<PAGE>
Prepared by and Return to:
Exhibit 4.31
Mary T. Tomich, Esq.
Dilworth Paxson LLP
1735 Market Street
Philadelphia, PA 19103
215-575-7000
--------------------------------------------------------------------------------
FORTIETH SUPPLEMENTAL
INDENTURE
DATED AS OF DECEMBER 15, 2005
TO
INDENTURE OF MORTGAGE
DATED AS OF JANUARY 1, 1941
__________
AQUA PENNSYLVANIA, INC.
TO
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
__________
<PAGE>
THIS FORTIETH SUPPLEMENTAL INDENTURE dated as of December 15, 2005,
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-four supplemental indentures supplemental to the
Original
Indenture, and the Company duly executed and delivered to the
Trustee five
supplemental indentures to the Original 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 dated
as
of January 1, 2002 (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 Company and its predecessor have issued under the
Original
Indenture, as supplemented at the respective dates of issue,
forty-seven series
of First Mortgage Bonds 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:
1
<PAGE>
<TABLE>
<CAPTION>
DESIGNATION
INDENTURE
AMOUNT
<S>
<C>
<C>
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
Twenty-Ninth Supplemental
77,000,000
Series
6.35% Series due 2025
Thirtieth Supplemental
22,000,000
1997 Medium Term Note
Thirty-First Supplemental
65,000,000
Series
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
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
DESIGNATION
INDENTURE
AMOUNT
<S>
<C>
<C>
6.00% Subseries F due 2004
15,000,000
6.00% Series due 2029
Thirty-Second Supplemental
$ 25,000,000
1999 Medium Term Note
Thirty-Third Supplemental
222,334,480
Series
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
5,000,000
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
5.05% Series due 2039
Thirty-Eighth Supplemental
14,000,000
5.00% Series due 2036
Thirty-Ninth Supplemental
21,770,000
5.00% Series due 2037
Thirty-Ninth Supplemental
24,165,000
5.00% Series due 2038
Thirty-Ninth Supplemental
25,375,000
</TABLE>
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-nine
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
WHEREAS, in order to secure the lien of the Original Indenture on
the
properties of the Original Company and the Company, the Original
Indenture and
the thirty-nine indentures supplemental thereto were 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;
3
<PAGE>
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 Fortieth Supplemental Indenture, a series
of bonds to be
designated "First Mortgage Bonds, 5.00% Series due 2035" (herein
referred to as
the "5.00% Series due 2035") to be limited in aggregate principal
amount to
$24,675,000, to bear interest at the rate of 5.00% per annum, and
to mature on
February 1, 2035, to be issued only as registered bonds without
coupons and to
be dated the date of delivery thereof; and
WHEREAS, in order to finance the costs of numerous
acquisitions,
constructions, modifications, expansions, installations and
replacements of the
Company's water distribution, treatment and related operating
systems located in
the Counties of Chester, Delaware and Montgomery in Pennsylvania
and that are
part of the Company's system for the distribution of water to its
customers and
related financing costs, which are to be financed under a Financing
Agreement
dated as of December 15, 2005 (the "Financing Agreement") between
the Company
and the Delaware County Industrial Development Authority, a
Pennsylvania body
politic and corporate (the "Authority"), and which are described in
Exhibit A
thereto (which facilities, less any deletions therefore and
together with any
additions, improvements and modifications thereto and substitutions
therefore
made in accordance with the provisions of the Financing Agreement
are referred
to as the "Facilities"), the Company has requested the Authority to
issue a new
series of bonds to be known as the Authority's Water Facilities
Revenue Bonds
(Aqua Pennsylvania, Inc. Project), Series C of 2005 in the
aggregate principal
amount of $24,675,000 (the "Authority Bonds"); and
WHEREAS, the
Company proposes to issue the Bonds 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 December 15, 2005 (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 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 Authority, as security
for the payment
of the principal of, redemption premium, if any, and interest on,
the Authority
Bonds; and
4
<PAGE>
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 5.00% Series due 2035 (to be issued in
accordance with the
terms and provisions of the Original Indenture and indentures
supplemental
thereto, including this Fortieth Supplemental Indenture, and to be
secured by
said Original Indenture and indentures supplemental thereto,
including this
Fortieth Supplemental Indenture) and has further duly authorized
the execution,
delivery and recording of this Fortieth Supplemental Indenture
setting forth the
terms and provisions of the 5.00% Series due 2035 insofar as said
terms and
provisions are not set forth in said Original Indenture; and
WHEREAS, the 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:
[Form of 5.00% Series due 2035]
No. R-1
$24,675,000
AQUA PENNSYLVANIA, INC.
(Incorporated under the Laws of the Commonwealth
of Pennsylvania)
First Mortgage Bond, 5.00% Series Due 2035
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 Delaware County
Industrial Development
Authority or its registered assigns, on the 1st day of February,
2035, at the
designated office of J.P. Morgan Trust Company, National
Association
(hereinafter called the "Trustee") in Philadelphia, Pennsylvania,
the sum of
Twenty-Four Million Six Hundred Seventy-Five Thousand 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 January 15, 2006, from the date hereof) until the
principal hereof
shall become due and payable, at the rate of 5.00 percent (5.00%)
per annum,
payable semiannually in like coin or currency on the first day of
February and
the first day of August in each year, commencing February 1, 2006
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
5.00% per annum
after maturity whether by acceleration or otherwise until paid.
5
<PAGE>
The interest so payable will (except as otherwise provided in
the
Fortieth 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 (the "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 "Fortieth Supplemental Indenture"
dated as of
December 15, 2005, and designated therein as "First Mortgage Bonds,
5.00% Series
due 2035" (the "Bonds").
6
<PAGE>
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
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 2005 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 December 15, 2005, between the
Delaware
County Industrial Development Authority, a Pennsylvania body
politic and
corporate (the "Authority"), and the Company, which Authority Bonds
are being
issued to finance the costs of numerous acquisitions,
constructions,
modifications, expansions, installations and replacements of the
Company's water
distribution, treatment and related operating systems located in
the Counties of
Chester, Delaware and Montgomery in Pennsylvania and that are part
of the
Company's system for the distribution of water to its customers and
related
financing costs which are to be financed under the Financing
Agreement and which
are described in Exhibit A thereto (which facilities, less any
deletions
therefrom and together with any additions, improvements and
modifications
thereto and substitutions therefor made in accordance with the
provisions of the
Financing Agreement are referred to as the "Facilities"). The
Facilities are to
be financed through the sale of the Authority's Water Facilities
Revenue Bonds
(Aqua Pennsylvania, Inc. Project), Series C of 2005, in the
aggregate principal
amount of $24,675,000 (the "Authority Bonds").
The Authority Bonds are to be issued under a Trust Indenture, dated
as
of December 15, 2005 (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
Authority Bonds subject to the same restriction on transfer.
7
<PAGE>
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.
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 February 1, 2015, 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(a)(ii) of
the Authority Indenture.
(c) The Bonds are also subject to special mandatory redemption at
the
direction of the Company, in part, 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 such time and in such
amount as the
Authority Bonds are subject to special mandatory redemption
pursuant to Section
7.01(a)(iii) of the Authority Indenture.
(d) 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.
8
<PAGE>
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.
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 ________, 2005.
Attest:
AQUA PENNSYLVANIA,
INC.
By:
(Assistant) Secretary
Vice President and Treasurer
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<PAGE>
(Form of Trustee's Certificate)
This Bond is one of the Bonds, of the series designated
therein,
referred to in the within-mentioned Fortieth 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
Fortieth Supplemental Indenture provided and issued by the Company,
valid,
binding and legal obligations of the Company, and this Fortieth
Supplemental
Indenture a valid and enforceable supplement to said Original
Indenture, have
been done, performed and fulfilled, and the execution of this
Fortieth
Supplemental Indenture has been in all respects duly authorized;
and
NOW, THEREFORE, THIS FORTIETH 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 Fortieth
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:
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<PAGE>
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-Ninth
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
the Company as a water company or as a water utility, whether any
of the
foregoing property is now owned or may hereafter be acquired by the
Company.
It is hereby declared by the Company that all property of the
kinds
described in the next preceding paragraph, whether now owned or
hereafter
acquired, has been or is or will be owned or acquired with the
intention of
using the same in carrying on the business or branches of the
business of the
Company, and it is hereby declared that it is the intention of the
Company that
all thereof (except property hereinafter specifically excepted)
shall be subject
to the lien of the Original Indenture.
It is agreed by the Company that so far as may be permitted by
law,
tangible personal property now owned or hereafter acquired by the
Company,
except such as is hereafter expressly excepted from the lien
hereof, shall be
deemed to be and construed as fixtures and appurtenances to the
real property of
the Company.
III.
FRANCHISES AND RIGHTS OF WAY.
All the corporate and other franchises of the Company, all water
and
flowage rights, riparian rights, easements and rights of way, and
all permits,
licenses, rights, grants, privileges and immunities, and all
renewals,
extensions, additions or modifications of any of the foregoing,
whether the same
or any thereof, or any renewals, extensions, additions or
modifications thereof,
are now owned or may hereafter be acquired, owned, held, or enjoyed
by the
Company.
11
<PAGE>
IV.
AFTER ACQUIRED PROPERTY.
All real and fixed property and all other property of the
character
hereinabove described which the Company may hereafter acquire.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any way appertaining to the aforesaid
property or
any part thereof, with the reversion and reversions, remainder and
remainders,
tolls, rents, revenues, issues, income, product and profits
thereof, and all the
estate, right, title, interest and claim whatsoever, at law as well
as in
equity, which the Company now has or may hereafter acquire in and
to the
aforesaid premises, property, rights and franchises and every part
and parcel
thereof.
EXCEPTING AND RESERVING, HOWEVER, certain premises, not used or
useful
in the supplying of water by the Company, expressly excepted and
reserved from
the lien of the Original Indenture and not subject to the terms
thereof.
AND ALSO SAVING AND EXCEPTING from the property hereby mortgaged
and
pledged, all of the following property (whether now owned by the
Company or
hereafter acquired by it): All bills, notes and accounts
receivable, cash on
hand and in banks, contracts, choses in action and leases to others
(as distinct
from the property leased and without limiting any rights of the
Trustee with
respect thereto under any of the provisions of the Original
Indenture or of any
indenture supplemental thereto), all bonds, obligations, evidences
of
indebtedness, shares of stock and other securities, and
certificates or
evidences of interest therein, all automobiles, motor trucks, and
other like
automobile equipment and all furniture, and all equipment,
materials, goods,
merchandise and supplies acquired for the purpose of sale in the
ordinary course
of business or for consumption in the operation of any properties
of the Company
other than any of the foregoing which may be specifically
transferred or
assigned to or pledged or deposited with the Trustee hereunder or
required by
the provisions of the Original Indenture or any indenture
supplemental thereto
so to be; provided, however, that if, upon the happening of a
completed default,
as specified in Section 1 of Article XI of the Original Indenture,
the Trustee
or any receiver appointed hereunder shall enter upon and take
possession of the
mortgaged property, the Trustee or any such receiver may, to the
extent
permitted by law, at the same time likewise take possession of any
and all of
the property described in this paragraph then on hand and any and
all other
property of the Company then on hand, not described or referred to
in the
foregoing granting clauses, which is used or useful in connection
with the
business of the Company as a water company or as a water utility,
and use and
administer the same to the same extent as if such property were
part of the
mortgaged property, unless and until such completed default shall
be remedied or
waived and possession of the mortgaged property restored to the
Company, its
successors or assigns.
SUBJECT, HOWEVER, to the exceptions, reservations and matters
hereinabove and in the Original Indenture recited, to releases
executed since
the date of the Original Indenture in accordance with the
provisions thereof, to
existing leases, to easements and rights of way for pole lines and
electric
transmission lines and other similar encumbrances and restrictions
which the
Company hereby certifies, in its judgment, do not impair the use of
said
property by the Company in its business, to liens existing on or
claims against,
and rights in and relating to, real estate acquired for
right-of-way purposes,
to taxes and assessments not delinquent, to alleys, streets and
highways that
may run across or encroach upon said lands, to liens, if any,
incidental to
construction, and to Permitted Liens, as defined in the Original
Indenture; and,
with respect to any property which the Company may hereafter
acquire, to all
terms, conditions, agreements, covenants, exceptions and
reservations expressed
or provided in such deeds and other instruments, respectively,
under and by
virtue of which the Company shall hereafter acquire the same and to
any and all
liens existing thereon at the time of such acquisition.
12
<PAGE>
TO HAVE AND TO HOLD, all and singular the property, rights,
privileges
and franchises hereby conveyed, transferred or pledged or intended
so to be unto
the Trustee and its successors in the trust heretofore and hereby
created, and
its and their assigns forever.
IN TRUST NEVERTHELESS, for the equal pro rata benefit and security
of
each and every entity who may be or become the holders of bonds and
coupons
secured by the Original Indenture or by any indenture supplemental
thereto, or
both, without preference, priority or distinction as to lien or
otherwise of any
bond or coupon over or from any other bond or coupon, so that each
and every of
said bonds and coupons issued or to be issued, of whatsoever
series, shall have
the same right, lien and privilege under the Original Indenture and
all
indentures supplemental thereto and shall be equally secured hereby
and thereby,
with the same effect as if said bonds and coupons had all been
made, issued and
negotiated simultaneously on the date thereof; subject, however, to
the
provisions with reference to extended, transferred or pledged
coupons and claims
for interest contained in the Original Indenture and subject to any
sinking or
improvement fund or maintenance deposit provisions, or both, for
the benefit of
any particular series of bonds.
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between
the
parties hereto, that all such bonds and coupons are to be
authenticated,
delivered and issued, and that all property subject or to become
subject hereto
is to be held subject to the further covenants, conditions, uses
and trusts
hereinafter set forth, and the Company, for itself and its
successors and
assigns, does hereby covenant and agree to and with the Trustee and
its
successor or successors in said trust, for the benefit of those who
shall hold
said bonds and coupons, or any of them, issued under this Indenture
or any
indenture supplemental hereto, or both, as follows:
ARTICLE I.
Form,
Authentication and Delivery of the Bonds; Redemption Provisions
SECTION 1. There shall be a forty-eighth series of bonds, limited
in
aggregate principal amount to $24,675,000 designated as "Aqua
Pennsylvania,
Inc., First Mortgage Bonds, 5.00% Series due 2035".
Interest on the Bonds shall be payable semiannually on February 1
and
August 1 of each year (each an "interest payment date"), commencing
February 1,
2006. Each Bond shall be dated the date of its authentication and
shall bear
interest from the interest payment date next preceding the date of
the
authentication of such Bond (or if such 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 such Bond is
authenticated on
or prior to the record date for the first interest payment date for
the Bonds,
in which case it shall bear interest from the date of original
issuance of the
Bonds); provided, however, that, if at the time of authentication
of any Bond,
interest on the predecessor Bond of such Bond is in default, such
Bond shall
bear interest from the date to which interest has been paid, or, if
no interest
has been paid, from the date of original issuance thereof. The
5.00% Series due
2035 shall be stated to mature (subject to the right of earlier
redemption at
the prices and dates and upon the terms and conditions hereinafter
set forth) on
February 1, 2035 and shall bear interest at the rate of 5.00%.
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<PAGE>
The 5.00% Series due 2035 shall be issuable only as registered
bonds
without coupons, shall be in the form hereinabove recited, in the
denomination
of Five Thousand Dollars ($5,000) or any integral multiple th
