EIGHTH SUPPLEMENTAL INDENTURE, dated as of December 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 Ridge Park, Building No. 3, Stamford,
Connecticut 06905, to THE CHASE MANHATTAN BANK (formerly known as Chemical
Bank), a New York banking corporation, as Trustee (herein called the "Trustee"),
having its principal corporate trust office at 450 West 33rd Street, New York,
New York 10001.
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, the Company has entered into a Seventh Supplemental Indenture
dated as of June 1, 1996 (the "Seventh Supplemental Indenture") with the Trustee
to establish the form and terms of a series of Securities designated "6.80%
Debentures Due 2026"; 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,
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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 an eighth series of Securities designated as the 7.05% Debentures
Due 2046 (hereinafter sometimes called the "Debentures"), which series is
limited in aggregate principal amount to $200,000,000, 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
Eighth 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 Eighth Supplemental Indenture a
valid and binding supplemental indenture.
NOW, THEREFORE, THIS EIGHTH SUPPLEMENTAL INDENTURE WITNESSETH:
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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 Eighth 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 Eighth Supplemental Indenture
refer to this Eighth Supplemental Indenture as a whole and not
to any particular Section or other subdivision of this Eighth
Supplemental Indenture;
(3) the provisions of this Eighth 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, Sixth
and Seventh Supplemental Indentures shall not be modified by
this Eighth Supplemental Indenture with respect to any series
of
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the Securities outstanding or to be outstanding under the
Indenture, other than the Debentures; and
(4) terms defined in this Eighth Supplemental Indenture shall
apply only to this Eighth Supplemental Indenture and the
Debentures hereunder, and such definitions shall not apply to
any supplemental indenture other than this Eighth 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, "Eighth 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 Eighth 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
Eighth Supplemental Indenture.
Section 3. Terms of the Debentures. The terms of the Debentures shall
------------------------
be as follows:
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(1) the Securities to be issued under the Indenture and this
Eighth Supplemental Indenture shall be the Debentures and shall be designated as
the "7.05% Debentures Due 2046";
(2) the Debentures shall constitute a single series of the
Securities under the Indenture, which series is limited in aggregate principal
amount to $200,000,000;
(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 Eighth 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 December 6,
1996, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually, on April 1 and October 1 in each year,
commencing on April 1, 1997. 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
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business on the Regular Record Date for such interest, which shall be the March
15 or September 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 The Chase Manhattan 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;
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(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. The Debentures will not be redeemable prior
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to maturity and will not be subject to any sinking fund.
Section 5. Amendment to Indenture for Purposes of Eighth 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
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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
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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:
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"(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 Eighth 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, Fourth
Supplemental Indenture, Fifth Supplemental Indenture, Sixth Supplemental
Indenture and Seventh Supplemental Indenture and as hereby supplemented by this
Eighth 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 Eighth Supplemental
Indenture, such provision of the Act shall control. If any provision of this
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Eighth 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 Eighth Supplemental Indenture only as so
modified and if not so excluded, as the case may be.
Section 9. Governing Law. This Eighth 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
---------
Eighth 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 Eighth 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 Eighth 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
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such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth
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/ Robert J. DeSantis
-----------------------
Title: Vice President and
Treasurer
Attest:
/s/Edward O. Kipperman
- - ----------------------
Edward O. Kipperman
Vice President, Tax
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Thomas J. Foley
--------------------
Title: Vice President
Attest:
/s/R. Lorenze
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County of Fairfield )
) ss.:
State of Connecticut )
On the 5th day of December, 1996, before me personally came
Robert DeSantis, 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 corporation; 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
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County of New York )
) ss.:
State of New York )
On this 5th day of December, in the year of 1996 before me
personally came Thomas Foley, to me personally known, who being by me duly sworn
did depose and say that he resides at Bethpage, New York, that he is Vice
President of The Chase Manhattan 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 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
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EXECUTION COPY
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CITIZENS UTILITIES COMPANY
TO
THE CHASE MANHATTAN BANK
(Trustee)
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EIGHTH SUPPLEMENTAL INDENTURE
Dated as of December 1, 1996
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Supplemental to the Indenture
Dated as of August 15, 1991
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