SEVENTH SUPPLEMENTAL INDENTURE, dated as of June 1, 1996, between
CITIZENS UTILITIES COMPANY, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal administrative offices at High ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to CHEMICAL BANK, a New York banking corporation, as Trustee
(herein called the "Trustee"), having its principal corporate trust office at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS
WHEREAS, the Company has entered into an Indenture dated as of August
15, 1991 (the "Indenture"), with the Trustee to provide for the issuance from
time to time of the Company's debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or more
series; and
WHEREAS, the Company has entered into a First Supplemental Indenture
dated as of August 15, 1991 (the "First Supplemental Indenture") with the
Trustee to establish the form and terms of a series of Securities designated
"8.45% Debentures Due 2001"; and
WHEREAS, the Company has entered into a Second Supplemental Indenture
dated as of January 15, 1992 (the "Second Supplemental Indenture") with the
Trustee to establish the form and terms of a series of Securities designated
"7.45% Debentures Due 2004";and
WHEREAS, the Company has entered into a Third Supplemental Indenture
dated as of April 15, 1994 (the "Third Supplemental Indenture") with the Trustee
to establish the form and terms of a series of Securities designated "7.60%
Debentures Due 2006"; and
WHEREAS, the Company has entered into a Fourth Supplemental Indenture
dated as of October 1, 1994 (the "Fourth Supplemental Indenture") with the
Trustee to establish the form and terms of a series of Securities designated
"7.68% Debentures Due 2034"; and
WHEREAS, the Company has entered into a Fifth Supplemental Indenture
dated as of June 15, 1995 (the "Fifth Supplemental Indenture") with the Trustee
to establish the form and terms of a series of Securities designated "7.45%
Debentures Due 2035"; and
WHEREAS, the Company has entered into a Sixth Supplemental Indenture
dated as of October 15, 1995 (the "Sixth Supplemental Indenture") with the
Trustee to establish the form and terms of a series of Securities designated "7%
Debentures Due 2025"; and
WHEREAS, Section 901 of the Indenture provides, among other things,
that the Company and the Trustee may enter into indentures supplemental to the
Indenture for, among other things, the purpose of establishing the form and
terms of the Securities of any series as permitted in Sections 201 and 301 of
the Indenture and adding to the covenants of the Company for the benefit of the
Holders of any series of Securities; and
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WHEREAS, the Company by corporate action duly taken has authorized the
issuance of a seventh series of Securities designated as the 6.80% Debentures
Due 2026 (hereinafter sometimes called the "Debentures"), which series is
limited in aggregate principal amount to $100,000,000, such Debentures to
contain such provisions as have been caused to be determined by or at the
direction of, the Board of Directors of the Company and as are set forth in this
Seventh Supplemental Indenture to the Indenture; and
WHEREAS, all conditions have been complied with, all actions have been
taken and all things have been done which are necessary to make the Debentures,
when executed by the Company and authenticated by or on behalf of the Trustee
and when delivered as herein and in the Indenture provided, the valid
obligations of the Company, and to make this Seventh Supplemental Indenture a
valid and binding supplemental indenture.
NOW, THEREFORE, THIS SEVENTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all holders of the Debentures, as follows:
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Section 1. Definitions. For all purposes of this Seventh Supplemental
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Indenture, except as otherwise herein expressly provided or unless the context
otherwise requires:
(1) terms used herein in capitalized form and defined in the
Indenture shall have the meanings specified in the Indenture;
(2) the words "herein", "hereof" and "hereto" and other words
of similar import used in this Seventh Supplemental Indenture
refer to this Seventh Supplemental Indenture as a whole and
not to any particular Section or other subdivision of this
Seventh Supplemental Indenture;
(3) the provisions of this Seventh Supplemental Indenture shall
be read in conjunction with the provisions of the Indenture
only with respect to the Debentures and the provisions of the
Indenture and the First, Second, Third, Fourth, Fifth and
Sixth Supplemental Indentures shall not be modified by this
Seventh Supplemental Indenture with respect to any series of
the Securities outstanding or to be outstanding under the
Indenture, other than the Debentures; and
(4) terms defined in this Sevent Supplemental Indenture shall
apply only to this Seventh Supplemental Indenture
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and the Debentures hereunder, and such definitions shall not
apply to any supplemental indenture other than this Seventh
Supplemental Indenture or to any Securities outstanding or to
be outstanding under the Indenture, other than the Debentures.
Except as otherwise expressly provided or unless the context otherwise
requires, "Seventh Supplemental Indenture" means this instrument as originally
executed or, if amended or supplemented pursuant to the applicable provisions of
the Indenture, as amended or supplemented.
Section 2. Forms of the Debentures. The Debentures shall be in
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substantially the form set forth in Exhibit A to this Seventh Supplemental
Indenture, as such form may be completed pursuant to Section 3 hereof, the terms
of which Exhibit A are herein incorporated by reference and made a part of this
Seventh Supplemental Indenture.
Section 3. Terms of the Debentures. The terms of the Debentures shall
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be as follows:
(1) the Securities to be issued under the Indenture and this
Seventh Supplemental Indenture shall be the Debentures and shall be
designated as the "6.80% Debentures Due 2026";
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(2) the Debentures shall constitute a single series of the
Securities under the Indenture, which series is limited in aggregate principal
amount to $100,000,000;
(3) so long as any Debentures are registered in the name of
CEDE & Co., or any other nominee of The Depository Trust Company, and are
intended to be Book-Entry Securities, the provisions of Section 311 of the
Indenture shall apply to such Debentures. Thereafter the Debentures may be
subjected to the requirements of a successor book-entry securities system that
may be adopted by the Company in accordance with the provisions of the Indenture
and this Seventh Supplemental Indenture;
(4) interest on each of the Debentures shall be payable at the
rate per annum specified in the designation of the Debenture from June 11, 1996,
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually, on February 15 and August 15 in each year,
commencing on August 15, 1996. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will be paid to the Person in
whose name such Debenture (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the February 1 or August 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment
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Date. Any interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date by virtue of
having been such a Holder and shall be paid by the Company as provided in
Section 307 of the Indenture;
(5) unless otherwise provided with respect to a Book-Entry
Security or pursuant to any successor book-entry security system or similar
system, payments of interest will be made by check mailed to the Holder of each
Debenture at the address shown in the Security Register or, at the option of the
Holder, to such other place in the United States of America as the Holder shall
designate to the Trustee in writing. The principal amount of the Debentures will
be paid at Maturity by check against presentation of the Debentures at the
office or agency of Chemical Bank, as Trustee, in New York, New York, or such
other address in New York, New York, as the Trustee shall designate by written
notice to the Holders of the Debentures;
(6) the Debentures shall be issued in registered form only and
in denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000;
(7) principal and interest on the Debentures shall be payable
in the coin or currency of the United States of America, which, at the time of
payment, is legal tender for public and private debts; and
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(8) the Debentures shall be subject to defeasance, at the
Company's option, as provided for in Sections 1302 and 1303 of the Indenture.
Upon the Company's exercise of the option to effect such defeasance under
Section 1302 and 1303 of the Indenture in accordance with and subject to the
terms thereof, the Company shall be released from its obligations with respect
to the Debentures as provided in the applicable Section and other relevant
provisions of the Indenture.
Section 4. No Redemption by the Company. The Debentures will not be
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redeemable at the option of the Company prior to maturity and will not be
subject to any sinking fund.
Section 5. Redemption at Option of Holder. (a) Each Holder shall have
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the right, at such Holder's option, exercisable at any time prior to July 15,
2003 and subsequent to June 15, 2003, to require the Company to redeem, and upon
the exercise of such right the Company shall redeem, all or any part of such
Holder's Debentures that is $1,000 or any integral multiple thereof in principal
amount, on August 15, 2003 (the "Redemption Date") at a redemption price in cash
equal to 100% of the principal amount of such Debenture (the "Redemption
Price"), together with accrued and unpaid interest to the Redemption Date.
(b) To exercise a redemption right, a Holder of Debentures
shall deliver (i), to the Company and to the Trustee,
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irrevocable written notice of the Holder's election to exercise such right (the
"Holder's Notice"), which shall set forth the name of the Holder, the amount of
Debentures to be redeemed and a statement that an election to exercise the
redemption right is being made thereby and (ii), to the Trustee, the Debentures
with respect to which the redemption right is being exercised, duly endorsed for
transfer to the Company if required by the Trustee or the Company. Debentures
held by a securities depositary may be delivered in such other manner as may be
agreed to by such securities depositary and the Company and the Trustee. Such
written notice shall be irrevocable. The Debentures surrendered for redemption
shall, on the Redemption Date, become due and payable at the Redemption Price,
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Debentures shall cease to bear
interest. Upon surrender of any such Debentures for redemption in accordance
with the Holder's Notice, such Debentures shall be paid by the Company at the
Redemption Price plus accrued interest to the Redemption Date; provided,
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however, that installments of interest whose Stated Maturity is prior to the
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Redemption Date shall be payable to the Holders of such Debentures, or one or
more Predecessor Securities, according to the terms and provisions of Section
307.
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(c) On or before the Redemption Date, the Company shall
deposit with the Trustee an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Debentures which are to be repurchased on that
date.
(d) If any Debenture surrendered for redemption shall not be
so paid on the Redemption Date, such Debenture shall, until paid, continue to
bear interest to the extent permitted by applicable law from the Redemption Date
at the same rate as the rate borne by such Debenture. The Company shall pay to
the Holder of such Debenture the additional amounts of interest arising from
this subsection at the same time that it pays the Redemption Price.
(e) If any Debenture which is to be redeemed only in part
shall be surrendered at any office or agency of the Company (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Debenture or Debentures, of any
authorized denomination as requested by such Holder, in an aggregate principal
amount equal to and in
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exchange for the unredeemed portion of the Debenture so surrendered.
Section 6. Amendment to Indenture for Purposes of Seventh Series of
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Debentures.
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For all purposes of the Debentures and for no other purposes,
subsection (4) of Section 501 shall read:
"(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of a series of Securities other than that series), and
continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the Holders of a majority in principal amount of the Outstanding
Securities of that series a written notice specifying such
default or breach and
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requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or"
For all purposes of the Debentures and for no other purposes, the first
paragraph of Section 502 shall read:
"If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of a
majority in principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if any of
the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of
the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become
immediately due and payable."
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For all purposes of the Debentures and for no other purposes,
subsection (2) of Section 507 shall read:
"(2) the Holders of a majority in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;"
For all purposes of the Debentures and for no other purposes,
subsection (5) of Section 507 shall read:
"(5) no direction inconsistent with such written request has
been given to the Trustee during such 90-day period by the
Holders of 66-2/3% in principal amount of the Outstanding
Securities of that series."
Section 7. Incorporation of Indenture. From and after the date hereof,
----------------------------
the Indenture, as supplemented by this Seventh Supplemental Indenture, shall be
read, taken and construed as one and the same instrument with respect to the
Debentures.
Section 8. Acceptance of Trust. The Trustee accepts the trusts created
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by the Indenture, as heretofore supplemented by the First Supplemental
Indenture, Second Supplemental Indenture, Third Supplemental Indenture, Fourth
Supplemental Indenture,
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Fifth Supplemental Indenture and Sixth Supplemental Indenture and as hereby
supplemented by this Seventh Supplemental Indenture, and agrees to perform the
same upon the terms and conditions in the Indenture, as so supplemented.
Section 9. Conflict with Trust Indenture Act. If any provision hereof
-----------------------------------
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Seventh Supplemental
Indenture, such provision of the Act shall control. If any provision of this
Seventh Supplemental Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, such provision of the Act
shall be deemed to apply to this Seventh Supplemental Indenture only as so
modified and if not so excluded, as the case may be.
Section 10. Governing Law. This Seventh Supplemental Indenture, and the
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Debentures, shall be governed by and construed in accordance with the laws of
the State of New York.
Section 11. Recitals. The recitals contained in the Indenture, this
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Seventh Supplemental Indenture and the Debentures, except the Trustee's
certificate of authentication, shall be taken as statements of the Company, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of the
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Indenture, as supplemented by this Seventh Supplemental Indenture.
Section 12. Amendments. Notwithstanding any other provisions hereof,
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all amendments to the Indenture made hereby shall have effect only with respect
to the Debentures, and not with respect to the Securities of any other series
created subsequent to the date hereof.
Section 13. Counterparts. This Seventh Supplemental Indenture may be
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executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first above written.
CITIZENS UTILITIES COMPANY
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President and
Treasurer
Attest:
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Secretary
CHEMICAL BANK, as Trustee
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
Attest:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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County of Fairfield )
) ss.:
State of Connecticut )
On the 11th day of June, 1996, before me personally came ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
is Vice President and Treasurer of CITIZENS UTILITIES COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporations; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
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Notary Public, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
State of New York )
On this 11th day of June, in the year of 1996 before me
personally came ▇.▇. ▇▇▇▇▇ to me personally known, who being by me duly sworn
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did depose and say that he resides at Bethpage, N.Y. , that he is Vice President
----------------
of CHEMICAL BANK, one of the corporations described in and which executed the
foregoing indenture; that he knows the seal of said corporation; that the seal
affixed to said instrument opposite the execution thereof on behalf of said
corporation is the corporate seal of said corporation; that said instrument was
signed and said corporate seal was so affixed on behalf of said corporation by
authority and order of its board of directors; that he signed his name thereto
by like authority; and he acknowledged said instrument to be his free act and
deed and the free act and deed of said Chemical Bank.
IN WITNESS WHEREOF I have hereunder set my hand and affixed my
official seal, at New York in said State of New York, the day and year first
above written.
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Notary Public, State of New York
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EXECUTION COPY
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CITIZENS UTILITIES COMPANY
TO
CHEMICAL BANK
(Trustee)
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SEVENTH SUPPLEMENTAL INDENTURE
Dated as of June 1, 1996
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Supplemental to the Indenture
Dated as of August 15, 1991
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