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EXHIBIT 4.28
THIRTY-EIGHTH SUPPLEMENTAL
INDENTURE
DATED AS OF NOVEMBER 15, 2004
TO
INDENTURE OF MORTGAGE
DATED AS OF JANUARY 1, 1941
----------
AQUA PENNSYLVANIA, INC.
TO
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
----------
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THIRTY-EIGHTH SUPPLEMENTAL INDENTURE dated as of November 15, 2004,
by
and between AQUA PENNSYLVANIA, INC. (f/k/a/
Pennsylvania Suburban Water
Company), a corporation duly organized and
existing under the laws of the
Commonwealth of Pennsylvania (the
"Company") as successor by merger to the
Philadelphia Suburban Water Company (the
"Original Company"), party of the first
part, and J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking
association (the "Trustee"), party of the
second part.
WHEREAS, the Original Company heretofore duly executed and
delivered
to The Pennsylvania Company for Insurances
on Lives and Granting Annuities, as
trustee, an Indenture of Mortgage dated as
of January 1, 1941 (the "Original
Indenture"), which by reference is hereby
made a part hereof, and in and by the
Original Indenture the Original Company
conveyed and mortgaged to such trustee
certain property therein described, to
secure the payment of its bonds to be
generally known as its "First Mortgage
Bonds" and to be issued under the
Original Indenture in one or more series as
therein provided; and
WHEREAS, through a series of mergers, changes of names and
successions, J.P. Morgan Trust Company,
National Association, became the
successor trustee; such mergers, changes of
name and successions not involving
any change in the title, powers, rights or
duties of the trustee, as trustee
under the Original Indenture as
supplemented at the respective dates thereof;
and
WHEREAS, the Original Company duly executed and delivered to
the
Trustee thirty-seven supplemental
indentures supplemental to the Original
Indenture, and the Company duly executed
and delivered to the Trustee a
Thirty-Fifth Supplemental Indenture dated
as of January 1, 2002 (the
"Thirty-Fifth Supplemental Indenture"), a
Thirty-Sixth Supplemental Indenture
dated as of June 1, 2002 (the "Thirty-Sixth
Supplemental Indenture") and a
Thirty-Seventh Supplemental Indenture dated
as of December 15, 2002 (the
"Thirty-Seventh Supplemental Indenture") so
as to subject certain additional
property to the lien of the Original
Indenture and to provide for the creation
of additional series of bonds; and
WHEREAS, pursuant to an Agreement and Plan of Merger and
Reorganization dated December 20, 2001, and
effective on January 1, 2002, the
Original Company agreed to merge, in
conjunction with its affiliated
corporations, Consumers Pennsylvania Water
Company - Shenango Valley Division,
Consumers Pennsylvania Water Company -
Roaring Creek Division, Consumers
Pennsylvania Water Company - Susquehanna
Division, Waymart Water Company, Fawn
Lake Forrest Water Company, Western
Utilities, Inc., and Northeastern Utilities,
Inc. (such affiliates referred to
hereinafter as the "Merging Entities") with
and into the Company; and
WHEREAS, pursuant to the Thirty-Fifth Supplemental Indenture,
the
Company agreed to assume the obligations of
the Original Company under the
Original Indenture and all supplements
thereto; and
WHEREAS, the Original Company has issued under the Original
Indenture,
as supplemented at the respective dates of
issue, forty-three series of First
Mortgage Bonds
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designated, respectively, as set forth in
the following table, the Original or
Supplemental Indenture creating each series
and the principal amount of bonds
thereof issued being indicated opposite the
designation of such series:
DESIGNATION
INDENTURE
AMOUNT
-----------------------------
---------------------------
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3 1/4% Series due 1971
Original
$ 16,375,000
9 5/8% Series due 1975
Thirteenth Supplemental
10,000,000
9.15% Series due 1977
Fourteenth Supplemental
10,000,000
3% Series due 1978
First Supplemental
2,000,000
3 3/8% Series due 1982
Second Supplemental
4,000,000
3.90% Series due 1983
Third Supplemental
5,000,000
3 1/2% Series due 1986
Fourth Supplemental
6,000,000
4 1/2% Series due 1987
Fifth Supplemental
4,000,000
4 1/8% Series due 1988
Sixth Supplemental
4,000,000
5% Series due 1989
Seventh Supplemental
4,000,000
4 5/8% Series due 1991
Eighth Supplemental
3,000,000
4.70% Series due 1992
Ninth Supplemental
3,000,000
6 7/8% Series due 1993
Twelfth Supplemental
4,500,000
4.55% Series due 1994
Tenth Supplemental
4,000,000
10 1/8% Series due 1995
Sixteenth Supplemental
10,000,000
5 1/2% Series due 1996
Eleventh Supplemental
4,000,000
7 7/8% Series due 1997
Fifteenth Supplemental
5,000,000
8.44% Series due 1997
Twenty-Third Supplemental
12,000,000
9.20% Series due 2001
Seventeenth Supplemental
7,000,000
8.40% Series due 2002
Eighteenth Supplemental
10,000,000
5.95% Series due 2002
Twenty-Seventh Supplemental
4,000,000
12.45% Series due 2003
Twentieth Supplemental
10,000,000
13% Series due 2005
Twenty-First Supplemental
8,000,000
10.65% Series due 2006
Twenty-Second Supplemental
10,000,000
9.89% Series due 2008
Twenty-Fourth Supplemental
5,000,000
7.15% Series due 2008
Twenty-Eighth Supplemental
22,000,000
9.12% Series due 2010
Twenty-Fifth Supplemental
20,000,000
8 7/8% Series due 2010
Nineteenth Supplemental
8,000,000
6.50% Series due 2010
Twenty-Seventh Supplemental
3,200,000
9.17% Series due 2011
Twenty-Sixth Supplemental
5,000,000
9.93% Series due 2013
Twenty-Fourth Supplemental
5,000,000
9.97% Series due 2018
Twenty-Fourth Supplemental
5,000,000
9.17% Series due 2021
Twenty-Sixth Supplemental
8,000,000
9.29% Series due 2026
Twenty-Sixth Supplemental
12,000,000
1995 Medium Term Note Series Twenty-Ninth
Supplemental
77,000,000
6.35% Series due 2025
Thirtieth Supplemental
22,000,000
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1997 Medium Term Note Series Thirty-First
Supplemental
65,000,000
6.75% Subseries A due 2007
10,000,000
6.30% Subseries B due 2002
10,000,000
6.14% Subseries C due 2008
10,000,000
5.80% Subseries D due 2003
10,000,000
5.85% Subseries E due 2004
10,000,000
6.00% Subseries F due 2004
15,000,000
6.00% Series due 2029
Thirty-Second Supplemental
25,000,000
1999 Medium Term Note Series Thirty-Third
Supplemental
222,3334,480
7.40% Subseries A due 2005
15,000,000
7.40% Subseries B due 2005
11,000,000
6.21% Subseries C due 2011
15,000,000
9.53% Subseries D due 2019
4,000,000
6.375% Subseries E due 2023
14,000,000
8.26% Subseries F due 2022
1,500,000
9.50% Subseries G due 2006
1,440,000
9.22% Subseries H due 2019
2,534,480
8.32% Subseries I due 2022
3,500,000
8.14% Subseries J due 2025
4,000,000
6.00% Subseries K due 2030
18,360,000
5.93% Subseries L due 2012
25,000,000
2.65% Subseries M due 2006
5,000,000
3.461% Subseries N due 2007
12,000,000
5.08% Subseries O due 2015
20,000,000
5.17% Subseries P due 2017
7,000,000
5.751% Subseries Q due 2019
15,000,000
5.751% Subseries R due 2019
15,000,000
6.06% Subseries S due 2027
15,000,000
6.06% Subseries T due 2027
5,000,000
5.98% Subseries U due 2028
3,000,000
5.35% Series due 2031
Thirty-Fourth Supplemental
30,000,000
5.55% Series due 2032
Thirty-Sixth Supplemental
25,000,000
3.75% Series due 2010
Thirty-Seventh Supplemental
3,200,000
5.15% Series due 2032
Thirty Seventh Supplemental
25,000,000
WHEREAS, the bonds of each of said series that are presently
outstanding are listed on Exhibit A
attached hereto and made a part hereof; and
WHEREAS, the Original Indenture and the first thirty-seven
supplemental indentures supplemental to the
Original Indenture were duly
recorded in the Commonwealth of
Pennsylvania on the dates and in the office for
the Recording of Deeds for the counties and
in the Mortgage Books at the pages
indicated in Exhibit B hereto; and
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WHEREAS, in order to secure the Lien of the Original Indenture on
the
properties of the Merging Entities, the
Thirty-Fifth Supplemental Indenture,
with a true and correct copy of the
Original Indenture attached thereto
(redacted to delete property descriptions
for counties in which such Original
Indenture had already been recorded), the
Thirty-Sixth Supplemental Indenture
and the Thirty-Seventh Supplemental
Indenture were also recorded in the
Commonwealth of Pennsylvania on the dates
and in the office for the Recording of
Deeds for the counties and in the Mortgage
Books at the pages indicated on
Exhibit B hereto;
WHEREAS, in addition to the property described in the Original
Indenture and the First through
Thirty-Seventh Supplemental Indentures thereto,
the Company has acquired certain other
property and desires to confirm the lien
of the Original Indenture thereon and in
order to confirm such lien shall cause
this Thirty-Eighth Supplemental Indenture,
with a true and correct copy of the
Original Indenture attached hereto as
Exhibit D (redacted to delete property
descriptions for counties in which such
Original Indenture has already been
recorded) to be recorded in the offices for
the Recording of Deeds for the
counties of Adams, Carbon, Cumberland,
Forest, Juniata, Lackawanna, Luzerne,
Monroe, Northampton, Snyder, Susquehanna,
Wayne and Wyoming; and
WHEREAS, the lien of the Original Indenture, as supplemented, has
been
perfected as a security interest under the
Pennsylvania Uniform Commercial Code
by filing a financing statement in the
office of the Secretary of the
Commonwealth; and
WHEREAS, the Company proposes to create under the Original
Indenture,
as supplemented by this Thirty-Eighth
Supplemental Indenture, a new series of
bonds to be designated "First Mortgage
Bonds, 5.05% Series due 2039" (herein
referred to as the "5.05% Series due 2039"
to be limited in aggregate principal
amount to $14,000,000, to bear interest at
the rate of 5.05% per annum, and to
mature on October 1, 2039, to be issued
only as registered bonds without coupons
and to be dated the date of delivery
thereof; and
WHEREAS, the Northumberland County Industrial Development
Authority
(the "Authority") previously issued its
Exempt Facilities Revenue Bonds, Series
1993 (Roaring Creek Water Company Project)
(the "Prior Bonds") in the aggregate
principal amount of $14,000,000, all of
which are currently outstanding, to
finance the construction of an 8 million
gallon per day treatment facility, an
interconnecting water main, and laboratory
and service facilities, located in
Northumberland and Columbia Counties (the
"Facilities") on behalf of Roaring
Creek Water Company, one of the Merging
Entities ("Roaring Creek Company");
WHEREAS, Roaring Creek Company previously issued its 6.375%
Secured
Notes due October 15, 2023 (the "6.375%
Secured Notes") to secure the
obligations of Roaring Creek Company to pay
the costs of the Facilities; and
WHEREAS, pursuant to the Thirty-Third Supplemental Indenture and
in
connection with the execution and delivery
of the Thirty-fifth Supplemental
Indenture and an Exchange Agreement dated
as of December 15, 2001, the Company
issued its First Mortgage Bonds, 1999
Medium Term Note Series, Subseries E in
the aggregate principal amount of
$14,000,000 (the "Subseries E Bond") in
exchange for the 6.375% Secured Notes;
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WHEREAS, in order to finance the refunding of the Prior Bonds,
the
Company has requested the Authority to
issue a new series of bonds to be known
as the Authority's Water Facilities Revenue
Refunding Bonds (Aqua Pennsylvania,
Inc. Project), Series of 2004 in the
aggregate principal amount of $14,000,000
(the "Authority Bonds"); and
WHEREAS, in connection with the refunding of the Prior Bonds,
the
Subseries E Bond will be cancelled; and
WHEREAS, the Company proposes to issue the 5.05% Series due 2039
under
the provisions of Article IV of the
Original Indenture, and will comply with the
provisions thereof as well as with other
provisions of the Original Indenture
and indentures supplemental thereto in
connection with the issuance of
additional bonds so that it will be
entitled to procure the authentication and
delivery of the Bonds; and
WHEREAS, the Authority Bonds are to be issued under a Trust
Indenture,
dated as of November 15, 2004 (the
"Authority Indenture"), between the Authority
and Wachovia Bank, National Association, as
trustee (the "Authority Trustee");
and
WHEREAS, the proceeds of the Authority Bonds are to be loaned to
the
Company pursuant to the terms of a
Financing Agreement dated as of November 15,
2004 between the Company and the Authority
(the "Financing Agreement") and the
Bonds are to be issued by the Company to
secure the obligation of the Company to
pay to or for the account of the Authority
an amount equal to the principal of,
redemption premium, if any, and interest on
the Authority Bonds pursuant to the
Financing Agreement; and
WHEREAS, the right, title and interest of the Authority in and to
the
Financing Agreement and the payments
thereunder and the security for such
payments are to be assigned by the
Authority to the Authority Trustee, and the
Bonds are to be delivered by the Company on
behalf of the Authority directly to
the Authority Trustee, as assignee of the
Trustee, as security for the payment
of the principal of, redemption premium, if
any, and interest on, the Authority
Bonds; and
WHEREAS, Article XVIII of the Original Indenture provides that
the
Company, when authorized by resolution of
its Board of Directors, may with the
Trustee enter into an indenture
supplemental to the Original Indenture, which
thereafter shall form a part of the
Original Indenture, for the purposes, inter
alia, of subjecting to the lien of the
Original Indenture additional property,
of defining the covenants and provisions
applicable to any bonds of any series
other than the 3 1/4% Series due 1971, of
adding to the covenants and agreements
of the Company contained in the Original
Indenture other covenants and
agreements thereafter to be observed by the
Company, of surrendering any right
or power in the Original Indenture reserved
to or conferred upon the Company,
and of making such provisions in regard to
matters or questions arising under
the Original Indenture as may be necessary
or desirable and not inconsistent
therewith; and
WHEREAS, the Company, by proper corporate action, has duly
authorized
the creation of the 5.05% Series due 2039
(to be issued in accordance with the
terms and provisions
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of the Original Indenture and indentures
supplemental thereto, including this
Thirty-Eighth Supplemental Indenture, and
to be secured by said Original
Indenture and indentures supplemental
thereto, including this Thirty-Eighth
Supplemental Indenture) and has further
duly authorized the execution, delivery
and recording of this Thirty-Eighth
Supplemental Indenture setting forth the
terms and provisions of the 5.05% Series
due 2039 insofar as said terms and
provisions are not set forth in said
Original Indenture; and
WHEREAS, the 5.05% Series due 2039 Bonds and the Trustee's
certificate
upon said Bonds are to be substantially in
the following form - the proper
amount, names of registered owners and
numbers to be inserted therein, and such
appropriate insertions, omissions and
changes to be made therein as may be
required or permitted by this Indenture to
conform to any pertinent law or
usage:
No. R-1
$ 14,000,000
AQUA PENNSYLVANIA, INC.
(Incorporated under the Laws of the Commonwealth
of Pennsylvania)
First Mortgage Bond, 5.05% Series Due 2039
Aqua Pennsylvania, Inc. (f/k/a known as Pennsylvania Suburban
Water
Company, successor by merger to
Philadelphia Suburban Water Company), a
corporation organized and existing under
the laws of the Commonwealth of
Pennsylvania (hereinafter called the
"Company", which term shall include any
successor corporation as defined in the
Indenture hereinafter referred to), for
value received, hereby promises to pay to
Northumberland County Industrial
Development Authority or its registered
assigns, on the 1st day of October,
2039, at the designated office of J.P.
Morgan Trust Company, National
Association (hereinafter called the
"Trustee") in Philadelphia, Pennsylvania,
the sum of Fourteen Million Dollars in such
coin or currency of the United
States of America as at the time of payment
is legal tender for the payment of
public and private debts and to pay
interest thereon to the registered owner
hereof by draft or check of the Trustee
mailed to such registered owner from the
interest payment date next preceding the
date of the authentication of this Bond
(or if this Bond is authenticated after a
Record Date as defined below and on or
before the succeeding interest payment
date, from such succeeding interest
payment date, or if this Bond is
authenticated on or prior to March 15, 2005,
from the date hereof) until the principal
hereof shall become due and payable,
at the rate of five and five-one-hundredths
percent (5.05%) per annum, payable
semiannually in like coin or currency on
the first day of April and the first
day of October in each year, commencing
April 1, 2005 and to pay interest on
overdue principal (including any overdue
required or optional prepayment of
principal) and premium, if any, and, to the
extent legally enforceable, on any
overdue installment of interest at a rate
of 5.05% per annum after maturity
whether by acceleration or otherwise until
paid.
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The interest so payable will (except as otherwise provided in
the
Thirty-Eighth Supplemental Indenture
referred to herein) be calculated on the
basis of a 360-day year of twelve 30-day
months and be paid to the person in
whose name this Bond (or a Bond or Bonds in
exchange for which this Bond was
issued) is registered at the close of
business on the fifteenth day of the
calendar month next preceding the month in
which the interest payment date
occurs whether or not such day is a
business day (a "Record Date") and
principal, premium, if any, and interest on
this Bond shall be paid in
accordance with written payment
instructions of the registered owner delivered
to the Trustee on or before such record
date.
This Bond is one of a duly authorized issue of bonds of the
Company
known as its First Mortgage Bonds, issued
and to be issued without limitation as
to aggregate principal amount except as set
forth in the Indenture hereinafter
mentioned in one or more series and equally
secured (except insofar as a sinking
fund or other similar fund established in
accordance with the provisions of the
Indenture may afford additional security
for the bonds of any specific series)
by an Indenture of Mortgage (herein called
the "Indenture") dated as of January
1, 1941, executed by the Philadelphia
Suburban Water Company (now Aqua
Pennsylvania, Inc., f/k/a Pennsylvania
Suburban Water Company, as successor by
merger) to The Pennsylvania Company for
Insurances on Lives and Granting
Annuities (succeeded as trustee by J.P.
Morgan Trust Company, National
Association), as Trustee, to which
Indenture and all indentures supplemental
thereto reference is hereby made for a
description of the property mortgaged and
pledged, the nature and extent of the
security, the rights of the holders and
registered owners of the bonds and of the
Trustee in respect of such security,
and the terms and conditions under which
the bonds are and are to be secured and
may be issued under the Indenture; but
neither the foregoing reference to the
Indenture nor any provision of this Bond or
of the Indenture or of any indenture
supplemental thereto shall affect or impair
the obligation of the Company, which
is absolute and unconditional, to pay at
the stated or accelerated maturity
herein and in the Indenture provided, the
principal of and premium, if any, and
interest on this Bond as herein provided.
As provided in the Indenture, the
bonds may be issued in series for various
principal amounts, may bear different
dates and mature at different times, may
bear interest at different rates and
may otherwise vary as in the Indenture
provided or permitted. This Bond is one
of the Bonds described in an indenture
supplemental to said Indenture known as
the "Thirty-Eighth Supplemental Indenture"
dated as of November 15, 2004, and
designated therein as "First Mortgage
Bonds, 5.05% Series due 2039" (the
"Bonds").
To the extent permitted by and as provided in the Indenture,
modifications or alterations of the
Indenture, or of any indenture supplemental
thereto, and of the rights and obligations
of the Company and of the holders and
registered owners of bonds issued and to be
issued thereunder may be made with
the consent of the Company by an
affirmative vote of the holders and registered
owners of not less than 75% in principal
amount of bonds then outstanding under
the Indenture and entitled to vote, at a
meeting of the bondholders called and
held as provided in the Indenture, and, in
case one or more but less than all of
the series of bonds then outstanding under
the Indenture are so affected, by an
affirmative vote of the holders and
registered owners of not less than 75% in
principal amount of bonds of any series
then outstanding under the Indenture and
entitled to vote on and affected by such
modification or alteration, or by the
written consent of the holders and
registered owners of such percentages of
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bonds; provided, however, that no such
modification or alteration shall be made
which shall reduce the percentage of bonds
the consent of the holders or
registered owners of which is required for
any such modification or alteration
or which shall affect the terms of payment
of the principal of or interest on
the bonds, or permit the creation by the
Company of any lien prior to or on a
parity with the lien of the Indenture with
respect to any property subject to
the lien of the Indenture as a first
mortgage lien thereon, or which shall
affect the rights of the holders or
registered owners of less than all of the
bonds of any series affected thereby.
The Bonds have been issued by the Company to secure the obligation
of
the Company to pay to or for the account of
the Authority (defined below) an
amount equal to the principal, premium, if
any, of, and interest on, the
Authority Bonds (defined below) pursuant to
the Financing Agreement (the
"Financing Agreement") dated as of November
15, 2004, between the Northumberland
County Industrial Development Authority, a
Pennsylvania body politic and
corporate (the "Authority"), and the
Company, which Authority Bonds are being
issued to finance the refunding of the
Authority's Exempt Facilities Revenue
Bonds, Series 1993 (Roaring Creek Water
Company Project), previously issued by
the Authority on behalf of Roaring Creek
Water Company (predecessor company to
the Company) (the "Refunding Project"). The
Refunding Project is to be financed
through the sale of the Authority's Water
Facilities Revenue Refunding Bonds
(Aqua Pennsylvania, Inc. Project), Series
of 2004 (the "Authority Bonds").
The Authority Bonds are to be issued under a Trust Indenture, dated
as
of November 15, 2004 (the "Authority
Indenture"), between the Authority and
Wachovia Bank, National Association, as
trustee (the "Authority Trustee"). The
right, title and interest of the Authority
in and to the Financing Agreement and
the payments thereunder and the security
for such payments have been assigned by
the Authority to the Authority Trustee, and
the Bonds have been delivered by the
Company on behalf of the Authority directly
to the Authority Trustee, as
assignee, as security for the payment of
the principal of, and premium, if any,
and interest on, the Authority Bonds. The
Authority Trustee may not sell, assign
or otherwise transfer the Bonds except for
a transfer of the entire outstanding
principal amount thereof to its successor
as Trustee under the Authority
Indenture, which successor and each
subsequent successor shall hold such Bonds
subject to the same restriction on
transfer.
In the event any Authority Bonds shall be purchased by the Company
and
cancelled pursuant to the Authority
Indenture, Bonds corresponding in principal
amount to the Authority Bonds so purchased
and cancelled shall be deemed to be
paid in full, and in the event and to the
extent the principal of, and premium,
if any, or interest on, any Authority Bonds
is paid out of funds held by the
Authority Trustee other than payments on
Bonds, the corresponding payment of the
principal of and premium, if any, or
interest on, an aggregate principal amount
of Bonds shall be deemed to have been
satisfied.
In the event this Bond shall be deemed to have been paid in full,
this
Bond shall be surrendered to the Trustee
for cancellation. In the event this
Bond shall be deemed to have been paid in
part, this Bond shall be presented to
the Trustee for notation hereon of the
payment of the portion of the principal
hereof so deemed to have been paid.
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The Bonds are redeemable only as follows:
(a) The Bonds are subject to
redemption prior to maturity, at the option
of the Company, on or after October 1,
2014, in whole or in part, at a
redemption price of 100% of the principal
amount of the Bonds to be redeemed,
plus interest accrued thereon to the date
fixed for redemption.
(b) The Bonds are also subject to
redemption at the direction of the
Company, in whole, at any time prior to
maturity, at a redemption price of 100%
of the principal amount of the bonds to be
redeemed, plus interest accrued
thereon to the date fixed for redemption,
at any time the Authority Bonds are
subject to extraordinary optional
redemption pursuant to Section 7.01(b) of the
Authority Indenture.
(c) The Bonds are also subject to
mandatory redemption by the Company in
whole if the Trustee shall receive a
written demand from the Authority Trustee
for redemption of all such Bonds held by
the Authority Trustee stating that an
"Event of Default" as defined in Section
9.01(a) of the Authority Indenture has
occurred and is continuing and that payment
of the principal of the Authority
Bonds has been accelerated pursuant to
Section 9.01(b) of the Authority
Indenture, provided that at the time of
notice of such redemption as provided in
Section 2 of Article V of the Original
Indenture (i) said written demand shall
not have been withdrawn by the Authority
Trustee, and (ii) no event of default
under Section 1 of Article XI of the
Original Indenture shall have occurred and
be continuing.
If this Bond or any portion hereof is called for redemption and
payment thereof is duly provided for as
specified in the Indenture, interest
shall cease to accrue hereon or on such
portion, as the case may be, from and
after the date fixed for redemption.
The principal hereof may be declared or may become due prior to
its
maturity date on the conditions, in the
manner and with the effect set forth in
the Indenture upon the happening of an
event of default, as in the Indenture
provided; subject, however, to the right,
under certain circumstances, of the
registered owners of a majority in
principal amount of Bonds outstanding to
annul such declaration.
This Bond is transferable by the registered owner hereof in person
or
by attorney duly authorized in writing, on
books of the Company to be kept for
that purpose at the designated office of
the Trustee in Philadelphia,
Pennsylvania upon surrender hereof for
cancellation at such office and upon
presentation of a written instrument of
transfer duly executed, and thereupon
the Company shall issue in the name of the
transferee or transferees, and the
Trustee shall authenticate and deliver, a
new Bond or Bonds in authorized
denominations, of equal aggregate unpaid
principal amount. Any such transfer or
exchange shall be subject to the terms and
conditions and to the payment of the
charges specified in the Indenture.
The Company and the Trustee may deem and treat the registered owner
of
this Bond as the absolute owner hereof for
the purpose of receiving payment of
or on account of the principal hereof and
the interest hereon, and for all other
purposes, and shall not be affected by any
notice to the contrary.
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No recourse shall be had for the payment of the principal of or
interest on this Bond or for any claim
based hereon or otherwise in respect
hereof or of the Indenture or of any
indenture supplemental thereto against any
incorporator or any past, present or future
stockholder, officer or director of
the Company or of any predecessor or
successor corporation, as such, either
directly or through the Company or through
any such predecessor or successor
corporation or through any receiver or
trustee in bankruptcy, by virtue of any
constitutional provision, statute or rule
of law or equity, or by the
enforcement of any assessment or penalty or
otherwise; all such liability being,
by the acceptance hereof and as part of the
consideration for the issue hereof,
expressly waived and released by every
holder or registered owner hereof, as
more fully provided in the Indenture.
This Bond shall not be entitled to any benefit under the Indenture
or
any indenture supplemental thereto, or
become valid or obligatory for any
purpose, until J.P. Morgan Trust Company,
National Association, as Trustee under
the Indenture, or a successor trustee
thereunder, shall have signed the
certificate of authentication endorsed
hereon.
IN WITNESS WHEREOF, Aqua Pennsylvania, Inc. has caused this Bond to
be
signed by its President or a Vice President
and its corporate seal to be hereto
affixed and attested by its Secretary or an
Assistant Secretary, and this Bond
to be dated November 30, 2004.
Attest:
AQUA PENNSYLVANIA, INC.
By:
---------------------------------
--------------------------------
(Assistant) Secretary
Vice President and Treasurer
(Form of Trustee's Certificate)
This Bond is one of the Bonds, of the series designated
therein,
referred to in the within-mentioned
Thirty-Eighth Supplemental Indenture.
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION
By:
--------------------------------
Authorized Signer
and;
WHEREAS, all acts and things necessary to make the Bonds, when
executed by the Company and authenticated
and delivered by the Trustee as in
this Thirty-Eighth Supplemental Indenture
provided and issued by the Company,
valid, binding and legal obligations of the
Company, and this Thirty-Eighth
Supplemental Indenture a valid and
enforceable supplement to said Original
Indenture, have been done, performed and
fulfilled, and the execution of this
Thirty-Eighth Supplemental Indenture has
been in all respects duly authorized;
and
10
<PAGE>
NOW, THEREFORE, THIS THIRTY-EIGHTH SUPPLEMENTAL INDENTURE
WITNESSETH:
That, in order to secure the payment of the
principal and interest of all bonds
issued under the Original Indenture and all
indentures supplemental thereto,
according to their tenor and effect, and
according to the terms of the Original
Indenture and of any indenture supplemental
thereto, and to secure the
performance of the covenants and
obligations in said bonds and in the Original
Indenture and any indenture supplemental
thereto respectively contained, and to
provide for the proper issuing, conveying
and confirming unto the Trustee, its
successors in said trust and its and their
assigns forever, upon the trusts and
for the purposes expressed in the Original
Indenture and in any indenture
supplemental thereto, all and singular the
estates, property and franchises of
the Company thereby mortgaged or intended
so to be, the Company, for and in
consideration of the premises and of the
sum of One Dollar ($1.00) in hand paid
by the Trustee to the Company upon the
execution and delivery of this
Thirty-Eighth Supplemental Indenture,
receipt whereof is hereby acknowledged,
and of other good and valuable
consideration, and intending to be legally bound,
has granted, bargained, sold, aliened,
enfeoffed, released and confirmed and by
these presents does grant, bargain, sell,
alien, enfeoff, release and confirm
unto J.P. Morgan Trust Company, National
Association, as Trustee, and to its
successors in said trust and its and their
assigns forever:
All and singular the premises, property, assets, rights and
franchises
of the Company, whether now or hereafter
owned, constructed or acquired, of
whatever character and wherever situated
(except as herein expressly excepted),
including among other things the following,
but reference to or enumeration of
any particular kinds, classes, or items of
property shall not be deemed to
exclude from the operation and effect of
the Original Indenture or any indenture
supplemental thereto any kind, class or
item not so referred to or enumerated:
I.
REAL ESTATE AND WATER RIGHTS.
The real estate described in the deeds from the grantors named
in
Exhibit C hereto, dated and recorded as
therein set forth, and any other real
estate and water rights acquired since the
date of the Thirty-Seventh
Supplemental Indenture.
II.
BUILDINGS AND EQUIPMENT.
All mains, pipes, pipe lines, service pipes, buildings,
improvements,
standpipes, reservoirs, wells, flumes,
sluices, canals, basins, cribs,
machinery, conduits, hydrants, water works,
plants and systems, tanks, shops,
structures, purification systems, pumping
stations, fixtures, engines, boilers,
pumps, meters and equipment which are now
owned or may hereafter be acquired by
the Company (except as herein expressly
excepted), including all improvements,
additions and extensions appurtenant to any
real or fixed property now or
hereafter subject to the lien of the
Original Indenture or any indenture
supplemental thereto which are used or
useful in connection with the business of
