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
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION
----------
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 X.X. XXXXXX 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, X.X. Xxxxxx 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
----------------------------- --------------------------- ------------
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 0000 Xxxxxxx 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 Xxxxx, Carbon, Cumberland, Forest, Juniata, Lackawanna, Luzerne,
Monroe, Northampton, Xxxxxx, Susquehanna, Xxxxx 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 X.X. Xxxxxx 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 X.X. Xxxxxx 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 X.X. Xxxxxx 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.
X.X. XXXXXX 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
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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 X.X. Xxxxxx 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, xxxxx, 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.
11
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.
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
12
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.
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
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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-fourth series of bonds, limited
in aggregate principal amount to $14,000,000 designated as "Aqua Pennsylvania,
Inc., First Mortgage Bonds, 5.05% Series due 2039".
Interest on the 5.05% Series due 2039 shall be payable semiannually on
April 1 and October 1 of each year (each an "interest payment date"), commencing
April 1, 2005. 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 5.05% Series due
2039 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
October 1, 2039 and shall bear interest at the rate of 5.05%.
The Bonds 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 thereof, shall be lettered "R" and
shall bear such numbers as the Company may reasonably require.
The principal of, and interest on the Bonds shall be payable at the
designated office of the trustee in Philadelphia, Pennsylvania, and shall be
payable, along with interest on the Bonds, 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; each installment of interest shall be paid
by check to the order of the person entitled thereto, mailed to such person's
address as the same appears on the books maintained for such purpose by or on
behalf of the Company, or by bank
14
wire transfer of immediately available funds pursuant to instructions and
conditions incorporated in an agreement between such person and the Trustee or
the Company.
The person in whose name any Bond is registered at the close of
business on any Record Date (as hereinafter defined) with respect to any
interest payment date shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such Bond upon any
transfer or exchange subsequent to the Record Date and prior to such interest
payment date; provided, however, that if and to the extent the Company shall
default in the payment of the interest due on such interest payment date, such
defaulted interest shall be paid to the persons in whose names outstanding Bonds
are registered at the close of business on a subsequent Record Date established
by notice given by mail by or on behalf of the Company to the holders of Bonds
not less than fifteen days preceding such subsequent Record Date, such Record
Date to be not less than ten days preceding the date of payment of such
defaulted interest. The term "Record Date" with respect to any regular interest
payment date shall mean the fifteenth day of the calendar month next preceding
the month in which such interest payment date occurs.
The Bonds are being 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, at maturity or earlier redemption, and interest on, the Authority
Bonds pursuant to the Financing Agreement. The Authority Bonds are being sold to
finance the refunding of the Prior Bonds.
The Authority Bonds are to be issued under the Authority Indenture and
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 are to be
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, at
maturity or earlier redemption, 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 the Bonds subject to the same
restriction on transfer.
The text of the Bonds and of the certificate of the Trustee upon such
Bonds shall be, respectively, substantially of the tenor and effect hereinbefore
recited.
Exchange of any Bonds shall be effected in accordance with the
applicable provisions of Sections 7, 8 and 9 of Article II of the Original
Indenture.
SECTION 2. The Bonds are redeemable only as follows:
(a) The 5.05% Series due 2039 are subject to redemption prior to maturity
on or after October 1, 2014 by the Company, to the extent that the Authority
Bonds are called for redemption under Section 7.01(a) of the Authority
Indenture, and then out of moneys deposited with or held by the Trustee for such
purpose, as a whole or in part, at any time in the manner
15
described below, at the redemption price of one hundred percent (100%) of the
principal amount to be redeemed, plus interest accrued thereon to the date fixed
for redemption;
(b) The Bonds are 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; and
(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.
SECTION 3. Any redemption of the Bonds shall be effected in
accordance with the provisions of Article V of the Original Indenture.
SECTION 4. In the event any Authority Bonds shall be purchased by
the Company, surrendered by the Company to the Authority Trustee for
cancellation and cancelled by the Authority Trustee, Bonds corresponding in
principal amount to the Authority Bonds so purchased, surrendered and cancelled
shall be deemed to have been paid in full.
SECTION 5. 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 of Bonds, the corresponding payment
of the principal of, and premium, if any, or interest on, an aggregate principal
amount of Bonds equal to the aggregate principal amount of such Authority Bonds
shall be deemed to have been satisfied.
SECTION 6. All Bonds deemed to have been paid in full as provided
in Section 4 and 5 of this Article I of this Thirty-Eighth Supplemental
Indenture shall be surrendered to the Trustee for cancellation, and the Trustee
shall forthwith cancel the same and, in accordance with applicable laws and
regulations and the Trustee's policies and procedures, and on the written
request of the Company, deliver the same to the Company. In case part of an
outstanding Bond shall be deemed to have been partially paid as provided in said
Section 4 or Section 5, upon presentation of such Bond at the designated office
of the Trustee, the Trustee shall make a notation thereon of the payment of the
portion of the principal amount of such Bond so deemed to have been paid unless
the registered owner shall elect to surrender such Bond to the Trustee, in which
case the Company shall execute and the Trustee shall authenticate and deliver,
without charge to the registered owner, Bonds in such authorized denominations
as shall be specified by the registered owner for the unpaid balance of the
principal amount of such outstanding Bond.
16
SECTION 7. The 5.05% Series due 2039 in the aggregate principal
amount of $14,000,000 may be issued under the provisions of Article IV of the
Original Indenture and may forthwith be executed by the Company and delivered to
the Trustee and shall be authenticated by the Trustee and delivered to or upon
the order of the Company, upon receipt by the Trustee of the resolutions,
certificates, opinions or other instruments or all of the foregoing required to
be delivered upon the issue of bonds pursuant to the provisions of the Original
Indenture.
ARTICLE II.
Maintenance or Improvement Deposit.
SECTION 1. The Company covenants that it will deposit with the
Trustee on or before the March 1 next occurring after the bonds of the 9.89%
Series due 2008 cease to be outstanding, or on or before the March 1 next
occurring after the bonds of the 9.93% Series due 2013 cease to be outstanding,
or on or before the next March 1 next occurring after the bonds of the 9.97%
Series due 2018 cease to be outstanding, or on or before the March 1 next
occurring after the bonds of the 9.12% Series due 2010 cease to be outstanding,
or on or before the March 1 next occurring after the bonds of the 9.29% Series
due 2026 cease to be outstanding, or on or before the March 1 next occurring
after the bonds of the 9.17% Series due 2021 cease to be outstanding, or on or
before the next March 1 next occurring after the bonds of the 9.17% Series due
2011 cease to be outstanding, or on or before the March 1 next occurring after
the bonds of the 7.15% Series due 2008 cease to be outstanding, or on or before
the March 1 next occurring after the bonds of any of the Subseries of the 1995
Medium Term Note Series issued under the Twenty-Ninth Supplemental Indenture
(consisting of the 7.72% Subseries A due 2025, the 6.82% Subseries B due 2005,
the 6.89% Subseries C due 2015, and the 6.99% Subseries D due 2006) shall cease
to be outstanding, or on or before the March 1 next occurring after bonds of the
6.35% Series due 2025 shall cease to be outstanding, on or before the March 1
next occurring after the bonds of any of the Subseries of the 1997 Medium Term
Note Series issued under the Thirty-First Supplemental Indenture (consisting of
the 6.75% Subseries A due 2007 and the 6.14% Subseries C due 2008) cease to be
outstanding, or on or before March 1 next occurring after the bonds of 6.00%
Series due 2029 cease to be outstanding, or on or before March 1 next occurring
after the Bonds of any of the Subseries of the 1999 Medium Term Note Series
issued under the Thirty-Third Supplemental Indenture (consisting of the 7.40%
Subseries A due 2005, the 7.40% Subseries B due 2005, the 9.53% Subseries D due
2019, the 6.375% Subseries E due 2023, the 8.26% Subseries F due 2022, the 9.50%
Subseries G due 2006, the 9.22% Subseries H due 2019, the 8.32% Subseries I due
2022, the 8.14% Subseries J due 2025, the 6.00% Subseries K due 2030, the 5.93%
Subseries L due 2012, the 2.65% Subseries M due 2006, the 3.461% Subseries N due
2007, the 5.08% Subseries O due 2015, the 5.17% Subseries P due 2017, the 5.751%
Subseries Q due 2019, the 5.751% Subseries R due 2019, the 6.06% Subseries S due
2027, the 6.06% Subseries T due 2027 and the 5.98% Subseries U due 2028) cease
to be outstanding, or on or before March 1 next occurring after the bonds of the
5.35% Series due 2031 or on or before March 1 next occurring after the bonds of
the 5.55% Series due 2032 cease to be outstanding, or on or before March 1 next
occurring after the bonds of the 3.75% Series due 2010 cease to be outstanding,
or on or before March 1 next occurring after the bonds of the 5.15% Series due
2032 cease to be outstanding, whichever is latest, an amount in
17
cash (the "Maintenance or Improvement Deposit") equal to 9% of the Gross
Operating Revenues of the Company during the preceding calendar year less, to
the extent that the Company desires to take such credits, the following:
(a) the amount actually expended for maintenance during
such calendar year; and
(b) the Cost or Fair Value, whichever is less, of Permanent
Additions acquired during such calendar year which at the time of
taking such credit constitute Available Permanent Additions; and
(c) the unapplied balance, or any part thereof, of the Cost
or Fair Value, whichever is less, of Available Permanent Additions
acquired by the Company during the five calendar years preceding such
calendar year and specified in the Officers' Certificates delivered to
the Trustee pursuant to Section 2 of this Article, but only to the
extent that the Permanent Additions with respect to which such Cost or
Fair Value was determined shall at the time of taking such credit
constitute Available Permanent Additions.
SECTION 2. The Company covenants that it will on or before March
1 in each year, beginning with the first deposit made with the Trustee under the
provisions of Section 1 of this Article, as long as any of the Bonds are
outstanding, deliver to the Trustee the following:
(a) An Officers' Certificate, which shall state:
(i) The amount of the Gross Operating Revenues for the
preceding calendar year;
(ii) 9% of such Gross Operating Revenues;
(iii) The amount actually expended by the Company for
maintenance during such calendar year;
(iv) The amount set forth in subparagraph (xii) of each
Officers' Certificate delivered to the Trustee pursuant to the
provisions of this Section during the preceding five calendar years
(specifying each such Officers' Certificate), after deducting from
each such amount the aggregate of (a) the Cost or Fair Value,
whichever is less, of all Permanent Additions represented by such
amount which have ceased to be Available Permanent Additions; and (b)
any part of such amount for which the Company has previously taken
credit against any Maintenance or Improvement Deposit (specifying the
Officers' Certificate in which such credit was taken); and (c) any
part of such amount for which the Company then desires to take credit
against the Maintenance or Improvement Deposit;
18
(v) An amount which shall be the aggregate of all amounts
set forth pursuant to the provisions of clause (c) of the foregoing
subparagraph (iv);
(vi) The Cost or Fair Value, whichever is less, of Available
Permanent Additions acquired by the Company during the preceding
calendar year;
(vii) That part of the amount set forth in subparagraph (vi)
which the Company desires to use as a credit against the Maintenance
or Improvement Deposit;
(viii) The amount of cash payable to the Trustee under the
provisions of Section 1 of this Article, which shall be the amount by
which the amount set forth in subparagraph (ii) hereof exceeds the sum
of the amounts set forth in subparagraphs (iii), (v) and (vii) hereof;
(ix) The sum of all amounts charged on the books of the
Company against any reserve for retirement or depreciation during the
preceding calendar year representing the aggregate of the Cost when
acquired of any part of the Company's plants and property of the
character described in the granting clauses hereof which has been
permanently retired or abandoned;
(x) The aggregate of the amounts set forth in subparagraphs
(v) and (vii) hereof;
(xi) The amount by which the amount set forth in
subparagraph (x) exceeds the amount set forth in subparagraph (ix),
being the amount required to be deducted from the Cost or Fair Value
of Available Permanent Additions in order to determine a Net Amount of
Available Permanent Additions pursuant to the provisions of Section 9
of Article I of the Original Indenture;
(xii) The amount set forth in subparagraph (vi) after
deducting the amount, if any, set forth in subparagraph (vii); and
(xiii) That all conditions precedent to the taking of the
credit or credits so requested by the Company have been complied with.
(b) In the event that the Officers' Certificate delivered to the Trustee
pursuant to the provisions of paragraph (A) of this Section shall state,
pursuant to the requirements of subparagraph (vi), the Cost or Fair Value of
Available Permanent Additions acquired by the Company during the preceding
calendar year, the documents specified in paragraphs 2, 3, 5, 6 and 7 of
subdivision (B) of Section 3 of Article IV of the Original Indenture.
(c) An amount in cash equal to the sum set forth in subparagraph (viii) of
the Officers' Certificate provided for in paragraph (A) hereof.
19
SECTION 1. All cash deposited with the Trustee as part of any
Maintenance or Improvement Deposit provided for in Section 1 of this Article,
may, at the option of the Company, be applied to the purchase of bonds under the
provisions of Section 2 of Article X of the Original Indenture or to the
redemption of bonds under the provisions of Section 3 of Article X of the
Original Indenture or may be withdrawn by the Company at any time to reimburse
the Company for the cost of a Net Amount of Available Permanent Additions
(excluding, however, from any such Available Permanent Additions all Permanent
Additions included in any certificate delivered to the Trustee for the purpose
of obtaining a credit against any Maintenance or Improvement Deposit provided
for in Section 1 of this Article to the extent that such Permanent Additions
have been used for any such credit). The Trustee shall pay to or upon the
written order of the Company all or any part of such cash upon the receipt by
the Trustee of:
(a) A Resolution requesting such payment; and
(b) The documents specified in paragraphs 2, 5, 6 and 7 of
subdivision (B) of Section 3 of Article IV of the Original Indenture,
with such modifications, additions and omissions as may be appropriate
in the light of the purposes for which they are used.
ARTICLE III.
Covenants of the Company.
SECTION 1. The Company hereby covenants and agrees with the
Trustee, for the benefit of the Trustee and all the present and future holders
of the Bonds, that the Company will pay the principal of, and premium, if any,
and interest on, all bonds issued or to be issued as aforesaid under and secured
by the Original Indenture as hereby supplemented, as well as all bonds which may
be hereafter issued in exchange or substitution therefor, and will perform and
fulfill all of the terms, covenants and conditions of the Original Indenture and
of this Thirty-Eighth Supplemental Indenture with respect to the additional
bonds to be issued under the Original Indenture as hereby supplemented.
SECTION 2. The Company covenants and agrees that so long as any
of the Bonds are outstanding (a) the Company will not make any Stock Payment if,
after giving effect thereto, its retained earnings, computed in accordance with
generally accepted accounting principles consistently applied, will be less than
the sum of (i) Excluded Earnings, if any, since December 31, 2003, and (ii)
$20,000,000; (b) Stock Payments made more than 40 days after the commencement,
and prior to the expiration, of any Restricted Period shall not exceed 65% of
the Company's Net Income during such Restricted Period; and (c) the Company will
not authorize a Stock Payment if there has occurred and is continuing an event
of default under subsections (a) and (b) of Section 1 of Article XI of the
Original Indenture.
For the purposes of this Section 2 the following terms shall have the
following meanings:
20
"Capitalization" shall mean the sum of (i) the aggregate principal
amount of all Debt at the time outstanding, (ii) the aggregate par or stated
value of all capital stock of the Company of all classes at the time
outstanding, (iii) premium on capital stock, (iv) capital surplus, and (v)
retained earnings.
"Debt" means (i) all indebtedness, whether or not represented by
bonds, debentures, notes or other securities, for the repayment of money
borrowed, (ii) all deferred indebtedness for the payment of the purchase price
of property or assets purchased (but Debt shall not be deemed to include
Customer Advances for Construction or any bonds issued under the Indenture which
are not Outstanding Bonds), (iii) leases which have been or, in accordance with
generally accepted accounting principles, should be recorded as capital leases
and (iv) guarantees of the obligations of another of the nature described in
clauses (i), (ii) or (iii) which have been or, in accordance with generally
accepted accounting principles, should be recorded as debt.
"Determination Date" shall mean the last day of each calendar quarter.
Any calculation with respect to any Determination Date shall be based on the
Company's balance sheet as of such date.
"Excluded Earnings" shall mean 35% of the Company's Net Income during
any Restricted Period.
"Net Income" for any particular Restricted Period shall mean the
amount of net income properly attributable to the conduct of the business of the
Company for such period, as determined in accordance with generally accepted
accounting principles consistently applied, after payment of or provision for
taxes on income for such period.
"Outstanding Bonds" shall mean bonds which are outstanding within the
meaning indicated in Section 20 of Article I of the Original Indenture except
that, in addition to the bonds referred to in clauses (a), (b) and (c) of said
Section 20, said term shall not include bonds for the retirement of which
sufficient funds have been deposited with the Trustee with irrevocable
instructions to apply such funds to the retirement of such bonds at a specified
time, which may be either the maturity thereof or a specified redemption date,
whether or not notice of redemption shall have been given.
"Restricted Period" shall mean a period commencing on any
Determination Date on which the total Debt of the Company is, or as the result
of any Stock Payment then declared or set aside and to be made thereafter will
be, more than 70% of Capitalization, and continuing until the third consecutive
Determination Date on which the total Debt of the Company does not exceed 70% of
Capitalization.
"Stock Payment" shall mean any payment in cash or property (other than
stock of the Company) to any holder of shares of any class of capital stock of
the Company as such holder, whether by dividend or upon the purchase,
redemption, conversion or other acquisition of such shares, or otherwise.
21
SECTION 3. The Company covenants and agrees that so long as any
of the Bonds are outstanding, neither the Company nor any subsidiary of the
Company will, directly or indirectly, lend or in any manner extend its credit
to, or indemnify, or make any donation or capital contribution to, or purchase
any security of, any corporation which directly or indirectly controls the
Company, or any subsidiary or affiliate (other than an affiliate which is a
subsidiary of the Company) of any such corporation.
ARTICLE IV.
The Trustee.
SECTION 1. The Trustee hereby accepts the trust hereby declared
and provided, and agrees to perform the same upon the terms and conditions in
the Original Indenture, as supplemented by this Thirty-Eighth Supplemental
Indenture.
SECTION 2. Subject to the provisions of Article XIII of the
Original Indenture, the Trustee may execute any of the trusts or powers hereof
and perform any of its duties by or through and consult with attorneys, agents,
officers or employees selected by the Trustee in its sole discretion. The
Trustee shall be entitled to advice of counsel concerning all matters of trusts
hereof and the duties hereunder and may in all cases pay such reasonable
compensation to all such attorneys, agents, officers and employees as may
reasonably be employed in connection with the trusts hereof. The Trustee may act
or refrain from acting and rely upon and be free from all liability for so
relying upon the opinion or advice of any attorney (who may be the attorney or
attorneys for the Company). The Trustee may act and rely on written opinions of
experts employed by the Trustee and such advice shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by the Trustee hereunder in good faith and in reliance thereon. The Trustee
shall not be responsible for any loss or damage resulting from any action or
non-action in good faith taken in reliance upon such opinion or advice. The
Trustee shall not be bound to confirm, verify or make any investigation into the
facts or matters stated in any financial or other statements, resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order or other paper or document furnished pursuant to the terms
hereof.
SECTION 3. Before the Trustee shall be required to foreclose on,
or to take control or possession of, the real property or leasehold interest
(the "Premises") which may be the subject of any mortgage or mortgages for which
the Trustee is mortgagee in connection with the issuance of the Bonds, the
Trustee shall be indemnified and held harmless by the holders and/or beneficial
owners of the Bonds from and against any and all expense, loss, or liability
that may be suffered by the Trustee in connection with any spill, leak or
release which may have occurred on or invaded the Premises or any contamination
by any Hazardous Substance (hereinafter defined), whether caused by the Company
or any other person or entity, including, but not limited to, (1) any and all
reasonable expenses that the Trustee may incur in complying with any of the
Environmental Statutes (hereinafter defined), (2) any and all reasonable costs
that the Trustee may incur in studying or remedying any spill, leak or release
which may have occurred on or invaded the Premises or any contamination, (3) any
and all fines or penalties assessed upon the Trustee by reason of such
contamination, (4) any and all loss of
22
value of the Premises or the improvements thereon by reason of such
contamination, and (5) any and all legal fees and costs reasonably incurred by
the Trustee in connection with any of the foregoing. As used in this Section,
contamination by any Hazardous Substance shall include contamination, arising
from the presence, creation, production, collection, treatment, disposal,
discharge, release, storage, transport or transfer of any Hazardous Substance at
or from the Premises or any improvements thereon. As used in this Section, the
term "Hazardous Substance" shall mean petroleum hydrocarbons or any substance
which (a) constitutes a hazardous waste or substance under any applicable
federal, state or local law, rule, order or regulation now or hereafter adopted;
(b) constitutes a "hazardous substance" as such term is defined under the
Comprehensive Environmental Response, Compensation and Liability Act, as amended
(42 U.S.C. Section 9601 et seq.) and the regulations issued thereunder and any
comparable state or local law or regulation; (c) constitutes a "hazardous waste"
under the Resource Conservation and Recovery Act, (42 U.S.C. Section 6991) and
the regulations issued thereunder and any comparable state or local law or
regulation; (d) constitutes a pollutant, contaminant, chemical or industrial,
toxic or hazardous substance or waste as such terms are defined under Federal
Clean Water Act, as amended (33 U.S.C. Section 1251 et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601 et seq.), or any
comparable state or local laws or regulations; (e) exhibits any of the
characteristics enumerated in 40 C.F.R. Sections 261.20 - 261.24, inclusive; (f)
those extremely hazardous substances listed in Section 302 of the Superfund
Amendments and Reauthorization Act of 1986 (Public Law 99-499, 100 Stat. 1613)
which are present in threshold planning or reportable quantities as defined
under such act; (g) toxic or hazardous chemical substances which are present in
quantities which exceed exposure standards as those terms are defined under
Sections 6 and 8 of the Occupational Safety and Health Act, as amended (29
U.S.C. Sections 655 and 657 and 29 C.F.R. Part 1910, subpart 2); and (h) any
asbestos, petroleum-based products or any Hazardous Substance contained within
or release from any underground or aboveground storage tanks. As used in this
Section, the term "Environmental Statutes" shall mean the statutes, laws, rules,
orders and regulations referred to in (a) through (g) inclusive in the preceding
sentence.
ARTICLE V.
Miscellaneous.
SECTION 1. This instrument is executed and shall be construed as
an indenture supplemental to the Original Indenture, and shall form a part
thereof, and except as hereby supplemented, the Original Indenture and the
First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth,
Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third,
Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, Twenty-Seventh, Twenty-Eighth,
Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second, Thirty-Third,
Thirty-Fourth, Thirty-Fifth, Thirty-Sixth and Thirty-Seventh Supplemental
Indentures are hereby confirmed. All references in this Thirty-Eighth
Supplemental Indenture to the Original Indenture shall be deemed to refer to the
Original Indenture as heretofore amended and supplemented, and all terms used
herein and not specifically defined herein shall be taken to have the same
meaning as in the Original Indenture, as so amended, except in the cases where
the context clearly indicates otherwise.
23
SECTION 2. Any notices to the Trustee under this Thirty-Eighth
Supplemental Indenture shall be delivered to the Trustee by registered or
certified mail, hand delivery or other courier or express delivery service (with
receipt confirmed) or by telecopy (with receipt confirmed) at the following
address:
X.X. Xxxxxx Trust Company, National Association
Institutional Trust Services
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Aqua Pennsylvania, Inc. Administrator
Telecopy: (000) 000-0000
Any change in such address or telecopy number may be made by notice to the
Company delivered in the manner set forth above.
SECTION 3. All recitals in this Thirty-Eighth Supplemental
Indenture are made by the Company only and not by the Trustee; and all of the
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect hereof as fully and with like effect as if set forth herein in full.
SECTION 4. Although this Thirty-Eighth Supplemental Indenture is
dated as of November 15, 2004 for convenience and for the purpose of reference,
the actual date or dates of execution hereof by the Company and the Trustee are
as indicated by their respective acknowledgments annexed hereto.
SECTION 5. In order to facilitate the recording or filing of this
Thirty-Eighth Supplemental Indenture, the same may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original and such
counterparts shall together constitute but one and the same instrument.
SECTION 6. This Thirty-Eighth Supplemental Indenture shall become
effective for the incurrence of debt upon delivery to the Trustee by the Company
of the certificates required by Articles IV, VI and VII of the Original
Indenture, which shall occur concurrently with or prior to the authentication of
the 5.05% Series due 2039 Bonds. This Thirty-Eighth Supplemental Indenture is
effective to evidence the Trustee's lien on the property described herein
immediately upon execution.
24
IN WITNESS WHEREOF the parties hereto have caused their corporate
seals to be hereunto affixed and their authorized officers have hereto affixed
their signatures, and their authorized officers have duly attested the execution
hereof, as of the 15th day of November, 2004.
[CORPORATE SEAL] AQUA PENNSYLVANIA, INC.,
as successor by merger to
Philadelphia Suburban Water Company
Attest: XXX X. XXXXX By: XXXXX X. XXXX
------------------ -------------------------------
Vice President and Treasurer
[CORPORATE SEAL] X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION,
As Trustee
Attest: XXXXXX XXXXXXX By: XXXX XXXXX X'XXXXX
------------------ -------------------------------
Authorized Officer Authorized Officer
25
EXHIBIT A
OUTSTANDING FIRST MORTGAGE BONDS
EXHIBIT B
RECORDING INFORMATION
BUCKS, CHESTER, DELAWARE AND MONTGOMERY COUNTIES
Bucks Chester Delaware Xxxxxxxxxx
Date of ---------------- --------------------- ------------------- -------------------
Indenture Recording Book Page Book Page Book Page Book Page
-------------------------- --------- ------- ------- ------------ ------- --------- -------- --------- -------
Original 2/20/41 496 1 H-13.Vol.307 20 1034 1 1625 1
First Supplemental 8/26/48 632 1 F-16.Vol.380 200 1668 169 2031 257
Second Supplemental 7/1/52 768 438 18.Vol.425 186 1962 376 2360 517
Third Supplemental 11/25/53 895 1 18.Vol.442 325 2052 1 2493 1
Fourth Supplemental 1/9/56 1089 155 Z-20.Vol.499 1 2199 1 2722 425
Fifth Supplemental 3/20/57 1181 316 B-22.Vol.536 601 2294 50 2850 335
Sixth Supplemental 5/9/58 1254 1 G-23 201 2380 039 2952 000
Xxxxxxx Supplemental 9/25/59 1332 509 B-25 109 2442 1 3090 249
Eighth Supplemental 0/0/00 - - X-00 00 0000 000 - -
Xxxxxx Supplemental 5/10/61 1409 225 - - - - 3249 289
Ninth Supplemental 4/10/62 1458 372 G-28 126 2581 463 3307 169
Tenth Supplemental 3/19/64 1568 1 M-30 967 2976 1043 3310 237
Eleventh Supplemental 11/4/66 1655 695 Q-32 6682 762 223 3549 129
Twelfth Supplemental 1/23/68 1691 531 N-33 219 2792 708 3542 315
Thirteenth Supplemental 7/2/70 1763 1167 D-35 80 2850 301 3687 23
Fourteenth Supplemental 11/5/70 1774 331 K-35 713 2858 3113 700 548
Fifteenth Supplemental 12/11/72 0000 000 X-00 000 2926 550 3786 96
Sixteenth Supplemental 5/28/75 1979 14 E-44 77 3005 511 4010 307
Seventeenth Supplemental 12/18/77 2072 683 L-51 1 3072 43 5002 436
Eighteenth Supplemental 4/29/77 2082 567 B-52 344 3078 728 5003 291
Nineteenth Supplemental 6/23/80 2303 714 J-62 92 3261 293 5030 502
Xxxxxxxxx Xxxxxxxxxxxx 0/0/00 0000 000 X-00 1 96 810 5662 1045
Twenty-First Supplemental 8/27/85 2690 806 54 550 - - 5864 1347
Twenty-First Supplemental 8/28/85 - - - - 264 159 - -
Twenty-Second Supplemental 4/22/86 2774 160 263 275 326 592 5944 000
Xxxxxx-Xxxxx Supplemental 4/1/87 2960 693 - - - - - -
Bucks Chester Delaware Xxxxxxxxxx
Date of ---------------- --------------------- ------------------- -------------------
Indenture Recording Book Page Book Page Book Page Book Page
--------------------------- --------- ------- ------- ------------ ------- --------- -------- --------- -------
Twenty-Third Supplemental 4/2/87 - - 680 337 447 1807 6115 000
Xxxxxx-Xxxxxx Supplemental 7/25/88 3199 1095 1224 389 0593 0585 6324 143
Twenty-Fifth Supplemental 1/12/90 0136 0250 1848 205 731 1571 6538 376
Twenty-Sixth Supplemental 11/8/91 369 2190 2660 205 894 2241 6780 891
Twenty-Seventh Supplemental 6/29/92 0487 1829 3055 182 0969 2023 6918 302
Twenty-Eighth Supplemental 4/22/93 0652 1335 3542 1542 1081 0852 7112 0539
Twenty-Ninth Supplemental 3/30/95 1045 1872 3875 1368 1349 0829 7561 1155
Thirtieth Supplemental 8/30/95 1111 0798 3932 0471 1393 2255 7631 0689
Thirty-First Supplemental 7/11/97 1421 2196 4201 2133 1607 138 7968 779
Thirty-Second Supplemental 10/6/99 1939 421 4646 642 1936 1207 8548 1067
Thirty-Third Supplemental 11/30/99 1970 1573 4675 1272 1936 1207 8548 1067
Thirty-Fourth Supplemental 10/31/01 2471 1207 5101 2142 2288 0174 9225 761
Thirty-Fifth Supplemental 1/10/02 2541 765 5152 818 2329 1019 9314 1079
Thirty-Sixth Supplemental 6/5/02 2731 1881 5296 356 2448 1862 9593 1416
Thirty-Seventh Supplemental 12/27/02 3036 1425 12/31/02 1552 12/31/02 0294 12/30/02 0204
B-5514 02631 10018
BERKS COUNTY
Indenture Date of Recording Book Page
------------------------- ----------------- ------ ------
Original 8/16/99 3113 707
Thirty-Second Supplement 10/6/99 3132 1510
Thirty-Third Supplement 11/30/99 3149 1260
Thirty-Fourth Supplement 10/31/01 3421 896
Thirty-Fifth Supplement 1/10/02 3461 417
Thirty-Sixth Supplement 6/4/02 3544 1357
Thirty-Seventh Supplement 12/30/02 3664 0001
BRADFORD, COLUMBIA, LAWRENCE, MERCER, NORTHUMBERLAND, PIKE, SCHUYLKILL AND XXXXX
COUNTIES
BRADFORD COLUMBIA XXXXXXXX XXXXXX
------------------------- -------------------- -------------------- ---------------------
Date of Date of Date of Date of
Indenture Recording Book Page Recording Book Page Recording Book Page Recording Book Page
--------------------------- --------- ---- --------- --------- ---- ----- --------- ---- ---- --------- ------ ----
Thirty-Fifth Supplemental 12/21/01 200115497 1688 744
Thirty-Sixth Supplemental 07/04/02 200207151
Thirty-Seventh Supplemental 12/30/02 200216472
NORTHUMBERLAND PIKE SCHUYLKILL XXXXX
------------------------- -------------------- -------------------- ---------------------
Date of Date of Date of Date of
Indenture Recording Book Page Recording Book Page Recording Book Page Recording Book Page
--------------------------- --------- ---- --------- --------- ---- ----- --------- ---- ---- --------- ------ ----
Thirty-Fifth Supplemental 1404 246 1909 2328 1413 1 1911 1
Thirty-Sixth Supplemental 1445 028 1584 0259
Thirty-Seventh Supplemental 12/30/02 1500 911 12/30/02 1959 2447 12/27/02 2022 1006 12/30/02 2136 148
EXHIBIT C
Company's
County and Real Estate Date of Recorded Tax Parcel
Grantor Index No. Deed Book Page I.D. Number
---------- ----------- --------- ------ ---------- -----------
[See Attached]
EXHIBIT D
The Original Indenture, redacted to delete property descriptions contained
therein for property contained in bucks, Chester, Delaware and
Xxxxxxxxxx counties.
X.X. Xxxxxx Trust Company National Association, Mortgagee and Trustee named
in the foregoing Thirty-Eighth Supplemental Indenture, hereby certifies
that its precise name and the post office address of its Institutional
Trust Services Group in Philadelphia, Pennsylvania are as follows:
X.X. Xxxxxx Trust Company, National Association
Institutional Trust Services
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Pennsylvania Suburban Water
Administrator
Telecopy: (000) 000-0000
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION
By:
-----------------------------------
Authorized Officer
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF XXXXXXXXXX
On the _______ day of November, 2004, before me, the Subscriber, a
Notary Public for the Commonwealth of Pennsylvania, personally appeared Xxxxx X.
Xxxx, who acknowledged herself to be the Vice President and Treasurer of Aqua
Pennsylvania, Inc., a corporation, and that she as such Vice President and
Treasurer, being authorized to do so, executed the foregoing Thirty-Eighth
Supplemental Indenture as and for the act and deed of said corporation and for
the uses and purposes therein mentioned, by signing the name of the corporation
by herself as such officer.
In Witness Whereof I hereunto set my hand and official seal.
[NOTARIAL SEAL]
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
On the _______ day of November, 2004 before me, the Subscriber, a
Notary Public for the Commonwealth of Pennsylvania, personally appeared
__________, who acknowledged herself to be a ____________ of X.X. Xxxxxx Trust
Company, National Association, Trustee, a national banking association, and that
she as such ___________, being authorized to do so, executed the foregoing
Thirty-Eighth Supplemental Indenture as and for the act and deed of said
national banking association and for the uses and purposes therein mentioned by
signing the name of said national banking association by herself as such
officer.
In Witness Whereof I hereunto set my hand and official seal.
[NOTARIAL SEAL]
This Thirty-Eighth Supplemental Indenture was recorded in the Office
for the Recording of Deeds for each of the counties tabulated below in the
Mortgage Book, at the page and on the date indicated:
County Date Mortgage Book Page
--------------------------------------- ---- ------------- ----
Xxxxx
Berks..................................
Bradford...............................
Bucks..................................
Carbon.................................
Xxxxxxx................................
Columbia...............................
Cumberland.............................
Delaware...............................
Forest.................................
Juniata................................
Lackawanna.............................
Xxxxxxxx...............................
Luzerne................................
Xxxxxx.................................
Monroe.................................
Xxxxxxxxxx.............................
Northampton............................
Northumberland.........................
Pike...................................
Schuylkill.............................
Xxxxxx ................................
Susquehanna ...........................
Xxxxx..................................
Wyoming
For the recording information with respect to the Original Indenture and the
first thirty-seven supplemental indentures, see Exhibit B of this Thirty-Eighth
Supplemental Indenture.
