile of its corporate seal to be imprinted thereon
and attested by the facsimile signature of its Secretary or one of its
Assistant Secretaries.
Dated
CENTRAL HUDSON GAS &
ELECTRIC CORPORATION
By __________________________
[Chairman of the Board/
President/Vice President]
ATTEST:
___________________________
[Assistant] Secretary
-6-
<PAGE> 11
[FORM OF TRUSTEE'S CERTIFICATE]
This bond is one of the bonds of the series therein designated,
provided for in the within-mentioned Indenture, as supplemented and amended,
and the Supplemental Indenture.
THE BANK OF NEW YORK, TRUSTEE
By __________________________
Authorized Signatory
Section 1.07. Upon the execution and delivery of this Supplemental
Indenture, and without waiting for this Supplemental Indenture to be recorded,
or thereafter, the Company [from time to time] may execute and deliver to the
Trustee and the Trustee shall thereupon authenticate and deliver to the Company
(or upon its written order executed in the manner specified in Section 3.01 of
the Fourth Supplemental Indenture) the New Bonds, in temporary or definitive
form, as authorized in the Mortgage and herein, in the aggregate principal
amount [not in excess of] of $ upon compliance with the conditions and
delivery of the documents prescribed in the applicable provisions of the Fourth
Supplemental Indenture, as amended.
*****[ARTICLE I
Creation and Issue of First Mortgage Bonds
Section 1.01. The Company hereby creates a series of bonds to be
issued under the Mortgage and hereunder, which are designated "Secured
Medium-Term Notes, Series " (herein called the "New Bonds"), each of which
shall also bear the descriptive title "First Mortgage Bond", and the form
thereof, which shall be in substantially the form attached hereto as Exhibit
"A", with such completions, deletions and other changes thereto, and variations
thereof, as shall be established by or pursuant to a resolution adopted by the
board of directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified. The New Bonds
shall be issued from time to time, in one or more tranches, in an aggregate
principal amount not to exceed $ , and shall be issued as fully
registered bonds without coupons in denominations of $1,000 each, or, at the
option of the Company, in any integral multiple of $1,000 (the exercise of such
option to be evidenced by the execution and delivery thereof); each New Bond of
the same tranche shall mature on such date not less than one year nor more than
30 years from the date of issue, shall bear interest at such rate or rates,
payable semiannually on and in each year and at maturity (each
an interest payment date), and have such other terms and provisions not
inconsistent with the Mortgage as shall be established by or pursuant to a
resolution adopted by the board of directors of the Company filed with the
Trustee referring to this Supplemental Indenture; shall be payable
as to principal and interest at or from the office or agency of the Company in
the Borough of Manhattan, in the City and State of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for public and private debts. Notwithstanding the provisions of
Sections 2.05 and 2.07 of the Mortgage, the New Bonds shall be dated as of the
date of authentication and shall bear interest from the Issue Date hereinafter
specified or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, whichever is later, commencing on the Interest
Payment Date next succeeding the Issue Date.
Notwithstanding the foregoing, or any other provision of the Mortgage,
so long as there is no existing default in the payment of interest on the New
Bonds, all New Bonds authenticated by the Trustee after the Record Date
hereinafter specified for any interest payment date, and prior to such interest
payment date (unless the Issue Date hereinafter specified is after such Record
Date), shall be dated the date of authentication, but shall bear interest from
such interest payment date subject to the provisions and exceptions
__________________________________
***** These provisions will be inserted in lieu of the preceding
Article I (except that Sections 1.05, and 1.07 would be
retained and renumbered Sections 1.02 and 1.03,
respectively, in any supplemental indenture relating to
the issuance of First Mortgage Bonds which are designated
"Secured Medium-Term Notes, Series ".
-7-
<PAGE> 12
of subdivision (I) of this Section 1.01, and the person in whose name
any New Bond is registered at the close of business on any Record Date
with respect to any interest payment date shall be entitled to receive
the interest payable on such interest payment date, notwithstanding
the cancellation of such New Bond, upon any transfer or exchange
thereof subsequent to the Record Date and on or prior to such interest
payment date, subject to the provisions and exceptions of subdivision
(I) of this Section 1.01. If the Issue Date of the New Bonds of a
designated interest rate and maturity is after such Record Date and
prior to such interest payment date, such New Bonds shall bear
interest from the Issue Date, but payment of interest shall commence
on the second interest payment date succeeding the Issue Date and
shall be paid to the person in whose name such New Bond is registered
on the close of business on the Record Date immediately preceding such
second interest payment date. "Record Date" for the New Bonds shall
mean for interest payable and for interest
payable (whether or not such or is a
Business Day (as hereinafter defined)), provided that interest payable
on the maturity date will be payable to the person to whom the
principal of the New Bond shall be payable. "Issue Date" with respect
to bonds of the New Bonds of a designated interest rate and maturity
shall mean the date of first authentication of New Bonds of such
designated interest rate and maturity.
(I) Notwithstanding the foregoing, or any other provision of the
Mortgage, any interest on any New Bond which is payable but is not punctually
paid or duly provided for, on any interest payment date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
owner on the relevant Record Date solely by virtue of such owner having been
such owner; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in subsection A or B below:
A. The Company may elect to make payment of any Defaulted
Interest on the New Bonds to the persons in whose names such bonds are
registered at the close of business on a Special Record Date (as
hereinafter defined) for the payment of such Defaulted Interest, which
shall be fixed in the following manner: The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each New Bond and the date of the proposed payment (which date
shall be such as will enable the Trustee to comply with the next
sentence hereof), and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this subsection provided and not to be deemed
part of the trust estate. Thereupon the Trustee shall fix a date
(herein referred to as a "Special Record Date") for the payment of
such Defaulted Interest which date shall be not more than 15 nor less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each registered owner of a New Bond at
his address as it appears in the bond register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion
in the name and at the expense of the Company, cause a similar notice
to be published at least once in a newspaper printed in the English
language published and of general circulation in the Borough of
Manhattan, in the City and State of New York, but such publication
shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the persons in
whose names the New Bonds are registered on such Special Record Date
and shall no longer be payable pursuant to the following subsection B.
B. The Company may make payment of any Defaulted Interest on
the New Bonds in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such bonds may be
listed and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this subsection, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 1.01, each New
Bond delivered under the Mortgage upon transfer of or in exchange for or in
lieu of any other bond shall carry all the rights to interest accrued and
unpaid, and to accrue, which were carried by such other bond and each such bond
shall bear interest from such date, that neither
-8-
<PAGE> 13
gain nor loss in interest shall result from such transfer, exchange or
substitution.
(II) Each New Bond may be redeemable at the option of the Company,
pursuant to any sinking fund or other mandatory redemption provision (including
any provision for the redemption or purchase by the Company of a New Bond at
the option of the holder thereof) or pursuant to the requirements of the
Mortgage, in whole at any time, or in part from time to time, prior to
maturity, upon notice (other than in the case of redemption or purchase at the
election of the holder thereof), as provided in Article IX of the Fourth
Supplemental Indenture, mailed at least thirty (30) days prior to the date
fixed for redemption, as shall be established by or pursuant to a resolution
adopted by the board of directors of the Company filed with the Trustee
referring to this Supplemental Indenture.
The provisions of Article IX, Article X and (to the extent set forth
in this Supplemental Indenture) Article XXI of the Fourth
Supplemental Indenture with respect to the redemption of bonds shall apply to
the redemption of the New Bonds.
[Notwithstanding the foregoing, or any other provision of the
Mortgage, if at the time of publication or mailing of any notice of redemption
the Company shall not have deposited with the Trustee and/or irrevocably
directed the Trustee to apply, from money held by it available to be used for
the redemption of bonds, an amount in cash sufficient to redeem all of the New
Bonds called for redemption, including accrued interest to such date fixed for
redemption, such notice shall state that it is subject to the receipt of the
redemption moneys by the Trustee before the date fixed for redemption (unless
such redemption is mandatory) and such notice shall be of no effect unless such
moneys are so received before such date.
The Trustee, upon the request of the Company evidenced by or pursuant
to a resolution adopted by the board of directors referring to this
Supplemental Indenture delivered to the Trustee at least ten (10) days prior to
the date on which notice of redemption must first be published or mailed
(unless a shorter notice shall be accepted by the Trustee as sufficient) shall,
for and on behalf of and in the name of the Company, call for redemption New
Bonds (whether or not the Trustee shall hold at the time of such call cash
sufficient for such redemption) provided that, if cash sufficient for such
purpose is not so held and such redemption is not mandatory, the notice shall
state that it is subject to the receipt of the redemption moneys by the Trustee
before the date fixed for redemption and such notice shall be of no effect
unless such moneys are so received before such date.
In the event all or substantially all of the properties of the Company
are taken by the power of eminent domain, the mandatory redemption and other
provisions of Section 10.08 of the Mortgage shall be applicable to the
outstanding New Bonds. During the term of the New Bonds, the "then applicable"
redemption price applicable to the New Bonds for purposes of such Section 10.08
shall be 100% of the principal amount thereof, together with accrued interest
to the date fixed for redemption.
The provisions of Sections 4.02, 6.08, 6.15, 8.02, 10.05 and 10.07 of
the Mortgage, including the provisions therein for the optional or mandatory
redemption or purchase of bonds with monies deposited with the Trustee, shall
be applicable to the outstanding New Bonds. The provisions of Section 21.01 of
the Mortgage for the optional or mandatory redemption or purchase of bonds with
monies deposited with the Trustee (but no other provisions of said Section
21.01) shall be applicable to the outstanding New Bonds so long as the
provisions of said Section 21.01 shall be applicable to the bonds of any series
created prior to 1994. During the term of the New Bonds, the redemption price
applicable to a New Bond in the event of any such redemption pursuant to the
provisions of Sections 6.08, 6.15, 8.02, 10.05, 10.07 or 21.01 of the Mortgage
shall be the redemption price which at the time of such redemption is
applicable to the redemption of such New Bond at the option of the Company,
together with accrued interest to the date fixed for redemption; provided,
however, that if any such mandatory redemption is required at any time when a
New Bond is not otherwise subject to redemption at the option of the Company,
the Company shall exercise any right (which right shall be subject to any
similar right theretofore granted by the Company to a holder of a bond) it may
have under the Mortgage to specify bonds, other than such New Bond, for
selection for any such mandatory redemption prior to redeeming such New Bond;
provided, further, however, that, if, and only if, such New Bond is
nevertheless required to be so redeemed pursuant to any of the provisions of
such Sections 4.02, 6.08, 6.15, 8.02, 10.07 or 21.01, the redemption price
applicable to such New Bond for the purposes of such provision shall be
established in respect of the New Bonds of the particular tranche of which it
is a part by or pursuant to a resolution adopted by the board of directors of
the Company filed with the Trustee
-9-
<PAGE> 14
referring to this Supplemental Indenture, together with
accrued interest to the date fixed for redemption.]******
(III) At the option of the registered owner, any New Bonds, upon
surrender thereof for cancellation at the office or agency of the Company in
the Borough of Manhattan in the City and State of New York, shall be
exchangeable for a like aggregate principal amount of New Bonds of other
authorized denominations, which have the same Issue Date, maturity date,
interest rate or rates, and redemption provisions, if any.
The New Bonds shall be exchangeable or transferable, upon the
surrender thereof for cancellation, together with a written instrument of
transfer in form approved by the Company and the Trustee duly executed by the
registered owner or by his duly authorized attorney, at the office or agency of
the Company in the Borough of Manhattan in the City and State of New York.
Upon any exchange or transfer of the New Bonds, the Company may make a
charge therefor sufficient to reimburse it for any tax or taxes or other
governmental charge, as provided in Sections 2.09 and 2.10 of the Fourth
Supplemental Indenture, as amended by the Ninth Supplemental Indenture thereto,
but the Company hereby waives any right to make a charge in addition thereto
for any exchange or transfer of the New Bonds.
(IV) If, with respect to any New Bond, any interest payment date,
redemption date or date of maturity is not a Business Day, payment of amounts
due on such New Bond on such date may be made on the next succeeding Business
Day; and, if such payment is made or duly provided for on such Business Day, no
interest shall accrue on such amounts for the period from and after such
interest payment date, redemption date or date of maturity, as the case may be,
to such Business Day.]
ARTICLE II
Miscellaneous Provisions
Section 2.01. The Company covenants (a) that the Company is
lawfully seized and possessed of the property, rights, title and interests
described in the granting clauses hereof, and every part thereof, and that it
has full power and lawful authority to grant, convey and mortgage the same, and
that it will warrant and defend the lien and interests therein of the Trustee
under the Mortgage against the lawful claims of all and every person or persons
claiming or who may claim the same; (b) that said property and premises are
free from mortgage, pledge or other lien or encumbrance, other than excepted
encumbrances; and (c) that the recitals of fact and the statements contained
herein and in the bonds are true.
Section 2.02. The Original Indenture as heretofore supplemented and
amended, and as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed and shall continue in full force and
effect.
Section 2.03. The Company shall forthwith, upon the execution
hereof, cause this Supplemental Indenture to be recorded and
filed in such manner and in such places as may be provided by law in order to
preserve the lien of the Mortgage upon the trust estate and in order fully to
preserve and protect the security of the bondholders and all rights of the
Trustee, and it shall pay any mortgage recording tax and filing fees in
connection with such recording and filing.
*******[Section 2.04. The holders of New Bonds consent that the
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the holders of New Bonds entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, those persons who were
holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment, supplement or waiver
or to revoke any consent previously given, whether or not such
__________________________________
****** Here may be inserted one or more provisions which modify,
alter or otherwise affect the provisions of the Mortgage
relating to the redemption or purchase of bonds in certain
circumstances in addition to or in replacement of some or all
of the preceding four bracketed paragraphs.
******* This provision may be inserted as an additional section.
-10-
<PAGE> 15
persons continue to be holders after such record date. No such consent shall
be valid or effective for more than 90 days after such record date.]
Section 2.05. The term "Business Day" as used in this
Supplemental Indenture means any day, other than a Saturday or Sunday, which is
not a day on which banking institutions or trust companies in the State of New
York or in the city in which is located any office or agency maintained for
payment of principal of, or premium, if any, or interest on, the New Bonds are
authorized or required by law, regulation or executive order to remain closed.
Section 2.06. This Supplemental Indenture may be
simultaneously executed in any number of counterparts, and all of said
counterparts executed and delivered, each as an original, shall constitute but
one and the same instrument.
Section 2.07. If any term or provision of this
Supplemental Indenture or the application thereof to any person or
circumstance, shall, to any extent, be invalid or unenforceable, the remainder
of this Supplemental Indenture, or the application of such term
or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and each term and
provision of this Supplemental Indenture shall be valid and
be enforced to the fullest extent permitted by law.
In Witness Whereof, Central Hudson Gas & Electric Corporation, party
of the first part, has caused its corporate name to be hereunto subscribed by
its Chairman of the Board and Chief Executive Officer or President and Chief
Operating Officer or a Vice President, and its corporate seal to be affixed,
attested by its Secretary or an Assistant Secretary; and in testimony of its
acceptance of the trusts created and conferred, The Bank of New York, party of
the second part, has caused its corporate name to be hereunto subscribed by its
President, a Vice President, or an Assistant Vice President, and its corporate
seal to be affixed, attested by an Assistant Vice President, an Assistant
Secretary or an Assistant Treasurer, as of the day and year first above
written.
Central Hudson Gas & Electric
Corporation
By _________________
[Title]
Attest:
___________________
[Title]
[CORPORATE SEAL]
The Bank of New York, as Trustee
By __________________
[Title]
Attest:
___________________
[Title]
[CORPORATE SEAL]
-11-
<PAGE> 16
State of New York
County of Dutchess ss.:
On the day of , before me personally came
, to me known, who, being by me duly sworn, did depose and say that he resides
at ; that he is the of
Central Hudson Gas & Electric Corporation, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation,
and that he signed his name thereto by like order.
[Notarial Seal] ________________________________
Notary Public, State of New York
State of New York
County of New York ss.:
On the day of , before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he resides at
; that he is a of The Bank of New York,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that he signed his name thereto
by like order.
[Notarial Seal] ________________________________
Notary Public, State of New York
-12-
<PAGE> 17
*[EXHIBIT "A"
to the Supplemental Indenture, dated as of
, by and between Central Hudson Gas & Electric Corporation and The Bank of New
York (formerly Irving Trust Company), as Trustee
FORM OF FIRST MORTGAGE BOND, DESIGNATED
SECURED MEDIUM-TERM NOTE, SERIES
[See legend at the end of this Bond for restrictions on
transferability and change of form]
[FACE OF BOND]
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
SECURED MEDIUM-TERM NOTE, SERIES
BEING A SERIES OF
FIRST MORTGAGE BONDS
Original Issue Date: Redeemable: Yes__ No__
Interest Rate: Initial Redemption Date:
Stated Maturity Date: Redemption Limitation Date:
Issue Price (%): Initial Redemption Price:
[Additional Redemption Prices, Reduction Percentage:
if any:]
- ---------------
Initial Special Mandatory Redemption Price (applicable from on and after
Original Issue Date to Initial Redemption Date (if other than Original Issue
Date)):
Special Mandatory Redemption Reduction Percentage:
____________________________________
No. _____
Principal Amount
$_______________
CUSIP
__________
* This Exhibit will be inserted in any supplemental indenture relating to the
issuance of First Mortgage Bonds which are designated "Secured Medium-Term
Notes, Series ".
-1-
<PAGE> 18
CENTRAL HUDSON GAS & ELECTRIC CORPORATION, a corporation duly
organized and existing under the laws of the State of New York (herein called
the "Company", which term includes any successor corporation under the Mortgage
[hereinafter referred to] [referred to on the reverse hereof]), for value
received, hereby promises to pay
to............................................, or registered assigns, the
principal sum of ............................... Dollars on the Stated Maturity
Date specified above, and to pay the registered owner hereof interest thereon
at the Interest Rate per annum specified above, semi-annually in arrears on
_________ and _________ in each year and at the Stated Maturity Date (each an
"Interest Payment Date"), commencing with the Interest Payment Date next
succeeding the Original Issue Date specified above, from the Original Issue
Date specified above or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, whichever is later, until the
principal hereof is paid or duly provided for. The interest so payable, and
paid or duly provided for, on any Interest Payment Date shall, as provided in
such Mortgage, be paid to the person in whose name this bond (or one or more
predecessor bonds) is registered at the close of business (whether or not a
Business Day (as hereinafter defined)) on the ______ or ______ (each a "Regular
Record Date"), as the case may be, next preceding such Interest Payment Date.
Notwithstanding the foregoing, (a) if the date of this bond (unless the date of
this bond is the same date as the Original Issue Date) is after a Regular
Record Date and before the corresponding Interest Payment Date, this bond shall
bear interest from such Interest Payment Date, and the person in whose name
this bond is registered at the close of business on any Regular Record Date
with respect to any Interest Payment Date shall be entitled to receive the
interest payable on such Interest Payment Date, notwithstanding the
cancellation of this bond, upon any transfer or exchange hereof subsequent to
such Regular Record Date and on or prior to such Interest Payment Date; (b) if
the Original Issue Date of this bond is after a Regular Record Date and before
the corresponding Interest Payment Date, this bond shall bear interest from the
Original Issue Date, but payment of interest shall commence on the second
Interest Payment Date succeeding the Original Issue Date and shall be paid to
the registered owner hereof on the Regular Record Date immediately preceding
such second Interest Payment Date; and (c) interest payable at maturity shall
be paid to the person to whom principal shall be paid. Except as otherwise
provided in the Mortgage, any such interest not so paid or duly provided for
("Defaulted Interest") shall forthwith cease to be payable to the holder hereof
on such Regular Record Date and may either be paid to the person in whose name
this bond (or one or more predecessor bonds) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to registered owners
-2-
<PAGE> 19
of bonds of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the bonds of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Mortgage.
Payment of the principal of and premium, if any, on this bond and
interest hereon at maturity shall be made upon presentation hereof at or from
the office or agency of the Company, in the Borough of Manhattan, in the City
and State of New York or at such other office or agency as may be designated
for such purpose by the Company from time to time. Payment of interest, if
any, on this bond (other than interest at maturity) shall, at the option of the
Company, be made by check mailed on or prior to the relevant Interest Payment
Date to the address of the person entitled thereto as such address shall appear
on the register of the Company or by wire transfer to an account maintained by
such person with a bank in the United States (so long as the Trustee has
received proper wire transfer instructions in writing by the Regular Record
Date next preceding such Interest Payment Date, which instructions shall
remain in full force until changed prior to a Record Date). Payment of the
principal of and premium, if any, and interest, if any, on this bond, as
aforesaid, shall be made in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
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<PAGE> 20
[REVERSE OF BOND
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
SECURED MEDIUM-TERM NOTE, SERIES
BEING A SERIES OF FIRST MORTGAGE BONDS
(Continued)]
This bond is one of a duly authorized issue of registered bonds
without coupons of the Company issuable in series and is one of a series known
as the First Mortgage Bonds designated Secured Medium-Term Notes, Series , all
bonds of all series issued and to be issued under and equally and ratably
secured (except insofar as a sinking fund established in accordance with the
provisions of the Indenture of Mortgage, dated as of January 1, 1927,
hereinafter referred to, as supplemented and amended, may afford additional
security for the bonds of any particular series) by a certain Indenture of
Mortgage, dated as of January 1, 1927, duly made, executed and delivered by the
Company to American Exchange Irving Trust Company (now called The Bank of New
York), as Trustee, as supplemented and amended, to which Mortgage and
indentures supplemental thereto reference is hereby made for a description of
the property mortgaged, the nature and extent of the security, the rights of
the holders of the bonds and of the Trustee in respect thereof, the duties and
immunities of the Trustee, and the terms and conditions upon which the bonds
are secured. Said bonds are issuable in series, which bonds of different
series may mature at different times, may bear interest at different rates, may
be redeemable at different times and rates, and may otherwise vary as provided
in said Mortgage and indentures supplemental thereto. Bonds of the series of
which this is one are created by a Supplemental Indenture, dated
as of ________________, by the Company to The Bank of New York, as Trustee.
The bonds of this series are in the denomination of $1,000, or any multiple of
$1,000, each.
If any Interest Payment Date, any Redemption Date or the Stated
Maturity Date shall not be a Business Day (as hereinafter defined), payment of
the amounts due on this bond on such date may be made on the next succeeding
Business Day; and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on such amounts for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity Date, as
the case may be, to such Business Day.
If, as specified on the face hereof, this bond is redeemable, this
bond is subject to redemption on or after the Initial Redemption Date specified
on the face hereof, as a whole, at any time, or in part, from time to time, at
the election of the Company, at the applicable redemption price (as described
below) plus accrued interest to the date fixed for redemption.
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<PAGE> 21
Unless otherwise specified [under Additional Redemption Prices, if any,] on the
face hereof, such applicable redemption price shall be the Initial Redemption
Price specified on the face hereof for the twelve-month period commencing on
the Initial Redemption Date and shall decline for the twelve-month period
commencing on each anniversary of the Initial Redemption Date by a percentage
of principal amount equal to the Reduction Percentage specified on the face
hereof until such redemption price is 100% of the principal amount of this bond
to be redeemed and, at all times thereafter, such redemption price shall be
100% of such principal amount.
[Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified on the face hereof, redeem this
Security as contemplated above as a part of, or in anticipation of, any
refunding operation (other than pursuant to any sinking fund or other mandatory
redemption, or redemption at the option of the holder hereof) by the
application, directly or indirectly, of monies borrowed having an effective
interest cost to the Company (calculated in accordance with generally accepted
financial practice) less than the effective interest cost to the Company
(similarly calculated) of this bond.]
[Provisions for redemption or purchase pursuant to a sinking fund or
other mandatory redemption provisions or at the option of the holder to be
inserted here.]
The provisions of Article IX, Article X and (to the extent set forth
in the Supplemental Indenture) Article XXI of the Mortgage to
which reference is hereby made, with respect to the redemption of bonds shall
apply to the redemption of bonds of this series.
[On and after the Initial Redemption Date and during the remaining
term of this bond, the redemption price applicable to this bond in the event of
any redemption pursuant to the provisions of Sections 6.08, 6.15, 8.02, 10.05,
10.07 or 21.01 of the Mortgage with monies on deposit with the Trustee shall be
the redemption price then applicable to a redemption of this bond at the
election of the Company, as hereinabove described, plus accrued interest to the
date fixed for redemption. If, and only if, at any time on and after the
Original Issue Date and prior to the Initial Redemption Date this bond is
required to be redeemed under the circumstances described in the last paragraph
of subdivision (II) of Section ___1.01 of said Supplemental
Indenture with monies on deposit with the Trustee under any of the aforesaid
provisions of the Mortgage, unless otherwise specified [under Additional
Redemption Prices, if any,] on the face hereof, this bond shall be subject to
redemption, as a whole at any time or in part from time to time, at the
applicable redemption price (as described below) plus accrued
-5-
<PAGE> 22
interest to the date fixed for redemption. Such applicable redemption price
shall be the Initial Special Mandatory Redemption Price specified on the face
hereof for the twelve-month period commencing on the Original Issue Date and
shall decline for the twelve- month period commencing on each anniversary of
the Original Issue Date and ending on the Initial Redemption Date by a
percentage of principal amount equal to the Special Mandatory Redemption
Reduction Percentage specified on the face hereof.
During the term of this bond, the "then applicable" redemption price,
for purposes of application of Section 10.08 of the Mortgage to the bonds of
this series, shall be 100% of the principal amount thereof, plus accrued
interest to the date fixed for redemption.
Provisions applicable to any redemption of bonds of this series are
more fully set forth in said Supplemental Indenture and Article IX
of the Mortgage to which reference is hereby made.
Notice of redemption [(other than at the election of the registered
owner hereof)] shall be given by mail to the registered owners of bonds, not
less than 30 days prior to the date fixed for redemption, all as provided in
Article IX of the Fourth Supplemental Indenture. As provided in the
Supplemental Indenture, notice of redemption at the election of the Company
as aforesaid shall state that such redemption shall be subject to and
conditional upon the receipt by the Trustee of an amount of cash sufficient to
redeem this bond, including accrued interest to the date fixed for redemption,
before the date fixed for such redemption; a notice of redemption so
conditioned shall be of no force or effect if such money is not so received
and, in such event, the Company shall not be required to redeem this bond.]**
In the event of redemption of this bond in part only, a new bond or
bonds of this series, of like tenor, for the unredeemed portion hereof will be
issued in the name of the registered owner hereof upon the cancellation hereof.
In case default be made in the payment of any interest on any of said
bonds or in respect of any other condition, covenant or agreement provided
therein or in said Mortgage, as
__________________________________
** Here may be inserted one or more provisions which modify, alter or
otherwise affect the provisions of the Mortgage relating to the
redemption or purchase of bonds in certain circumstances in addition
to or in replacement of some or all of the preceding four bracketed
paragraphs.
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<PAGE> 23
supplemented and amended, the principal of all of said bonds may become due and
payable as provided in said Mortgage, as supplemented and amended.
The Mortgage, as supplemented and amended, contains provisions
permitting the Company and the Trustee, with the consent of the holders of not
less than 75% in aggregate principal amount of the bonds at the time
outstanding which would be affected by the action proposed to be taken, and
which shall be determined and evidenced as provided therein, or, in case the
rights under the Mortgage, as supplemented and amended, of the holders of only
one series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in principal amount of the outstanding bonds of
such series affected, except that if any such action would affect the bonds of
two or more series, then with the consent of the holders of not less than 75%
in aggregate principal amount of outstanding bonds of such two or more series,
which need not include 75% in principal amount of outstanding bonds of each
such series, determined and evidenced as provided in the Fifth Supplemental
Indenture, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Mortgage,
as supplemented and amended, or modifying in any manner the rights of the
holders of the bonds and coupons thereunto appertaining; provided, however,
that the bondholders shall have no power to consent to: (i) an extension of
the fixed maturity of any bonds, or a reduction of the rate or extension of the
time for payment of interest thereon, or a reduction of the principal amount
thereof, or a reduction of the amount payable upon redemption thereof, or,
except as otherwise provided in said Fifth Supplemental Indenture, a limitation
of the right of a bondholder to institute suit for the enforcement of payment
of principal or interest in accordance with the terms of said bonds, without
the consent of the holder of each bond which would be so affected, or (ii) a
reduction of the aforesaid percentage of bonds, the holders of which are
required to consent to any supplemental indenture without the consent of the
holders of all bonds outstanding, or (iii) a deprivation of any non-assenting
bondholder of a lien upon the property subject to the Mortgage, as supplemented
and amended, for the security of his bonds (subject only to the lien of taxes,
assessments or governmental charges not then delinquent and to any mortgage or
other liens existing upon such property which are prior thereto at the date of
the calling of a bondholders' meeting called to consider such consent), or (iv)
the creation by the Company of any mortgage or pledge or lien in the nature
thereof, ranking prior to or equal with the lien of the Mortgage, as
supplemented and amended, on any of the mortgaged property, without the consent
of the holders of all bonds outstanding; nor may any supplemental indenture (a)
authorize the holders of less than a majority in principal amount of all the
bonds at the time outstanding (i) to direct the time, method and place of
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<PAGE> 24
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred upon the Trustee, under the Mortgage, as
supplemented and amended, or (ii) on behalf of the holders of all the bonds to
consent to the waiver of any past default and its consequences; or (b)
authorize (i) the holders of less than 75% in principal amount of all the bonds
at the time outstanding to consent to the postponement of any interest payment,
or (ii) the postponement of any interest payment for a period exceeding three
years from its due date. Any such consent by the holder of this bond (unless
effectively revoked as provided in said Fifth Supplemental Indenture) shall be
conclusive and binding upon such holder and upon all future holders of this
bond, irrespective of whether or not any notation of such waiver or consent is
made upon this bond. No reference herein to the Mortgage, and indentures
supplemental thereto, and no provisions of this bond or of the Mortgage, or
indentures supplemental thereto, shall affect or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this bond at the time and place and at the rate and in the coin or
currency herein prescribed.
This bond is transferable in the manner and subject to the limitations
set forth in said Mortgage on the books of the Company maintained for that
purpose at the principal office of the Trustee in the Borough of Manhattan, in
the City and State of New York, upon surrender and cancellation of this bond
accompanied by delivery of a written instrument of transfer in form approved by
the Company and the Trustee and executed by the registered owner hereof in
person, or by his attorney duly authorized, and, thereupon, a new fully
registered bond or bonds of the same series and for a like aggregate principal
amount will be issued to the transferee in exchange therefore as provided in
said Mortgage, as supplemented and amended, and upon payment, if the Company
shall require, of the charges therein prescribed. The Company and the Trustee
may deem and treat the person in whose name this bond is registered as the
absolute owner hereof for the purpose of receiving payment and for all other
purposes, and the Company and the Trustee shall not be affected by any notice
to the contrary.
As provided in said Mortgage, as supplemented and amended, this bond
is exchangeable, at the option of the holder, upon payment of the charges
therein provided, for a fully registered bond or bonds of any other authorized
denomination of the same series as this bond and of an aggregate principal
amount equal to the principal amount of this bond so surrendered for exchange.
The Company shall not be required to make an exchange of this bond for a period
of fifteen days next preceding any interest payment date hereof.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking
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<PAGE> 25
institutions or trust companies in the State of New York or the city in which
is located any office or agency maintained for the payment of principal of or
premium, if any, or interest on this bond, are authorized or required by law,
regulation or executive order to remain closed.
No owner or holder of this bond shall assert against any incorporator,
stockholder, officer or director, present or future, of the Company, or of any
predecessor or successor corporation, as such, any personal liability with
respect to this bond or the interest hereon, in any manner whatsoever, all such
liability being hereby expressly waived and released.
This bond shall not be valid or obligatory for any purpose unless and
until authenticated by the certificate, endorsed hereon, of the Trustee under
said Mortgage, as supplemented and amended.
IN WITNESS WHEREOF, Central Hudson Gas & Electric Corporation has
caused this bond to be signed in its corporate name with the facsimile
signature of its Chairman of the Board or its President or one of its
Vice-Presidents and a facsimile of its corporate seal to be imprinted thereon
and attested by the facsimile signature of its Secretary or one of its
Assistant Secretaries.
Dated:______________________
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
By ___________________________
[Chairman of the Board/
President/Vice President]
ATTEST:
By __________________________
[Assistant] Secretary
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<PAGE> 26
[FORM OF TRUSTEE'S CERTIFICATE]
This bond is one of the bonds of the series therein designated,
provided for in the within-mentioned Mortgage, as supplemented and amended, and
the Supplemental Indenture.
THE BANK OF NEW YORK, Trustee
By ___________________________
Authorized Signatory
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY OR ITS SUCCESSOR (THE "DEPOSITARY") TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE TO BE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY
AMOUNT PAYABLE THEREUNDER IS MADE PAYABLE TO CEDE & CO. OR SUCH OTHER NAME, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS BOND IS EXCHANGED IN WHOLE OR IN PART FOR
CERTIFICATED BONDS REGISTERED IN THE NAMES OF THE VARIOUS BENEFICIAL HOLDERS
HEREOF AS THEN CERTIFIED TO THE COMPANY BY THE DEPOSITARY OR A SUCCESSOR
DEPOSITARY, THIS BOND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
THIS BOND MAY BE EXCHANGED FOR CERTIFICATED BONDS REGISTERED IN THE
NAMES OF THE VARIOUS BENEFICIAL OWNERS HEREOF ONLY IF (A) THE DEPOSITARY IS AT
ANY TIME UNWILLING OR UNABLE TO CONTINUE AS DEPOSITARY AND A SUCCESSOR
DEPOSITARY IS NOT APPOINTED BY THE COMPANY WITHIN 90 DAYS, OR (B) THE COMPANY
ELECTS TO ISSUE CERTIFICATED BONDS TO BENEFICIAL OWNERS (AS CERTIFIED TO THE
COMPANY BY THE DEPOSITARY OR A SUCCESSOR DEPOSITARY).]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________________________
[please insert social
security or other
identifying number of
assignee]
-10-
<PAGE> 27
____________________________________________________________________________
[please print or typewrite name and address of assignee]
_________________________________________________________________
the within bond of CENTRAL HUDSON GAS & ELECTRIC CORPORATION and does hereby
irrevocably constitute and appoint ______________________________________,
Attorney, to transfer said bond on the books of the within-mentioned Company,
with full power of substitution in the premises.
Dated: _________________
_________________________________
Notice: The signature to this
assignment must correspond with
the name as written upon the face
of the bond in ever particular
without alteration or enlargement
or any change whatsoever.]
-11-
<PAGE> 1
EXHIBIT 4(I)(36)
WSPR
DRAFT
11/3/94
[FORM OF UNSECURED FLOATING RATE NOTE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE TO BE ISSUED IS REGISTERED IN THE NAME OF CEDE CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY
AMOUNT PAYABLE THEREUNDER IS MADE PAYABLE TO CEDE & CO. OR SUCH OTHER NAME, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN
PART FOR CERTIFICATED SECURITIES REGISTERED IN THE NAMES OF THE VARIOUS
BENEFICIAL HOLDERS HEREOF AS THEN CERTIFIED TO THE COMPANY BY THE DEPOSITARY OR
A SUCCESSOR DEPOSITARY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
THIS SECURITY MAY BE EXCHANGED FOR CERTIFICATED SECURITIES
REGISTERED IN THE NAMES OF THE VARIOUS BENEFICIAL OWNERS HEREOF ONLY IF (A) THE
DEPOSITARY IS AT ANY TIME UNWILLING OR UNABLE TO CONTINUE AS DEPOSITARY AND A
SUCCESSOR DEPOSITARY IS NOT APPOINTED BY THE COMPANY WITHIN 90 DAYS, OR (B) THE
COMPANY ELECTS TO ISSUE CERTIFICATED SECURITIES TO BENEFICIAL OWNERS (AS
CERTIFIED TO THE COMPANY BY THE DEPOSITARY OR A SUCCESSOR DEPOSITARY) OF ALL
SECURITIES OF THE SERIES DESIGNATED BELOW.]
<PAGE> 2
[FACE OF NOTE]
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
MEDIUM-TERM NOTE, SERIES B
Original Issue Date: Interest Reset Period:
Stated Maturity Date: Interest Reset Dates:
Issue Price (%): Rate Determination Dates:
Initial Interest Rate: Index Maturity:
Base Rate: Spread: [+]
___Commercial Paper Rate Spread Multiplier:
___LIBOR
___Treasury Rate Redeemable: Yes__ No__
Maximum Interest Rate: Initial Redemption Date:
Minimum Interest Rate: Redemption Limitation Date:
Interest Payment Period: Initial Redemption Price:
Interest Payment Dates: Reduction Percentage:
-----------------------------------
No. _____ Principal Amount
$_______________
CUSIP
CENTRAL HUDSON GAS & ELECTRIC CORPORATION, a corporation duly
organized and existing under the laws of the State of New York (herein called
the "Company", which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to
, or registered assigns, the principal sum of
Dollars on the Stated Maturity Date
specified above, and to pay interest thereon from the Original Issue Date
specified above or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, quarterly, semi-annually or annually, as
specified above for the Interest Payment Period, in arrears on the Interest
Payment Dates specified above in each year, commencing with the Interest
Payment Date next succeeding the
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<PAGE> 3
Original Issue Date specified above, and at Maturity, until the principal
hereof is paid or duly provided for. Except as otherwise provided herein,
the rate of interest to be so paid shall be the Initial Interest Rate specified
above until the first Interest Reset Date specified above following the
Original Issue Date and thereafter at a rate determined, in accordance with
the provisions on the reverse hereof, by reference to the Base Rate specified
above plus or minus the Spread, if any, specified above or multiplied by the
Spread Multiplier, if any, specified above. The interest so payable, and
paid or duly provided for, on any Interest Payment Date shall, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which is the date 15 calendar days
next preceding such Interest Payment Date (whether or not a Business Day (as
hereinafter defined)). Notwithstanding the foregoing, (a) if the Original
Issue Date of this Security is after a Regular Record Date and before the
corresponding Interest Payment Date, interest so payable for the period from
and including the Original Issue Date to but excluding such Interest Payment
Date shall be paid on the next succeeding Interest Payment Date to the Holder
hereof on the related Regular Record Date; and (b) interest payable at
Maturity shall be paid to the Person to whom principal shall be paid.
Except as otherwise provided in the Indenture, any such interest not so paid
or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of and premium, if any, on this
Security and interest hereon at Maturity [, if any,] shall be made upon
presentation hereof at the office of First Trust of New York, National
Association, in New York, New York or at such other office or agency as may be
designated for such purpose by the Company from time to time. Payment of
interest on this Security (other than interest at Maturity) shall, at the
option of the Company, be made by check mailed on or prior to such Interest
Payment Date to the address of the Person entitled thereto as such address
shall appear in the Security Register or by wire transfer to an account
maintained by such Person with a bank in the United States (so long as the
Trustee has received proper wire transfer instructions in writing by the Record
Date next preceding such Interest Payment Date, which instructions shall remain
in full force until changed prior to a Record Date). Payment of the principal
of and premium, if any, and interest on
-3-
<PAGE> 4
this Security, as aforesaid, shall be made in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
the payment of public and private debts.
-4-
<PAGE> 5
[REVERSE OF NOTE]
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
MEDIUM TERM NOTE, SERIES B
(Continued)
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and issuable in one or
more series under an Indenture, dated as of April 1, 1992 (such Indenture as
originally executed and delivered and as hereafter supplemented or amended,
together with any constituent instruments establishing the terms of particular
Securities, being herein called the "Indenture"), between the Company and First
Trust of New York, National Association (as successor trustee to Morgan
Guaranty Trust Company of New York), as trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The acceptance of this Security shall be deemed
to constitute the consent and agreement of the Holder hereof to all of the
terms and provisions of the Indenture. This Security is one of the series
designated on the face hereof.
Interest payments on this Security shall be the amount of
interest accrued from and including the last date to which interest has been
paid or duly provided for, or if no interest has been paid, from and including
the Original Issue Date, to but excluding the next succeeding Interest Payment
Date; provided, however, that if the interest rate on this Security is reset
daily or weekly as specified on the face hereof for the Interest Reset Period,
interest payments shall be the amount of interest accrued from and including
the last date to which interest has been paid or duly provided for, or if no
interest has been paid, from the Original Issue Date, to but excluding the
Regular Record Date next preceding such Interest Payment Date, except that at
Maturity the interest payable shall include interest accrued to but excluding
the date of Maturity.
Accrued interest on this Security shall be calculated by
multiplying the principal amount of this Note by an accrued interest factor.
Such accrued interest factor shall be computed by adding the interest factors
calculated for each day in the Interest Payment Period for which accrued
interest is being calculated. The interest factor (expressed as a decimal
-1-
<PAGE> 6
calculated to seven decimal places without rounding) for each such day shall be
computed by dividing the interest rate applicable to such day by 360 if the
Base Rate is the Commercial Paper Rate or LIBOR, as indicated on the face
hereof, or by the actual number of days in the year if the Base Rate is the
Treasury Rate, as indicated on the face hereof. For purposes of making the
foregoing calculation, the interest rate in effect on any Interest Reset Date
shall be the applicable rate as reset on such date. Unless otherwise specified
on the face hereof, all percentages resulting from any calculation of the rate
of interest hereon shall be rounded upwards, if necessary, to the nearest
1/100,000 of 1% (.0000001), with five one-millionths of a percentage point
rounded upward, and all dollar amounts used in or resulting from such
calculation shall be rounded to the nearest one-hundredth cent (with .005 of a
cent being rounded upward).
Except as otherwise provided herein, commencing with the first
Interest Reset Date specified on the face hereof following the Original Issue
Date and thereafter upon each succeeding Interest Reset Date specified on the
face hereof, the rate at which interest on this Security is payable shall be
reset daily, weekly, monthly, quarterly, semi-annually or annually as specified
on the face hereof for the Interest Reset period. Unless otherwise specified
on the face hereof, the Interest Reset Dates shall be, if the interest rate on
this Security resets daily, each Business Day; if the interest rate on this
Security (unless the Base Rate is the Treasury Rate) resets weekly, Wednesday
of each week; if the Base Rate specified on the face hereof is the Treasury
Rate and resets weekly, Tuesday of each week (except as provided below under
"Determination of the Treasury Rate"); if the interest rate on this Security
resets monthly, the third Wednesday of each month; if the interest rate on this
Security resets quarterly, the third Wednesday of March, June, September and
December of each year; if the interest rate on this Security resets
semiannually, the third Wednesday of the two months of each year specified on
the face hereof; and if the interest rate on this Security resets annually, the
third Wednesday of the month of each year specified on the face hereof;
provided, however, that the interest rate in effect for the ten days
immediately prior to Maturity will be that in effect on the tenth day preceding
Maturity. If an Interest Reset Date for this Security would otherwise be a day
that is not a Business Day (as hereinafter defined), such Interest Reset Date
shall be postponed to the next succeeding Business Day, except that, if the
Base Rate specified on the face hereof is LIBOR and such next succeeding
Business Day is in the next succeeding calendar month, such Interest Reset Date
shall be the immediately preceding Business Day.
Anything herein to the contrary notwithstanding, the interest
rate hereon shall not be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any, specified on the face hereof. In
addition, the interest
-2-
<PAGE> 7
rate hereon shall in no event be higher than the maximum rate permitted by the
law of the State of New York as in effect from time to time as the same may be
modified by United States law of general application.
Unless otherwise specified on the face hereof, interest will
be payable, if the interest rate on this Security resets daily, weekly or
monthly, on the third Wednesday of each month or on the third Wednesday of
March, June, September and December of each year, as specified on the face
hereof; if the interest rate on this Security resets quarterly, on the third
Wednesday of March, June, September and December of each year; if the interest
rate on this Security resets semiannually, on the third Wednesday of the two
months of each year specified on the face hereof; and if the interest rate on
this Security resets annually, on the third Wednesday of the month of each year
specified on the face hereof (each such day being an "Interest Payment Date").
If any Interest Payment Date, any Redemption Date or the
Stated Maturity Date shall not be a Business Day (as hereinafter defined),
payment of the amounts due on this Security on such date may be made on the
next succeeding Business Day, except that, if the Base Rate specified on the
face hereof is LIBOR and such next succeeding Business Day is in the next
succeeding calendar month, such payment shall be made on the next preceding
Business Day; and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on such amounts for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity Date, as
the case may be, to such Business Day.
The Company will appoint, and enter into an agreement with, an
agent (the "Calculation Agent") to calculate the interest rates on floating
rate Securities (including this Security). Unless otherwise specified on the
face hereof, ____________________________ shall be the Calculation Agent. All
determinations of interest rates by the Calculation Agent shall, in the absence
of manifest error, be conclusive for all purposes and binding on the Holder
hereof.
Subject to applicable provisions of law and except as
specified herein, on each Interest Reset Date the rate of interest shall be the
rate determined in accordance with the provisions of the applicable heading
below.
DETERMINATION OF COMMERCIAL PAPER RATE.
If the Base Rate specified on the face hereof is the
Commercial Paper Rate, this Security shall bear interest for each Interest
Reset Period at an interest rate calculated with reference to the Commercial
Paper Rate, determined as set forth below, and the Spread or Spread Multiplier,
if any, specified on the face hereof.
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<PAGE> 8
The Commercial Paper Rate for each Interest Reset Period shall
be determined by the Calculation Agent on the Calculation Date (as defined
below) and shall be (a) the Money Market Yield (as defined below) as of the
second Business Day prior to the related Interest Reset Date (a "Commercial
Paper Rate Determination Date") of the rate for commercial paper having the
Index Maturity specified on the face hereof as such rate shall be published in
H.15(519) (as hereinafter defined) under the heading "Commercial Paper", or if
such rate is not so published prior to 9:00 a.m., New York City time, on the
Calculation Date, the Money Market Yield as of such Commercial Paper Rate
Determination Date of the rate for commercial paper having the Index Maturity
specified on the face hereof as published in Composite Quotations (as
hereinafter defined) under the heading "Commercial Paper" or (b) if neither of
such rates is published by 9:00 a.m., New York City time, on the Calculation
Date, the Money Market Yield of the arithmetic mean of the offered rates, as of
11:00 a.m., New York City time, on such Commercial Paper Rate Determination
Date, of three leading dealers in commercial paper in The City of New York
selected by the Calculation Agent, in its discretion, for commercial paper
having the Index Maturity specified on the face hereof placed for an industrial
issuer whose bond rating is "AA", or the equivalent, from a nationally
recognized rating agency; provided, however, that if the dealers selected as
aforesaid are not quoting offered rates as described in this sentence, the
Commercial Paper Rate for such Interest Reset Period shall be deemed to be the
same as the Commercial Paper Rate for the preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in accordance
with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
The "Calculation Date" pertaining to any Commercial Paper Rate
Determination Date shall be the tenth calendar day after such Commercial Paper
Rate Determination Date or, if such day is not a Business Day, the next
succeeding Business Day.
DETERMINATION OF LIBOR.
If the Base Rate specified on the face hereof is LIBOR, this
Security shall bear interest for each Interest Reset Period at an interest rate
calculated with reference to LIBOR and the Spread Multiplier, if any, specified
on the face hereof. "LIBOR"
-4-
<PAGE> 9
for each Interest Reset Period shall be determined by the Calculation Agent for
such LIBOR Note as follows:
(i) On the second London Banking Day (as hereinafter
defined) prior to the Interest Reset Date for such Interest Reset
Period (a "LIBOR Determination Date"), the Calculation Agent shall
determine the arithmetic mean of the offered rates for deposits in
U.S. dollars for the period of the Index Maturity specified on the
face hereof, commencing on such Interest Reset Date, which appear on
the Reuters Screen LIBO Page at approximately 11:00 a.m., London time,
on such LIBOR Determination Date. "Reuters Screen LIBO Page" means
the display designated as page "LIBO" on the Reuters Monitor Money
Rates Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London interbank offered rates
of major banks). If at least two such offered rates appear on the
Reuters Screen LIBO Page, "LIBOR" for such Interest Reset Period will
be the arithmetic mean of all such offered rates as determined by the
Calculation Agent.
(ii) If fewer than two offered rates appear on the Reuters
Screen LIBO Page on such LIBOR Determination Date, the Calculation
Agent shall request the principal London office of each of four major
banks in the London interbank market selected by the Calculation
Agent, in its discretion, to provide the Calculation Agent with its
offered quotations for deposits in U.S. dollars for the period of the
Index Maturity specified on the face hereof, commencing on such
Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 a.m., London time, on such LIBOR Determination
Date and in a principal amount equal to an amount not less than
$1,000,000 that is representative of a single transaction in such
market at such time. If at least two such quotations are provided,
"LIBOR" for such Interest Reset Period will be the arithmetic mean of
such quotations. If fewer than two such quotations are provided,
"LIBOR" for such Interest Reset Period will be the arithmetic mean of
rates quoted by three major banks in The City of New York selected by
the Calculation Agent, in its discretion, at approximately 11:00 a.m.,
New York City time, on such LIBOR Determination Date for loans in U.S.
dollars to leading European banks, for the period of the Index
Maturity specified on the face hereof, commencing on such Interest
Reset Date, and in a principal amount equal to an amount not less than
$1,000,000 that is representative of a single transaction in such
market at such time; provided, however, that if fewer than three banks
selected as aforesaid by the Calculation Agent are quoting rates as
described in this sentence, "LIBOR" for such Interest Reset Period
shall be deemed to be the same as LIBOR for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period,
the Initial Interest Rate).
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<PAGE> 10
DETERMINATION OF TREASURY RATE.
If the Base Rate specified on the face hereof is the Treasury
Rate, this Note shall bear interest for each Interest Reset Period at an
interest rate calculated with reference to the Treasury Rate and the Spread or
Spread Multiplier, if any, specified on the face hereof.
The "Treasury Rate" for each Interest Reset Period shall be
determined by the Calculation Agent on the Calculation Date (as defined below)
and shall be the rate for the auction held on the Treasury Rate Determination
Date (as defined below) for such Interest Reset Period of direct obligations of
the United States ("Treasury bills") having the Index Maturity specified on the
face hereof, as such rate shall be published in H.15(519) under the heading
"U.S. Government Securities - Treasury bills - auction average (investment)"
or, in the event that such rate is not published prior to 9:00 a.m., New York
City time, on the Calculation Date, the auction average rate (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) on such Treasury Rate Determination Date as otherwise
announced by the United States Department of Treasury. In the event that the
results of the auction of Treasury bills having the Index Maturity specified on
the face hereof are not published or reported as provided above by 9:00 am.,
New York City time, on such Calculation Date, or if no such auction is held on
such Treasury Rate Determination Date, then the "Treasury Rate" for such
Interest Reset Period shall be calculated by the Calculation Agent and shall be
a yield to maturity (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 p.m., New York
City time, on such Treasury Rate Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent
for the issue of Treasury bills with a remaining maturity closest to the Index
Maturity specified on the face hereof; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting bid rates as
described in this sentence, then the "Treasury Rate" for such Interest Reset
Period shall be deemed to be the same as the Treasury Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the Initial Interest Rate).
The "Treasury Rate Determination Date" for each Interest Reset
Period shall be the day of the week in which the Interest Reset Date for such
Interest Reset Period falls on a day on which Treasury bills would normally be
auctioned. As of the date of this Security, Treasury bills are normally sold
at auction on Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday, except that such
auction may be held on the
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<PAGE> 11
preceding Friday. If, as the result of a legal holiday, an auction is so held
on the preceding Friday, such Friday will be the Treasury Rate Determination
Date pertaining to the Interest Reset Period commencing in the next succeeding
week. If an auction date shall fall on any day that would otherwise be an
Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date
shall instead be the Business Day immediately following such auction date.
The "Calculation Date" pertaining to any Treasury
Rate Determination Date shall be the tenth calendar day after such Treasury
Rate Determination Date or, if such day is not a Business Day, the next
succeeding Business Day.
If, as specified on the face hereof, this Security is
redeemable, this Security is subject to redemption at any time on or after the
Initial Redemption Date specified on the face hereof, as a whole or in part, at
the election of the Company, at the applicable redemption price (as described
below) plus accrued interest to the date fixed for redemption. Such redemption
price shall be the Initial Redemption Price specified on the face hereof for
the twelve-month period commencing on the Initial Redemption Date and shall
decline for the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal to the
Reduction Percentage specified on the face hereof until such redemption price
is 100% of the principal amount of this Security to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to
the Redemption Limitation Date, if any, specified on the face hereof, redeem
this Security as contemplated above as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an effective interest cost to the Company (calculated in
accordance with generally accepted financial practice) less than the effective
interest cost to the Company (similarly calculated) of this Security.
[Provisions for redemption pursuant to a sinking fund or
analogous provisions or at the option of the Holder to be inserted here.]
Notice of redemption [(other than at the election of the
Holder)] shall be given by mail to Holders of Securities, not less than 30 days
nor more than 60 days prior to the date fixed for redemption, all as provided
in the Indenture. As provided in the Indenture, notice of redemption at the
election of the Company as aforesaid may state that such redemption shall be
conditional upon the receipt by the Trustee of money sufficient to pay the
principal of and premium, if any, and interest on this Security on or prior to
the date fixed for such redemption; a notice of redemption so conditioned shall
be of no force or
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<PAGE> 12
effect if such money is not so received and, in such event, the Company shall
not be required to redeem this Security.
In the event of redemption of this Security in part only, a
new Security or Securities of this series, of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of this Security may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental indentures for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, the Indenture with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series then Outstanding under the Indenture, considered as one class; provided,
however, that if there shall be Securities of more than one series Outstanding
under the Indenture and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been issued in more
than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities then Outstanding, on behalf of the Holders
of all Securities, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Security at the times, place and rate, in
the coin or currency, and in the manner, herein prescribed.
-8-
<PAGE> 13
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office of First Trust of New York, National Association, in New
York, New York or such other office or agency as may be designated by the
Company from time to time, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series, of
authorized denominations and of like tenor and aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series, of any authorized
denominations, as requested by the Holder surrendering the same, and of like
tenor upon surrender of the Security or Securities to be exchanged at the
office of First Trust of New York, National Association, in New York, New York
or such other office or agency as may be designated by the Company from time to
time.
The Company shall not be required to (a) register the transfer
of or exchange Securities of this series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for redemption or (b) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture, the Securities and the rights and obligations
of the Trustee shall be governed by and construed in accordance with the laws
of the State of New York.
As used herein,
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<PAGE> 14
(1) "Business Day" means any day, other than a Saturday or Sunday,
which is (a) not a day on which banking institutions or trust
companies in the State of New York or the city in which is
located any office or agency maintained for the payment of the
principal of or premium, if any, or interest on this Security,
are authorized or required by law, regulation or executive
order to remain closed and (b) if the Base Rate specified on
the reverse hereof is LIBOR, a London Banking Day. "London
Banking Day" means any day on which dealings in deposits in
U.S. dollars are transacted in the London Interbank market;
(2) "H.15(519)" means the publication entitled "Statistical
Release H.15(519)", Selected Interest Rates, or any successor
publication, published by the Board of Governors of the
Federal Reserve System; and
(3) "Composite Quotations" means the daily statistical release
entitled "Composite 3:30 p.m. Quotations for U.S. Government
Securities", or any successor release, published by the
Federal Reserve Bank of New York.
All other terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for the
payment of the principal of or premium, if any, or interest on any Securities,
or any part thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement under the Indenture, against, and no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer or director, as such, past, present or future of the Company or of any
predecessor or successor corporation (either directly or through the Company or
a predecessor or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that the Indenture and all the Securities are solely corporate obligations and
that any such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of the
Indenture and the issuance of the Securities.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
-10-
<PAGE> 15
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
---------------
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
By
--------------------------
Treasurer
Countersigned:
By
------------------------
Vice President
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
------------------
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Trustee
By
--------------------------
Authorized Signatory
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<PAGE> 16
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto ________________________________
[please insert social
security or other identifying
number of assignee]
- --------------------------------------------------------------------
[please print or typewrite name and address of assignee]
- --------------------------------------------------------------------
the within Security of CENTRAL HUDSON GAS & ELECTRIC CORPORATION and does
hereby irrevocably constitute and appoint __________
____________________________, Attorney, to transfer said Security on the books
of the within-mentioned Company, with full power of substitution in the
premises.
Dated:
-----------------
------------------------------------
Notice: The signature to this
assignment must correspond with the
name as written upon the face of the
Security in every particular without
alteration or enlargement or any
change whatsoever.
-12-
<PAGE> 17
[FORM OF UNSECURED FIXED RATE NOTE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR ITS SUCCESSOR (THE
"DEPOSITARY") TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE TO BE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY AND ANY AMOUNT PAYABLE THEREUNDER IS MADE PAYABLE TO CEDE &
CO. OR SUCH OTHER NAME, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN
PART FOR CERTIFICATED SECURITIES REGISTERED IN THE NAMES OF THE VARIOUS
BENEFICIAL HOLDERS HEREOF AS THEN CERTIFIED TO THE COMPANY BY THE DEPOSITARY OR
A SUCCESSOR DEPOSITARY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
THIS SECURITY MAY BE EXCHANGED FOR CERTIFICATED SECURITIES
REGISTERED IN THE NAMES OF THE VARIOUS BENEFICIAL OWNERS HEREOF ONLY IF (A) THE
DEPOSITARY IS AT ANY TIME UNWILLING OR UNABLE TO CONTINUE AS DEPOSITARY AND A
SUCCESSOR DEPOSITARY IS NOT APPOINTED BY THE COMPANY WITHIN 90 DAYS, OR (B) THE
COMPANY ELECTS TO ISSUE CERTIFICATED SECURITIES TO BENEFICIAL OWNERS (AS
CERTIFIED TO THE COMPANY BY THE DEPOSITARY OR A SUCCESSOR DEPOSITARY).]
<PAGE> 18
[FACE OF NOTE]
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
MEDIUM-TERM NOTE, SERIES
Original Issue Date: Redeemable: Yes__ No__
Interest Rate: Initial Redemption Date:
Stated Maturity Date: Redemption Limitation Date:
[Additional redemption Initial Redemption Price:
prices, if any:]
Reduction Percentage:
____________________________________
No. _____
Principal Amount
$_______________
CUSIP
CENTRAL HUDSON GAS & ELECTRIC CORPORATION, a corporation duly
organized and existing under the laws of the State of New York (herein called
the "Company", which term includes any successor corporation under the
Indenture [hereinafter referred to] [referred to on the reverse hereof]), for
value received, hereby promises to pay to
, or registered assigns, the principal
sum of
Dollars on the Stated Maturity Date
specified above, and to pay the registered owner hereof at the Interest Rate
per annum specified above, semi-annually in arrears on April 1 and October 1 in
each year and at the Stated Maturity Date (each an "Interest Payment Date"),
commencing with the Interest Payment Date next succeeding the Original Issue
Date specified above, from the Original Issue Date specified above, or, if
later, from the most recent Interest Payment Date to which interest has been
paid or duly provided for, until the principal hereof is paid or duly provided
for. The interest so payable, and paid or duly provided for, on any Interest
Payment Date shall, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business (whether or not a Business Day (as hereinafter
defined)) on the March 15 or September 15 (each a "Regular Record Date"), as the
case may be, next preceding such Interest Payment Date. Notwithstanding the
foregoing, (a) if the date of this Security (unless the date of this Security
is the same date as the Original Issue Date) is
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<PAGE> 19
after a Regular Record Date and before the corresponding Interest Payment Date,
this Security shall bear interest from such Interest Payment Date, and the
person in whose name this Security is registered at the close of business on
any Regular Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date,
notwithstanding the cancellation of this Security, upon any transfer or
exchange hereof subsequent to such Regular Record Date and on or prior to such
Interest Payment Date; (b) if the Original Issue Date of this Security is after
a Regular Record Date and before the corresponding Interest Payment Date, this
Security shall bear interest from the Original Issue Date, but payment of
interest shall commence on the second Interest Payment Date succeeding the
Original Issue Date and shall be paid to the registered owner hereof on the
Regular Record Date immediately preceding such second Interest Payment Date;
and (c) interest payable at Maturity shall be paid to the Person to whom
principal shall be paid. Except as otherwise provided in the Indenture, any
such interest not so paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and premium, if any, on this
Security and interest hereon at Maturity shall be made upon presentation hereof
at the office of First Trust of New York, National Association, in New York,
New York or at such other office or agency as may be designated for such
purpose by the Company from time to time. Payment of interest, if any, on this
Security (other than interest at Maturity) shall, at the option of the Company,
be made by check mailed on or prior to such Interest Payment Date to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account maintained by such Person
with a bank in the United States (so long as the Trustee has received proper
wire transfer instructions in writing by the Record Date next preceding such
Interest Payment Date, which instructions shall remain in full force until
changed prior to a Record Date). Payment of the principal of and premium, if
any, and interest, if any, on this Security, as aforesaid, shall be made in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts.
-3-
<PAGE> 20
[REVERSE OF NOTE
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
MEDIUM TERM NOTE, SERIES
(Continued)]
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and issuable in one or
more series under an Indenture, dated as of April 1, 1992 (such Indenture as
originally executed and delivered and as hereafter supplemented or amended,
together with any constituent instruments establishing the terms of particular
Securities, being herein called the "Indenture"), between the Company and First
Trust of New York, National Association (as successor trustee to Morgan
Guaranty Trust Company of New York), as trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The acceptance of this Security shall be deemed
to constitute the consent and agreement by the Holder hereof to all of the
terms and provisions of the Indenture. This Security is one of the series
designated on the face hereof.
If any Interest Payment Date, any Redemption Date or the
Stated Maturity Date shall not be a Business Day (as hereinafter defined),
payment of the amounts due on this Security on such date may be made on the
next succeeding Business Day; and, if such payment is made or duly provided for
on such Business Day, no interest shall accrue on such amounts for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity
Date, as the case may be, to such Business Day.
If, as specified on the face hereof, this Security is
redeemable, this Security is subject to redemption on or after the Initial
Redemption Date specified on the face hereof, as a whole, at any time, or in
part, from time to time, at the election of the Company, at the applicable
redemption price (as described below) plus accrued interest to the date fixed
for redemption. Unless otherwise specified on the face hereof, such applicable
redemption applicable price shall be the Initial Redemption Price specified on
the face hereof for the twelve-month period commencing on the Initial
Redemption Date and shall decline for the twelve-month period commencing on
each anniversary of the Initial Redemption Date by a percentage of principal
amount equal to the Reduction Percentage specified on the face hereof until
such redemption
-4-
<PAGE> 21
price is 100% of the principal amount of this Security to be redeemed, and at
all times thereafter such redemption price shall be 100% of such principal
amount.
Notwithstanding the foregoing, the Company may not, prior to
the Redemption Limitation Date, if any, specified on the face hereof, redeem
this Security as contemplated above as a part of, or in anticipation of, any
refunding operation (other than pursuant to any sinking fund or other mandatory
redemption, or redemption at the option of the Holder) by the application,
directly or indirectly, of moneys borrowed having an effective interest cost to
the Company (calculated in accordance with generally accepted financial
practice) less than the effective interest cost to the Company (similarly
calculated) of this Security.
Notice of redemption shall be given by mail to Holders of
Securities, not less than 30 days nor more than 60 days prior to the date fixed
for redemption, all as provided in the Indenture. As provided in the
Indenture, notice of redemption at the election of the Company as aforesaid may
state that such redemption shall be conditional upon the receipt by the Trustee
of money sufficient to pay the principal of and premium, if any, and interest,
if any, on this Security on or prior to the date fixed for such redemption; a
notice of redemption so conditioned shall be of no force or effect if such
money is not so received and, in such event, the Company shall not be required
to redeem this Security.
In the event of redemption of this Security in part only, a
new Security or Securities of this series, of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of this Security may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental indentures for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, the Indenture with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series then Outstanding under the Indenture, considered as one class; provided,
however, that if there shall be Securities of more than one series Outstanding
under the Indenture and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series so
directly affected,
-5-
<PAGE> 22
considered as one class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one Tranche and if
the proposed supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such Tranches, then
the consent only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all Tranches so directly affected, considered as
one class, shall be required. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities then Outstanding, on behalf of the Holders of all Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place and
rate, in the coin or currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office of First Trust of New York, National Association, in New
York, New York or such other office or agency as may be designated by the
Company from time to time, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series of
authorized denominations and of like tenor and aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series, of any authorized
denominations, as requested by the Holder surrendering the same, and of like
tenor upon surrender of the Security or Securities to be exchanged at the
office of First Trust of New York, National Association, in New York, New York
or such other office or agency as may be designated by the Company from time to
time.
-6-
<PAGE> 23
The Company shall not be required to (a) register the transfer
of or exchange Securities of this series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for redemption or (b) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture, the Securities and the rights and obligations
of the Trustee shall be governed by and construed in accordance with the laws
of the State of New York.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, which is not a day on which banking institutions or trust
companies in the State of New York or the city in which is located any office
or agency maintained for the payment of principal of or premium, if any, or
interest on this Security, are authorized or required by law, regulation or
executive order to remain closed. All other terms used in this Security which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, no recourse shall be had for the
payment of the principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon or otherwise in
respect thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under the Indenture, against, and no personal
liability whatsoever shall attach to, or be incurred by, any incorporator,
stockholder, officer or director, as such, past, present or future of the
Company or of any predecessor or successor corporation (either directly or
through the Company or a predecessor or successor corporation), whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that the Indenture and all the Securities are solely
corporate obligations and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the consideration for,
the execution of the Indenture and the issuance of the Securities.
-7-
<PAGE> 24
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
-8-
<PAGE> 25
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
By __________________________
Chairman of the Board and
Chief Executive Officer
Attest:
By ________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _______________
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
-9-
<PAGE> 26
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto _____________________________________
[please insert social security or
other identifying number of
assignee]
_____________________________________________________________________________
[please print or typewrite name and address of assignee]
___________________________________________________________
the within Security of CENTRAL HUDSON GAS & ELECTRIC CORPORATION and does
hereby irrevocably constitute and appoint
_________________________________________________, Attorney, to transfer said
Security on the books of the within-mentioned Company, with full power of
substitution in the premises.
Dated: _________________
_____________________________________
Notice: The signature to this
assignment must correspond with the
name as written upon the face of the
Security in every particular without
alteration or enlargement or any
change whatsoever.
-10-
<PAGE> 1
EXHIBIT (4)(i)37
Draft of November 1, 1994
- -----------------------------------------------------------------------------
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
under Section 805 of the Business Corporation Law
- -----------------------------------------------------------------------------
<PAGE> 2
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
under Section 805 of the Business Corporation Law
We, ________________ and _______________, being respectively the
_____________________________________ and ________________________________ of
Central Hudson Gas & Electric Corporation, a New York corporation (hereinafter
referred to as the "Corporation"), do hereby certify:
1. The name of the Corporation is CENTRAL HUDSON GAS & ELECTRIC
CORPORATION.
2. The Certificate of Consolidation forming the Corporation was
filed in the Office of the Secretary of State of the State of New York on
December 31, 1926.
3. The Certificate of Consolidation of the Corporation as
heretofore amended, was last restated in the Restated Certificate of
Incorporation filed in the Office of the Secretary of State of the State of New
York on August 14, 1989 and Certificates of Amendment of the Restated
Certificate of Incorporation were
<PAGE> 3
thereafter filed in the Office of the Secretary of State of the State of New
York on April 5, 1990 and October 19, 1993.
Pursuant to the Certificates described in this Paragraph 3,
the Corporation is presently authorized to issue 1,200,000 shares having a par
value of $100 per share of serial preferred stock. The only series of serial
preferred stock heretofore issued and presently outstanding are the series
designated 4 1/2% Cumulative Preferred Stock, of which 70,300 shares have been
issued and are outstanding, 4.75% Cumulative Preferred Stock, of which 20,000
shares have been issued and are outstanding, Cumulative Preferred Stock, Series
D, of which 60,000 shares have been issued and are outstanding, 4.96%
Cumulative Preferred Stock, Series E, of which 60,000 shares have been issued
and are outstanding, 7.72% Cumulative Preferred Stock, of which 130,000 shares
have been issued and are outstanding, 7.44% Cumulative Preferred Stock, Series
G, of which 120,000 shares have been issued and are outstanding, 6.80%
Redeemable Cumulative Preferred Stock, of which 150,000 shares have been issued
and are outstanding and 6.20% Redeemable Cumulative Preferred Stock of which
200,000 shares have been issued and are outstanding [add or delete reference to
any serial preferred stock of any series which at the time of execution of this
Certificate is outstanding or no longer outstanding, as the case may be].
- 2 -
<PAGE> 4
4. The Certificate of Incorporation, as amended, is hereby
amended pursuant to Section 502 of the Business Corporation Law by the addition
of a new subparagraph (__) of Paragraph 5 of the Certificate of Incorporation
stating the number, designations, preferences, privileges and voting powers of
the shares of a new series of such serial preferred stock and the restrictions
or qualifications thereof as fixed by the board of directors before issuance of
such series. The new series shall be designated ______% Cumulative Preferred
Stock, [Series __,] hereinafter sometimes referred to as the "______% Preferred
Stock," of which _________ shares are presently to be issued. New subparagraph
(__) shall be as follows:
"( ) % Cumulative Preferred Stock
-------------------------------------------------
[, Series ].
- -----------------
The holders of the _______________% Cumulative Preferred
Stock[, Series ] (hereinafter referred to as ____% Preferred Stock) shall be
entitled to receive, before any dividends on the Common Stock shall be paid or
set apart for payment, but only when and as declared by the Board of Directors
and only from the surplus of the Corporation, dividends at the rate of ____%
per annum payable quarterly on dates to be determined by the Board of Directors.
[The initial dividend will be payable on __________ for the initial dividend
period which shall be from the date of original issuance to and including
_____________.] Such divi-
- 3 -
<PAGE> 5
dends shall accrue from the date of original issuance. Such dividends shall be
cumulative so that if for any quarterly dividend period all dividends on the
__________% Preferred Stock at the rate aforesaid shall not have been declared
and paid, or a sum sufficient for the payment thereof set apart and
appropriated to such payment, the deficiency shall be paid, or a sum sufficient
for the payment thereof set apart and appropriated to such payment, before any
dividends shall be declared or paid upon the Common Stock. The holders of the
___________% Preferred Stock shall not be entitled to receive any dividends in
excess of said cumulative dividends at the rate aforesaid and no interest shall
accrue upon dividends in arrears.
The holders of the ______% Preferred Stock shall be entitled
to receive, before any payment or distribution of the assets of the Corporation
shall be made to the holders of the Common Stock, (a) $_______ per share upon
any voluntary dissolution, liquidation or winding-up of the Corporation
resulting in a distribution of assets to its shareholders if effected on or
before _______________, and an amount per share equal to the then optional
redemption price (set forth below in the fourth paragraph of this subparagraph
( )) applicable on the date any such event is effected, if effected after
_______________ [in the alternative, insert other provisions applicable in any
such event], and (b) $100 per share upon any involuntary dissolution,
liquidation or winding-up of the Corporation resulting in a
- 4 -
<PAGE> 6
distribution of assets to its shareholders [in the alternative, insert other
provisions applicable in any such event], plus in each case an amount equal to
________% per annum on the par amount of said stock for the aggregate of all
dividend periods in respect of which dividends thereon shall not have been
paid; and after the payment above provided for, the holders of the ________%
Preferred Stock shall have no right or claim to any of the remaining assets of
the Corporation. The consolidation or merger of the Corporation with or into
any other corporation or corporations shall not be deemed to be a liquidation,
dissolution or winding-up of the Corporation unless the effect thereof shall be
to cause a distribution of assets among its shareholders.
Unless at any time dividends on the ____% Preferred Stock at
the rate of ____% per annum shall not have been paid for dividend periods
aggregating one year or more, the holders of the ____% Preferred Stock, as
such, shall not, except as otherwise provided by law, be entitled to notice of
any meeting of the shareholders of the Corporation, nor shall they have any
voting powers whatsoever upon the _____% Preferred Stock of the Corporation
held by them respectively, except that the holders of the ______% Preferred
Stock shall at all times be entitled to vote or act, separately as a class,
with respect to any proposal to authorize any amendment of the certificate of
incorporation which alters the preferences of outstanding shares of the _____%
Preferred Stock, or which authorizes shares having preferences which
- 5 -
<PAGE> 7
are in any respect superior to the preferences of the outstanding shares of the
______% Preferred Stock, or which increases the authorized amount of the serial
preferred stock, and the consent or affirmative vote of the holders of record
of two-thirds of the outstanding shares of the ______% Preferred Stock shall be
required for any such amendment; and specifically the holders of the ______%
Preferred Stock are hereby excluded from the right to vote in any proceeding
requiring approval of the shareholders of a corporation pursuant to statutory
law of the State of New York for guaranteeing the bonds of another corporation,
for sale of franchises or property, for consolidation, for voluntary
dissolution or for change of name. In case, however, at any time dividends on
the ____% Preferred Stock at the rate of _____% per annum shall not have been
paid for dividend periods aggregating one year or more, then, and until full
cumulative dividends upon the ______% Preferred Stock shall have been paid, the
holders of the ______% Preferred Stock (a) shall have the right, together with
holders of all other serial preferred stock in respect to which the same right
shall be conferred, to elect a majority of the members of the Board of
Directors of the Corporation, and (b) as to all matters other than the election
of directors, shall have the same voting rights as the holders of Common Stock
except as to matters with respect to which they are given the right to vote
separately as a class as above provided. Whenever the holders of the _____%
Preferred Stock shall become so entitled, either separately or together with
the holders of other serial
- 6 -
<PAGE> 8
preferred stock as aforesaid, to elect a majority of the members of the Board
of Directors, and upon the written request of the holders of record of at least
five percent. (5%) of the total number of shares of serial preferred stock then
outstanding and entitled to such right of election, addressed to the Secretary
of the Corporation, a special meeting of the holders of serial preferred stock
entitled to such right of election and the holders of Common Stock shall be
called for the purpose of electing directors. At such meeting, the holders of
serial preferred stock and the holders of Common Stock shall vote separately,
and the holders of serial preferred stock present in person or by proxy at such
meeting shall be entitled to elect, by a plurality of votes cast by them, a
majority of the members of a new Board of Directors of the Corporation, and the
holders of Common Stock present in person or by proxy shall be entitled to
elect, by a plurality of votes cast by them, the remainder of the new Board of
Directors. The persons so elected as directors shall thereupon constitute the
Board of Directors of the Corporation, and the terms of office of the previous
directors of the Corporation shall thereupon terminate. The term "a majority
of the members of the Board of Directors" as herein used shall mean one more
than one-half of the total number of directors provided for by the by-laws,
regardless of the number then in office, and in case one-half of such number
shall not be a whole number, such one-half shall be the next smaller whole
number. In the event of any vacancy in the Board of Directors among the
directors elected
- 7 -
<PAGE> 9
by the holders of serial preferred stock, such vacancy may be filled by the
other directors elected by them, and if not so filled may be filled by the
holders of serial preferred stock entitled to the right of election as
aforesaid at a special meeting of the holders of said stock called for that
purpose, and such a meeting shall be called upon the written request of at
least five per cent. (5%) of the total number of shares of serial preferred
stock then outstanding and entitled to such right of election. If and when,
however, full cumulative dividends upon the ____% Preferred Stock shall at any
subsequent time be paid, then, and thereupon, such power of the holders of the
____% Preferred Stock to vote shall cease except as to the matters above
specified with respect to which the holders of the ____% Preferred Stock shall
at all times be entitled to vote or act; subject, however, to being again
revived at any subsequent time if there shall again be default in payment of
dividends upon the ____% Preferred Stock for periods aggregating one year or
more as aforesaid. Whenever such power of the holders of ____% Preferred Stock
and of all other serial preferred stock to vote shall cease, the proper officer
of the Corporation may and upon the written request of the holders of record of
five per cent. (5%) of the total number of shares of Common Stock then
outstanding shall call a special meeting of the holders of Common Stock for the
purpose of electing directors. At any meeting so called, the holders of a
majority of the Common Stock then outstanding, present in person or by proxy,
shall be entitled to elect, by a
- 8 -
<PAGE> 10
plurality of votes, a new Board of Directors of the Corporation. The persons
so elected as directors shall thereupon constitute the Board of Directors of
the Corporation, and the terms of office of the previous directors of the
Corporation shall thereupon terminate.
[Prior to _______________, the Corporation may not redeem any
of the ____% Preferred Stock.] [On and after _________________, the] [The
____% Preferred Stock may be redeemed by the Corporation in whole or in part on
any date, at the option of the Board of Directors, upon not less than thirty
(30) days' notice to the holders of record of the ____% Preferred Stock, given
in such manner as may be prescribed by the by-laws or by resolutions of the
Board of Directors, by payment in cash, for each share of the ____% Preferred
Stock so to be redeemed, at the redemption prices set forth below:
If redeemed during the
12 months beginning : Redemption Price ($):
- ------------------------------ --------------------
and thereafter ;
and in addition thereto an amount equal to ____% per annum to the date of
redemption on the par amount of each such share for the
- 9 -
<PAGE> 11
aggregate of all dividend periods in respect of which dividends thereon shall
not have been paid [in the alternative, insert other provisions relating to
redemption at the option of the Company] [provided, however, that prior to
_______, no _____% Preferred Stock may be redeemed, directly or indirectly,
from the proceeds of or in anticipation of any refunding operation involving
the incurring of debt or the issuance of preferred stock which has a cost to
the Corporation (calculated in accordance with generally accepted financial
practice) lower than ____% per annum]. If less than all of the outstanding
shares are to be redeemed, selection of the shares to be redeemed shall be made
in such manner as may be prescribed by resolution of the Board of Directors.
From and after the date fixed in any such notice as the date of redemption
(unless default shall be made by the Corporation in payment of the redemption
price), all dividends on the ____% Preferred Stock thereby called for
redemption shall cease to accrue, and all rights of the holders thereof as
shareholders of the Corporation, except the right to receive the redemption
price, shall cease and determine. Such redemption may be effected either by
payment out of surplus of the Corporation or by reduction of capital stock
pursuant to legal proceedings for that purpose or as may otherwise be permitted
by law.
[As a sinking fund for the redemption of the ____% Preferred
Stock, on _______________, and on each ___________ thereafter, the Corporation
shall redeem _____ shares of the
- 10 -
<PAGE> 12
____% Preferred Stock (or the number of shares of ____% Preferred Stock then
outstanding if less than _____), in each case by payment in cash of an amount
of $______ per share and in addition thereto an amount equal to ____% per annum
to the date of redemption on the par amount of each such share for the
aggregate of all dividend periods in respect to which dividends thereon shall
not have been paid. The foregoing obligation of the Corporation to redeem
____% Preferred Stock annually shall be cumulative. At its option, the
Corporation may credit against any sinking fund redemption required by this
paragraph any shares of ____% Preferred Stock redeemed pursuant to the optional
redemption provisions of the immediately preceding paragraph or as otherwise
acquired by the Corporation [except that shares of the ____% Preferred Stock
redeemed pursuant to the immediately following sentence shall not reduce the
Corporation's sinking fund requirements.] [At its option, on _______________,
and on each ______ _______, thereafter, the Corporation may also redeem up to
_____ additional shares of the _____% Preferred Stock (or the number of shares
of ____% Preferred Stock then outstanding, if less than ______, in each case by
payment in cash of an amount of $_____ per share and in addition thereto an
amount equal to ____% per annum to the date of redemption on the par amount of
each such share for the aggregate of all periods in respect to which dividends
thereon shall not have been paid. The Corporation's right to redeem in the
immediately preceding sentence shall not be cumulative and shall not be
exercised when the sinking fund
- 11 -
<PAGE> 13
redemption required by this paragraph shall be in arrears.] Selection of the
shares to be redeemed pursuant to this paragraph shall be made in such manner
as may be prescribed by the Board of Directors [which is designed to result, as
nearly as practicable, in a redemption pro-rata among the holders of the ____%
Preferred Stock.] Any redemption pursuant to this paragraph shall be upon not
less than thirty (30) days' notice to the holders of record of the ____%
Preferred Stock to be so redeemed, given in such manner as may be prescribed by
the by-laws or by resolutions of the Board of Directors. From and after the
date for redemption pursuant to this paragraph (unless default shall be made by
the Corporation in payment of the redemption price), all dividends on the ____%
Preferred Stock subject to such redemption shall cease to accrue, and all
rights of the holders thereof as shareholders of the Corporation, except the
right to receive the redemption price, shall cease and determine. Such
redemption may be effected either by payment out of surplus of the Corporation
or by reduction of capital stock pursuant to legal proceedings for that purpose
or as may otherwise be permitted by law. The Corporation shall not declare or
pay or set apart any dividend for the Common Stock or any other class of stock
ranking junior to the ____% Preferred Stock, or make any payment on account of,
or set apart money for a sinking or analogous fund for, the purchase,
redemption or other retirement of Common Stock or any other class of stock
ranking junior to the ____% Preferred Stock, or make any distribution in
respect
- 12 -
<PAGE> 14
thereof, either directly or indirectly, and whether in cash or property or
obligations or stock of the Corporation, unless at the date of declaration in
the case of any [other] such dividend, or at the date of any such [other]
payment, setting apart or distribution, (a) full cumulative sinking fund
redemptions required by this paragraph shall have been made and (b) full
cumulative dividends for all past dividend periods and for the then current
dividend period shall have been paid or declared and set apart for payment on
the then outstanding ____% Preferred Stock, other than shares of ____%
Preferred Stock previously or then to be called for redemption. The
Corporation shall not redeem or purchase any shares ranking on a parity with
the ____% Preferred Stock as to assets or dividends, pursuant to any sinking
fund (which term shall include any analogous requirement) for the redemption or
purchase of such shares, and shall not set apart money for any such fund, at
any time when the sinking fund redemption required by this paragraph shall be
in arrears; except that, at any time when the sinking fund redemption required
by this paragraph shall be in arrears and when arrears exist in any sinking or
analogous retirement fund required for any shares ranking as aforesaid on a
parity with the ____% Preferred Stock, the Corporation may redeem or purchase
for the respective funds shares of ____% Preferred Stock and such other shares,
pro rata, as nearly as practicable, according to the amounts in dollars of the
arrears in the redemption, or purchases required for the respective funds.] [in
the alternative, insert other provisions
- 13 -
<PAGE> 15
relating to a sinking or other analogous fund and/or other restrictions on the
treatment of capital stock junior in rank to the ____% Preferred Stock].
No holder of ____% Preferred Stock (unless and except to the
extent that the privilege of purchasing or subscribing for any stock of the
Corporation or any securities convertible into stock of the Corporation may be
given to the holders of any subsequent series of serial preferred stock as
hereinafter stated), shall be entitled, as of right, to purchase or subscribe
for any stock of the Corporation of any class, as now or hereafter authorized,
or any bonds, debentures or other securities convertible into stock of the
Corporation, but any such stock, or such securities convertible into stock of
the Corporation, may be issued and disposed of, in the discretion of the Board
of Directors, to such persons, firms or corporations, for such lawful
consideration and upon such terms, as may be deemed advisable by the Board of
Directors; and any shares, or such convertible obligations, which the Board of
Directors may determine to offer for subscription to holders of stock may be
offered to holders of stock of any class to the exclusion of holders of stock
of any other class or classes.
The holders of any subsequent series of serial preferred stock
shall not be given voting powers with respect thereto greater than the voting
powers given to the holders of the
- 14 -
<PAGE> 16
____% Preferred Stock or the privilege of purchasing or subscribing for any
stock of the Corporation or any securities convertible into stock of the
Corporation or of exchanging shares of such series for shares of any other
class or of any other series of the same or any other class, unless by
appropriate corporate action the same powers and privileges be given to the
holders of all of the serial preferred stock then outstanding."
5. This amendment to the Certificate of Incorporation of the
Corporation was authorized pursuant to the authority granted in Paragraph 5(b)
of said Certificate of Incorporation by the affirmative vote of a majority of
the Directors present at a meeting of the Board of Directors held on the ____
day of ___________, 199_, a quorum being present.
IN WITNESS WHEREOF, we made and subscribed this Certificate
this ____ day of ___________, 199_.
--------------------------------
--------------------------------
- 15 -
<PAGE> 17
STATE OF NEW YORK )
) ss.:
COUNTY OF ___________)
__________________________, being duly sworn, deposes and
says that [he] [she] is [the] [a] [an] ________________________ of CENTRAL
HUDSON GAS & ELECTRIC CORPORATION, the Corporation on whose behalf [he] [she]
executed the foregoing Certificate of Amendment; that [he] [she] has read the
foregoing Certificate of Amendment and knows the contents thereof, and that all
the facts and matters set forth therein are true and correct to the best of
[his] [her] knowledge.
--------------------------------
Subscribed and sworn to before me
this ____ day of __________, 199_.
[Notarial Seal]
- -----------------------------
Notary Public
- 16 -
<PAGE> 1
Draft of November 4, 1994 Exhibit (4)(i)38
_________________________________________________________________
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
and
_______________________
As Depositary
and
HOLDERS OF
DEPOSITARY RECEIPTS
_________________
DEPOSIT AGREEMENT
_________________
Dated as of ________, 199__
_________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions
SECTION 1.01 "Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02 "corporate trust office" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.03 "Deposit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.04 "Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.05 "Depositary's Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.06 "Depositary Preferred Shares" . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.07 "Receipt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.08 "record holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.09 "Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.10 "Restated Certificate of Incorporation" . . . . . . . . . . . . . . . . . . . 3
SECTION 1.11 "Securities Act of 1933" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.12 "Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.13 "Transfer Books" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
SECTION 2.01 Form and Transferability of Receipts . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.02 Deposit of Stock Execution and Delivery of
Receipts in Respect Thereof . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.03 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.04 Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
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<TABLE>
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SECTION 2.05 Combinations and Split-Ups of Receipts . . . . . . . . . . . . . . . . . . . 10
SECTION 2.06 Surrender of Receipts and Withdrawal of Stock . . . . . . . . . . . . . . . 11
SECTION 2.07 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts . . . . . . . . . . . . . . . . . . 12
SECTION 2.08 Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.09 Cancellation and Destruction of Surrendered
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
Certain Obligations of Holders of Receipts
SECTION 3.01 Filing Proofs, Certificates and Other Information . . . . . . . . . . . . . 14
SECTION 3.02 Payment of Taxes or Other Governmental Charges . . . . . . . . . . . . . . . 14
SECTION 3.03 Warranties as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.02 Distributions Other Than Cash . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.03 Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . 17
SECTION 4.04 Notice of Dividends, Fixing of Record Date
for Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.05 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.06 Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.07 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
(ii)
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<TABLE>
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ARTICLE V
The Depositary and the Company
SECTION 5.01 Maintenance of Offices, Agencies, Transfer
Books by the Depositary; Registrar . . . . . . . . . . . . . . . . . . 21
SECTION 5.02 Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5.03 Obligations of the Depositary, the Depositary's
Agent and the Company . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.04 Resignation and Removal of the Depositary:
Appointment of Successor Depositary . . . . . . . . . . . . . . . . . 24
SECTION 5.05 Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.06 Deposit of Stock by the Company . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.07 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.08 Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VI
Amendment and Termination
SECTION 6.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.02 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VII
Miscellaneous
SECTION 7.01 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.02 Exclusive Benefit of Parties . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.03 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.04 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.05 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.06 Holders of Receipts are Parties . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
(iii)
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SECTION 7.07 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.08 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Exhibit A
</TABLE>
(iv)
<PAGE> 6
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ______, 199__, among CENTRAL
HUDSON GAS & ELECTRIC CORPORATION, a corporation duly incorporated and existing
under the laws of the State of New York, _____________________________, a _____
company organized and existing under the laws of the State of ________, and all
holders from time to time of Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of the Stock with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuances hereunder of Depositary Receipts representing Depositary Preferred
Shares in respect of the Stock so deposited; and
WHEREAS, the Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises and intending
to be legally bound hereby, it is agreed by and among the parties hereto as
follows:
1
<PAGE> 7
ARTICLE I
Definitions
The following definitions shall for all purposes, unless
otherwise clearly indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION 1.01 The term "Company" shall mean Central Hudson Gas
& Electric Corporation, a corporation duly incorporated and existing under the
laws of the State of New York and having its principal office at 284 South
Avenue, Poughkeepsie, New York 12601-4879, and its successors.
SECTION 1.02 The term "corporate trust office", when used
with respect to the Depositary, shall mean the office of the Depositary, which
at the date of this Deposit Agreement is ____________, _______________________
[Note: If the Depositary chooses, for purposes of this Agreement, to use an
office other than its corporate trust office or does not have a corporate trust
office, there shall be set forth at this place the office and location thereof
chosen by the Depositary for purposes of this Agreement and the definition of
"corporate trust office" and the term "corporate trust office" wherever it
appears in this Agreement and Exhibit A hereto shall be revised accordingly.]
SECTION 1.03 The term "Deposit Agreement" shall mean this
Agreement, as the same may be amended or supplemented from time to time.
SECTION 1.04 The term "Depositary" shall mean
___________________, a _____ company organized and existing under the
2
<PAGE> 8
laws of the State of ________, and any successor as depositary hereunder.
SECTION 1.05 The term "Depositary's Agent" shall mean the
Company, or any bank or trust company which the Depositary shall appoint
pursuant to Section 7.05 to perform any or all of the Depositary's duties
specified herein, and any additional or successor Depositary's Agent appointed
pursuant to Section 7.05.
SECTION 1.06 The term "Depositary Preferred Shares" shall
mean the rights represented by the Depositary Receipts issued hereunder and the
interests in the Stock represented thereby. Each Depositary Preferred Share
shall represent one-quarter (1/4) of a share of Stock and the same
proportionate interest in any and all other property received by the Depositary
in respect of such shares of Stock and held at the time under this Deposit
Agreement.
SECTION 1.07 The term "Depositary Receipt" or "Receipt" shall
mean one or more of the certificates issued hereunder evidencing ownership of
Depositary Preferred Shares.
SECTION 1.08 The term "record holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the Transfer
Books maintained for such purpose.
SECTION 1.09 The term "Registrar" shall mean any bank or
trust company which shall be appointed to register Receipts as provided in
Section 5.01.
SECTION 1.10 The term "Restated Certificate of Incorporation"
shall mean the Company's Restated Certificate of Incorporation, as amended from
time to time.
3
<PAGE> 9
SECTION 1.11 The term "Securities Act of 1933" shall mean the
Act of May 27, 1933 (15 U.S.C. Sections 77a- 77aa), as from time to time
amended.
SECTION 1.12 The term "Stock" shall mean shares of the
Company's __________ Cumulative Preferred Stock[, Series __,] par value $100
per share, having such terms as set forth in the Restated Certificate of
Incorporation.
SECTION 1.13 The term "Transfer Books" shall mean the books
of the Depositary maintained by the Depositary for the purpose of recording
ownership of Receipts.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
SECTION 2.01 Form and Transferability of Receipts. Receipts
shall be engraved or printed or lithographed on steel engraved borders and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the manual or facsimile
signature of a duly authorized officer of the Depositary, provided such
Receipts executed by facsimile signature of a duly authorized officer of the
Depositary shall be countersigned by manual signature of a duly authorized
officer of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed by the Depositary by the signature of a duly
authorized officer and, if executed by a facsimile signature, countersigned by
the manual signature of a duly
4
<PAGE> 10
authorized officer of the Registrar. Receipts executed as provided in this
Section may be issued notwithstanding that any authorized officer of the
Depositary signing such Receipts shall have ceased to hold office at the time
of issuance of such receipts. The Depositary shall record or cause to be
recorded on the Transfer Books each Receipt so signed and delivered as
hereinafter provided.
Except as the Depositary and the Company may otherwise
determine, Receipts shall be in denominations of any number of Depositary
Preferred Shares.
The Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Company or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Receipts or
the Depositary Preferred Shares may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of issuance of
the Stock or otherwise.
Title to a Receipt (and to the Depositary Preferred Shares
evidenced thereby), when properly endorsed or accompanied by a properly
executed instrument of transfer, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the Transfer Books as provided in
Section 2.04, the Depositary, each Depositary's Agent, and the Company,
notwithstanding any notice to the contrary, may treat the record holder thereof
at
5
<PAGE> 11
such time as the absolute owner thereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02 Deposit of Stocks; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, any holder of Stock may deposit such Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by law, by a duly executed instrument of transfer or endorsement,
in form satisfactory to the Depositary, together with all such certifications
as may be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order directing the Depositary
to execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of Depositary
Preferred Shares representing such deposited Stock.
If required by the Depositary, Stock presented for deposit at
any time, whether or not the register of stockholders of the Company is closed,
shall also be accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt transfer to
the Depositary or its nominee of any dividend or right to subscribe for
additional Stock or to receive other property which any person in whose name
the Stock is or has been recorded may thereafter receive upon or in respect of
such deposited Stock, and to which the Depositary shall be entitled, or in
6
<PAGE> 12
lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
Subject to the terms and conditions of this Deposit Agreement,
Stock may also be deposited hereunder in connection with the delivery of
Receipts to represent distributions under Section 4.02 and upon exercise of the
rights to subscribe referred to in Section 4.03.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with the other
documents specified above, the Depositary shall, as soon as transfer and
registration can be accomplished, present such certificate or certificates to
the Registrar and Transfer Agent for transfer and registration in the name of
the Depositary or its nominee of the Stock being deposited.
Deposited Stock shall be held by the Depositary, at the
corporate trust office of the Depositary, or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, the
Depositary, subject to the terms and conditions in this Deposit Agreement,
shall execute and deliver to or upon the order of the person or persons named
in the written order referred to in the first paragraph of this Section
delivered to the Depositary, a Receipt or Receipts representing the number of
Depositary Preferred Shares requested by such person and registered in such
name or names as requested by such person or persons. The Depositary shall
execute
7
<PAGE> 13
and deliver such Receipts at its corporate trust office and at such other
offices as it may designate. Delivery at other offices shall be at the risk
and expense of the person requesting such delivery. However, in each case,
such delivery will be made only upon payment to the Depositary of the fee of
the Depositary for the execution and delivery of such Receipt or Receipts, as
provided in Section 5.08, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the deposited
Stock.
SECTION 2.03 Redemption. Whenever the Company shall be
obligated, or shall be permitted and shall elect, under the Restated
Certificate of Incorporation, to redeem shares of Stock, it shall give the
Depositary not less than 45 but not more than 90 days notice of the date of
such proposed redemption, the number of shares of Stock held by the Depositary
to be redeemed and the applicable redemption price, including the amount, if
any, equal to accumulated and unpaid dividends to the date of such redemption.
Upon receipt of such notice from the Company, the Depositary shall take all
action necessary for the simultaneous redemption of the number of Depositary
Preferred Shares representing the Stock to be redeemed, and shall mail or cause
to be mailed notice of redemption of the Stock and the simultaneous redemption
of the Depositary Preferred Shares, first class postage prepaid, not less than
30 but not more than 50 days prior to the date fixed for redemption
("redemption date"), to the record holders of Receipts representing the number
of Depositary Preferred Shares to be redeemed, at the addresses of such holders
as the same appear on the Transfer Books; but neither failure to mail any such
notice to one or more such holders nor any defect in any
8
<PAGE> 14
notice shall affect the sufficiency of the proceedings for redemption as to
other holders. Each such notice shall state the redemption date, the number of
Depositary Preferred Shares to be redeemed, and, if less than all the
Depositary Preferred Shares represented by Receipts held by such holder are to
be redeemed, the number of such Depositary Preferred Shares to be redeemed from
him, the applicable redemption price, the place or places where such Receipts
are to be surrendered for payment of the redemption price and that dividends in
respect to the Depositary Preferred Shares to be redeemed will cease on such
redemption date. In case fewer than all the outstanding Depositary Preferred
Shares are to be redeemed, the Depositary Preferred Shares to be redeemed shall
be selected by the Depositary by lot or substantial equivalent.
Notice having been mailed as aforesaid, from and after the
redemption date (unless the Company shall have failed to redeem the shares of
Stock to be redeemed by it as set forth in the Company's notice provided for in
the preceding paragraph), all dividends in respect of the Depositary Preferred
Shares so called for redemption shall cease to accrue, said Depositary
Preferred Shares shall be deemed no longer to be outstanding, all rights of the
holders of Receipts with respect to such Depositary Preferred Shares (except
the right to receive the redemption price) shall terminate, and, upon surrender
in accordance with said notice of the Receipts representing any such Depositary
Preferred Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Preferred Shares shall be redeemed by the
Depositary at the redemption price therefor set forth in said notice.
9
<PAGE> 15
The direct purchase by the Company of Depositary Preferred
Shares from the holders thereof shall not be subject to the procedures set
forth herein for a redemption. The Company may credit any Depositary Preferred
Shares purchased directly from the holders thereof against any mandatory
redemption requirement.
SECTION 2.04 Transfer of Receipts. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall transfer or cause to
be transferred on the Transfer Books from time to time, Receipts upon any
surrender thereof by the record holder in person or by duly authorized
attorney, properly endorsed or accompanied by a properly executed instrument of
transfer, and duly stamped as may be required by law. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto representing the same aggregate number of
Depositary Preferred Shares as those represented by the Receipt or Receipts
surrendered.
SECTION 2.05 Combinations and Split-Ups of Receipts. Upon
surrender of a Receipt or Receipts at the Depositary's corporate trust office
or at such other offices as it may designate for the purpose of effecting a
split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts in authorized denominations, for the number
of Depositary Preferred Shares requested, representing the same aggregate
number of Depositary Preferred Shares represented by the Receipt or Receipts
surrendered.
10
<PAGE> 16
SECTION 2.06 Surrender of Receipts and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's corporate trust
office or at such other offices as it may designate for the purpose of
withdrawal of the Stock represented thereby, and subject to the terms and
conditions of this Deposit Agreement (including the requirement to make payment
of the fees and charges of the Depositary described in Section 5.08), the
record holder of such Receipt shall be entitled to delivery, to him or upon his
order, of such number of whole shares of the Stock by the Depositary as such
holder may designate and any other property at the time represented by such
Receipt. The Depositary shall deliver to such holder one or more Receipts for
(a) the number of Depositary Preferred Shares representing the number of whole
shares of Stock, if any, which such holder does not wish to withdraw and (b)
the number of Depositary Preferred Shares representing less than one whole
share of Stock. Delivery of such Stock and other property may be made by the
delivery of certificates and other proper documents of title, which, if
required by law, shall be properly endorsed or accompanied by proper
instruments of transfer. Such delivery shall be made, as hereinafter provided,
without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank, and the record holder thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Stock being withdrawn to be delivered to or upon the written order
of a person or persons designated in such order. Thereupon the Depositary
shall deliver at
11
<PAGE> 17
its corporate trust office, subject to the terms and conditions of this Deposit
Agreement, to or upon the written order of the person or persons designated in
the order delivered to the Depositary as above provided, the Stock and other
property represented by such Receipt.
At the request, risk and expense of any holder so surrendering
a Receipt, and for the account of such holder, the Depositary shall forward the
certificate or certificates and other proper documents of title for the amount
of Stock and any other property represented by such Receipt for delivery at
such place as may be designated by the holder.
SECTION 2.07 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, transfer, split-up, combination, surrender or exchange of any
Receipt, the Depositary, or any person or entity appointed pursuant to Section
7.05, may require payment of a sum sufficient for reimbursement of any tax or
other governmental charge with respect thereto (including any such tax or
charge with respect to Stock being deposited or withdrawn), may require proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary may
establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, or the delivery of
Receipts against Stock may be suspended or the transfer of Receipts may be
refused, or the transfer, surrender or exchange of outstanding Receipts may be
suspended during any period when the register of stockholders of the Company is
closed, or if any such action is
12
<PAGE> 18
deemed necessary or advisable by the Depositary or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement or for any other reason. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Stock which is required to be registered under the Securities Act of 1933,
unless a registration statement under such Act is in effect as to such Stock.
SECTION 2.08 Lost Receipts, etc. In case any Receipt shall
be mutilated or shall be destroyed, lost or stolen, the Depositary in its
discretion may execute and deliver a Receipt of like form and tenor in exchange
and substitution for such mutilated Receipt, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, upon the holder thereof, (i) filing
with the Depositary evidence satisfactory to the Depositary of such destruction
or loss or theft of such Receipt and the authenticity thereof and of his
ownership thereof, (ii) furnishing the Depositary with reasonable
indemnification satisfactory to it and (iii) payment of any expense (including
fees, charges and expenses of the Depositary) in connection with the execution
and delivery of the substitute Receipt.
SECTION 2.09 Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to deliver to the Company, or at the
direction of the Company destroy, Receipts so canceled.
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<PAGE> 19
ARTICLE III
Certain Obligations of Holders of Receipts
SECTION 3.01 Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence, or
other matters or other information, to execute such certificates and to make
such representations and warranties as the Depositary may reasonably deem
necessary or proper. The Depositary and any Depositary's Agent may withhold
the delivery, transfer or exchange of any Receipt or the distribution or sale
of any dividend or other distribution or rights or of the proceeds thereof
until such proof or other information is filed or such certificates are
executed or such representations and warranties are made.
SECTION 3.02 Payment of Taxes or Other Governmental Charges.
If any tax or other governmental charge shall become payable by or on behalf of
the Depositary with respect to any Receipt or with respect to the Stock
represented by any Receipt, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder of such Receipt. Transfer
of such Receipt or any withdrawal of Stock represented by such Receipt may be
refused until such payment is made, and any dividends or other distributions
may be withheld, or any part or all of the Stock represented by such Receipt
and not theretofore sold may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior to such
sale), and such dividends or other distributions or the proceeds of any such
sale may be applied to any payment of such tax or other governmental charge,
the holder of such Receipt
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remaining liable for any deficiency. The Depositary shall act as the
withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Preferred Shares and Receipts, and the Stock or other
securities or assets represented thereby (collectively, the "Securities"). The
Depositary shall be responsible with respect to the Securities for the timely
(i) collection and deposit of any required withholding or backup withholding
tax, and (ii) filing of any information returns or other documents with federal
and other applicable taxing authorities.
SECTION 3.03 Representations and Warranties as to Stock.
Every person depositing Stock under this Deposit Agreement shall be deemed
thereby to represent and warrant that each certificate for such Stock is valid
and that the person making such deposit is duly authorized so to do. The
Company represents and warrants that the Stock, when issued, will be validly
issued, fully paid and non-assessable. Such representations and warranties
shall survive the deposit of the Stock and the issuance of the Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01 Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Stock, the
Depositary shall (subject to Section 3.02) distribute or cause to be
distributed to record holders of Receipts on the record date fixed pursuant to
Section 4.04 the amount of such dividend or distribution attributable to the
number of Depositary Preferred Shares held by them; provided, however that in
case the Company or the Depositary shall be required to withhold and does
15
<PAGE> 21
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed on the Receipts issued in respect of such Stock shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount as can be distributed
without attributing to any record holder of a Receipt a fraction of one cent
and any balance not so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and treated as part of
the next sum received by the Depositary for distribution to record holders of
Receipts then outstanding.
SECTION 4.02 Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash on the Stock, the
Depositary shall (subject to Section 3.02) distribute or cause to be
distributed such amount of the securities or property received by it to be
distributed to the record holders of Receipts on the record date fixed pursuant
to Section 4.04 attributable to the number of Depositary Preferred Shares held
by them, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary, such
distribution cannot be made proportionately among the record holders of
Receipts entitled thereto, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on account of
taxes) the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or
private sale) of
16
<PAGE> 22
the securities or property received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall be distributed or made available for distribution, as the case may
be, by the Depositary to the record holders of Receipts entitled thereto as in
the case of a distribution received in cash.
SECTION 4.03 Subscription Rights, Preferences or Privileges.
Whenever the Company shall offer or cause to be offered to the holders of the
Stock in whose names such securities are recorded on the books of the Company
any rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to the record holders of Receipts entitled thereto of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion; provided,
however, that if at the time of issue or offer of any such rights, preferences
or privileges certain holders of Receipts elect not to exercise such rights,
preferences or privileges and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
the Depositary, if so instructed by the Company, shall, if applicable laws
permit, transfer or sell such rights, preferences or privileges at public or
private sale, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall be distributed by the
Depositary to the record holders of
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<PAGE> 23
Receipts entitled thereto as in the case of a distribution received in cash.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Receipts to be offered or sold such securities, the
Company agrees with the Depositary that it will file promptly a registration
statement pursuant to such Act with respect to such securities and use its best
efforts and take all steps available to it to cause such registration statement
to become effective within a reasonable period of time before such rights,
preferences or privileges shall expire. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such a
registration statement is in effect, or unless the offering and sale of such
securities to the holders of such Receipts are exempt from registration under
the provisions of the Securities Act of 1933.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that it will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of the rights, preferences or
privileges to enable holders of Receipts to exercise such rights, preferences
or privileges.
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<PAGE> 24
SECTION 4.04 Notice of Dividends; Fixing of Record Date for
Receipt Holders. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights, preferences or privileges shall be offered, with respect to the Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, the record date fixed by the Company with respect to the Stock shall be
the record date for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, to give instructions for
the exercise of voting rights at any such meeting or who shall be entitled to
notice of such meeting.
SECTION 4.05 Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail or cause to be mailed to the
record holders of Receipts a notice which shall contain (a) such information as
is contained in such notice of meeting, and (b) a statement that the record
holders of Receipts at the close of business on a specified record date will be
entitled, subject to any applicable provisions of law and of the Restated
Certificate of Incorporation, to instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Stock represented by their
respective Depositary Preferred Shares, and a brief statement as to the manner
in which such instructions may be given. Upon the written request of a record
holder of a Receipt on such record date, the Depositary shall endeavor insofar
as
19
<PAGE> 25
practicable to vote or cause to be voted the amount of Stock represented by
such Receipt in accordance with the instructions set forth in such request.
The Company hereby agrees to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the
record holder of a Receipt, the Depositary will abstain from voting to the
extent of the Stock underlying such Receipt.
Nothing set forth in this Deposit Agreement shall be construed
to give the holders of Receipts any greater or more extensive voting rights
than would accrue to them as holders of the underlying Stock.
SECTION 4.06 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par value,
split-up, consolidation or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of assets affecting the Company or to which it is a party, the Depositary
shall, on instructions from the Company, treat any securities or other property
(including cash) which shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Stock as new deposited securities under
this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the new deposited securities so received in exchange or conversion.
In any such case the Depositary with the approval of the Company may in its
discretion execute and deliver additional Receipts, or may call for the
surrender of all outstanding
20
<PAGE> 26
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities.
SECTION 4.07 Reports. The Depositary shall make available
for inspection by record holders of Receipts at its corporate trust office, and
as such other places as it may from time to time deem advisable, any reports
and communications received from the Company which are (a) received by the
Depositary as the holder of the Stock and (b) made generally available to the
holders of the Stock by the Company.
ARTICLE V
The Depositary and the Company
SECTION 5.01 Maintenance of Offices, Agencies, Transfer Books
by the Depositary; Registrar. Until termination of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at its offices
facilities for the execution and delivery, transfer, surrender and exchange of
Receipts, or may cause to be maintained at the offices of any Depositary's
Agent, facilities for the delivery, transfer, surrender and/or exchange,
split-up, combination or conversion of Receipts and deposit and withdrawal of
Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep at its corporate trust office the
Transfer Books, which at all reasonable times shall be open for inspection by
the record holders of Receipts, as provided by law. The Depositary shall
consult with the Company upon receipt of any request for inspection and the
Company shall be entitled to prevent the inspection of such books to the extent
the holder requesting
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<PAGE> 27
inspection is not entitled to inspection under applicable law. The Depositary
may close the Transfer Books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Preferred Shares represented
thereby shall be listed on the New York Stock Exchange or any other national
exchange, the Company may appoint a Registrar for registry of such Receipts in
accordance with any requirements of such Exchange. Such Registrar which may be
the Depositary if so permitted by the requirements of such Exchange may be
removed and a substitute Registrar appointed with the approval of the Company
by the Depositary. If the Receipts are listed on other stock exchanges, the
Depositary or the Depositary's Agent will arrange for such facilities for the
delivery, transfer, surrender and exchange of Receipts as the Company shall
advise it may be required by law or applicable stock exchange regulation.
SECTION 5.02 Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or the Company. The Depositary, any
Depositary's Agents and the Company shall not incur any liability to any holder
of any Receipt, if by reason of any act of God or war or other circumstance
beyond their control, or by reason of any provision of any present or future
law of the United States of America, or of any other governmental authority,
or, in the case of the Depositary or the Depositary's Agent, by reason of any
act of God or war or other circumstances beyond the control of the relevant
party or any provision, present or future, of the Restated Certificate of
Incorporation, the Depositary, any Depositary's Agent
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<PAGE> 28
or the Company shall be prevented or forbidden from doing or performing any act
or thing which by the terms of this Deposit Agreement it is provided shall be
done or performed. In addition, the Depositary, any Depositary's Agent and the
Company shall not incur any liability to any holder of a Receipt by reason of
any nonperformance or delay, caused as aforesaid, in the performance of any act
or thing which by the terms of this Deposit Agreement it is provided shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement.
SECTION 5.03 Obligations of the Depositary, the Depositary's
Agent and the Company. The Depositary, each Depositary's Agent and the Company
do not assume any obligation, and none of them shall be subject to any
liability under this Deposit Agreement to holders of Receipts other than that
each of them agrees to use its best judgment and good faith in the performance
of such duties as are specifically set forth in this Deposit Agreement and the
Depositary shall not be liable for any action on inaction of the Company or the
Registrar as the Depositary's Agent, and does not expressly assume liability
for actions or inactions of any other Depositary's Agent.
The Depositary, each Depositary's Agent and the Company shall
not be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of the Stock or in respect of the Receipts,
which in their respective opinions may involve them in expense or liability,
unless indemnity satisfactory
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<PAGE> 29
to them against all expense and liability be furnished as often as may be
required.
The Depositary, each Depositary's Agent and the Company shall
not be liable for any action or non-action by any of them in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Stock for deposit, any holder of a Receipt or any other person believed by each
of them in good faith to be competent to give such advice or information. The
Depositary, each Depositary's Agent and the Company may rely and shall be
protected in acting upon any written notice, request, direction or other
document believed by any of them to be genuine and to have been signed or
presented by the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instructions to vote any of the shares of Stock or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith.
The Depositary and the Depositary's Agents may own and deal in
any class of securities of the Company and its affiliates and in Receipts. The
Depositary may also be a depositary of the Company for any purpose, may loan
money to the Company and its affiliates, may act as trustee, transfer agent or
registrar of any of the securities of the Company and its affiliates and may
engage in any other business with or for the Company and its affiliates.
SECTION 5.04 Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to
the Company, such resignation to take effect upon
24
<PAGE> 30
the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal delivered to the Depositary, such removal
becoming effective upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 90 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company having its principal office
in the United States of America and a combined capital and surplus of at least
$20,000,000. If within such 90-day period no successor depositary shall have
been so appointed by the Company and accepted appointment in the manner
hereinafter provided, the Depositary may appoint a successor depositary who
shall be qualified to so act as hereinbefore provided. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor;
but such predecessor, nevertheless, upon payment of all sums due it and on the
written request of the Company shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and
interest in the Stock to such successor and
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<PAGE> 31
shall deliver to such successor a list of record holders of all outstanding
Receipts. Any successor depositary shall promptly mail or cause to be mailed
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged or consolidated shall be the successor of such Depositary without the
execution or filing of any document or any further act.
SECTION 5.05 Corporate Notices and Reports. The Company will
transmit, or furnish to the Depositary for transmission, to the record holders
of Receipts, at the address recorded on the Transfer Books, copies of all
notices and reports furnished, or required by law to be furnished, by the
Company, to its stockholders or to holders of the Stock. Such transmission
will be at the Company's expense and the Company will provide the Depositary
with such number of copies of such documents as the Depositary may reasonably
request for such purpose. In addition, the Depositary will transmit to the
record holders of Receipts (at the Company's expense) such other documents as
may be requested by the Company.
SECTION 5.06 Deposit of Stock by the Company. The Company
agrees with the Depositary that neither the Company nor any company controlled
by the Company will at any time deposit any Stock, if such Stock is required to
be registered under the provisions of the Securities Act of 1933 and no
registration statement is in effect as to such Stock.
SECTION 5.07 Indemnification by the Company. The Company
agrees to indemnify the Depositary and the Registrar, if any, against, and hold
each of them harmless from, any liability or
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<PAGE> 32
expense (including reasonable fees and expenses of counsel) which may arise out
of acts performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (a) by the Depositary, the Registrar or any of
their agents except for any liability or expense arising out of negligence, bad
faith or willful misconduct, or (b) by the Company or any of its agents or any
liability or expense which may arise out of or in connection with the
registration of the Stock or the offer or sale to the public of the Stock or
the offer or sale to the public of the Receipts except to the extent that such
liability or expense arises out of information relating to the Depositary.
SECTION 5.08 Charges and Expenses. The Company agrees to pay
all charges and expenses of the Depositary hereunder, and those of the
Registrar, if any, other than (i) fees of the Depositary for the withdrawal of
Stock pursuant to Section 2.06, (ii) taxes and other governmental charges which
shall become payable with respect to the Receipts, the Depositary Preferred
Shares or the Stock represented thereby (including transfer taxes, if any)
except that the Company will pay any transfer taxes payable with respect to the
initial delivery of Receipts and (iii) such telecopier and delivery charges
incurred, at the election of a holder of Stock or Depositary Preferred Shares,
for any delivery or communication from the Depositary to such holder. All
charges and expenses referred to in clauses (i) through (iii) in the preceding
sentence shall be paid by persons withdrawing Stock or holders of Receipts, as
the case may be, except as otherwise provided in said clauses. Any other
charges and
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<PAGE> 33
expenses of the Depositary and any Depositary's Agent hereunder (including fees
and expenses of counsel) will be paid upon consultation and agreement between
the Depositary and the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for such charges and
expenses to the Company once every three months.
To the extent the fees of the Depositary are not to be paid by the
Company pursuant to the foregoing provisions of this Section, the Depositary
will charge the parties to whom Receipts or shares of Stock are delivered a fee
of $25.00 for each transaction involving the withdrawal of Stock pursuant to
Section 2.06.
ARTICLE VI
Amendment & Termination
SECTION 6.01 Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable. Any amendment which shall impose
any fees, taxes or charges (other than taxes, fees and charges provided for
herein), or that shall otherwise prejudice any substantial existing rights of
holders of Receipts, shall not become effective as to outstanding Receipts
until the expiration of 90 days after notice of such amendment shall have been
given to the record holders of outstanding Receipts. Every record holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any
28
<PAGE> 34
amendment impair the right, subject to Sections 2.06 and 2.07 and Article III,
of the holder of any Receipt to surrender such Receipt and receive therefor the
Stock and other property represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.02 Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by mailing notice
of such termination to the record holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notices for such termination,
which notice shall direct the record holders of Receipts to surrender their
Receipts to the Depositary for exchange as specified below.
Upon termination of this Deposit Agreement, the record holders of
outstanding Receipts shall exchange such Receipts for the underlying Stock or
for shares of preferred stock issued upon any subdivision of the Stock. No
fractional shares of Stock will be issued and in lieu thereof, each holder
otherwise entitled to a fractional share of Stock shall be paid cash in an
amount equal to the redemption value attributable to that fraction.
If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the transfer of
Receipts, shall suspend the distribution of dividends to the holders thereof,
and shall not give any further notices (other than notice of such termination)
or perform any further acts under this Deposit Agreement, except that the
Depositary shall sell rights, preferences or privileges as provided in this
Deposit Agreement, shall continue to collect dividends and other distributions
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<PAGE> 35
pertaining to the Stock, and shall continue to deliver Stock together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights, preferences, privileges or other property
in exchange for Receipts surrendered to the Depositary. At any time after the
expiration of two years from the date of termination, the Depositary may sell
the Stock then held hereunder at public or private sale, at such place or
places and upon such terms as the Company deems proper and may thereafter hold
the net proceeds of any such sale, together with any other cash then held by it
hereunder, without liability for interest, for the pro rata benefit of the
record holders of Receipts which have not theretofore been surrendered. After
making such sale, the Depositary shall be discharged from all obligations under
this Deposit Agreement, except to account for such net proceeds and other cash.
Within 60 days after the first anniversary of the date of such sale, the
Depositary shall pay to the Company any of such net proceeds which shall not
have been claimed by record holders of Receipts surrendering their Receipts
therefor. After making such payment to the Company, the Depositary shall be
discharged from all obligations under this Deposit Agreement and the remaining
Receipt holders shall look to the Company for such proceeds relating to such
Receipts. Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary and the Registrar under Sections 5.07 and 5.08
hereof.
ARTICLE VII
Miscellaneous
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SECTION 7.01 Counterparts. This Deposit Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original and all such counterparts shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to the
Deposit Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's corporate
trust office, and the principal offices of the Depositary's Agents, by any
record holder of a Receipt.
SECTION 7.02 Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03 Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall not be affected, prejudiced or disturbed thereby.
SECTION 7.04 Notices. Any and all notices to be given to the
Company shall be deemed to have been duly given if personally delivered or sent
by mail or by telecopier confirmed by letter, addressed to the Company at 284
South Avenue, Poughkeepsie, New York
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12601, attention: Treasurer, or any other place to which the Company may have
transferred its principal executive office.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if personally delivered or sent by mail or by
telecopier confirmed by letter, addressed to the Depositary at
_______________________, New York, New York _____, attention: Corporate Trust
Department, or to any other place to which the Depositary may have transferred
the corporate trust office.
Any and all notices to be given to any record holder of a
Receipt shall be deemed to have been duly given if personally delivered or sent
by mail or by telecopier confirmed by letter, addressed to such record holder
at the address of such record holder as it appears on the Transfer Books, or,
if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telecopier shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telecopier message) is
deposited, postage prepaid, in a post office letter box. The Depositary and
the Company may, however, act upon any telecopier message received by it from
the other or from any holder of a Receipt, notwithstanding that such telecopier
message shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05 Depositary's Agents. The Depositary may with
the prior consent of the Company from time to time appoint Depositary's Agents
(which may include the Company) and vary or
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terminate the appointment of any Depositary's Agents. Any Depositary's Agent
may be empowered to perform any of the functions and duties of the Depositary
described in the Deposit Agreement, and may be entitled to the same rights and
indemnifications pertaining to those functions and duties that are available to
the Depositary. The rights and duties of any Depositary's Agent shall be
defined in a written agreement among the Company, the Depositary and the
Depositary's Agent.
SECTION 7.06 Holders of Receipts are Parties. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance thereof.
SECTION 7.07 Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by and construed in accordance with the laws of the
State of New York without giving effect to principles of conflicts of law.
SECTION 7.08 Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Depositary Receipt set forth
in Exhibit A hereto have been inserted for convenience only and are not to be
regarded as a part of this Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Depositary Receipts.
IN WITNESS WHEREOF, CENTRAL HUDSON GAS & ELECTRIC CORPORATION
and _______________________________ have duly executed this Agreement as of the
day and year first above set forth and all holders of Depositary Receipts shall
become parties hereto upon
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<PAGE> 39
acceptance by them of Depositary Receipts issued in accordance with the terms
hereof.
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
By _______________________________________
[title]
__________________________________________
By _______________________________________
[title]
34
<PAGE> 40
EXHIBIT A
DEPOSITARY RECEIPT FOR
____________ CUMULATIVE PREFERRED STOCK[, SERIES __]
OF
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
incorporated under the laws of the State of New York
This receipt is transferable in New York, NY
Number . . . . . . . . . . . . . . . . . . Depositary Preferred Shares
(Each such share represents
1/4 of a share of __________
____ Cumulative Preferred
Stock, [Series __,] par
value $100 per share)
1. _______________________, a New York corporation, as
Depositary (the "Depositary"), hereby certifies that _________ is the registered
owner of ______ Depositary Preferred Shares representing ____ Cumulative
Preferred Stock[, Series __], par value $100 per share ("Stock"), of
Central Hudson Gas & Electric Corporation, incorporated under the
laws of the State of New York (the "Company"). Each such Depositary
Preferred Share represents one-quarter of a share of Stock at
the date hereof deposited at the corporate trust office of the
Depositary. The rights, preferences and limitations of the Stock are set
forth in the Company's Restated Certificate of Incorporation, as
amended, copies of which are on file at the Depositary's corporate trust
office in New York City.
2. The Deposit Agreement. The Depositary Receipts, of which
this Receipt is one ("Receipt"), are made available upon the terms and
conditions set forth in the Deposit Agreement dated as of _____________, 199__
(the "Deposit Agreement") among the Company, the Depositary and all holders
from time to time of Receipts and the holder of this Receipt, by acceptance
hereof, agrees to be bound thereby. The Deposit Agreement (copies of which are
on file at the Depositary's corporate trust office in New York City) sets forth
the rights of holders of the Receipts and the rights and duties of the
Depositary in respect of the Stock deposited and any and all other property and
cash from time to time held thereunder. The statements made on the face and
the reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which
reference is hereby made. In the event of any conflict between the provisions
of this Receipt and the provisions of the Deposit Agreement, the provisions of
the Deposit Agreement will govern. Unless otherwise expressly
<PAGE> 41
provided herein, all defined terms used herein shall have the meanings ascribed
thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall be obligated, or
shall be permitted and shall elect, under the Company's Restated Certificate of
Incorporation, as amended, to redeem shares of the Stock, the Depositary shall
mail notice of such redemption and the simultaneous redemption of the
Depositary Preferred Shares representing the Stock to be redeemed, not less
than 30 nor more than 50 days prior to the date fixed for redemption, to the
holders of record of Receipts representing the number of Depositary Preferred
Shares to be redeemed. In case fewer than all the outstanding Depositary
Preferred Shares are to be redeemed, the Depositary Preferred Shares to be
redeemed shall be selected by lot or by a substantially equivalent method.
Notice having been mailed as aforesaid, from and after the redemption date
(unless the Company shall have failed to redeem the shares of Stock to be
redeemed by it on such date), all dividends in respect of the Depositary
Preferred Shares so called for redemption shall cease to accrue, said
Depositary Preferred Shares shall be deemed no longer to be outstanding, all
rights of the holders of Receipts with respect to such Depositary Preferred
Shares (except the right to receive the redemption price) shall terminate, and,
upon surrender in accordance with said notice of the Receipts representing any
such Depositary Preferred Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Preferred Shares shall be
redeemed by the Depositary at the redemption price therefor set forth in said
notice. If fewer than all of the Depositary Preferred Shares represented by
this Receipt are called for redemption, the Depositary will deliver to the
holder of this Receipt upon its surrender to the Depositary, together with the
redemption payment, a new Receipt representing the Depositary Preferred Shares
not called for redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at its corporate trust office in
New York City, or at such other offices as it may designate, and subject to the
terms and conditions of the Deposit Agreement, the holder hereof is entitled to
delivery to him, or upon his order, of any whole shares of Stock and any other
property at the time represented hereby, provided, however, that in the event
fractional shares of Stock would be created, the Depositary shall deliver a new
Receipt for the Depositary Preferred Shares representing less than one share of
Stock.
5. Transfers, Split-Ups, Combinations. This Receipt is
transferable on the Transfer Books of the Depositary upon surrender of this
Receipt to the Depositary, properly endorsed or accompanied by a properly
executed instrument of transfer, and upon such transfer the Depositary shall
sign and deliver a Receipt or Receipts to or upon the order of the person
entitled
2
<PAGE> 42
thereto, as provided in the Deposit Agreement. This Receipt may be split into
other Receipts or combined with other Receipts into one Receipt, representing
the same aggregate number of Depositary Preferred Shares as the Receipt or
Receipts surrendered.
6. Conditions to Signing and Delivery, Transfer, etc. of
Receipts. Prior to the execution and delivery, transfer, split-up,
combination, surrender or exchange of this Receipt, the Depositary or any
Depositary's Agent may require payment of a sum sufficient for reimbursement of
any tax or other governmental charge with respect thereto (including any such
tax or charge with respect to Stock being deposited or withdrawn), may require
proof satisfactory to it as to the identity and genuineness of any signature
and may also require compliance with such regulations, if any, as it may
establish pursuant to the Deposit Agreement. Any person presenting Stock for
deposit, or any holder of this Receipt, may be required to file any
information, and to execute such certificates as the Depositary may reasonably
deem necessary or proper. The Depositary or the Company may withhold or delay
the delivery of shares of Stock upon withdrawal of such shares pending the
payment by the holder of this Receipt of the fees of the Depositary relating to
such withdrawal. The Depositary or the Company may withhold or delay the
delivery of this Receipt, the transfer or exchange of this Receipt, the
withdrawal of the Stock represented by the Depositary Preferred Shares
evidenced by this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. The deposit of
Stock, the delivery of this Receipt against Stock or the transfer, surrender or
exchange of this Receipt may be suspended during any period when the register
of stockholders of the Company is closed or if any such action is deemed
necessary or advisable by the Depositary, or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit
Agreement or for any other reason.
8. Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on behalf of the
Depositary with respect to this receipt or with respect to the Stock
represented hereby, such tax (including transfer taxes, if any) or governmental
charge shall be payable by the holder hereof. Transfer of this Receipt or any
withdrawal of Stock represented by this Receipt may be refused until such
payment is made, and any dividends or other distributions may be withheld, or
any part or all of the Stock represented by this Receipt and not theretofore
sold may be sold for the account of the holder hereof, and such dividends or
other distributions or the proceeds of any such sale may be applied to any
payment of
3
<PAGE> 43
such tax or other governmental charge, the holder of this Receipt remaining
liable for any deficiency.
9. Warranties by Depositor. Every person depositing Stock
under the Deposit Agreement shall be deemed thereby to represent and warrant
that each certificate for such Stock is valid and that the person making such
deposit is duly authorized so to do.
10. Amendment. The form of the Receipts and any provisions
of the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any amendment which imposes any fees, taxes or
charges (other than taxes, fees and charges provided for in the Deposit
Agreement) or that shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding Receipts
until the expiration of 90 days after notice of such amendment has been given
to the record holders of outstanding Receipts. The holder of this Receipt at
the time any such amendment so becomes effective shall be deemed, by continuing
to hold this Receipt, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby. In no event shall any amendment
impair the right, subject to the provisions of Paragraphs 4, 7 and 8 hereof and
of Sections 2.06 and 2.07 and Article III of the Deposit Agreement, of the
owner of the Depositary Preferred Shares evidenced by this Receipt to surrender
this Receipt with instructions to the Depositary to deliver to the holder the
Stock and all money and other property, if any, represented thereby, except in
order to comply with mandatory provisions of applicable law.
11. Fees, Charges and Expenses. The Company will pay all
fees, charges and expenses of the Depositary, except for taxes (including
transfer taxes, if any) and other governmental charges and such charges as are
expressly provided in the Deposit Agreement to be at the expense of persons
withdrawing Stock, holders of Receipts or other persons.
To the extent the fees of the Depositary are not to be paid by
the Company pursuant to Section 5.08 of the Deposit Agreement, the Depositary
will charge the parties to whom Receipts or shares of Stock are delivered a fee
of $25.00 for each transaction involving the withdrawal of Stock.
12. Title to Receipts. It is a condition of this Receipt,
and every successive holder hereof by accepting or holding the same consents
and agrees, that title to this Receipt (and to the Depositary Preferred Shares
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same
4
<PAGE> 44
effect as in the case of a negotiable instrument, provided, however, that until
this Receipt shall be transferred on the Transfer Books, the Depositary, any
Depositary's Agent, and the Company may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in the Deposit
Agreement, and for all other purposes.
13. Dividends and Distributions. Whenever the Depositary
receives any cash dividend or other cash distribution on the Stock, the
Depositary will, subject to the provisions of the Deposit Agreement, make or
cause to be made such distribution to the record holders of the Receipts as is
attributable to the number of Depositary Preferred Shares held by them;
provided, however, that the amount distributed will be reduced by any amounts
required to be withheld by the Company or the Depositary on account of taxes.
Other distributions received on the Stock may be distributed to holders of
Receipts as provided in the Deposit Agreement.
14. Subscription Rights, Preferences or Privileges. Whenever
the Company shall offer to the record holders of the Stock any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall be made available to the holders of Receipts in such manner
as the Company shall instruct.
15. Fixing of Record Date. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than
cash shall be made, or whenever rights, preferences or privileges shall be
offered, with respect to the Stock, or whenever the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice, the record date shall be the
record date fixed by the Company with respect to the Stock.
16. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail or cause to be mailed to the record holders of
Receipts a notice which shall contain a statement that the holders of Receipts
at the close of business on a specified record date will be entitled, subject
to any applicable provisions of law and of the Company's Restated Certificate
of Incorporation, as amended, to instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Stock represented by their
respective Depositary Preferred Shares, and a brief statement as to the manner
in which such instructions may be given. Upon the written
5
<PAGE> 45
request of a record holder of a Receipt on such record date, the Depositary
shall endeavor in so far as practicable to vote or cause to be voted the amount
of Stock represented by such Receipt in accordance with the instructions set
forth in such request. The Company agrees to take all action which may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the record holder of a Receipt, the Depositary will abstain
from voting to the extent of the Stock underlying such Receipt.
17. Changes Affecting Deposited Securities. Upon any change
in par value, split-up, consolidation or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation or sale of assets affecting the Company or to which it is a
party, the Depositary, on instructions from the Company may treat any
securities or other property (including cash) which shall be received by the
Depositary in exchange for or in conversion of or in respect of the Stock as
new deposited securities under the Deposit Agreement, and Receipts then
outstanding shall thence forth represent the new deposited securities so
received in exchange or conversion. In any such case the Depositary may in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited
securities.
18. Reports: Inspection of Transfer Books. The Depositary
will make available for inspection by record holders of Receipts at its
corporate trust office and at such other places as it may deem advisable, any
reports and communications issued by the Company which are made generally
available to the holders of such Stock by the Company. The Depositary will
also send or cause to be sent to record holders of Receipts copies of such
other reports and financial statements furnished by the Company. The
Depositary will keep books for the transfer of Receipts, which at all
reasonable times will be open for inspection by the record holders of Receipts,
to the same extent as a record holder of Stock may inspect books for the
transfer of Stock.
19. Liability of the Depositary, the Depositary's Agents or
the Company. The Depositary, the Depositary's Agents and the Company shall not
incur any liability to any holder of any receipt, if by reason of any act of
God or war or other circumstance beyond their control, or by reason of any
provisions of any present or future law of any governmental authority, or, in
the case of the Depositary or any Depositary's Agent, by reason of any act of
God or war or other circumstances beyond the control of the relevant party, any
provision, present or future, of the Company's Restated Certificate of
Incorporation, as
6
<PAGE> 46
amended, the Depositary, the Depositary's Agent or the Company shall be
prevented or forbidden from doing or performing any act or thing which by the
terms of the Deposit Agreement it is provided shall be done or performed. In
addition, the Depositary, the Depositary's Agent or the Company shall not incur
any liability to any holder of a Receipt by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of the Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement.
20. Obligations of the Depositary, the Depositary's Agents
and the Company. The Depositary, the Depositary's Agents and the Company do
not assume any obligation and none of them shall be subject to any liability
under the Deposit Agreement to holders of Receipts, other than that each of
them agrees to use its best judgment and good faith in the performance of such
duties as are specifically set forth in the Deposit Agreement and the
Depositary shall not be liable for any action or inaction of the Company or the
Registrar as the Depositary's Agent, and does not expressly assume liability
for actions or inactions of any other Depositary's Agent.
The Depositary, the Depositary's Agents and the Company will
not be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of the Stock or in respect of the Receipts,
which in their respective opinions may involve them in expense or liability,
unless indemnity satisfactory to them against all expense and liability be
furnished as often as may be required. The Depositary, the Depositary's
Agents, and the Company will not be liable for any action or non-action by them
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Stock for deposit, any holder of a Receipt or any other
person believed by them in good faith to be competent to give such advice or
information. The Depositary will not be responsible for any failure to carry
out any instruction to vote any of the shares of Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith. The Company will indemnify the Depositary and the Registrar
against any liability which may arise out of acts performed or omitted, in
accordance with the Deposit Agreement and of the Receipts (i) by the
Depositary, the Registrar, or any of their agents, except for any liability
arising out of their negligence, bad faith or willful misconduct, or (ii) by
the Company or any of its agents or any liability which may arise out of or in
connection with the registration of the Stock or the offer or sale to the
public of the Stock or the offer or sale to the public of the Receipts except
to the extent that such liability arises out of information relating to the
Depositary.
7
<PAGE> 47
21. Resignation and Removal of Depositary. The Depositary
may at any time (i) resign by written notice of its election so to do delivered
to the Company, such resignation to take effect upon the appointment of a
successor depositary and its acceptance of such appointment, or (ii) be removed
by the Company, effective upon the appointment of a successor depositary and
its acceptance of such appointment, all as provided in the Deposit Agreement.
22. Termination of Deposit Agreement. Whenever so directed
by the Company, the Depositary will terminate the Deposit Agreement by mailing
notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. Upon the termination of the Deposit Agreement, the Company shall
be discharged from all obligations thereunder except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under Sections 5.07 and
5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date of
termination, the Depositary thereafter shall discontinue all functions and be
discharged from all obligations as provided in the Deposit Agreement, except as
specifically provided therein.
23. Governing Law. The Deposit Agreement and this Receipt
and all rights thereunder and hereunder and provisions thereof and hereof shall
be governed by and construed in accordance with the laws of the State of New
York without giving effect to principles of conflict of laws.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this
Receipt shall have been executed by the Depositary by the signature or a
facsimile signature of a duly authorized officer and, if a Registrar for the
Receipts shall have been appointed by the signature of a duly authorized
officer of such Registrar.
Dated:_____________________
__________________________________
_____________, Depositary
By _______________________________
Authorized Officer
8
<PAGE> 1
EXHIBIT (5)
November 7, 1994
Central Hudson Gas & Electric Corporation
284 South Avenue
Poughkeepsie, New York 12601
Dear Sirs:
Referring to your Registration Statement on Form S-3 ("Registration
Statement") submitted for electronic filing this date with the Securities and
Exchange Commission under the Securities Act of 1933, pursuant to Rule 415
promulgated thereunder, covering the proposed issuance and sale by you of (i)
up to $80,000,000 aggregate principal amount of Debt Securities ("Debt
Securities"), consisting of your First Mortgage Bonds ("New Bonds") in one or
more series to be issued under an Indenture of Mortgage, dated as of January 1,
1927, of Central Hudson Gas & Electric Corporation ("Company") to American
Exchange Irving Trust Company (now The Bank of New York), as Trustee ("Mortgage
Trustee"), as heretofore supplemented and amended and as to be supplemented by
one or more supplemental indentures (as so supplemented and amended, the
"Mortgage") relating to the New Bonds; and/or Unsecured Notes ("Unsecured
Notes"), in one or more series to be issued under an Indenture ("Unsecured
Indenture"), dated as of April 1, 1992, by and between the Company and First
Trust of New York, National Association (as successor to Morgan Guaranty Trust
Company of New York), as Trustee ("Indenture Trustee"), in amounts, at prices
and on terms to be determined at the time or times of sale; subject to the
condition that the aggregate initial offering price of the Debt Securities and
the Additional Common Stock referred to in (iii) below shall not exceed
$80,000,000; (ii) up to 250,000 shares of authorized and previously unissued
shares of Serial Preferred Stock, par value $100 per share, of the Company
("New Preferred Stock") in one or more series, all at such time or times as the
officers of the Company may determine and covering the possible issuance in
connection therewith of up to 1,000,000 depositary preferred shares, each
representing 1/4 of a share of New Preferred Stock ("Depositary Preferred
Shares"), each evidenced by Depositary Receipts ("Depositary Receipts"); and
(iii) up to $40,000,000 in aggregate initial offering price of additional
shares of this Corporation's Common Stock, $5.00 par value per share
("Additional Common Stock"), to be issued and sold pursuant to public offering;
subject to the condition that
<PAGE> 2
Central Hudson Gas & -2- November 7, 1994
Electric Corportation
the aggregate initial public offering price of the Additional
Common Stock and the Debt Securities shall not exceed $80,000,000, all as
contemplated in the Registration Statement (the Debt Securities, the New
Preferred Stock, the Depositary Preferred Shares and the Additional Common
Stock are collectively referred to hereinafter as the "Securities"):
The Company was incorporated and organized under our supervision. We
have acted as counsel for the Company since its incorporation on December 31,
1926.
We have advised the Company with regard to the execution and filing of
its Certificate of Consolidation (Certificate of Incorporation) and all
certificates amendatory thereof.
We have advised the Company in the preparation of the Registration
Statement to be filed with the Securities and Exchange Commission on this date
under the Securities Act of 1933 to effect registration thereunder of the
Securities.
With respect to those Debt Securities which are to be issued at any
one time ("Offered Bonds" in the case of the New Bonds or "Offered Notes" in
the case of the Unsecured Notes), and on the basis of the foregoing, and our
examination and consideration of such other legal and factual matters as we
have deemed appropriate, we are of the following legal opinion:
Upon -
(a) favorable action having been taken, at a meeting or meetings
of the Company's Board of Directors or a duly authorized
committee of the Board of Directors, to approve and authorize
the terms and conditions, and issuance and sale of the Offered
Bonds and/or Offered Notes, the execution and delivery of an
appropriate Supplemental Indenture to the Mortgage for the
issuance and sale of the Offered Bonds, the issuance and sale
of such Offered Notes under the Unsecured Indenture, and any
other action necessary to the consummation of the proposed
issuance and sale of the Offered Bonds and/or Offered Notes,
including the execution and delivery of a Distribution
Agreement in substantially the form contained in the
Registration Statement as Exhibit (1)(a);
(b) confirmation by us that the authorization set forth in the
Order of the Public Service Commission of the State of New
York ("PSC")
<PAGE> 3
Central Hudson Gas & -3- November 7, 1994
Electric Corportation
in Case 94-M-0198, issued and effective October 17, 1994, for
the issuance and sale of the Offered Bonds and/or Offered
Notes continues to be in full force and effect, and that all
conditions precedent in such Order to such issuance and sale
have been satisfied;
(c) the Registration Statement becoming effective;
(d) the aforementioned Supplemental Indenture with respect to the
Offered Bonds having been duly executed and delivered by the
parties thereto;
(e) the aforementioned Distribution Agreement with respect to the
Debt Securities having been duly executed and delivered by the
parties thereto; and
(f) the Offered Bonds and/or Offered Notes having been
authenticated by the Mortgage Trustee in the case of the
Offered Bonds, and/or by the Indenture Trustee in the case of
the Offered Notes, and issued and delivered for the
consideration contemplated in the Registration Statement and
any prospectus supplement relating to the Offered Bonds and/or
Offered Notes and in accordance with (i) the provisions of the
Mortgage as to be supplemented by the aforementioned
Supplemental Indenture in the case of the Offered Bonds and/or
the provisions of the Unsecured Indenture in the case of the
Offered Notes, and (ii) the aforementioned resolutions of the
Company's Board of Directors or duly authorized committee of
the Board of Directors;
the Offered Bonds and/or Offered Notes will be the valid, legal and binding
obligations of the Company.
With respect to the New Preferred Stock which is to be issued at any
one time ("Offered Preferred Stock"), and on the basis of the foregoing, and of
our examination and consideration of such other legal and factual matters as we
have deemed appropriate, we are of the following legal opinion:
Upon -
<PAGE> 4
Central Hudson Gas & -4- November 7, 1994
Electric Corportation
(a) favorable action having been taken, at a meeting or meetings
of the Company's Board of Directors or a duly authorized
committee of the Board of Directors, to approve and authorize
the terms and conditions, and issuance and sale of the Offered
Preferred Stock, the execution and delivery of an appropriate
Underwriting Agreement for the issuance and sale of the
Offered Preferred Stock (in substantially the form contained
in the Registration Statement as Exhibit (1)(b)), and any
other action necessary to the consummation of the proposed
issuance and sale of the Offered Preferred Stock;
(b) confirmation by us that the authorization set forth in
the Order of the PSC in Case 93-M-0450, issued and effective
September 29, 1993 (and as such Order was amended on
July 29, 1994), for the issuance and sale of the Offered
Preferred Stock continues to be in full force and effect,
and that all conditions precedent in said Order to such
issuance and sale have been satisfied;
(c) the Registration Statement becoming effective;
(d) the execution and delivery of said Underwriting Agreement
relating to the Offered Preferred Stock;
(e) the approval by the PSC of the Certificate of Amendment to the
Certificate of Incorporation of the Company relating to the
Offered Preferred Stock in substantially the form contained in
the Registration Statement as Exhibit (4)(i)37;
(f) the delivery for filing to the Department of State of the
State of New York of such Certificate of Amendment relating to
the Offered Preferred Stock; and
(g) the certificates for the Offered Preferred Stock having been
duly issued and delivered to or on the order of the purchasers
thereof on the terms and conditions, if any, set forth in the
Registration Statement and as authorized by the Board of
Directors of the Company, and the Company having received the
<PAGE> 5
Central Hudson Gas & -5- November 7, 1994
Electric Corportation
consideration for said shares of the Offered
Preferred Stock as set forth in the Registration
Statement and as so authorized by said Board of
Directors;
the Offered Preferred Stock will be legally issued, fully paid and
non-assessable.
When the events in the immediately preceding paragraph shall have
occurred and if and when the Deposit Agreement by and among the Company, a
Depositary yet to be determined ("Depositary") and the holders of Depositary
Receipts who will become parties thereto upon acceptance by them of Depositary
Receipts ("Deposit Agreement"), in substantially the form contained in the
Registration Statement as Exhibit (4)(i)38, is duly authorized, executed, and
delivered, when the Offered Preferred Stock shall have been deposited with the
Depositary pursuant to the terms of the Deposit Agreement, and when the
Depositary Receipts shall have been duly executed and delivered in accordance
with the procedures set forth in the Deposit Agreement by the Depositary to or
on the order of the purchasers thereof on the terms and conditions set forth in
the Registration Statement and Deposit Agreement; then, in our opinion, said
Depositary Preferred Shares, each representing 1/4 of a share of New Preferred
Stock, as evidenced by Depositary Receipts, will be validly and legally issued,
fully paid and non-assessable.
With respect to the Additional Common Stock which is to be issued at
any one time ("Offered Common Stock"), and on the basis of the foregoing, and
of our examination and consideration of such other legal and factual matters as
we have deemed appropriate, we are of the following legal opinion:
Upon -
(a) favorable action having been taken, at a meeting or meetings
of the Company's Board of Directors or a duly authorized
committee of the Board of Directors, to approve and authorize
the terms and conditions, and issuance and sale of the Offered
Common Stock, the execution and delivery of an appropriate
Underwriting Agreement for the issuance and sale of the
Offered Common Stock (in substantially the form contained in
the Registration Statement as Exhibit (1)(c)), and any other
action necessary to the consummation of the proposed issuance
and sale of the Offered Common Stock;
<PAGE> 6
Central Hudson Gas & -6- November 7, 1994
Electric Corportation
(b) confirmation by us that the authorization set forth in the
Order of the PSC in Case 94-M-0198, issued and effective
October 17, 1994, for the issuance and sale of the Offered
Common Stock continues to be in full force and effect, and
that all conditions precedent in said Order to such issuance
and sale have been satisfied;
(c) the Registration Statement becoming effective;
(d) the execution and delivery of said Underwriting Agreement
relating to the Offered Common Stock; and
(e) the certificates for the Offered Common Stock having been duly
issued and delivered to or on the order of the purchasers
thereof on the terms and conditions, if any, set forth in the
Registration Statement and as authorized by the Board of
Directors of the Company, and the Company having received the
consideration for said shares of the Offered Common Stock as
set forth in the Registration Statement and as so authorized
by said Board of Directors;
said shares of Offered Common Stock will be legally issued, fully paid and
non-assessable, provided that the consideration for such Offered Common Stock
is at least equal to the par value of the Company's Common Stock at the time of
issuance thereof.
We hereby consent that this opinion be filed as an Exhibit to the
Company's said Registration Statement, and we further consent to the use of our
name as experts in connection with the statements in the Prospectus included in
said Registration Statement as to matters of law and legal conclusions under
the captions "The Company," "Securities -- Description of the New Bonds,"
"Securities -- Description of Unsecured Notes," "Securities -- Description
of the New Preferred Stock," "Securities -- Description of Depositary
Preferred Shares
<PAGE> 7
Central Hudson Gas & -7- November 7, 1994
Electric Corportation
and Depositary Receipts," "Securities -- Common Stock Dividends and Price
Range" and "Securities -- Description of Common Stock," and the reference to us
under the caption "Legal Opinions and Experts" in said Prospectus.
Very truly yours,
GOULD & WILKIE
Gould & Wilkie
<PAGE> 1
EXHIBIT 12
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO
FIXED CHARGES AND PREFERRED DIVIDENDS
<TABLE>
<CAPTION>
1994
--------------------------------
3 Months 9 Months 12 Months
Ended Ended Ended Year Ended December 31,
--------------------------------------------
Sept. 30 Sept. 30 Sept. 30 1993 1992 1991 1990 1989
-------- -------- -------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings:
A. Net Income $12,434 $ 43,428 $ 51,933 $ 50,390 $ 47,688 $ 42,941 $ 41,035 $ 39,117
B. Federal Income Tax 6,405 23,040 28,735 27,158 24,363 21,361 20,374 18,918
------- -------- -------- -------- -------- -------- -------- --------
C. Earnings before Income Taxes $18,839 $ 66,468 $ 80,668 $ 77,548 $ 72,051 $ 64,302 $ 61,409 $ 58,035
======= ======== ======== ======== ======== ======== ======== ========
D. Total Fixed Charges(1) 7,999 25,004 33,580 33,820 34,888 37,737 42,906 43,523
------- -------- -------- -------- -------- -------- -------- --------
E. Total Earnings $26,838 $ 91,472 $114,248 $111,368 $106,939 $102,039 $104,315 $101,558
======= ======== ======== ======== ======== ======== ======== ========
Preferred Dividend Requirements:
F. Allowance for Preferred Stock
Dividends Under IRC Sec 247 1,282 3,844 5,384 5,562 5,544 5,659 5,681 5,698
G. Less Allowable Dividend Deduction 132 396 528 528 544 544 544 544
------- -------- -------- -------- -------- -------- -------- --------
H. Net Subject to Gross-up 1,150 3,448 4,856 5,034 5,000 5,115 5,137 5,154
I. Ratio of Earnings before Income
Taxes to Net Income (C/A) 1.515 1.531 1.553 1.539 1.511 1.497 1.497 1.484
------- -------- -------- -------- -------- -------- -------- --------
J. Pref. Dividend (Pre-tax) (HxI) 1,742 5,279 7,541 7,747 7,555 7,657 7,690 7,649
K. Plus Allowable Dividend Deduction 132 396 528 528 544 544 544 544
------- -------- -------- -------- -------- -------- -------- --------
L. Preferred Dividend Factor 1,874 5,675 8,069 8,275 8,099 8,201 8,234 8,193
M. Fixed Charges (D) 7,999 25,004 33,580 33,820 34,888 37,737 42,906 43,523
------- -------- -------- -------- -------- -------- -------- --------
N. Total Fixed Charges
and Preferred Dividends $ 9,873 $ 30,679 $ 41,649 $ 42,095 $ 42,987 $ 45,938 $ 51,140 $ 51,716
======= ======== ======== ======== ======== ======== ======== ========
O. Ratio of Earnings to Fixed
Charges (E/D) 3.36 3.66 3.40 3.29 3.07 2.70 2.43 2.33
======= ======== ======== ======== ======== ======== ======== ========
P. Ratio of Earnings to Fixed Charges
and Preferred Dividends (E/N) 2.72 2.98 2.74 2.65 2.49 2.22 2.04 1.96
======= ======== ======== ======== ======== ======== ======== ========
</TABLE>
(1) Includes a portion of rent expense deemed to be representive
of the interest factor.
<PAGE> 1
EXHIBIT (23) (a)
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 January 28, 1994, which appears on page 31 of the 1993 Annual Report to
Shareholders of Central Hudson Gas & Electric Corporation, which is
incorporated by reference in Central Hudson Gas & Electric Corporation's Annual
Report on Form 10-K for the year ended December 31, 1993. We also consent to
the incorporation by reference in such Prospectus of our report on the
Financial Statement Schedules, which appears on page F-2 of such Annual Report
on Form 10-K. We also consent to the reference to us under the heading "Legal
Opinions and Experts" in such Prospectus.
PRICE WATERHOUSE LLP
New York, New York
November 4, 1994
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, L. WALLACE CROSS, a
Director of Central Hudson Gas & Electric Corporation, have made, constituted
and appointed, and by these presents do make, constitute and appoint, JOHN E.
MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
L. Wallace Cross L.S.
---------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came L.
WALLACE CROSS, to me known and known to me to be the individual described in
and who executed the foregoing instrument, and duly acknowledge to me that he
executed the same.
Jeanette Kihlmire L.S.
---------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 2
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, JOHN E. MACK III,
Chairman of the Board and Chief Executive Officer, a Principal Executive
Officer and a Director of Central Hudson Gas & Electric Corporation, have made,
constituted and appointed, and by these presents do make, constitute and
appoint, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
John E. Mack III L.S.
---------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came JOHN
E. MACK III, to me known and known to me to be the individual described in and
who executed the foregoing instrument, and duly acknowledge to me that he
executed the same.
Jeanette Kihlmire L.S.
---------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 3
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, PAUL J. GANCI,
President and Chief Operating Officer and a Director of Central Hudson Gas &
Electric Corporation, have made, constituted and appointed, and by these
presents do make, constitute and appoint, JOHN E. MACK III, JOHN F. DRAIN,
ELLEN AHEARN, WALTER A. BOSSERT, JR., WILLIAM P. REILLY, and each of them, my
true and lawful attorneys, for me and in my name, place and stead, and in my
office and capacity as aforesaid, to sign and file with the Securities and
Exchange Commission a Registration Statement, pursuant to the provisions of the
Securities Act of 1933, covering (1) not in excess of $115,000,000 aggregate
initial offering price of Debt Securities and Common Stock of this Corporation,
the number of shares of which Common Stock shall in no event exceed 1,500,000;
and (2) not in excess of 250,000 shares of Cumulative Preferred Stock and
1,000,000 depositary preferred shares, each representing a 1/4 share ownership
in each share of said 250,000 shares of Cumulative Preferred Stock of this
Corporation, and any and all amendments and supplements to said Registration
Statement and any and all other documents to be signed and filed in connection
therewith, hereby granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in the premises as fully, to all intents and purposes,
as I might or could do if personally present, hereby ratifying and confirming
in all respects all that said attorneys or any of them may or shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Paul J. Ganci L.S.
--------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came PAUL
J. GANCI, to me known and known to me to be the individual described in and who
executed the foregoing instrument, and duly acknowledge to me that he executed
the same.
Jeanette Kihlmire L.S.
---------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 4
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, RICHARD H. EYMAN, a
Director of Central Hudson Gas & Electric Corporation, have made, constituted
and appointed, and by these presents do make, constitute and appoint, JOHN E.
MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Richard H. Eyman L.S.
----------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came
RICHARD H. EYMAN, to me known and known to me to be the individual described in
and who executed the foregoing instrument, and duly acknowledge to me that he
executed the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 5
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, JACK EFFRON, a
Director of Central Hudson Gas & Electric Corporation, have made, constituted
and appointed, and by these presents do make, constitute and appoint, JOHN E.
MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Jack Effron L.S.
--------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came JACK
EFFRON, to me known and known to me to be the individual described in and who
executed the foregoing instrument, and duly acknowledge to me that he executed
the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 6
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, FRANCES D. FERGUSSON,
a Director of Central Hudson Gas & Electric Corporation, have made, constituted
and appointed, and by these presents do make, constitute and appoint, JOHN E.
MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Frances D. Fergusson L.S.
-----------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came
FRANCES D. FERGUSSON, to me known and known to me to be the individual
described in and who executed the foregoing instrument, and duly acknowledge to
me that he executed the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 7
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, HEINZ K. FRIDRICH, a
Director of Central Hudson Gas & Electric Corporation, have made, constituted
and appointed, and by these presents do make, constitute and appoint, JOHN E.
MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Heinz K. Fridrich L.S.
-----------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came
HEINZ K. FRIDRICH, to me known and known to me to be the individual described
in and who executed the foregoing instrument, and duly acknowledge to me that
he executed the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 8
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, EDWARD F. X.
GALLAGHER, a Director of Central Hudson Gas & Electric Corporation, have made,
constituted and appointed, and by these presents do make, constitute and
appoint, JOHN E. MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER
A. BOSSERT, JR., WILLIAM P. REILLY, and each of them, my true and lawful
attorneys, for me and in my name, place and stead, and in my office and
capacity as aforesaid, to sign and file with the Securities and Exchange
Commission a Registration Statement, pursuant to the provisions of the
Securities Act of 1933, covering (1) not in excess of $115,000,000 aggregate
initial offering price of Debt Securities and Common Stock of this Corporation,
the number of shares of which Common Stock shall in no event exceed 1,500,000;
and (2) not in excess of 250,000 shares of Cumulative Preferred Stock and
1,000,000 depositary preferred shares, each representing a 1/4 share ownership
in each share of said 250,000 shares of Cumulative Preferred Stock of this
Corporation, and any and all amendments and supplements to said Registration
Statement and any and all other documents to be signed and filed in connection
therewith, hereby granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in the premises as fully, to all intents and purposes,
as I might or could do if personally present, hereby ratifying and confirming
in all respects all that said attorneys or any of them may or shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Edward F. X. Gallagher L.S.
--------------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came
EDWARD F. X. GALLAGHER, to me known and known to me to be the individual
described in and who executed the foregoing instrument, and duly acknowledge to
me that he executed the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 9
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, CHARLES LAFORGE, a
Director of Central Hudson Gas & Electric Corporation, have made, constituted
and appointed, and by these presents do make, constitute and appoint, JOHN E.
MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Charles LaForge L.S.
-----------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came
CHARLES LAFORGE, to me known and known to me to be the individual described in
and who executed the foregoing instrument, and duly acknowledge to me that he
executed the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 10
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, HOWARD C. ST. JOHN, a
Director of Central Hudson Gas & Electric Corporation, have made, constituted
and appointed, and by these presents do make, constitute and appoint, JOHN E.
MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Howard C. St. John L.S.
------------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came
HOWARD C. ST. JOHN, to me known and known to me to be the individual described
in and who executed the foregoing instrument, and duly acknowledge to me that
he executed the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 11
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, EDWARD P. SWYER, a
Director of Central Hudson Gas & Electric Corporation, have made, constituted
and appointed, and by these presents do make, constitute and appoint, JOHN E.
MACK III, PAUL J. GANCI, JOHN F. DRAIN, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
Edward P. Swyer L.S.
-----------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came
EDWARD P. SWYER, to me known and known to me to be the individual described in
and who executed the foregoing instrument, and duly acknowledge to me that he
executed the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 12
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, JOHN F. DRAIN, Vice
President - Finance and Controller and the Principal Financial Officer and
Principal Accounting Officer of Central Hudson Gas & Electric Corporation, have
made, constituted and appointed, and by these presents do make, constitute and
appoint, JOHN E. MACK III, PAUL J. GANCI, ELLEN AHEARN, WALTER A. BOSSERT, JR.,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and
in my name, place and stead, and in my office and capacity as aforesaid, to
sign and file with the Securities and Exchange Commission a Registration
Statement, pursuant to the provisions of the Securities Act of 1933, covering
(1) not in excess of $115,000,000 aggregate initial offering price of Debt
Securities and Common Stock of this Corporation, the number of shares of which
Common Stock shall in no event exceed 1,500,000; and (2) not in excess of
250,000 shares of Cumulative Preferred Stock and 1,000,000 depositary preferred
shares, each representing a 1/4 share ownership in each share of said 250,000
shares of Cumulative Preferred Stock of this Corporation, and any and all
amendments and supplements to said Registration Statement and any and all other
documents to be signed and filed in connection therewith, hereby granting to
said attorneys, and each of them, full power and authority to do and perform
each and every act and thing whatsoever requisite and necessary to be done in
the premises as fully, to all intents and purposes, as I might or could do if
personally present, hereby ratifying and confirming in all respects all that
said attorneys or any of them may or shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have set my hand and seal this 24th day
of June, 1994.
John F. Drain L.S.
------------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS )
On this 24th day of June, 1994, before me personally came JOHN
F. DRAIN, to me known and known to me to be the individual described in and who
executed the foregoing instrument, and duly acknowledge to me that he executed
the same.
Jeanette Kihlmire L.S.
----------------------------
Notary Public
JEANETTE KIHLMIRE
NOTARY PUBLIC, State of New York
No. 4991868
Qualified in Dutchess County
Commission Expires Feb. 10, 1996
<PAGE> 1
EXHIBIT (25)(a)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
-----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip Code)
CENTRAL HUDSON & ELECTRIC CORPORATION
(Exact name of obligor as specified in its charter)
New York 14-0555980
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
284 South Avenue
Poughkeepsie, NY 12601
(Address of principal executive offices) (Zip Code)
-------------------------
First Mortgage Bonds*
(Title of the indenture securities)
*Specific title(s) to be determined in connection with the sale(s) of First
Mortgage Bonds
<PAGE> 2
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.
<TABLE>
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y. 10006,
New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, N.Y.
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers:
Yes.
ITEM 2. Affiliations with Obligor
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None. (See Note on page 2.)
-----------------------------
ITEM 16. List of Exhibits:
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto, pursuant
to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of
the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (See Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (See Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of the Act.
(See Exhibit 6 to Form T-1, Registration Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority. (See Exhibit 7 to Form T-1, Registration Statement No.
33-55379.)
1
<PAGE> 3
NOTE
----
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
--------------------------
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a
corporation organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 1st day of November, 1994.
The Bank of New York
By: Robert F. McIntyre
-------------------
Robert F. McIntyre
Assistant Vice President
2
<PAGE> 1
EXHIBIT (25)(b)
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) _________
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION (Exact name of
trustee as specified in its
charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
----------------------
FOR INFORMATION, CONTACT:
Terry L. McRoberts, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2500
----------------------
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(Exact name of obligor as specified in its charter)
New York 14-0555980
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
284 South Avenue 12601-4879
Poughkeepsie, New York (Zip Code)
(Address of principal executive offices)
----------------------
UNSECURED NOTES*
(Title of the Indenture Securities)
* Specific title(s) to be determined in connection with sale(s) of securities.
<PAGE> 2
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.
Name Address
---- -------
Comptroller of the Currency Washington, D. C.
(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.
Item 16. LIST OF EXHIBITS.
Exhibit 1. Articles of Association of First Trust of New York,
National Association, incorporated herein by
reference to Exhibit 1 of Form T-1, Registration No.
33-83774.
Exhibit 2. Certificate of Authority to Commence Business for
First Trust of New York, National Association,
incorporated herein by reference to Exhibit 2 of Form
T-1, Registration No. 33-83774.
Exhibit 3. Authorization of the Trustee to exercise corporate
trust powers for First Trust of New York, National
Association, incorporated herein by reference to
Exhibit 3 of Form T-1, Registration No. 33-83774.
Exhibit 4. By-Laws of First Trust of New York, National
Association, incorporated herein by reference to
Exhibit 4 of Form T-1, Registration No. 33-83774.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National
Association, required by Section 321(b) of the Act,
incorporated herein by reference to Exhibit 6 of Form
T-1, Registration No. 33-83774.
Exhibit 7. Report of Condition of First Trust of New York,
National Association, as of the close of business on
September 2, 1994, published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE> 3
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Trust of New York, National Association, a national
banking association organized and existing under the laws of the United States,
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 19th day of October, 1994.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ CATHERINE F. DONOHUE
---------------------------
Catherine F. Donohue
Vice President
<PAGE> 4
Exhibit 7
FIRST TRUST OF NEW YORK, N. A.
STATEMENT OF FINANCIAL CONDITION
AS OF 9/2/94
<TABLE>
<CAPTION>
($000'S)
9/2/94
--------
<S> <C>
ASSETS
Cash and Due From Depository Institutions $30,165
Federal Reserve Stock 3,150
Fixed Assets 470
Other Assets 72,625
--------
TOTAL ASSETS $106,410
========
LIABILITIES
Accounts Payable $410
Litigation Reserve 1,000
Other Liabilities 0
--------
TOTAL LIABILITIES 1,410
EQUITY
Common and Preferred Stock 1,000
Surplus 104,000
Undivided Profits 0
--------
TOTAL EQUITY CAPITAL 105,000
TOTAL LIABILITIES AND EQUITY CAPITAL $106,410
========
</TABLE>
==============================================================================
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, N. A.
By: /s/ CATHERINE F. DONOHUE
------------------------
9/2/94
<TABLE> <S> <C>
<ARTICLE> UT EXHIBIT 27
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET, CONSOLIDATED STATEMENT OF INCOME AND CONSOLIDATED
STATEMENT OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> SEP-30-1994
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> $920,422
<OTHER-PROPERTY-AND-INVEST> $10,868
<TOTAL-CURRENT-ASSETS> $119,032
<TOTAL-DEFERRED-CHARGES> $196,024
<OTHER-ASSETS> $62,624
<TOTAL-ASSETS> $1,308,970
<COMMON> $85,818
<CAPITAL-SURPLUS-PAID-IN> $268,963
<RETAINED-EARNINGS> $82,831
<TOTAL-COMMON-STOCKHOLDERS-EQ> $437,612
$35,000
$46,030
<LONG-TERM-DEBT-NET> $391,757
<SHORT-TERM-NOTES> $0
<LONG-TERM-NOTES-PAYABLE> $0
<COMMERCIAL-PAPER-OBLIGATIONS> $0
<LONG-TERM-DEBT-CURRENT-PORT> $1,038
$0
<CAPITAL-LEASE-OBLIGATIONS> $0
<LEASES-CURRENT> $0
<OTHER-ITEMS-CAPITAL-AND-LIAB> $397,533
<TOT-CAPITALIZATION-AND-LIAB> $1,308,970
<GROSS-OPERATING-REVENUE> $396,141
<INCOME-TAX-EXPENSE> $24,018
<OTHER-OPERATING-EXPENSES> $311,909
<TOTAL-OPERATING-EXPENSES> $335,927
<OPERATING-INCOME-LOSS> $60,214
<OTHER-INCOME-NET> $6,621
<INCOME-BEFORE-INTEREST-EXPEN> $66,835
<TOTAL-INTEREST-EXPENSE> $23,407
<NET-INCOME> $43,428
$3,844
<EARNINGS-AVAILABLE-FOR-COMM> $39,584
<COMMON-STOCK-DIVIDENDS> $26,577
<TOTAL-INTEREST-ON-BONDS> $0
<CASH-FLOW-OPERATIONS> $103,464
<EPS-PRIMARY> $2.32
<EPS-DILUTED> $0
</TABLE>
