As filed with the Securities and Exchange Commission on August 27, 2004
Registration No. 333-116286
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(Exact name of registrant as specified in charter)
NEW YORK 14-0555980
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
(845) 452-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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STEVEN V. LANT
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
(845) 486-5477
AND
JOHN E. GOULD, ESQ.
THOMPSON HINE LLP
ONE CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005-1401
(212) 344-5680
(Name, address, including zip code, and telephone number, including area code,
of agents for service)
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COPIES OF ALL COMMUNICATIONS TO:
TODD W. ECKLAND, ESQ.
PILLSBURY WINTHROP LLP
1540 BROADWAY
NEW YORK, NEW YORK 10036
212-858-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the Registration Statement becomes effective, when warranted by
market conditions and other factors.
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.|_|
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering.|_| _________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.|_| _____________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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Calculation of Registration Fee
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Title of each class Proposed Maximum Proposed maximum Amount of
of securities to be Amount to be Offering Price per aggregate offering registration
registered registered(1) unit(1) price(1) fee(2)(3)
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Debt securities $85,000,000 100% $85,000,000 $10,769.50
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(1) Exclusive of accrued interest, if any, and estimated solely for the
purpose of calculating the registration fee. The proposed maximum offering
price per unit will be determined from time to time by the Registrant in
connection with, and at the time of, issuance of the debt securities
registered hereunder.
(2) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933.
(3) Previously paid.
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 27, 2004
PROSPECTUS
$85,000,000
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
DEBT SECURITIES
By this prospectus, we may offer from time to time up to $85,000,000 of our debt
securities. The debt securities may be issued in one or more series and will be
unsecured. Any series may provide for one or more issuances of debt securities.
The debt securities of each series or issuance will be offered on terms to be
determined at the time of sale. The debt securities may be issued as individual
securities in registered form or as one or more global securities in registered
form. The debt securities will not be listed on any securities exchange or
designated for quotation on the NASDAQ Stock Market.
We may offer the debt securities in any of the following ways:
o directly;
o through agents;
o through dealers; or
o through one or more underwriters or a syndicate of underwriters in
an underwritten offering.
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Investing in our debt securities involves risks. See "Risk Factors" beginning on
page 1 of this prospectus.
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WE WILL PROVIDE THE SPECIFIC TERMS OF THE DEBT SECURITIES IN ONE OR MORE
SUPPLEMENTS TO THIS PROSPECTUS. YOU SHOULD READ THIS PROSPECTUS AND THE
APPLICABLE SUPPLEMENTS CAREFULLY BEFORE YOU INVEST. THIS PROSPECTUS MAY NOT BE
USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these debt securities or passed upon
the adequacy or accuracy of this prospectus. Any representation to the contrary
is a criminal offense.
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THE DATE OF THIS PROSPECTUS IS ________ , 2004.
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TABLE OF CONTENTS
PAGE
About this Prospectus........................................................1
Risk Factors.................................................................1
Where You Can Find More Information..........................................3
Forward-Looking Statements...................................................4
Central Hudson Gas & Electric Corporation....................................5
Use of Proceeds..............................................................7
Ratios of Earnings to Fixed Charges..........................................7
Description of the Debt Securities...........................................8
Plan of Distribution........................................................16
Legal Matters...............................................................17
Experts.....................................................................18
ii
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission. You should rely only on the information we
have provided or incorporated by reference in this prospectus or any prospectus
supplement or any pricing supplement. We have not authorized anyone to provide
you with additional or different information. We are not making an offer of
these debt securities in any state or jurisdiction where the offer or sale is
not permitted. You should assume that the information in this prospectus or any
prospectus supplement or in any pricing supplement is accurate only as of the
date on the front of the document and that any information we have incorporated
by reference is accurate only as of the date of such document containing such
information.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission utilizing a "shelf" registration
process. Under this shelf process, we may offer, from time to time, the debt
securities described in this prospectus in one or more offerings with a total
aggregate principal amount not to exceed $85,000,000. This prospectus provides
you with a general description of the debt securities we may offer. Each time we
offer debt securities, we will provide you with a prospectus supplement and, if
applicable, a pricing supplement. The prospectus supplement and any applicable
pricing supplement will describe the specific amounts, prices and terms of the
debt securities being offered. The prospectus supplement and any applicable
pricing supplement may also add, update or change information in this
prospectus. Please carefully read this prospectus, the applicable prospectus
supplement and any applicable pricing supplement, together with the information
contained in the documents referred to under the heading "Where You Can Find
More Information."
For more detailed information about the debt securities, you can
also read the exhibits to the registration statement. The exhibits have been
either filed with the registration statement or incorporated by reference to
earlier SEC filings listed in the registration statement.
RISK FACTORS
Before purchasing any debt securities we offer, you should carefully
consider the following risk factors as well as the other information contained
in this prospectus, any prospectus supplement or any pricing supplement, and the
information incorporated by reference herein in order to evaluate an investment
in our debt securities.
Redeployment of Capital
CH Energy Group, Inc., our holding company parent corporation, is seeking
to invest in energy-related assets approximately $110 million currently held in
money market instruments. Such investments are being sought with a view to
produce new earnings intended to replace, in whole or in part, the income
recorded in 2001, 2002, 2003, and 2004 from the sales of our interests in our
major generating assets. If such investments are not made timely or are
insufficient to replace the expiring income, Energy Group's results of
operations could be adversely affected. Reference is made to Note 2 -
"Regulatory Matters" in our 10-K Annual Report for the year ended December 31,
2003, as amended, and, in particular, to the subcaption "Expiring Amortization."
No projected income from such future investments in new energy-related assets
has been included in any earnings guidance issued by Energy Group for 2004.
Weather Related Risks
A considerable portion of our total electric deliveries is directly or
indirectly related to weather-sensitive end uses such as air conditioning and
space heating. The majority of our natural gas deliveries
1
are directly related to the use of these fuels for space heating. As a result,
sales fluctuate and vary from normal expected levels based on variations in
weather from seasonal normal levels. Such variations in sales volumes could
affect results of operations significantly. We have programs in place to
constrain the potential variability in results of operations through the use of
derivative instruments. However, no assurance can be given that suitable risk
management instruments will remain available; in addition, if a sustained trend
of increasing temperatures were to occur (i.e., "global warming"), net income
derived from our natural gas business could be adversely affected.
Revenues and Results of Operations are Subject to Other Uncontrollable Risks
The cost of repairing damage to our facilities and the potential
disruption of our operations due to storms, natural disasters, wars, terrorist
acts, and other catastrophic events could adversely impact financial position,
results of operations, and/or cash flows. The occurrence or risk of occurrence
of future terrorist attacks or related acts of war could also adversely affect
the New York or the United States economy. A lower level of economic activity
could result in a decline in energy consumption, which could adversely affect
revenues and earnings and limit future growth prospects. In addition, we deliver
energy to customers as part of an integrated system of production, transmission,
and distribution systems. Large portions of such systems are owned and operated
by other unrelated entities, and we rely on such entities to perform their
functions reliably and at reasonable cost. Failure or disruption of third party
facilities can cause a disruption in services and may result in lower revenues,
or increased expenses, or both, that may not be fully recovered through rates,
insurance, sales margins, or other means in a timely manner, or at all.
Risks Related to Regulatory Requirements and Compliance
We are subject to regulation at the state and federal levels. We are
regulated by the Public Service Commission of the State of New York (the "PSC"),
which regulates retail rates, terms and conditions of service, various business
practices and transactions, financings, and transactions between us and Energy
Group or Energy Group's competitive business subsidiaries. We are also subject
to regulation by the Federal Energy Regulatory Commission, which regulates
wholesale electric transmission rates, certain other aspects of our business,
and interstate natural gas pipelines. The regulations adopted by these state and
federal agencies affect the manner in which we do business, our ability to
undertake specified actions, and our results of operations. Although we have
maintained generally constructive regulatory relationships to date, we cannot
predict the ways in which changes in regulation by state and federal
governmental authorities could affect our business and results of operations. It
cannot be assured that costs incurred in response to such regulation, or changes
therein, will be recoverable through rates in a timely manner, or at all.
Regulatory Risks Related to Limitations on the Potential to Pass Through
Increased Costs
The PSC's Order Establishing Rates in our rate proceeding, which was
issued on October 25, 2001 and became effective November 1, 2001 (the "Rate
Order") and the PSC's Joint Proposal Order issued on June 14, 2004 and effective
in June 2004 (together the "Rate Plans") cover the rates we can charge customers
and contain a number of related provisions. Rates charged to customers generally
may not be changed during the respective limited terms of the Rate Plans, other
than for the recovery of energy costs and limited other exceptions. As a result,
the Rate Plans may not reflect all of the increased construction and other costs
that may be experienced after the date the Rate Plans became effective. The
approval of new rate plans or changes to existing Rate Plans could have a
significant effect on financial position, results of operations, and/or cash
flows. The current Rate Plans and material matters relating to potential rate
changes are described in Note 2 - "Regulatory Matters" in our 10-K Annual Report
for the
2
year ended December 31, 2003, as amended. The current Rate Plans permit us to
file for changes in rates any time after June 30, 2004, but rates are generally
not changed by the PSC until eleven months after the filing of proposed rate
changes. We expect to file for new retail rates within the next two year period.
We cannot predict the rates that will be established by the PSC, or whether our
business may be adversely affected by the rates determined, in such proceeding.
Risks Relating to Asbestos Litigation and Manufactured Gas Plant Facilities
Litigations have been commenced against us arising from the use of
asbestos at our previously owned major generating assets, and we are involved in
a number of matters arising from contamination at former manufactured gas plant
sites. Reference is made to Note 13 - "Commitments and Contingencies" in our
Form 10-K Annual Report for the year ended December 31, 2003, as amended, and in
particular to the subcaptions in the Note regarding "Asbestos Litigation" and
"Former Manufactured Gas Plant Facilities."
There is No Public Market for the Debt Securities
We can give no assurances whether any market may develop for the debt
securities offered hereby, the liquidity of any such market, the ability of any
investor to sell any of the debt securities, or the price at which investors
would be able to sell them. If a market for the debt securities does not
develop, investors may be unable to resell the debt securities for an extended
period of time, if at all. If a market for the debt securities does develop, it
may not continue or it may not be sufficiently liquid to allow holders to resell
any of the debt securities. Consequently, investors may not be able to liquidate
their investment readily, and lenders may not readily accept the debt securities
as collateral for loans. The debt securities will not be listed on any
securities exchange or designated for quotation on the NASDAQ Stock Market.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, and other information
with the SEC. You may read and copy any document we file at the SEC's public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the public
reference rooms. Our SEC filings are also available to the public over the
Internet at the SEC's web site at http://www.sec.gov and on our website at
www.cenhud.com. Information on our website is not part of this prospectus. This
prospectus is part of a registration statement on Form S-3 filed with the SEC
under the Securities Act of 1933, as amended. It does not contain all of the
information that is important to you. You should read the registration statement
for further information about us and the debt securities. Statements contained
in this prospectus concerning the provisions of any document filed as an exhibit
to the registration statement or otherwise filed with the SEC highlight selected
information, and in each instance reference is made to the copy of the document
filed.
The SEC allows us to "incorporate by reference" into this prospectus
the information we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file later with the SEC will automatically update and may
supersede this information. We are incorporating by reference into this
prospectus the following documents that we have filed with the SEC and any
subsequent filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, (File No. 001-03268);
provided, however,
3
that we are not incorporating any information furnished under Item 2.02 or 7.01
(formerly Item 12 or 9) of any Current Report on Form 8-K:
-- Our Annual Report on Form 10-K for the year ended December 31, 2003,
as amended by our Form 10-K/A filed on August 13, 2004;
-- Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2004;
-- Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2004, as amended by our Form 10-Q/A filed on August 24, 2004;
-- A Current Report on Form 8-K filed on May 6, 2004; and
-- A Current Report on Form 8-K filed on June 18, 2004.
You may obtain a copy of these filings, at no cost, by writing to or telephoning
us at the following address:
Treasurer
Central Hudson Gas & Electric Corporation
284 South Avenue
Poughkeepsie, New York 12601-4879
(845) 486-5439
FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference may contain
statements which, to the extent they are not recitations of historical fact,
constitute "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
Forward-looking statements may be identified by words including "anticipates,"
"believes," "projects," "intends," "estimates," "expects," "plans," "assumes,"
"seeks," and similar expressions. Forward-looking statements including, without
limitation, those relating to our future business prospects, revenues, proceeds,
working capital, liquidity, income, and margins, are subject to certain risks
and uncertainties that could cause actual results to differ materially from
those indicated in the forward-looking statements, due to several important
factors including those identified from time to time in the forward-looking
statements. Those factors include, but are not limited to:
o weather;
o energy supply and demand;
o fuel prices;
o interest rates;
o potential future acquisitions;
o developments in the legislative, regulatory and competitive
environment;
o market risks;
o electric and natural gas industry restructuring and cost recovery;
o the ability to obtain adequate and timely rate relief;
o changes in fuel supply or costs;
o the success of strategies to satisfy electricity requirements
following the sale of our major generating assets;
o future market prices for energy, capacity, and ancillary services;
o the outcome of pending litigation and certain environmental matters,
particularly the status of inactive hazardous waste disposal sites
and waste site remediation requirements; and
o certain presently unknown or unforeseen factors, including, but not
limited to, acts of terrorism.
4
Please refer also to the section "Risk Factors" in this prospectus. Any
forward-looking statements speak only as of the date of this prospectus or any
prospectus supplement or any pricing supplement, and we undertake no obligation
to update any forward-looking statements to reflect events or circumstances
after the date on which such statements are made or to reflect the occurrence of
unanticipated events. New factors emerge from time to time, and it is not
possible for us to predict all of such factors, nor can we assess the impact of
any such factor on our business or the extent to which any factor, or
combination of factors, may cause results to differ materially from those
contained in any forward-looking statements. The foregoing review of factors
should not be construed as exhaustive. We undertake no obligation to update
publicly any forward-looking statements, whether as a result of new information,
future events, or otherwise.
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
We are a public utility that serves the Mid-Hudson River Valley region of
New York State. We or our predecessors have been in business since 1900. We
purchase, sell at wholesale, and distribute electricity and natural gas in
portions of New York State. We also generate a small portion of our electricity
requirements. We are a wholly-owned subsidiary of CH Energy Group, Inc. Energy
Group is also the holding company for various other energy-related businesses in
the Northeast and Mid-Atlantic regions, engaged primarily in the distribution of
heating oil, gasoline, diesel fuel, kerosene and propane and in the installation
and maintenance of electrical systems and heating, ventilation and air
conditioning equipment. Our principal executive office is located at 284 South
Avenue, Poughkeepsie, New York 12601-4879 and our telephone number is (845)
452-2000.
Total revenues and operating income before income taxes (expressed as
percentages) derived from our electric and gas operations accounted for
approximately the following percentages of our total revenues and operating
income before income taxes for each of the last three years:
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PERCENT OF OPERATING
PERCENT OF TOTAL REVENUES INCOME BEFORE INCOME TAXES
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Electric Gas Electric Gas
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2003 79% 21% 72% 28%
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2002 80% 20% 75% 25%
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2001 80% 20% 73% 27%
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For the year ended December 31, 2003, we served an average of 286,083 electric
and 67,916 natural gas customers monthly. Our electric revenues during that
period were derived from the following sources (approximate):
o 45% from residential customers;*
o 32% from commercial customers;*
o 8% from industrial customers;* and
o 15% from other utilities and miscellaneous sources.
*includes the energy delivery service attributed to residential, commercial and
industrial customers.
5
Our total natural gas revenues during that period were derived from the
following sources (approximate):
o 52% from residential customers;
o 35% from commercial customers;
o 3% from industrial customers;
o 3% from interruptible customers; and
o 7% from miscellaneous sources (including revenues from
transportation of customer-owned natural gas).
6
USE OF PROCEEDS
We are offering hereby our unsecured debt securities, in the maximum
amount described on the cover page of this prospectus, on terms to be determined
when an agreement or agreements to sell any or all of the debt securities are
made from time to time. Unless otherwise set forth in a prospectus supplement,
we will use the net proceeds from sales of the debt securities for general
corporate purposes, which may include:
o the payment of maturing issues of long-term debt;
o repayment of short-term debt incurred or expected to be incurred for
working capital requirements in connection with our construction
program; and/or
o financing expenditures for our construction program and for other
general corporate purposes.
More specific information concerning the use of the proceeds from
any particular sale of debt securities will be set forth in the applicable
prospectus supplement. Pending application of the proceeds for such purposes,
proceeds from the sale of the debt securities may be temporarily invested in
short-term instruments. Reference is made to the information contained in the
documents referred to under the heading "Where You Can Find More Information"
regarding our construction program and other significant capital requirements
and our general financing plan and capabilities.
Although we do not have any definitive plans for sales of the debt
securities offered hereby, subject to market conditions, we anticipate selling
in the near future approximately $25 to $30 million thereof, the proceeds of
which will be used as follows: (i) approximately $15 million to repay and reduce
short-term (less than 365 days maturity) borrowings used for working capital for
general operations, (ii) approximately $15 million to replace on our balance
sheet $15 million in long-term (12 year) 7.85% debt that matured and was
redeemed in July 2004, and (iii) the remainder for general corporate purposes.
Such short-term borrowings used for working capital for general operations are
incurred at current interest rates, which, in 2004, ranged from approximately
1.3% to 2.0%.
RATIOS OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for each of the last five
fiscal years (and for the six months ended June 30, 2004) are as follows:
------------------------------------------------------------------------
Year Ended December 31, Six
months
ended
June 30,
------------------------------------------------------------------------
1999 2000 2001 2002 2003 2004
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Ratio of
Earnings to
Fixed Charges 3.58 3.75 2.23 3.11 3.86 4.80
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For purposes of the determination of this ratio, the following should be noted:
7
o Earnings consist of pretax income from continuing operations adjusted to
add the amount of fixed charges computed for this ratio and also include
our share in the income of our subsidiary, which is wholly owned. Since we
are a public utility, earnings include allowance for funds used during
construction.
o Fixed charges consist of interest charges on first mortgage bonds, other
long-term debt, other interest charges including interest on short-term
debt, amortization of premium and expense on debt and the portion of rents
representative of the interest factor. These charges have not been reduced
by any allowance for funds used during construction.
DESCRIPTION OF THE DEBT SECURITIES
General: The debt securities will be issued under an indenture,
dated as of April 1, 1992, between us and U.S. Bank Trust National Association
(formerly known as First Trust of New York, National Association) (as successor
trustee to Morgan Guaranty Trust Company of New York), as trustee. The debt
securities may be issued in one or more series. Each series may provide for one
or more issuances of debt securities. The following contains a description of
the material terms of the debt securities. For a complete description of the
debt securities you should read the indenture.
The indenture does not limit the aggregate principal amount of debt
securities which may be issued thereunder. The indenture also does not limit the
amount of other debt, secured or unsecured, which we may issue. The debt
securities will be unsubordinated and unsecured obligations ranking equally with
all our existing and future unsubordinated and unsecured obligations. All of our
debt is currently unsubordinated and unsecured; accordingly, the debt securities
issues hereunder will rank equally with our currently outstanding debt.
Reference is made to the applicable prospectus supplement for a
description of the following terms of specific series of debt securities:
o the title of debt securities of such series;
o the limit, if any, upon the aggregate principal amount of debt
securities of such series;
o the rate or rates, or the method of determination thereof, at which
debt securities of such series will bear interest, if any; the date
or dates from which such interest will accrue; the dates on which
such interest will be payable; and the regular record dates for the
interest payable on such interest payment dates;
o our obligation, if any, to redeem or purchase debt securities of
such series pursuant to any sinking fund or analogous provisions or
at the option of the holder thereof and the periods within which or
the dates on which, the prices at which and the terms and conditions
upon which debt securities of such series will be redeemed or
purchased, in whole or in part, pursuant to such obligation;
8
o the periods within which or the dates on which, the prices at which
and the terms and conditions upon which such debt securities may be
redeemed or repurchased, if any, in whole or in part, at our option;
o if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which debt securities of such series
will be issuable;
o whether debt securities of such series are to be issued in whole or
in part in the form of one or more global securities and, if so, the
identity of the depositary for such global securities; and
o any other terms of such debt securities not inconsistent with the
provisions of the indenture.
Payment of Debt Securities; Transfers, Exchanges: Except as may be
provided in the applicable prospectus supplement, interest, if any, on each debt
security payable on each interest payment date will be paid to the person in
whose name such debt security is registered as of the close of business on the
regular record date relating to such interest payment date; provided, however,
that interest payable at maturity (whether at stated maturity, upon redemption
or otherwise) will be paid to the person to whom the principal of such debt
security is paid. However, if there has been a default in the payment of
interest on any debt security, such defaulted interest may be payable to the
registered holder of such debt security as of the close of business on a date
selected by the trustee not more than 15 days and not less than 10 days prior to
the date we propose for payment of such defaulted interest.
Principal of and premium, if any, and interest, if any, on the debt
securities at maturity will be payable upon presentation of the debt securities
at the principal corporate trust office of the initial paying agent, U.S. Bank
Trust National Association, or of any successor paying agent, in New York, New
York. We may change the place of payment on the debt securities, may appoint one
or more paying agents (including ourselves) and may remove any paying agent, all
in our discretion. The applicable prospectus supplement, or a supplement
thereto, will identify any new place of payment and any paying agent appointed
and will disclose the removal of any paying agent effected prior to the date of
such prospectus supplement or supplement thereto. The transfer of debt
securities may be registered, and debt securities may be exchanged for other
debt securities of authorized denominations and of like tenor and aggregate
principal amount, at the principal corporate trust office of the initial
transfer agent, U.S. Bank Trust National Association, or any successor transfer
agent and registrar, in New York, New York. We may change the place for
registration of transfer of the debt securities, may appoint one or more
additional security registrars or transfer agents (including ourselves) and may
remove any security registrar or transfer agent, all in our discretion. The
applicable prospectus supplement, or a supplement thereto, will identify any new
place for registration of transfer and any additional security registrar or
transfer agent appointed and will disclose the removal of any security registrar
or transfer agent effected prior to the date of such prospectus supplement or
supplement thereto. No service charge will be made for any transfer or exchange
of the debt securities, but we may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. We will
not be required (a) to issue, register the transfer of, or exchange debt
securities during a period of 15 days prior to giving any notice of redemption
or (b) to issue, register the transfer of, or exchange any debt security
selected for redemption in whole or in part, except the unredeemed portion of
any debt security being redeemed in part.
9
Redemption: Any terms of the optional or mandatory redemption of any
series of debt securities will be set forth in the applicable prospectus
supplement. Except as shall otherwise be provided with respect to any series of
debt securities, or any tranche thereof, redeemable at the option of the holder,
the debt securities of such series, or any tranche thereof, will be redeemable
only upon notice, by mail, not less than 30 nor more than 60 days prior to the
date fixed for redemption and, if less than all of the debt securities of any
series, or any tranche thereof, are to be redeemed, the particular debt
securities will be selected by such method as the trustee deems fair and
appropriate.
Any notice of optional redemption may state that such redemption
shall be conditional upon the receipt by the trustee, on or prior to the date
fixed for such redemption, of money sufficient to pay the principal of and
premium, if any, and interest, if any, on such debt securities and that if such
money has not been so received, such notice will be of no force or effect and we
will not be required to redeem such debt securities.
Events of Default: The following constitute events of default under
the indenture with respect to each series of debt securities outstanding
thereunder:
o failure to pay any interest on any debt security of such
series within 60 days after the same becomes due and payable;
o failure to pay any principal of or premium, if any, on any
debt security of such series within three business days after
the same becomes due and payable;
o failure to perform or breach of any of our covenants or
warranties in the indenture (other than a covenant or warranty
solely for the benefit of one or more other series of debt
securities) for 60 days after written notice to us by the
trustee, or to us and the trustee by the holders of at least
33% in principal amount of the debt securities of such series
outstanding under the indenture as provided in the indenture;
o a default under any evidence of indebtedness by us (including
a default with respect to any series of debt securities) or a
default under any instrument under which there may be issued
any such indebtedness, in each case aggregating in excess of
$5 million, which default shall constitute a failure to pay
the principal of such indebtedness when due and payable (after
the expiration of any applicable grace period) or shall have
resulted in the acceleration of when such indebtedness becomes
due and payable if (1) either the trustee, or at least 10% in
principal amount of any outstanding series of debt securities,
shall have given us notice of such default and (2) within 10
days of said notice, such indebtedness is not discharged or
such acceleration is not rescinded or annulled;
o certain events of bankruptcy, insolvency or reorganization;
and
o any other event of default specified with respect to debt
securities of such series.
Remedies: If an event of default with respect to any series of debt
securities occurs and is continuing, then either the trustee or the holders of
not less than 33% in principal amount of the outstanding debt securities of such
series may declare the principal amount (or if the debt securities of such
series are discount notes or similar debt securities, such portion of the
principal amount as may be specified in the applicable prospectus supplement) of
all of the debt securities of such series to be due and payable immediately;
provided, however, that if such an event of default
10
occurs and is continuing with respect to more than one series of debt
securities, the trustee or the holders of not less than 33% in aggregate
principal amount of the outstanding debt securities of all such series,
considered as one class, may make such declaration of acceleration and not the
holders of the debt securities of any one of such series.
At any time after the declaration of acceleration with respect to the debt
securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the event or events of default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if-
o we have paid or deposited with the trustee a sum sufficient to
pay
-- all overdue interest on all debt securities of such
series,
-- the principal of and premium, if any, on any debt
securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such debt securities,
-- interest upon overdue interest at the rate or rates
prescribed therefor in such debt securities, to the
extent that payment of such interest is lawful, and
-- all amounts due to the trustee under the indenture;
and
o any other event or events of default with respect to the debt
securities of such series, other than the nonpayment of the
principal of the debt securities of such series which has
become due solely by such declaration of acceleration, have
been cured or waived as provided in the indenture.
If any such event of default with respect to the debt securities of any
series occurs and is continuing, the holders of a majority in principal amount
of the outstanding debt securities of such series will have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the trustee, or exercising any trust or power conferred on the trustee, with
respect to the debt securities of such series, subject to the following:
o If such an event of default occurs and is continuing with
respect to more than one series of debt securities, the
holders of a majority in aggregate principal amount of the
outstanding debt securities of all such series, considered as
one class, will have the right to make such direction, and not
the holders of the debt securities of any one of such series;
o Such direction will not be in conflict with any rule of law or
with the indenture and could not involve the trustee in
personal liability in circumstances where reasonable indemnity
would not be adequate;
o The trustee may take any other action it deems proper which is
not inconsistent with such direction; and
o The trustee shall not be obligated to take any action unduly
prejudicial to holders not joining in such direction.
11
The right of a holder of any debt security of such series to
institute a proceeding with respect to the indenture is subject to certain
conditions precedent, but each holder has an absolute right to receive payment
of principal and premium, if any, and interest, if any, when due and to
institute suit for the enforcement of any such payment. The indenture generally
provides that the trustee, within 90 days after the occurrence of any default
thereunder with respect to the debt securities of a series, is required to give
the holders of the debt securities of such series notice of any default known to
it, unless cured or waived. Except in the case of a default in the payment of
principal of or premium, if any, or interest, if any, on any debt securities of
such series, however, the trustee may withhold such notice if the trustee
determines that it is in the interest of such holders to do so. Furthermore, in
the case of such an event of default caused by our failure to perform or our
breach of any covenant or warranty in the indenture, no such notice shall be
given to such holders until at least 75 days after the occurrence thereof.
We will be required to furnish annually to the trustee a statement
as to our performance of certain of our obligations under the indenture and as
to any default in such performance.
Covenants:
Maintenance of Property. We will cause (or, with respect to property
owned in common with others, make a reasonable effort to cause) all our
properties used or useful in the conduct of our business to be maintained and
kept in good condition, repair and working order, ordinary wear and tear
excepted, and will cause (or with respect to property owned in common with
others, make a reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in our
judgment, may be necessary so that the business carried on in connection
therewith may be properly conducted. The foregoing, however, shall not prevent
us from discontinuing, or causing the discontinuance of, the operation and
maintenance of any of our properties if such discontinuance is, in our judgment,
desirable in the conduct of our business.
Preservation of Rights. Subject to the provisions described in the
next paragraph, we will do or cause to be done all things necessary to preserve
and keep in full force and effect our corporate existence and our rights
(charter and statutory) and franchises. We shall not, however, be required to
preserve any such right or franchise if, in our judgment, (1) preservation
thereof is no longer desirable in the conduct of our business and (2) the loss
thereof does not adversely affect the interests of the holders in any material
respect.
Consolidation or Merger. We will not consolidate with or merge into
any other corporation or corporations or convey, transfer or lease our
properties and assets substantially as an entirety to any person or persons
unless:
o the corporation or corporations formed by such consolidation
or into which we are merged or the person or persons which
acquires by conveyance or transfer, or which leases, our
properties and assets substantially as an entirety, expressly
assumes, by supplemental indenture, the due and punctual
payment of the principal of and premium, if any, and interest,
if any, on all the outstanding debt securities and the
performance of all of our covenants under the indenture;
o immediately after giving effect to any such transaction no
event of default, and no event which after notice or lapse of
time would become an event of default, will have occurred and
be continuing;
12
and
o we will have delivered to the trustee an officers' certificate
and an opinion of counsel as provided in the indenture.
New York courts have not judicially determined the exact meaning of the
phrase "substantially as an entirety." Accordingly, as a result of this
uncertainty, it may be difficult for the debt holders to determine whether such
covenant (relating to consolidation, merger, and sale of assets) has been
breached, to declare an event of default and to exercise their acceleration
rights based on such alleged breach.
There could be a disagreement between us and the holders over whether a
specific transaction implicates this covenant. There can be no assurance as to
how a court interpreting New York law would interpret the phrase "substantially
as an entirety."
Negative Pledge. We will not incur or permit to exist any mortgage,
lien, pledge, charge or encumbrance of any kind upon our property to secure
indebtedness without equally and ratably securing the outstanding debt
securities of all series. This restriction shall not apply in certain
circumstances, however, including the pledging by us of assets in connection
with the incurrences of indebtedness in aggregate principal amount not exceeding
3% of our net tangible utility assets at any time outstanding. The indenture
also excepts certain encumbrances from this restriction including, among other
things:
o liens for taxes not delinquent and liens for taxes which are
delinquent but are being contested in good faith by us;
o easements, rights of way, restrictions or reservations in our
property for, among other things, roads, utility transmission
and distribution facilities and other utility rights of way
and immaterial defects in title;
o purchase money mortgages on property acquired after the date
of the indenture;
o liens existing on assets prior to the acquisition thereof; and
o liens arising out of the refinancing, extension renewal or
refunding of indebtedness secured by certain of the liens or
encumbrances referred to above, including by any of the two
immediately preceding clauses.
Generally, personal property used in our ordinary business,
including cash, accounts receivable, stock in trade, products generated or
purchased by us, office equipment, motor vehicles, fuel and gas, are also
excepted from this restriction.
Modification of Indenture: Without the consent of any holders of
debt securities, we and the trustee may enter into one or more supplemental
indentures for any of the following purposes:
o to evidence the succession of another person to us and the
assumption by any such successor of our covenants in the
indenture and the debt securities; or
o to add to our covenants for the benefit of the holders of all
or any series of outstanding debt securities, or tranche
thereof, or to surrender any right or power conferred upon us
by the indenture; or
o to add any additional events of default with respect to all or
any series of outstanding debt securities; or
13
o to change or eliminate any provision of the indenture or to
add any new provision to the indenture; provided that if such
change, elimination or addition will adversely affect the
interests of the holders of debt securities of any series or
tranche in any material respect, such change, elimination or
addition will become effective with respect to such series or
tranche only when there is no debt security of such series or
tranche remaining outstanding under the indenture; or
o to provide collateral security for the debt securities; or
o to establish the form or terms of debt securities of any
series or tranche as permitted by the indenture; or
o to evidence and provide for the acceptance of appointment of a
successor trustee under the indenture with respect to the debt
securities of one or more series and to add to or change any
of the provisions of the indenture as shall be necessary to
provide for or to facilitate the administration of the trusts
under the indenture by more than one trustee; or
o to provide for the procedures required to permit the
utilization of a noncertificated system of registration for
any series of debt securities; or
o to change any place where:
-- the principal of and premium, if any, and interest, if any, on
debt securities of any series, or any tranche thereof, shall
be payable;
-- any debt securities of any series, or any tranche thereof, may
be surrendered for registration of transfer;
-- debt securities of any series, or any tranche thereof, may be
surrendered for exchange; and
-- notices and demands to or upon us in respect of the debt
securities of any series, or any tranche thereof, and the
indenture may be served; or
o to cure any ambiguity or inconsistency, or to make any other
provisions with respect to matters or questions arising under
the indenture, provided such other provisions shall not
adversely affect the interests of the holders of debt
securities of any series in any material respect.
The holders of a majority in aggregate principal amount of the debt
securities of all series then outstanding under the indenture may, before the
time compliance by us with certain restrictive provisions of the indenture is
required, waive our compliance with one or more of such provisions. The holders
of not less than a majority in principal amount of the debt securities of any
series then outstanding under the indenture may waive any past default under the
indenture with respect to such series, except a default in the payment of
principal, premium, or interest and certain covenants and provisions of the
indenture that cannot be modified or be amended without the consent of the
holder of each outstanding debt security of such series affected.
Without limiting the generality of the foregoing, if the Trust
Indenture Act is amended after the date of the indenture to require changes to
the indenture or the incorporation therein of additional provisions or permit
changes to, or the elimination of, provisions which, at the date of the
indenture or at
14
any time thereafter, are required by the Trust Indenture Act to be contained in
the indenture, we and the trustee may, without the consent of any holders, enter
into one or more supplemental indentures to effect or reflect any such change,
incorporation or elimination.
In general and except as described above, the consent of the holders
of not less than a majority in principal amount of the debt securities of all
series then outstanding under the indenture, considered as one class, is
required to add, change or eliminate any provision of the indenture pursuant to
one or more supplemental indentures. If less than all of the series of debt
securities outstanding under the indenture are directly affected by a
supplemental indenture, however, then only the consent of the holders of a
majority in aggregate principal amount of the outstanding debt securities of all
series so directly affected, considered as one class, is required. Furthermore,
if the proposed supplemental indenture shall directly affect the rights of the
holders of debt securities of one or more, but less than all, of the tranches of
any series issued in tranches, then only the consent of the holders of a
majority in aggregate principal amount of the debt securities outstanding of all
tranches so directly affected, considered as one class, shall be required. No
such supplemental indenture will, without the consent of the holder of each debt
security outstanding under the indenture of each such series or tranche directly
affected thereby:
o change the stated maturity of, or any installment of principal
of or the rate of interest on (or the amount of any
installment of interest on), any debt security, or reduce the
principal thereof or redemption premium thereon, if any, or
change the amount payable upon acceleration of a discount note
or method of calculating the rate of interest thereon, or
otherwise modify certain terms of payment of the principal
thereof or interest or premium thereon;
o reduce the percentage in principal amount of the debt
securities outstanding under such series or tranche required
to consent to any supplemental indenture or waiver of
compliance with any provision of the indenture or any default
under the indenture and its consequences, or to reduce the
requirements for quorum and voting; or
o modify certain of the provisions in the indenture relating to
supplemental indentures, waivers of certain covenants and
waivers of past defaults.
A supplemental indenture which changes or eliminates any covenant or
other provision of the indenture which has expressly been included solely for
the benefit of one or more particular series of debt securities or of one or
more tranches thereof, or which modifies the rights of the holders of debt
securities of such series or tranche with respect to such covenant or other
provision, shall be deemed not to affect the rights under the indenture of the
holders of any other debt securities.
Defeasance: The debt securities of any series, or any portion of the
principal amount thereof, will be deemed to have been paid for purposes of the
indenture (except as to any surviving rights of registration of transfer or
exchange expressly provided for in the indenture), and our entire indebtedness
in respect thereof will be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the trustee, in trust:
o money in the amount which will be sufficient; or
o direct obligations of, or obligations unconditionally
guaranteed by,
15
the United States of America and entitled to the benefit of
the full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct
ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof, in each
case which do not contain provisions permitting the redemption
or other prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which when due,
without any regard to reinvestment thereof, will provide
monies which, together with the money, if any, deposited with
or held by the trustee, will be sufficient; or
o a combination of the preceding items which will be sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such debt
securities or portions thereof on and prior to the maturity
thereof.
As a condition to defeasing any series of debt securities as described
above, we are obligated to obtain a legal opinion to the effect that the
defeasance will be tax free to the holders of the debt securities to be
defeased.
Title: We, the trustee, and any agent of ours or the trustee may
treat the registered holder of a debt security as the absolute owner thereof
(whether or not such debt security may be overdue) for the purpose of making
payment and for all other purposes.
PLAN OF DISTRIBUTION
We may sell the debt securities offered by this prospectus:
o through underwriters or dealers;
o directly to one or more purchasers; or
o through agents.
Each prospectus supplement will set forth the terms of the offering
of the debt securities offered thereby, including the name or names of any
underwriters, dealers or agents, the initial public offering price or purchase
price of such debt securities, the proceeds we receive from such sale, any
underwriting discounts and other items constituting underwriters' compensation,
and any discounts or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time. Only firms named
in a prospectus supplement are deemed to be underwriters, dealers or agents in
connection with the debt securities offered thereby.
We may distribute the securities from time to time in one or more
transactions at: a fixed price; prices that may be changed; prices related to
prevailing market prices, if any, at the time of sale; and negotiated prices. We
will describe the method of distribution in the relevant prospectus supplement.
If underwriters are used in the sale of the debt securities, such
debt securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. Such debt securities may be offered to the
public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more
16
underwriters. Any underwriters with respect to any of the debt securities will
be named in the prospectus supplement applicable to such debt securities and, if
an underwriting syndicate is used, the managing underwriter or underwriters will
be named on the cover page of such prospectus supplement. Unless otherwise set
forth in the prospectus supplement, the obligations of the underwriters to
purchase any of the debt securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all of such debt
securities if any are purchased.
Subject to certain conditions, we may agree to indemnify the several
underwriters or agents and their controlling persons against certain
liabilities, including liabilities under the Securities Act of 1933, as amended,
arising out of or based upon, among other things, any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, this prospectus, a prospectus supplement or the documents
incorporated by reference herein or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. See the applicable prospectus supplement. Any underwriter may
engage in over-allotment, stabilizing transactions, short covering transactions
and penalty bids in accordance with Regulation M under the Securities Exchange
Act of 1934. Over-allotment involves sales in excess of the offering size, which
creates a short position. Stabilizing transactions permit bids to purchase the
underlying debt security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the debt
securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the debt securities originally sold by the dealer are
purchased in a covering transaction to cover short positions. Those activities
may cause the price of the debt securities to be higher than it would otherwise
be. The underwriters may engage in any such activities on any exchange or other
market in which the debt securities may be traded. If commenced, the
underwriters may discontinue those activities at any time. The prospectus
supplement or pricing supplement, as applicable, will set forth the anticipated
delivery date of the debt securities being sold at that time.
If we use an agent in an offering of the securities, we will name
the agent and describe the terms of the agency in the relevant prospectus
supplement or pricing supplement. Unless we indicate otherwise in the prospectus
supplement, we will require an agent to act on a best efforts basis for the
period of its appointment. Underwriters, dealers and agents or their affiliates
may engage from time to time in various general financing, investment banking
and commercial banking transactions with us and certain of our affiliates.
Although we do not have any definitive plans for sales of the debt
securities offered hereby, subject to market conditions, we anticipate selling
in the near future through underwriters or agents to be named in the relevant
prospectus supplement or pricing supplement approximately $25 to $30 million
thereof, the proceeds of which will be used as follows: (i) approximately $15
million to repay and reduce short-term (less than 365 days maturity) borrowings
used for working capital for general operations, (ii) approximately $15 million
to replace on our balance sheet $15 million in long-term (12 year) 7.85% debt
that matured and was redeemed in July 2004, and (iii) the remainder for general
corporate purposes.
LEGAL MATTERS
Certain legal matters with respect to the debt securities offered
hereby will be passed upon for us by Thompson Hine LLP, our counsel, One Chase
Manhattan Plaza, New York, New York and for any underwriter, dealer or agent by
Pillsbury Winthrop LLP, 1540 Broadway, New York, New York.
17
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended December 31,
2003, as amended, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent registered public accounting firm and
independent auditor, given on the authority of said firm as experts in auditing
and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
------------------------------------------------------------------------------
ITEM AMOUNT
---- ------
------------------------------------------------------------------------------
Filing fee, Securities and Exchange Commission $10,769.50
------------------------------------------------------------------------------
Printing of Registration Statement, Prospectus and Notes 5,000*
------------------------------------------------------------------------------
Auditor's fees and expenses 20,000*
------------------------------------------------------------------------------
Expenses in connection with qualification of securities
under blue sky laws including counsel fees 2,000*
------------------------------------------------------------------------------
Legal services--registrant's counsel 60,000*
------------------------------------------------------------------------------
Authentication and delivery of Notes and Trustee's fees
and expenses, including counsel fees 5,100*
------------------------------------------------------------------------------
Agents' counsel fee and expenses 45,000*
------------------------------------------------------------------------------
Rating agencies' fees 70,000*
------------------------------------------------------------------------------
Miscellaneous disbursements 7,130.50*
------------------------------------------------------------------------------
Total $225,000*
------------------------------------------------------------------------------
----------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are in certain cases entitled,
pursuant to provisions contained in Sections 721 through 726 of the New York
Business Corporation Law ("BCL"), Article 11, Section 13, of the Bylaws of the
Registrant, and the Registrant's Retirement Income Plan and Disability Plan, to
indemnification against expenses and liabilities arising from their acts or
omissions. The Bylaws of the Registrant contain provisions that the Registrant
shall indemnify, to the full extent permitted by law, any person made, or
threatened to be made, a party to any action or proceedings, whether civil or
criminal, by reason of the fact that such person is or was a director or officer
of the Registrant. The Registrant has entered into an indemnification agreement
with each of its directors and officers. Each such agreement relates to
indemnification by the Registrant to the full extent authorized or permitted by
law for any civil or criminal action or proceeding arising by reason of that
individual's role as a director or officer of the Board of Directors or as an
officer or employee of the Registrant or service with any other corporation,
partnership, joint venture, trust, employee benefit plan or enterprise in any
such capacity at the request of the Registrant. In addition, the Registrant's
Certificate of Incorporation exempts directors from certain liabilities arising
out of events occurring on and after April 6, 1988, pursuant to Section 402(b)
of the BCL. The Registrant, pursuant to authority granted by the BCL, has
18
purchased liability insurance on behalf of itself and its directors and officers
in connection with the corporate responsibilities of such directors and
officers.
The form of distribution agreement to which the offering contained in this
Registration Statement relates also provides that the agents named therein will,
under certain circumstances, indemnify the Registrant, its directors and
officers, and any person who controls any thereof.
ITEM 16. EXHIBITS.
Following is the list of Exhibits, as required by Item 601 of Regulation
S-K, filed as part of the Registration Statement, including Exhibits
incorporated herein by reference and made a part hereof:
--------------------------------------------------------------------------------
EXHIBIT NUMBER EXHIBIT
(REGULATION S-K
ITEM 601
DESIGNATION)
--------------------------------------------------------------------------------
1* Form of Distribution Agreement.
--------------------------------------------------------------------------------
4(a)* Indenture, dated as of April 1, 1992, between
Registrant and U.S. Bank Trust National Association
(formerly known as First Trust of New York, National
Association) (as successor trustee to Morgan Guaranty
Trust Company of New York), as Trustee, dated as of
April 1, 1992 (previously filed with Central Hudson's
Current Report on Form 8-K, dated May 27, 1992, as
Exhibit (4)(ii)29).
--------------------------------------------------------------------------------
4(b)* Form of Officers' Certificate, establishing the
Notes, with form of Note attached.
--------------------------------------------------------------------------------
5** Opinion of counsel re: legality.
--------------------------------------------------------------------------------
12* Statement showing the Computation of the Ratios of
Earnings to Fixed Charges.
--------------------------------------------------------------------------------
23(a)** Consent of PricewaterhouseCoopers LLP.
--------------------------------------------------------------------------------
23(b)** Consent of Thompson Hine LLP (contained in their
opinion, a copy of which is filed as Exhibit (5)).
--------------------------------------------------------------------------------
24* Power of attorney for each officer and director
signing the Registration Statement.
--------------------------------------------------------------------------------
25* Statement of Eligibility and Qualification on Form
T-1 of U.S. Bank Trust National Association, as
trustee under the Indenture, dated as of April 1,
1992, between Registrant and U.S. Bank Trust National
Association (formerly known as First Trust of New
York, National Association) (as successor trustee to
Morgan Guaranty Trust Company of New York), as
Trustee.
--------------------------------------------------------------------------------
------------
* Previously filed.
** Filed herewith.
19
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the
securities registered hereby, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933 ("Act");
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offered range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Act if, in the aggregate,
the changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered hereby which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in the first paragraph of Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
20
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT, AS AMENDED, TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF POUGHKEEPSIE, AND STATE OF NEW YORK, ON THE 27TH
DAY OF AUGUST, 2004.
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(Registrant)
By /s/ Christopher M. Capone
------------------------------------------
(Christopher M. Capone, Chief Financial Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATE INDICATED.
SIGNATURES AND TITLES DATE
--------------------- ----
Principal Financial Officer and Treasurer:
/s/ Christopher M. Capone August 27, 2004
------------------------------------------
(Christopher M. Capone, Chief Financial Officer and Treasurer)
STEVEN V. LANT, Chairman of the Board and Chief
Executive Officer (Principal Executive Officer) and
Director, DONNA S. DOYLE, Vice President--Accounting
and Controller (Principal Accounting Officer); CARL E.
MEYER, President and Chief Operating Officer and Director,
ARTHUR R. UPRIGHT and JACK EFFRON, Directors
By /s/ Christopher M. Capone August 27, 2004
------------------------------------------
(Christopher M. Capone, Attorney-in-Fact)
21
INDEX TO EXHIBITS
--------------------------------------------------------------------------------
EXHIBIT EXHIBIT
NUMBER
--------------------------------------------------------------------------------
1* Form of Distribution Agreement.
--------------------------------------------------------------------------------
4(a)* Indenture, dated as of April 1, 1992, between
Registrant and U.S. Bank Trust National Association
(formerly known as First Trust of New York, National
Association) (as successor trustee to Morgan Guaranty
Trust Company of New York), as Trustee, dated as of
April 1, 1992 (previously filed with Central Hudson's
Current Report on Form 8-K, dated May 27, 1992, as
Exhibit (4)(ii)29).
--------------------------------------------------------------------------------
4(b)* Form of Officers' Certificate, establishing the
Notes, with form of Note attached.
--------------------------------------------------------------------------------
5** Opinion of counsel re: legality.
--------------------------------------------------------------------------------
12* Statement showing the Computation of the Ratios of
Earnings to Fixed Charges.
--------------------------------------------------------------------------------
23(a)** Consent of PricewaterhouseCoopers LLP.
--------------------------------------------------------------------------------
23(b)** Consent of Thompson Hine LLP (contained in their
opinion, a copy of which is filed as Exhibit (5)).
--------------------------------------------------------------------------------
24* Power of attorney for each officer and director
signing the Registration Statement.
--------------------------------------------------------------------------------
25* Statement of Eligibility and Qualification on Form
T-1 of U.S. Bank Trust National Association, as
trustee under the Indenture, dated as of April 1,
1992, between Registrant and U.S. Bank Trust National
Association (formerly known as First Trust of New
York, National Association) (as successor trustee to
Morgan Guaranty Trust Company of New York), as
Trustee.
--------------------------------------------------------------------------------
--------------
* Previously filed.
** Filed herewith.