FIFTH SUPPLEMENTAL INDENTURE, dated as of June 15, 1995, 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 Xxxxx Xxxx, Xxxxxxxx Xx. 0, Xxxxxxxx,
Xxxxxxxxxxx 00000, to CHEMICAL BANK, a New York banking corporation, as
Trustee (herein called the "Trustee"), having its principal corporate trust
office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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"; andWHEREAS, 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, 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
WHEREAS, the Company by corporate action duly taken has authorized the
issuance of a fifth series of Securities designated as the 7.45% Debentures
Due 2035 (hereinafter sometimes called the "Debentures"), which series is
limited in aggregate principal amount to $125,000,000, 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 Fifth 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 Fifth Supplemental
Indenture a valid and binding supplemental indenture.
NOW, THEREFORE, THIS FIFTH 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:
Section 1. Definitions. For all purposes of this Fifth Supplemental
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 Fifth Supplemental Indenture refer
to this Fifth Supplemental Indenture as a whole and not to any
particular Section or other subdivision of this Fifth
Supplemental Indenture;
(3) the provisions of this Fifth 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 and Fourth Supplemental Indentures shall
not be modified by this Fifth 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 Fifth Supplemental Indenture shall apply
only to this Fifth Supplemental Indenture and the Debentures
hereunder, and such definitions shall not apply to any
supplemental indenture other than this Fifth 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, "Fifth 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
substantially the form set forth in Exhibit A to this Fifth 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 Fifth Supplemental Indenture.
Section 3. Terms of the Debentures. The terms of the Debentures
shall be as follows:
(1) the Securities to be issued under the Indenture and this
Fifth Supplemental Indenture shall be the Debentures and shall be designated
as the "7.45% Debentures Due 2035";
(2) the Debentures shall constitute a single series of the
Securities under the Indenture, which series is limited in aggregate
principal amount to $125,000,000;
(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 Fifth 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 15,
1995, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually, on January 1 and July 1 in
each year, commencing on January 1, 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 December 15 or June 15 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment
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
(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
redeemable at the option of the Company prior to maturity and will not be
subject to any sinking fund.
Section 5. Amendment to Indenture for Purposes of Fifth Series of
Debentures.
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 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."
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 6. Incorporation of Indenture. From and after the date
hereof, the Indenture, as supplemented by this Fifth Supplemental Indenture,
shall be read, taken and construed as one and the same instrument with
respect to the Debentures.
Section 7. Acceptance of Trust. The Trustee accepts the trusts
created by the Indenture, as heretofore supplemented by the First
Supplemental Indenture, Second Supplemental Indenture, Third Supplemental
Indenture and Fourth Supplemental Indenture and as hereby supplemented by
this Fifth Supplemental Indenture, and agrees to perform the same upon the
terms and conditions in the Indenture, as so supplemented.
Section 8. 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 Fifth
Supplemental Indenture, such provision of the Act shall control. If any
provision of this Fifth 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 Fifth Supplemental
Indenture only as so modified and if not so excluded, as the case may be.
Section 9. Governing Law. This Fifth Supplemental Indenture, and the
Debentures, shall be governed by and construed in accordance with the laws
of the State of New York.
Section 10. Recitals. The recitals contained in the Indenture, this
Fifth 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 Indenture,
as supplemented by this Fifth Supplemental Indenture.
Section 11. Amendments. Notwithstanding any other provisions hereof,
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 12. Counterparts. This Fifth Supplemental Indenture may be
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.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
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:______________________________
Title: Vice President and
Treasurer
Attest:
________________________________
Secretary
CHEMICAL BANK, as Trustee
By:______________________________
Title: Vice President
Attest:
_______________________________
Senior Trust Officer
County of Fairfield )
) ss.:
State of Connecticut)
On the day of June, 1995, before me personally came Xxxxxx
XxXxxxxx, 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.
__________________________________
Notary Public, State of Connecticut
County of New York )
) ss.:
State of New York )
On this day of June in the year of 1995 before me personally
came _____________________________________________, to me personally known,
who being by me duly sworn did depose and say that he resides at
______________________________________, 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.
__________________________________
Notary Public, State of New York
EXECUTION COPY
CITIZENS UTILITIES COMPANY
TO
CHEMICAL BANK
(Trustee)
FIFTH SUPPLEMENTAL INDENTURE
Dated as of June 15, 1995
Supplemental to the Indenture
Dated as of August 15, 1991
