As filed with the Securities and Exchange Commission on November 8, 2006.
Registration No. 333-_______
================================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
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 its 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)
---------------
Steven V. Lant
Chairman of the Board and
Chief Executive Officer John E. Gould, Esq.
Central Hudson Gas & Electric Corporation Thompson Hine LLP
284 South Avenue 335 Madison Avenue, 12th Floor
Poughkeepsie, New York 12601-4879 New York, New York 10017
(845) 486-5477 (212) 344-5680
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effectiveness of the Registration Statement.
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,
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 this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. |_|
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. |_|
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CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed Maximum Proposed maximum
Title of Each Class of Amount to be Aggregate Offering aggregate offering Amount of
Securities to be Registered registered(1) Price (1)(2) price(1) Registration Fee
-------------------------------------------------------------------------------------------------------------------
Debt Securities $140,000,000 100% $140,000,000 $14,980
===================================================================================================================
(1) Exclusive of accrued interest, if any, and estimated solely for the
purpose of calculating the registration fee. The 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) under the Securities Act of 1933.
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 that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended or until the Registration Statement shall
become effective on such date as the Commission acting pursuant to such Section
8(a), may determine.
================================================================================
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 NOVEMBER 8, 2006
PROSPECTUS
$140,000,000
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
DEBT SECURITIES
By this prospectus, we may offer from time to time up to $140,000,000 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 3 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.
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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.
----------
The date of this Prospectus is ________ , 2006.
TABLE OF CONTENTS
PAGE
About this Prospectus ..................................................... 3
Risk Factors .............................................................. 3
Where You Can Find More Information ....................................... 5
Forward-Looking Statements ................................................ 5
Central Hudson Gas & Electric Corporation ................................. 7
Use of Proceeds ........................................................... 8
Ratios of Earnings to Fixed Charges ....................................... 8
Description of the Debt Securities ........................................ 8
Plan of Distribution ...................................................... 16
Legal Matters ............................................................. 17
Experts ................................................................... 17
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 $140,000,000. 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 a significant portion of its cash reserves in energy-related assets
and/or utility assets. These funds were generated from the sales of our
interests in our major generating assets and Energy Group's sale of its former
subsidiary CH Resources, Inc., and are currently held in money market
instruments and short-term securities. Investments in new business ventures may
provide returns that are lower than those anticipated when an investment is
made, including potential losses or write-offs, and may cause Energy Group's
earnings to be more volatile.
Storms and Other Events Beyond Our Control May Interfere with the Operation of
Our Transmission and Distribution Facilities in the Mid-Hudson Valley Region
Our revenues are generated by the delivery of electricity over
transmission and distribution lines and by the delivery of natural gas through
pipelines. These facilities, which are owned and operated by us or by third
party entities, are at risk of damage from storms, natural disasters, wars,
terrorist acts, and other catastrophic events, occurring both within and outside
Central Hudson's franchise territory, and are at risk of curtailment or
cessation of operations as a result of unfavorable regulatory or judicial
orders. The siting, regulatory approval, and construction of natural gas and
electric transmission projects are subject to applicable laws and regulations,
including local considerations, which may increase the cost or delay the
completion of these projects. If we or the relevant third-party entity (as the
case may be) are unable in a timely manner to repair our facilities or to obtain
the rescission or stay of unfavorable regulatory or judicial orders which have
caused the curtailment or cessation of operation of our facilities (as the case
may be), our customers may experience a service disruption and we may experience
lower
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revenues or increased expenses, or both, that we may not be able to recover
fully through rates, insurance, sales margins, or other means in a timely
manner, or at all.
Unusual Temperatures in the Mid-Hudson Valley Region Could Adversely Impact our
Earnings
The mid-Hudson Valley region, which is our service territory, typically
experiences seasonal fluctuations in temperature. If, however, the region were
to experience unusually mild winters and/or cooler summers, our earnings could
be adversely impacted. 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 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 risk
management instruments. However, no assurance can be given that suitable risk
management instruments will remain available.
Our Rate Plans Limit Our Ability to Pass Through Increased Costs to Our
Customers; If Our Rate Plans Are Modified by State Regulatory Authorities, Our
Revenues May Be Lower Than Expected
As a transmission and distribution company delivering electricity and
natural gas within New York State, 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.
The rate plans under which we operated from November 2001 through June 30,
2006, were superseded by a new rate plan covering the three-year period from
July 1, 2006 to June 30, 2009. Rate plans generally may not be changed during
their respective terms, absent unusual circumstances. As a result, the new rate
plan may not fully reflect all of the future trends in revenues, expenses,
construction costs, and other important factors that will determine our
financial performance.
The previous effective rate plans and the rate proceeding commenced by us
in 2005 are discussed in Note 2 - "Regulatory Matters" of our Annual Report on
Form 10-K for the year ended December 31, 2005. The new rate plan and the 2006
Joint Proposal (which forms the basis for the new rate plan) are discussed in
Note 3 - "Regulatory Matters" of our Quarterly Report on Form 10-Q for the
quarter ended September 30, 2006.
We Are Subject to 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 11 - "Commitments and Contingencies" in our
Annual Report on Form 10-K for the year ended December 31, 2005, 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 Offered by this Prospectus
We can give no assurances as to whether any market may develop for the
debt securities offered by this prospectus, 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.
4
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 100 F Street, N.E., 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.chenergygroup.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, 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,
2005;
-- Our Quarterly Reports on Form 10-Q for the quarters ended March
31, 2006, June 30, 2006, and September 30, 2006 (as amended by our
Quarterly Report on Form 10-Q/A filed on November 7, 2006); and
-- Our Current Reports on Form 8-K filed on March 13, 2006, April
21, 2006, July 28, 2006, and September 5, 2006, and our Amendment to
Current Report on Form 8-K filed on April 6, 2006.
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) 452-2000
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;
5
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 and natural gas
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.
Please also refer 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.
6
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. CH
Energy Group, Inc. is also the holding company for Central Hudson Enterprises
Corporation ("CHEC). CHEC is comprised of other energy-related companies and
investments engaged primarily in fuel distribution and related services and
renewable energy. 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:
----------------------------------------------------------------------------------------------------
Percent of Operating Income
Percent of Total Revenues before Income Taxes
----------------------------------------------------------------------------------------------------
Electric Gas Electric Gas
----------------------------------------------------------------------------------------------------
2005 77.00% 23.00% 75.79% 24.21%
----------------------------------------------------------------------------------------------------
2004 77.47% 22.53% 74.65% 23.35%
----------------------------------------------------------------------------------------------------
2003 78.77% 21.23% 73.01% 26.99%
----------------------------------------------------------------------------------------------------
For the year ended December 31, 2005, we served an average of 292,826
electric and 70,714 natural gas customers monthly. Our electric revenues during
that period were derived from the following sources (approximate):
o 52.01% from residential customers;*
o 35.44% from commercial customers;*
o 5.28% from industrial customers;* and
o 7.27% from other utilities and miscellaneous sources.
* includes the energy delivery service attributed to residential, commercial
and industrial customers.
Our total natural gas revenues during that period were derived from the
following sources (approximate):
o 48.02% from residential customers;
o 37.25% from commercial customers;
o 4.16% from industrial customers;
o 4.19% from interruptible customers; and
o 6.38% from miscellaneous sources (including revenues from
transportation of customer-owned natural gas).
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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 energy purchases; 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
during 2007 approximately $60 to $70 million of debt securities, with
approximately $33 million of the proceeds to be used to repay an equal principal
amount of our 2002 Series D promissory notes which bear interest at the rate of
5.8% per annum and mature on March 28, 2007 and with approximately $27 to $37
million of the proceeds to be used to finance our construction program and for
general corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for each of the last five fiscal
years (and for the nine months ended September 30, 2006) are as follows:
-----------------------------------------------------------------------------------------------------------
Nine months
ended
Year Ended December 31, September 30,
-----------------------------------------------------------------------------------------------------------
2001 2002 2003 2004 2005 2006
-----------------------------------------------------------------------------------------------------------
Ratio of
Earnings to
Fixed 2.1 2.7 3.5 4.2 3.9 3.6
Charges
-----------------------------------------------------------------------------------------------------------
For purposes of the determination of this ratio, the following should be noted:
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,
preferred dividends and the portion of rents representative of the
interest factor. These charges have not been reduced by any
allowance for funds used during construction.
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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 is 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
indebtedness, which as of September 30, 2006 totaled approximately $374,000,000,
is currently unsubordinated and unsecured (of that amount, approximately
$344,000,000 is long term debt and the remainder is short term debt);
accordingly, the debt securities issued hereunder will rank equally with our
currently outstanding indebtedness.
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;
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
9
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.
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 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
10
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 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.
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
11
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, will 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 will 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;
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 this
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 the 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 will not apply in certain
circumstances, however, including the pledging by
12
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
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;
13
-- 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 do 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 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 directly affects 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, will be required. No
such supplemental indenture may, 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 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
14
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 is 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,
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.
15
PLAN OF DISTRIBUTION
We may sell the debt securities offered by this prospectus:
o directly;
o through agents;
o through dealers; or
o through one or more underwriters or a syndicate of underwriters in
an underwritten offering.
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 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
16
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
during 2007 approximately $60 to $70 million of debt securities, with
approximately $33 million of the proceeds to be used to repay an equal principal
amount of our 2002 Series D promissory notes which bear interest at the rate of
5.8% per annum and mature on March 28, 2007, and with approximately $27 to $37
million of the proceeds to be used to finance our construction program and 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, 335 Madison
Avenue, New York, New York.
EXPERTS
The financial statements and management's assessment of the effectiveness
of internal control over financial reporting (which is included in Management's
Report on Internal Control over Financial Reporting) incorporated in this
prospectus by reference to our Annual Report on Form 10-K for the year ended
December 31, 2005 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and accounting.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
ITEM AMOUNT
Filing fee, Securities and Exchange Commission $ 14,980
Printing of Registration Statement, Prospectus and Notes 5,000*
Auditor's fees and expenses 40,000*
Expenses in connection with qualification of securities under 2,000*
blue sky laws including counsel fees
Legal services--registrant' s counsel 60,000*
Authentication and delivery of Notes and Trustee's fees and 7,500*
expenses, including counsel fees
Agents' counsel fees and expenses 75,000*
Rating agencies' fees 160,000*
Miscellaneous disbursements 10,520*
--------
Total $375,000*
------------
* 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
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:
II-1
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 [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 Thompson Hine LLP 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 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.
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) 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;
II-2
provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in 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 or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of 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 to any
purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the Registrant under
the Act to any purchaser in the initial distribution of the securities, in a
primary offering of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned
Registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant
relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned Registrant or used or referred to by the
undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned registrant or
its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(6) 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 Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
II-3
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in the first paragraph of Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Poughkeepsie, and State of New York, on the 8th day
of November, 2006.
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
By /s/ Christopher M. Capone
-------------------------------------
Chistopher M. Capone
Chief Financial Officer and Treasurer
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
--------------------- ----
/s/ Christopher M. Capone November 8, 2006
-----------------------------------------
Christopher M. Capone, Chief Financial Officer
and Treasurer (Principal Financial Officer) and Director
STEVEN V. LANT, Chairman of the Board and Chief
Executive Officer (Principal Executive Officer) and
Director, DONNA S. DOYLE, Vice President--Accounting
(Principal Accounting Officer); CARL E. MEYER,
JOSEPH J. DEVIRGILIO, JR.
and ARTHUR R. UPRIGHT, Directors
By /s/ Christopher M. Capone November 8, 2006
---------------------------------------
(Christopher M. Capone, Attorney-in-Fact)
S-1
INDEX TO EXHIBITS
Exhibit Number Exhibit
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 [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.
S-2
450979