Supplemental Indenture

Forty-Fourth Supplemental Indenture Dated as of July 1, 2009 to Indenture of Mortgage Dated as of January 1, 1941 Aqua Pennsylvania, Inc. To the Bank of New York Mellon Trust Company, N. A.

Exhibit 4.38
Prepared by and Return to:
Mary T. Tomich, Esq.
Dilworth Paxson LLP
1500 Market Street
Suite 3500E
Philadelphia, PA 19102
215-575-7000
 
 
FORTY-FOURTH SUPPLEMENTAL
INDENTURE
DATED AS OF JULY 1, 2009
TO
INDENTURE OF MORTGAGE
DATED AS OF JANUARY 1, 1941
AQUA PENNSYLVANIA, INC.
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N. A.
 
 

 

 


 

THIS FORTY-FOURTH SUPPLEMENTAL INDENTURE dated as of July 1, 2009, 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 THE BANK OF NEW YORK MELLON TRUST COMPANY, N. A., 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, The Bank of New York Mellon Trust Company, N. A. 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 eight 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, fifty-four 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:

 

2


 

                 
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 1989
  Seventh Supplemental     4,000,000  
4 5/8% Series due 1991
  Eighth Supplemental     3,000,000  
4.70% Series due 1992
  Ninth Supplemental     3,000,000  
6 7/8% Series due 1993
  Twelfth Supplemental     4,500,000  
4.55% Series due 1994
  Tenth Supplemental     4,000,000  
10 1/8% Series due 1995
  Sixteenth Supplemental     10,000,000  
5 1/2% Series due 1996
  Eleventh Supplemental     4,000,000  
7 7/8% Series due 1997
  Fifteenth Supplemental     5,000,000  
8.44% Series due 1997
  Twenty-Third Supplemental     12,000,000  
9.20% Series due 2001
  Seventeenth Supplemental     7,000,000  
8.40% Series due 2002
  Eighteenth Supplemental     10,000,000  
5.95% Series due 2002
  Twenty-Seventh Supplemental     4,000,000  
12.45% Series due 2003
  Twentieth Supplemental     10,000,000  
13% Series due 2005
  Twenty-First Supplemental     8,000,000  
10.65% Series due 2006
  Twenty-Second Supplemental     10,000,000  
9.89% Series due 2008
  Twenty-Fourth Supplemental     5,000,000  
7.15% Series due 2008
  Twenty-Eighth Supplemental     22,000,000  
9.12% Series due 2010
  Twenty-Fifth Supplemental     20,000,000  
8 7/8% Series due 2010
  Nineteenth Supplemental     8,000,000  
6.50% Series due 2010
  Twenty-Seventh Supplemental     3,200,000  
9.17% Series due 2011
  Twenty-Sixth Supplemental     5,000,000  
9.93% Series due 2013
  Twenty-Fourth Supplemental     5,000,000  
9.97% Series due 2018
  Twenty-Fourth Supplemental     5,000,000  
9.17% Series due 2021
  Twenty-Sixth Supplemental     8,000,000  
9.29% Series due 2026
  Twenty-Sixth Supplemental     12,000,000  
1995 Medium Term Note Series
  Twenty-Ninth Supplemental     77,000,000  
6.35% Series due 2025
  Thirtieth Supplemental     22,000,000  
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          

 

3


 

                 
Designation   Indenture   Amount
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     222,334,480  
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
    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  
5.00% Series due 2035
  Fortieth Supplemental     24,675,000  
5.00% Series due 2040
  Forty-first Supplemental     23,915,000  
5.00% Series due 2041
  Forty-first Supplemental     23,915,000  
5.25% Series due 2042
  Forty-second Supplemental     24,830,000  
5.25% Series due 2043
  Forty-second Supplemental     24,830,000  
6.25% Series due 2017
  Forty-third Supplemental     9,000,000  
6.75% Series due 2018
  Forty-third Supplemental     13,000,000  
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, 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 first forty-three supplemental indentures supplemental to the Original Indenture were duly recorded in the

 

4


 

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 addition to the property described in the Original Indenture and the First through Forty-third 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 Forty-fourth 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 office for the Recording of Deeds for the counties of Clarion, Venango and Warren; 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 Forty-fourth Supplemental Indenture, a series of bonds to be designated “First Mortgage Bonds, 5.00% Series due 2039” (herein referred to as the “5.00% Series due 2039” or the “Bonds”) to be limited in aggregate principal amount to $58,000,000 to bear interest at the rate of 5.00% per annum, and to mature on October 1, 2039, such series 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 July 1, 2009 (the “Financing Agreement”) between the Company and the Pennsylvania Economic Development Financing Authority, a Pennsylvania body politic and corporate (the “Authority”), 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 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 A of 2009 the aggregate principal amount of $58,000,000 (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 July 1, 2009 (the “Authority Indenture”), between the Authority and U.S. Bank National Association, as trustee (the “Authority Trustee”); and

 

5


 

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
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 2039 (to be issued in accordance with the terms and provisions of the Original Indenture and indentures supplemental thereto, including this Forty-fourth Supplemental Indenture, and to be secured by said Original Indenture and indentures supplemental thereto, including this Forty-fourth Supplemental Indenture) and has further duly authorized the execution, delivery and recording of this Forty-fourth Supplemental Indenture setting forth the terms and provisions of the 5.00% Series due 2039 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 2039]
     
No. R-1   $                                        
AQUA PENNSYLVANIA, INC.
(Incorporated under the Laws of the Commonwealth
of Pennsylvania)
First Mortgage Bond, 5.00% Series due 2039

 

6


 

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 Pennsylvania Economic Development Financing Authority or its registered assigns, on the 1st day of October, 2039, at the designated office of The Bank of New York Mellon Trust Company, N. A. (hereinafter called the “Trustee”) in Philadelphia, Pennsylvania, the sum of Fifty-eight 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 October 1, 2009 from the date hereof) until the principal hereof shall become due and payable, at the rate of 5.00% 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 October 1, 2009 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.
The interest so payable will (except as otherwise provided in the Forty-fourth 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 The Bank of New York Mellon Trust Company, N.A.), 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

 

7


 

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 “Forty-fourth Supplemental Indenture” dated as of July 1, 2009, and designated therein as “First Mortgage Bonds, 5.00% 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 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 July 1, 2009 between the Pennsylvania Economic Development Financing Authority, a Pennsylvania body politic and corporate (the “Authority”), and the Company, which Authority Bonds are being issued to finance the costs of numerous 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 A of 2009, in the aggregate principal amount of $58,000,000 (the “Authority Bonds”).

 

8


 

The Authority Bonds are to be issued under a Trust Indenture, dated as of July 1, 2009 (the “Authority Indenture”) between the Authority and U.S. 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.
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 October 1, 2019 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


 

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.
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 The Bank of New York Mellon Trust Company, N. A., as Trustee under the Indenture, or a successor trustee thereunder, shall have signed the certificate of authentication endorsed hereon.

 

10


 

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  _____  , 2009.
     
Attest:
  AQUA PENNSYLVANIA, INC.
 
   
                                                            
  By:                                                                                  
(Assistant) Secretary
         Vice President
(Form of Trustee’s Certificate)
This Bond is one of the Bonds, of the series designated therein, referred to in the within-mentioned Forty-fourth Supplemental Indenture.
         
  THE BANK OF NEW YORK
MELLON TRUST COMPANY, N. A.,
as Trustee
 
 
  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 Forty-fourth Supplemental Indenture provided and issued by the Company, valid, binding and legal obligations of the Company, and this Forty-fourth Supplemental Indenture a valid and enforceable supplement to said Original Indenture, have been done, performed and fulfilled, and the execution of this Forty-fourth Supplemental Indenture has been in all respects duly authorized; and
NOW, THEREFORE, THIS FORTY-FOURTH 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 Forty-fourth

 

11


 

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 The Bank of New York Mellon Trust Company, N. A., 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, if any, 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 Forty-third 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.

 

12


 

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 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

 

13


 

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 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:

 

14


 

ARTICLE I.
Form, Authentication and Delivery of the Bonds; Redemption Provisions
SECTION 1. There shall be a fifty-fifth series of bonds, limited in aggregate principal amount to $58,000,000 designated as “Aqua Pennsylvania, Inc., First Mortgage Bonds, 5.00% Series due 2039”.
Interest on the Bonds shall be payable semiannually on April 1 and October 1 of each year (each an “interest payment date”), commencing October 1, 2009. 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 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 5.00%. In any case where the date of payment of the principal of or interest on the Bonds, or the date fixed for redemption of any Bond, is not a Business Day, then payment of the principal or Redemption Price of and interest on such Bond need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the due date of such payment or the date fixed for redemption, and no interest shall accrue for the period after such date.
The Bonds of each series 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-1” 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 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

 

15


 

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 Facilities.
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 Bonds are subject to redemption prior to maturity on or after October 1, 2019 by the Company, to the extent that the Authority Bonds are called for redemption under Section 7.01(a)(i) 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 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 to be redeemed, plus interest accrued thereon to the date fixed for redemption, at any time the Authority Bonds maturing October 1, 2039 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

 

16


 

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 maturing October 1, 2039 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.
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 Forty-fourth 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.
SECTION 7. The 5.00% Series due 2039 in the aggregate principal amount of $58,000,000 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.

 

17


 

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 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 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 and the 6.89% Subseries C due 2015) shall 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 6.21% Series due 2011, the 9.53% Subseries D due 2019, the 8.26% Subseries F due 2022, 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 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 cease to be outstanding, 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, or on or before March 1 next occurring after the bonds of the 5.05% Series due 2039 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 5.00% Series due 2036 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 5.00% Series due 2037 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 5.00% Series due 2038 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 5.00% Series due 2035 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 5.00% Series due 2040 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 5.00% Series due 2041 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 5.25% Series due 2042 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 5.25% Series due 2043 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 6.25% Series due 2017 cease to be outstanding, or on or before March 1 next occurring after the bonds of the 6.75% Series due 2018 cease to be outstanding whichever is latest, an amount in 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

 

18


 

(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;
(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

 

19


 

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.
SECTION 3. 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

 

20


 

(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 Forty-fourth 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, 2008, 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:
“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.

 

21


 

“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.
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 Forty-fourth 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

 

22


 

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 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. §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. §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. §1251 et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. §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. §§655 and

 

23


 

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, Thirty-Seventh, Thirty-Eighth, Thirty-Ninth, Fortieth, Forty-first, Forty-second and Forty-third Supplemental Indentures are hereby confirmed. All references in this Forty-fourth 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.
SECTION 2. Any notices to the Trustee under this Forty-fourth 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:
The Bank of New York Mellon Trust Company, N. A.
Global Corporate Trust
1600 Market Street, Suite 1500
Philadelphia, PA 19103
Attention: Philip Newmuis
Phone: 215-640-8455
Fax: 215-9981-0316/0352
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 Forty-fourth 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 Forty-fourth Supplemental Indenture is dated as of July 1, 2009 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.

 

24


 

SECTION 5. In order to facilitate the recording or filing of this Forty-fourth 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 Forty-fourth Supplemental Indenture shall become effective 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 the issuance of the 5.00% Series due 2039 on July 16, 2009

 

25


 

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 day first above written.
             
[CORPORATE SEAL]       AQUA PENNSYLVANIA, INC.,
 
          as successor by merger to
 
          Philadelphia Suburban Water Company
 
           
Attest:
  Robert A. Rubin   By:   Stephen Anzaldo
 
           
 
          Treasurer
 
           
[CORPORATE SEAL]       THE BANK OF NEW YORK
 
          MELLON TRUST COMPANY, N. A.,
 
          as Trustee
 
           
Attest:
  Michael L. Shelton   By:   Philip S. Newmuis
 
           
 
  Authorized Officer       Name: Philip S. Newmuis
 
          Title:   Authorized Signer

 

26


 

EXHIBIT A
OUTSTANDING FIRST MORTGAGE BONDS
                                             
        Interest     Issue     Maturity     Original     Balance (incl. CP)  
Division   Structure   Rate     Date     Date     Amount     @ 06/01/09  
Aqua Pa
  Tax Exempt     5.35 %     11/01/01       10/01/31       30,000,000       30,000,000  
Aqua Pa
  Tax Exempt     5.55 %     06/01/02       09/01/32       25,000,000       25,000,000  
Shenango
  Tax Exempt     6.00 %     10/01/99       06/01/29       25,000,000       25,000,000  
Aqua Pa
  Tax Exempt     6.00 %     06/28/00       07/01/30       18,360,000       18,360,000  
Roaring Creek
  Tax Exempt     5.05 %     11/30/04       10/01/39       14,000,000       14,000,000  
Aqua Pa
  Tax Exempt     3.75 %     12/31/02       06/01/10       3,200,000       400,000  
Aqua Pa
  Tax Exempt     5.15 %     06/26/02       09/01/32       25,000,000       25,000,000  
Aqua Pa
  Tax Exempt     5.00 %     05/19/05       11/01/36       21,770,000       21,770,000  
Aqua Pa
  Tax Exempt     5.00 %     05/19/05       11/01/37       24,165,000       24,165,000  
Aqua Pa
  Tax Exempt     5.00 %     05/19/05       11/01/38       25,375,000       25,375,000  
Aqua Pa
  Tax Exempt     5.00 %     12/28/06       02/01/35       24,675,000       24,675,000  
Aqua Pa
  Tax Exempt     5.00 %     01/16/07       02/01/40       23,915,000       23,915,000  
Aqua Pa
  Tax Exempt     5.00 %     01/16/07       02/01/41       23,915,000       23,915,000  
Aqua Pa
  Tax Exempt     5.25 %     12/20/07       07/01/42       24,830,000       24,830,000  
Aqua Pa
  Tax Exempt     5.25 %     12/20/07       07/01/43       24,830,000       24,830,000  
Aqua Pa
  Tax Exempt     6.25 %     12/18/08       10/01/17       9,000,000       9,000,000  
Aqua Pa
  Tax Exempt     6.75 %     12/18/08       10/01/18       13,000,000       13,000,000  
                                 
 
                                356,035,000       353,235,000  
                                 
 
                                           
Aqua Pa
  Taxable     5.93 %     06/26/02       07/01/12       25,000,000       25,000,000  
Aqua Pa
  Taxable     6.21 %     10/25/01       11/01/11       15,000,000       15,000,000  
Aqua Pa
  Taxable     6.89 %     12/19/95       12/15/15       12,000,000       12,000,000  
Aqua Pa
  Taxable     7.72 %     05/19/95       05/15/25       15,000,000       15,000,000  
Shenango
  Taxable     8.14 %     11/01/95       11/01/25       4,000,000       4,000,000  
Susquehanna
  Taxable     8.26 %     11/01/92       11/01/22       1,500,000       1,500,000  
Shenango
  Taxable     8.32 %     11/01/92       11/01/22       3,500,000       3,500,000  
Aqua Pa
  Taxable     9.12 %     01/12/90       01/15/10       20,000,000       20,000,000  
Aqua Pa
  Taxable     9.17 %     11/01/91       09/15/21       8,000,000       5,200,000  
Aqua Pa
  Taxable     9.17 %     11/01/91       09/15/11       5,000,000       5,000,000  
Aqua Pa
  Taxable     9.29 %     11/01/91       09/15/26       12,000,000       12,000,000  
Roaring Creek
  Taxable     9.53 %     12/15/89       12/15/19       4,000,000       4,000,000  
Aqua Pa
  Taxable     9.93 %     06/01/88       06/01/13       5,000,000       5,000,000  
Aqua Pa
  Taxable     9.97 %     06/01/88       06/01/18       5,000,000       5,000,000  
Aqua Pa
  Taxable     5.08 %     05/10/04       05/15/15       20,000,000       20,000,000  
Aqua Pa
  Taxable     5.17 %     05/10/04       05/10/17       7,000,000       7,000,000  
Aqua Pa
  Taxable     5.751 %     05/10/04       05/15/19       15,000,000       15,000,000  
Aqua Pa
  Taxable     5.751 %     05/10/04       05/15/19       5,000,000       5,000,000  
Aqua Pa
  Taxable     6.06 %     05/10/04       05/10/27       15,000,000       15,000,000  
Aqua Pa
  Taxable     6.06 %     05/10/04       05/15/27       5,000,000       5,000,000  
Aqua Pa
  Taxable     5.98 %     05/10/04       05/15/28       3,000,000       3,000,000  
                                 
 
                                205,000,000       202,200,000  
                                 
    TOTAL FIRST MORTGAGE BONDS             561,035,000       555,435,000  
                                 

 

27


 

EXHIBIT B
RECORDING INFORMATION
BUCKS, CHESTER, DELAWARE AND MONTGOMERY COUNTIES
                                     
        Bucks   Chester   Delaware   Montgomery
Indenture   Date of
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   289
Seventh Supplemental
  9/25/59   1332   509   B-25   109   2442   1   3090   249
Eighth Supplemental
  5/9/61       Z-26   17   2526   312    
Eighth 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   1869   196   O-37   998   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

 

28


 

                                     
        Bucks   Chester   Delaware   Montgomery
Indenture   Date of
Recording
  Book   Page   Book   Page   Book   Page   Book   Page
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
Twentieth Supplemental
  8/2/83   2487   370   D-72   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   360
Twenty-Third Supplemental
  4/1/87   2960   693            
Twenty-Third Supplemental
  4/2/87       680   337   447   1807   6115   602
Twenty-Fourth 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   85898   317
Thirty-Fourth Supplemental      
  10/31/01   2471   1207   5101   2142   2288   0174   9225   761

 

29


 

                                     
        Bucks   Chester   Delaware   Montgomery
Indenture   Date of
Recording
  Book   Page   Book   Page   Book   Page   Book   Page
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
              12/31/02       12/31/02       12/30/02    
Supplemental
  12/27/02   3036   1425   B-5514   1552   02631   0294   10018   0204
Thirty-Eighth
              11/23/04       11/22/04       11/22/04    
Supplemental
  11/9/04   4196   1557   B-6342   800   B-3348   1698   B-00020   0237
Thirty-Ninth
          1471   5/19/05   1375       0939       0688
Supplemental
  5/18/05   4441   #2005066104   6496   #10534807   03487   32005044507   0020   2005069126
Fortieth
              12/23/05   897   12/23/05   2206   12/29/05    
Supplemental
  12/27/05   4768   1853   6720   #10608829   03687   #2005123053   11689   1156
Forty-first
          1290   1/12/07   820   1/11/07       1/30/07   00329
Supplemental
  1/11/07   5250   #2007004610   7058   #10720615   04002   2257   0225   #2007005061
Forty-second
              12/13/07   2091   12/13/07   1166   12/17/07   02498-02544
Supplemental
  12/13/07       #2007119080   7326   #10809606   04262   #2007105884   12287   #2007147147
Forty-third
          2131   12/08/08   1527   12/08/08       12/08/08   2585
Supplemental
  12/08/08   5961   #2008099812   7556   #10889672   4466   1185   12504   #2008115955

 

30


 

BERKS COUNTY
             
Indenture   Date of Recording   Book   Page
Original
  8/16/99   3113   707
Thirty-Second Supplemental
  10/6/99   3132   1510
Thirty-Third Supplemental
  11/30/99   3149   1260
Thirty-Fourth Supplemental
  10/31/01   3421   896
Thirty-Fifth Supplemental
  1/10/02   3461   417
Thirty-Sixth Supplemental
  6/4/02   3544   1357
Thirty-Seventh Supplemental
  12/30/02   3664   0001
Thirty-Eighth Supplemental
  11/30/04   4197   988
Thirty-Ninth Supplemental
  5/18/05   04583   1017
Fortieth Supplemental
  02/09/06   04782   1916
Forty-first Supplemental
  1/11/07   05054   0013
Forty-second
          1398
Supplemental
  12/13/07   05272   #2007073573
Forty-third Supplemental
  12/09/08       #200805825

 

31


 

BRADFORD, COLUMBIA, LAWRENCE, MERCER, NORTHUMBERLAND, PIKE, SCHUYLKILL AND WAYNE COUNTIES
                                     
    BRADFORD   COLUMBIA   LAWRENCE   MERCER
    Date of       Date of       Date of           Date of    
Indenture   Recording   Instrument No.   Recording   Instrument No.   Recording   Book   Page   Recording   Instrument No.
Thirty-Fifth Supplemental     
  12/21/01   200115497               1688   744        
Thirty-Sixth Supplemental
  07/04/02   200207151                            
Thirty-Seventh Supplemental
  12/30/02   200216472                            
Thirty-Eighth Supplemental
  11/22/04   200415112   11/30/04   200413567   11/24/04   1992   0291   11/24/04   2004020435
Thirty-Ninth
                          200        
Supplemental
  5/16/05   200504827   5/18/05   200505042   5/16/2005   2032   #005488   5/13/05   2005-7340
Fortieth
                          0934       2005-
Supplemental
  12/23/05   200594992   12/23/05   200513981   12/27/05   2088   #015325   12/27/05   00020320
Forty-first
                                  2007-
Supplemental
  1/12/07   200700440   1/17/07   200700636   1/11/07   2007   000466   1/12/07   00000583
Forty-second
                                  2007
Supplemental
  12/18/07   200714762   12/20/07   200712896   12/17/07   2007   013275   12/14/07   00016849
Forty-third
                                  2008
Supplemental
  12/10/08   200821178   12/11/08   200812596   12/12/08   2008   00014552   12/12/08   00014552

 

32


 

                                                 
    NORTHUMBERLAND   PIKE   SCHUYLKILL   WAYNE
    Date of           Date of           Date of           Date of        
Indenture   Rec.   Book   Page   Rec.   Book   Page   Rec.   Book   Page   Rec.   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
Thirty-Eighth Supplemental
  11/22/04   1714   748   11/23/04   2081   1757   11/24/04   2126   569   11/23/04   2658   252
Thirty-Ninth
          50           2201           1871-1919       Vol.   1
Supplemental
  5/18/05   1761   #200509076   5/17/05   2109   #200500008491   5/18/05   2150   #200500010263   5/16/05   2769   #200500004960
Fortieth Supplemental
  12/2705   1828   571   12/27/05   2151   1334   12/23/05   2184   875   12/27/05   2944   243
Forty-first
          634           472-515           798-840           229-272
Supplemental
  1/11/07   1933   #200700696   1/12/07   2214   #200700000749   1/11/07   2238   #200700000686   1/16/07   3216   #200700000492
Forty-second
          953           175           473           1
Supplemental
  12/17/07   2024   #200721572   12/19/07   2261   #200700018937   12/18/07   2285   #200700022991   12/18/07   3433   #200700013194
Forty-third
                                              1
Supplemental
  12/10/08       #200819618   12/18/08   2296   268   12/10/08   2324   2159   12/09/08   3633   1-45

 

33


 

ADAMS, CARBON, CUMBERLAND, FOREST, JUNIATA, LACKAWANNA, LUZERNE, MONROE, NORTHAMPTION, SNYDER, SUSQUEHANNA AND WYOMING COUNTIES
                                                 
    ADAMS   CARBON   CUMBERLAND   FOREST
Indenture   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page
Thirty-Eighth Supplemental
  11/23/04   3781   1   11/30/04   200416309       11/22/04   2004047145       11/29/04   231   306
Thirty-Ninth Supplemental
  5/19/05   3970   54   5/18/05   1330   689 #200505926   5/13/05   1907   0247   5/16/05   234   345 #478
Fortieth Supplemental
  12/28/05   4261   162   12/27/05   1408   576   12/27/05   1935   3233   12/27/05   0238   0304
 
Forty-first Supplemental
  1/11/07   4707   2081 #2007000007   1/12/07   1540   548 #200700596   1/11/07   1979   0482   1/09/07   0244   0362 #2007000022
 
Forty-second
          223           261                       219
Supplemental
  12/17/07   5062   200700023048   12/18/07   1650   #200715671   12/14/07   200746336       12/18/07   250   #2007-1339
 
Forty-third
          110           864                       548
Supplemental
  12/10/08   5312   200800020691   12/11/08   1735   #7520A3.03   12/11/08   200839447       12/08/08   255   #200800142
                                                 
    JUNIATA   LACKAWANNA   LUZERNE   MONROE
Indenture   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page
Thirty-Eighth Supplemental
  11/22/04   345   1047   11/29/04   #200441665       11/23/04   3004   294775   11/24/04   2208   7674
Thirty-Ninth Supplemental
  5/13/05   354   0049 #2005-1512   5/16/05   117727 #200512642       5/17/05   3005   #5637329   5/18/05   2225   8444 #200521128
Fortieth Supplemental
  12/22/05   0365   1028   12/23/05   #20536270       12/28/05   3005   349088 #5677739   12/27/05   2252   9105 #200560314
Forty-first Supplemental
  1/09/07   385   0188   1/12/07   #200701277       1/16/07   3007   13425   11/06/07   2320   4708
Forty-second Supplemental
  12/13/07   401   0847 #20073981   12/17/07   #200734133       12/17/07   3007   328532 #5799531   12/17/07   2323   4362 #200745976
Forty-third Supplemental
  12/08/08   418   356 #2008004757   12/11/08   #200829528       12/11/08   3008   262977 #5850129   12/08/08   2346   263 #200834800

 

34


 

                                                 
    NORTHAMPTON   SNYDER   SUSQUEHANNA   WYOMING
Indenture   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page   Date of
Rec.
  Book   Page
Thirty-Eighth Supplemental
  11/22/04   2004-1   452932   11/24/04   631   0001   11/24/04   200411624       11/24/04   0513   0774
 
          182906           135                        
Thirty-Ninth Supplemental
  5/17/05   2005-1   #2005026917   5/17/05   650   #2005028880   5/16/05   #200504384       5/18/05   0522   1289
 
                              Instrument           0536    
Fortieth Supplemental
  12/23/05   2005-1   521563   12/27/05   677   684   12/22/05   #200512620   n/a   12/22/05   #2005004922   0748
Forty-first
          25009           734                        
Supplemental
  1/19/07   2007-1   #2007003204   1/11/07   724   #200700240   1/10/07   #200700387       1/10/07   0558   0959
Forty-second
          446608           178                        
Supplemental
  12/17/07   2007-1   #2007057981   12/18/07   763   #200707447   12/17/07   #200713519       12/18/07   #2007-5154    
Forty-third
                      217                        
Supplemental
  12/09/08   2008-1   320419   12/12/08   803   #220807546   12/09/08   #200818392       12/10/08   #2008-6990    
LEHIGH AND CRAWFORD COUNTIES
                         
    LEHIGH   CRAWFORD
Indenture   Date of Rec.   Book   Page   Date of Rec.   Book   Page
Forty-first
  1/10/07   7390692       1/11/07   856   177
Supplemental
                      #200700000444
Forty-second
  12/14/07   7455854       12/14/07   905   577
Supplemental
                      #200700015228
Forty-third
  12/09/08   2008001239       12/10/08   948   860
Supplemental
                      #200800012935
CLARION, VENANGO AND WARREN COUNTIES
                                                                         
    CLARION     VENANGO     WARREN  
Indenture   Date of Rec.     Book     Page     Date of Rec.     Book     Page     Date of Rec.     Book Page  
Forty-third Supplemental
                                                                       

 

35


 

EXHIBIT C
                                 
    Date of             Recorded        
County and Grantor   Deed     Book     Page     Tax Parcel I.D. Number  
Clarion Co.
                               
Venango Co.
    12/30/08       525       396     Map #09-004-56
Emlenton Water Company
                          Map #09-005-005
 
                          Map #23-007-017
Warren Co.
    04/29/09       1903       326     WN-008-649700
 
            1903       334     WN-868-679800
 
            1903       326     WN-868-835500
 
            1903       341     WN-868-911300
 
            1904       1     WN-869-442100

 

36


 

EXHIBIT D
Copy of Indenture of Mortgage dated as of January 1, 1941

 

37


 

The Bank of New York Mellon Trust Company, N. A., Mortgagee and Trustee named in the foregoing Forty-fourth Supplemental Indenture, hereby certifies that its precise name and the post office address are as follows:
The Bank of New York Mellon Trust Company, N. A.
Global Corporate Trust
1600 Market Street, Suite 1500
Philadelphia, PA 19103
Attention: Philip Newmuis
Telephone: 215-640-8455
Fax: 215-981-0316/0352
         
  THE BANK OF NEW YORK
MELLON TRUST COMPANY, N. A.,
as Trustee
 
 
  By:   Philip S. Newmuis    
    Name:   Philip S. Newmuis   
    Title:   Authorized Signer   

 

38


 

         
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF MONTGOMERY
On the 1st day of July, 2009 before me, the Subscriber, a Notary Public for the Commonwealth of Pennsylvania, personally appeared Stephen Anzaldo, who acknowledged himself to be the Treasurer of Aqua Pennsylvania, Inc., a corporation, and that he as such Treasurer, being authorized to do so, executed the foregoing Forty-fourth 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 himself as such officer.
In Witness Whereof I hereunto set my hand and official seal.
[NOTARIAL SEAL]
         
     
  Lisa S. Piotrowski    
     
     

 

39


 

         
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
On the 1st day of July, 2009 before me, the Subscriber, a Notary Public for the Commonwealth of Pennsylvania, personally appeared Philip Newmuis, who acknowledged himself to be an Authorized Signer of The Bank of New York Mellon Trust Company, N.A., a national banking association, and that he as such Authorized Signer, being authorized to do so, executed the foregoing Forty-fourth 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 himself as such officer.
In Witness Whereof I hereunto set my hand and official seal.
[NOTARIAL SEAL]
         
     
  Sandra M. Abrahams    
     
     
 

 

40