<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report - May 15, 1995
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
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(Exact name of Registrant as specified in its charter)
New York 1-3268 14-0555980
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(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification
Number)
284 South Avenue, Poughkeepsie, New York 12601-4879
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (914) 452-2000
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Item 7. Financial Statements and Exhibits.
(c) Exhibits. Following is the list of Exhibits
furnished in accordance with the provisions of Item 601 of Regulation S-K,
filed as part of this Current Report on Form 8-K:
<TABLE>
<CAPTION>
Exhibit No.
(Regulation S-K
Item 601
Designation) Exhibits
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<S> <C>
(1) Form of Distribution Agreement between Registrant and PaineWebber Incorporated and Smith Barney Inc., dated May 15,
1995.
(4) Instruments defining the rights of security holders:
(ii) 33 - Form of Twenty-Eighth Supplemental Indenture between Registrant and The Bank of New York, as
Trustee.
(ii) 34 - Form of New Bond (Form of Registrant's Secured Medium-Term Note, Series B) (contained in Exhibit
4(ii)33).
(ii) 35 - Form of Fixed Rate Unsecured Note (Form of Registrant's Medium-Term Note, Series B).
(12) Statement Showing Computation of the Ratio of Earnings to Fixed Charges and the Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends (incorporated herein by reference to Exhibit (12) to Registrant's Quarterly
Report on Form 10-Q, for the fiscal quarter ended March 31, 1995, File No. 1-3268).
</TABLE>
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<TABLE>
<S> <C>
(99) Additional exhibits:
(i) 5 - Definitive form of Prospectus Supplement, dated May 15, 1995, to which is attached
the related Prospectus, dated April 4, 1995, relating to $80,000,000 aggregate principal amount
of Secured Medium-Term Notes, Series B (being a series of First Mortgage Bonds), in connection
with Registrant's Registration Statement No. 33-56349 (Incorporated herein by reference to
Prospectus Supplement Dated May 15, 1995 (To Prospectus Dated April 4, 1995) relating to
$80,000,000 principal amount of First Mortgage Bonds, designated Secured Medium-Term Notes,
Series B, and the Prospectus Dated April 4, 1995, relating to (i) $80,000,000 of Registrant's
Debt Securities and Common Stock, $5.00 par value, but not in excess of $40 million aggregate
initial offering price of such Common Stock and (ii) 250,000 shares of Registrant's
Cumulative Preferred Stock, par value $100 per share, which may be issued as 1,000,000 shares of
Depositary Preferred Shares each representing 1/4 of a share of such Cumulative Preferred Stock
attached thereto, as filed pursuant to Rule 424(b) in connection with Registration Statement
No. 33-56349.)
(i) 6 - Definitive form of Prospectus Supplement, dated May 15, 1995, to which is attached the related
Prospectus, dated April 4, 1995, relating to $80,000,000 aggregate principal amount of Medium-Term
Notes, Series B, in connection with Registrant's Registration Statement No. 33-56349
(Incorporated herein by reference to Prospectus Supplement Dated May 15, 1995 (To Prospectus
Dated April 4, 1995) relating to $80,000,000 principal amount of Medium-Term Notes, Series B, and
the Prospectus Dated April 4, 1995, relating to (i) $80,000,000 of Registrant's Debt Securities
and Common Stock, $5.00 par value, but not in excess of $40 million aggregate initial offering
price of such Common Stock and (ii) 250,000 shares of Registrant's Cumulative Preferred Stock,
par value $100 per share, which may be issued as 1,000,000 shares of Depositary Preferred Shares
each representing 1/4 of a share of such Cumulative Preferred Stock attached thereto, as filed
pursuant to Rule 424(b) in connection with Registration Statement No. 33-56349.)
</TABLE>
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SIGNATURE
Pursuant to the Requirements of the Securities Exchange Act of
1934, Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(Registrant)
By (SGD.) DONNA S. DOYLE
DONNA S. DOYLE
Controller
Dated: May 15, 1995
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EXHIBIT INDEX
Following is the index of Exhibits furnished in accordance
with the provisions of Item 601 of Regulation S-K, filed as part of this
Current Report on Form 8-K:
<TABLE>
<CAPTION>
Exhibit No.
(Regulation S-K
Item 601
Designation) Exhibits
- --------------- --------
<S> <C>
(1) Form of Distribution Agreement between Registrant and PaineWebber Incorporated and Smith Barney Inc., dated May 15,
1995.
(4) Instruments defining the rights of security holders:
(ii) 33 - Form of Twenty-Eighth Supplemental Indenture between Registrant and The Bank of New York, as
Trustee.
(ii) 34 - Form of New Bond (Form of Registrant's Secured Medium-Term Note, Series B) (contained in Exhibit
4(ii)33).
(ii) 35 - Form of Fixed Rate Unsecured Note (Form of Registrant's Medium-Term Note, Series B).
(12) Statement Showing Computation of the Ratio of Earnings to Fixed Charges and the Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends (incorporated herein by reference to Exhibit (12) to Registrant's Quarterly
Report on Form 10-Q, for the fiscal quarter ended March 31, 1995, File No. 1-3268).
(99) Additional exhibits:
(i) 5 - Definitive form of Prospectus Supplement, dated May 15, 1995, to which is attached the related
Prospectus, dated April 4, 1995, relating to $80,000,000 aggregate principal amount of Secured
Medium-Term Notes, Series B (being a series of First Mortgage Bonds), in connection with
Registrant's Registration Statement No. 33-56349. (Incorporated herein by reference to
Prospectus Supplement Dated May 15, 1995 (To Prospectus Dated April 4, 1995) relating to
$80,000,000 principal amount of First Mortgage Bonds, designated Secured Medium-Term Notes,
Series B, and the Prospectus Dated April 4, 1995, relating to (i) $80,000,000 of Registrant's
Debt Securities and Common Stock, $5.00 par value, but not in excess of $40 million aggregate
initial offering price of such Common Stock and (ii) 250,000 shares of Registrant's
Cumulative Preferred Stock, par value $100 per share, which may be issued as 1,000,000 shares of
Depositary Preferred Shares each representing 1/4 of a share of such Cumulative Preferred Stock
attached thereto, as filed pursuant to Rule 424(b) in connection with Registration Statement
No. 33-56349.)
(i) 6 - Definitive form of Prospectus Supplement, dated May 15, 1995, to which is attached the related
Prospectus, dated April 4, 1995, relating to $80,000,000 aggregate principal amount of Medium-Term
Notes, Series B, in connection with Registrant's Registration Statement No. 33-56349.
(Incorporated herein by reference to Prospectus Supplement Dated May 15, 1995 (To Prospectus
Dated April 4, 1995) relating to $80,000,000 principal amount of Medium-Term Notes, Series B, and
the Prospectus Dated April 4, 1995, relating to (i) $80,000,000 of Registrant's Debt Securities
and Common Stock, $5.00 par value, but not in excess of $40 million aggregate initial offering
price of such Common Stock and (ii) 250,000 shares of Registrant's Cumulative Preferred Stock,
par value $100 per share, which may be issued as 1,000,000 shares of Depositary Preferred Shares
each representing 1/4 of a share of such Cumulative Preferred Stock attached thereto, as filed
pursuant to Rule 424(b) in connection with Registration Statement No. 33-56349.)
</TABLE>
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EXHIBIT (1)
Central Hudson Gas & Electric Corporation
$80,000,000
Secured Medium-Term Notes, Series B
Medium-Term Notes, Series B
DISTRIBUTION AGREEMENT
May 15, 1995
New York, New York
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
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 $80,000,000 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 May 1, 1995,
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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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. 33-56349), 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
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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
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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
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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
stock issued or to be issued pursuant to a subscription agreement for which
approval has been sought pursuant to a Petition of the Company filed with
the Public Service Commission of the State of New York prior to the
Execution Time with respect to Central Hudson Enterprises Corporation, or
changes to, or issuances of, the respective common stock of Central Hudson
Enterprises Corporation and Central Hudson Cogeneration, Inc. in connection
with a merger between those two corporations) 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
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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
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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
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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
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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.
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(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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(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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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, the Controller or the 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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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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(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.
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 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
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<PAGE> 15
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 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
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<PAGE> 16
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 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
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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 (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
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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 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
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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 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
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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 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
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responsibilities for financial matters, the Controller or the 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 Central Hudson Cogeneration, Inc. pursuant to respective
subscription agreements in effect at the Execution Time, or
stock issued or to be issued pursuant to a subscription agreement for
which approval has been sought pursuant to a Petition of the Company
filed with the Public Service Commission of the State of New York
prior to the Execution Time with respect to Central Hudson
Enterprises Corporation, or changes to, or issuances of, the
respective common stock of Central Hudson Enterprises Corporation and
Central Hudson Cogeneration, Inc. in connection with a merger between
those two corporations) 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
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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, 1994, 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, 1994 (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 Directors of the
Company held during the period from December 31, 1994 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:
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<PAGE> 23
(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 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
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<PAGE> 24
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 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
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<PAGE> 25
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 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)
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<PAGE> 26
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 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
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<PAGE> 27
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 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
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<PAGE> 28
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 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
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<PAGE> 29
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 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.
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<PAGE> 30
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.
PAINEWEBBER 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 PaineWebber Incorporated shall be directed to it at 1285
Avenue of the Americas, 14th Floor, New York, New York 10019, attention of
Peter H. Kind, Managing Director.
Notices to Smith Barney Inc. shall be directed to it at 388
Greenwich Street, New York, New York 10013, attention of Mark Meyer, Vice
President.
I-1
<PAGE> 33
EXHIBIT A
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"). PaineWebber 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 May 15, 1995 (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 May 1, 1995 (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 CUSIP Service Bureau of
Numbers: 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
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<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 Company
Interest: 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 Procedures:
each Book-Entry Note sold by the Company through an Agent,
as agent, shall be as follows:
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<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 send to the Company a
Reports: 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 an SDFS deliver order
Settle: 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 of
Public: 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 a
Principal and Certificated Note is registered at the close of business
Interest: 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 is
Procedures: 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
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<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 option, has advanced
to Settle: 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 partial
Interest: 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 to time
Rate Setting the aggregate amount of, the issuance price of, and the
and Posting: 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 as provided above,
of Offers: 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 the
of Pricing Company, the Company with the approval of the Agent that
Supplement: 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 any
Solicitation; time, for any period of time or permanently, the
Amendment or solicitation of offers to purchase Secured Notes. Upon
Supplement of receipt of such instructions from the Company, the Agents
Prospectus: 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 require the Mortgage
to Risk Funds: 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 the
of Signatures: 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 monthly
Expenses: 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.
A-24
<PAGE> 57
EXHIBIT B
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"). PaineWebber 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 May 15, 1995 (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
<PAGE> 58
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,
B-2
<PAGE> 59
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 CUSIP Service Bureau of
Numbers: 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
B-3
<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.
B-4
<PAGE> 61
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
B-5
<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
B-6
<PAGE> 63
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 after each Regular
Principal and Record Date, the Paying Agent will deliver to the Company
Interest: 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
B-7
<PAGE> 64
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.
B-8
<PAGE> 65
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
B-9
<PAGE> 66
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 each Book-Entry
Procedures: 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
B-10
<PAGE> 67
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
B-11
<PAGE> 68
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
B-12
<PAGE> 69
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 solicited by an Agent, as
Procedures agent, and accepted by the Company for settlement on the
Timetable: 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:
B-13
<PAGE> 70
<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". 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.
B-14
<PAGE> 71
Monthly Monthly, the Indenture Trustee will send to the Company a
Reports: 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 enter an SDFS deliver
Settle: 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
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<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 July 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.
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<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 in whose name a
Principal and Certificated Note is registered at the close of business
Interest: 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
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<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
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<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 documentation and
and Cash Payment: 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
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<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 option, has advanced
to Settle: 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
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<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 on Fixed Rate Notes (including
Interest: 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 discuss from time to time
Rate Setting the aggregate amount of, the issuance price of, and the
and Posting: 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 as provided above,
of Offers: 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 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 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 change the interest
Rate Changes: 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 suspend at any
Solicitation; time, for any period of time or permanently, the
Amendment or solicitation of offers to purchase Unsecured Notes. Upon
Supplement of receipt of such instructions from the Company, the Agents
Prospectus: 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
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<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 Company, on a monthly
Expenses: 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 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
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 May 15, 1995,
among PaineWebber 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 (4) (ii) 33
================================================================================
TWENTY-EIGHTH SUPPLEMENTAL INDENTURE
BETWEEN
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
AND
THE BANK OF NEW YORK
(formerly Irving Trust Company),
Trustee.
Dated as of May 1, 1995
Providing among other things for
First Mortgage Bonds, designated Secured Medium-Term Notes, Series B
__________
SUPPLEMENTING
INDENTURE OF MORTGAGE
Dated as of January 1, 1927
================================================================================
<PAGE> 2
TWENTY-EIGHTH SUPPLEMENTAL INDENTURE, dated as of the 1st day of May,
1995, 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
<PAGE> 3
Indenture dated as of May 1, 1991 and 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 issued from time to time, in one or more tranches, to be
designated "Secured Medium-Term Notes, Series B," each of which shall bear the
descriptive title "First Mortgage Bond," 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
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
2
<PAGE> 4
Twenty-Seventh 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
Twenty-Eighth 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
Twenty-Eighth Supplemental Indenture and the First Mortgage Bonds designated
Secured Medium-Term Notes, Series B, when issued in accordance with the
Original Indenture, as supplemented and amended, and this Twenty-Eighth
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 May 15, 1992, 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;
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<PAGE> 5
Also all gas or electric transmission lines acquired or built since
May 15, 1992 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, 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.
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<PAGE> 6
ARTICLE I
CREATION AND ISSUE OF FIRST MORTGAGE BONDS
SECTION 281.01. The Company hereby creates a series of bonds to be
issued under the Mortgage and hereunder, which are designated "Secured
Medium-Term Notes, Series B" (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 $80,000,000, 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 January 1 and July 1 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 Twenty-Eighth 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
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<PAGE> 7
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 of subdivision (I) of this Section 281.01, 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 281.01. 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 December 15 for interest
payable January 1 and June 15 for interest payable July 1 (whether or not such
December 15 or June 15 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
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<PAGE> 8
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.
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<PAGE> 9
Subject to the foregoing provisions of this Section 281.01, 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 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 Twenty-Eighth Supplemental Indenture.
The provisions of Article IX, Article X and (to the extent set forth
in this Twenty-Eighth 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
Twenty-Eighth 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
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<PAGE> 10
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 4.02, 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 6.08, 6.15, 8.02, 10.07 or 21.01, the redemption price applicable
to such New
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<PAGE> 11
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 referring to this Twenty-Eighth 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.
SECTION 281.02. 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.
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<PAGE> 12
SECTION 281.03. 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 $80,000,000 upon compliance with the conditions and
delivery of the documents prescribed in the applicable provisions of the Fourth
Supplemental Indenture, as amended.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 282.01. 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 282.02. The Original Indenture as heretofore supplemented
and amended, and as supplemented by this Twenty-Eighth Supplemental Indenture,
is in all respects ratified and confirmed and shall continue in full force and
effect.
SECTION 282.03. The Company shall forthwith, upon the execution
hereof, cause this Twenty-Eighth 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.
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<PAGE> 13
SECTION 282.04. 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 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 282.05. The term "Business Day" as used in this
Twenty-Eighth 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 282.06. This Twenty-Eighth 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 282.07. If any term or provision of this Twenty-Eighth
Supplemental Indenture or the application thereof to any person or
circumstance, shall, to any extent, be invalid or unenforceable, the remainder
of this Twenty-Eighth 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 Twenty-Eighth 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
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<PAGE> 14
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 _______________________________
Chairman of the Board
and Chief Executive Officer
Attest:_________________________
THE BANK OF NEW YORK,
as Trustee
By _______________________________
Assistant Vice President
Attest:_________________________
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<PAGE> 15
STATE OF NEW YORK )
SS.:
COUNTY OF DUTCHESS )
On the 12th day of May, 1995, before me personally came JOHN E. MACK
III, to me known, who, being by me duly sworn, did depose and say that he
resides at 13 Tamidan Road, Poughkeepsie, New York; that he is the Chairman of
the Board and Chief Executive Officer 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.
_____________________________________
STATE OF NEW YORK )
SS.:
COUNTY OF NEW YORK )
On the 15th day of May, 1995, before me personally came ROBERT F.
McINTYRE, to me known, who, being by me duly sworn, did depose and say that he
resides at 1108 Hudson Street, Hoboken, New Jersey 07030; that he is an
Assistant Vice President 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.
_____________________________________
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<PAGE> 16
EXHIBIT "A"
to the Twenty-Eighth Supplemental Indenture, dated as of May 1, 1995, 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 B
[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 B
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
-1-
<PAGE> 17
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 January 1 and July 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 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 December 15 or June 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 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
-2-
<PAGE> 18
("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 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.
-3-
<PAGE> 19
[REVERSE OF BOND
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
SECURED MEDIUM-TERM NOTE, SERIES B
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 B, 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 Twenty-Eighth Supplemental Indenture, dated as of May 1, 1995, 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
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<PAGE> 20
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. 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 Twenty-Eighth 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
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<PAGE> 21
provisions of Sections 4.02, 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
281.01 of said Twenty-Eighth 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 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 Twenty-Eighth 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 Twenty-Eighth
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
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<PAGE> 22
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 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
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<PAGE> 23
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 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
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<PAGE> 24
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 therefor 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 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.
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<PAGE> 25
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
[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
Twenty-Eighth 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
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<PAGE> 26
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]
_________________________________________________________________
[please print or typewrite name and address of assignee]
_________________________________________________________________
the within bond of CENTRAL HUDSON GAS & ELECTRIC CORPORATION and
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<PAGE> 27
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 every particular without
alteration or enlargement or any change
whatsoever.
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<PAGE> 1
Exhibit(4)(ii)34
See legend at the end of this Bond for restrictions on transferability
and change of form.
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
SECURED MEDIUM-TERM NOTE, SERIES B
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:
Reduction Percentage:
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 15361H
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), for value received, hereby promises to pay to CEDE & CO., 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 January 1 and July 1
<PAGE> 2
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 December 15 or June 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 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 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.
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<PAGE> 3
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.
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 B, 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
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<PAGE> 4
a Twenty-Eighth Supplemental Indenture, dated as of May 1, 1995, 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. Unless otherwise
specified 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 bond 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.
The provisions of Article IX, Article X and (to the extent set forth in the
Twenty-Eighth Supplemental Indenture) Article XXI of the Mortgage to which
reference is hereby made,
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<PAGE> 5
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 4.02, 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 281.01 of said Twenty-Eighth Supplemental
Indenture with monies on deposit with the Trustee under any of the aforesaid
provisions of the Mortgage, unless otherwise specified 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
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 Twenty-Eighth Supplemental Indenture and Article IX of
the Mortgage to which reference is hereby made.
Notice of redemption 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
Twenty-Eighth Supplemental Indenture, notice of redemption at the election of
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<PAGE> 6
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 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
-6-
<PAGE> 7
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 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
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<PAGE> 8
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
therefor 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 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.
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<PAGE> 9
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.
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
By
----------------------------
Chairman of the Board and
Chief Executive Officer
ATTEST:
By
---------------------
Secretary
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
Twenty-Eighth Supplemental Indenture.
Dated:
----------------------
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.
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<PAGE> 10
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).
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<PAGE> 11
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 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 every particular
without alteration or enlargement
or any change whatsoever.
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<PAGE> 12
Exhibit (4)(i)35
See legend at the end of this Note for restrictions on transferability
and change of form.
No. FX ______
CUSIP No. 15361G
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
MEDIUM-TERM NOTE, SERIES B
(FIXED RATE)
Original Issue Date: Redeemable: Yes__ No__
Interest Rate: Initial Redemption Date:
Stated Maturity Date: Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
____________________________________
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), for value received, hereby promises to pay to CEDE & CO.,
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 January 1 and July 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
<PAGE> 13
defined)) on the December 15 or June 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 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
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<PAGE> 14
payment shall be legal tender for the payment of public and private debts.
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 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, 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
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<PAGE> 15
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, 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
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<PAGE> 16
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.
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.
-5-
<PAGE> 17
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.
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.
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<PAGE> 18
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
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.
-7-
<PAGE> 19
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).
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<PAGE> 20
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.
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