Exhibit 4.27
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THIRTY-THIRD SUPPLEMENTAL
INDENTURE
DATED AS OF NOVEMBER 15, 1999
TO
INDENTURE OF MORTGAGE
DATED AS OF JANUARY 1, 1941
---------------------------
PHILADELPHIA SUBURBAN WATER COMPANY
TO
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
---------------------------
$300,000,000 FIRST MORTGAGE BONDS,
1999 MEDIUM TERM NOTE SERIES
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THIRTY-THIRD SUPPLEMENTAL INDENTURE dated as of the 15th day
of November, 1999, by and between PHILADELPHIA SUBURBAN WATER COMPANY, a
corporation duly organized and existing under the laws of the Commonwealth of
Pennsylvania (the "Company"), party of the first part, and CHASE MANHATTAN TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association (the "Trustee"),
party of the second part.
WHEREAS, the 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 Company conveyed and mortgaged to the 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, on March 29, 1947, concurrently with a merger of
Germantown Trust Company into The Pennsylvania Company for Insurances on Lives
and Granting Annuities, the name of the surviving corporation was changed to The
Pennsylvania Company for Banking and Trusts, on September 30, 1955, concurrently
with a merger of The First National Bank of Philadelphia into The Pennsylvania
Company for Banking and Trusts, the name of the surviving corporation was
changed to The First Pennsylvania Banking and Trust Company, and on June 3,
1974, by amendment to its Articles of Association, The First Pennsylvania
Banking and Trust Company was changed and converted into a national bank and
concurrently therewith changed its name to First Pennsylvania Bank N.A., and on
October 1, 1990, First Pennsylvania Bank N.A. merged with and into The
Philadelphia National Bank, which changed its name to CoreStates Bank, N.A., and
on October 10, 1995, Mellon Bank, N.A. succeeded CoreStates Bank, N.A. as
trustee, and on November 24, 1997, Chase Manhattan Trust Company, National
Association succeeded Mellon Bank, N.A. as Trustee, such mergers, changes of
name and succession as trustee 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 Company duly executed and delivered to the
Trustee a First Supplemental Indenture dated as of July 1, 1948, a Second
Supplemental Indenture dated as of July 1, 1952, a Third Supplemental Indenture
dated as of November 1, 1953, a Fourth Supplemental Indenture dated as of
January 1, 1956, a Fifth Supplemental Indenture dated as of March 1, 1957, a
Sixth Supplemental Indenture dated as of May 1, 1958, a Seventh Supplemental
Indenture dated as of September 1, 1959, an Eighth Supplemental Indenture dated
as of May 1, 1961, a Ninth Supplemental Indenture dated as of April 1, 1962, a
Tenth Supplemental Indenture dated as of March 1, 1964, an Eleventh Supplemental
Indenture dated as of November 1, 1966, a Twelfth Supplemental Indenture dated
as of January 1, 1968, a Thirteenth Supplemental Indenture dated as of June 15,
1970, a Fourteenth Supplemental Indenture dated as of November 1, 1970, a
Fifteenth Supplemental Indenture dated as of December 1, 1972, a Sixteenth
Supplemental Indenture dated as of May 15, 1975, a Seventeenth Supplemental
Indenture dated as of December 15, 1976, an Eighteenth Supplemental Indenture
dated as of May 1, 1977, a Nineteenth Supplemental Indenture dated as of June 1,
1980, a Twentieth Supplemental Indenture dated as of August 1, 1983, a
Twenty-First Supplemental Indenture, dated as of August 1, 1985, a Twenty-Second
1
Supplemental Indenture, dated as of April 1, 1986, a Twenty-Third Supplemental
Indenture, dated as of April 1, 1987, a Twenty-Fourth Supplemental Indenture,
dated as of June 1, 1988, a Twenty-Fifth Supplemental Indenture, dated as of
January 1, 1990, a Twenty-Sixth Supplemental Indenture, dated as of November 1,
1991, a Twenty-Seventh Supplemental Indenture, dated as of June 1, 1992,
Twenty-Eighth Supplemental Indenture, dated as of April 1, 1993, a Twenty-Ninth
Supplemental Indenture dated as of March 1, 1995, a Thirtieth Supplemental
Indenture dated as of August 15, 1995, a Thirty-First Supplemental Indenture
dated as of July 1, 1997 and a Thirty-Second Supplemental Indenture dated as of
October 1, 1999 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, the Company has issued under the Original Indenture,
as supplemented at the respective dates of issue, thirty-eight series of First
Mortgage Bonds designated, respectively, as set forth in the following table,
the Indenture creating each series and the principal amount of bonds thereof
issued being indicated opposite the designation of such series:
Designation Indenture Amount
3 1/4% Series due 1971 Original $16,375,000
9 5/8% Series due 1975 Thirteenth Supplemental 10,000,000
9.15% Series due 1977 Fourteenth Supplemental 10,000,000
3% Series due 1978 First Supplemental 2,000,000
3 3/8% Series due 1982 Second Supplemental 4,000,000
3.90% Series due 1983 Third Supplemental 5,000,000
3 1/2% Series due 1986 Fourth Supplemental 6,000,000
4 1/2% Series due 1987 Fifth Supplemental 4,000,000
4 1/8% Series due 1988 Sixth Supplemental 4,000,000
5% Series due 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
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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
6.35% Series due 2025 Thirtieth Supplemental 22,000,000
9.29% Series due 2026 Twenty-Sixth Supplemental 12,000,000
1995 Medium Term Note
Series Twenty-Ninth Supplemental 77,000,000
7.72% Subseries A due 2025 15,000,000
6.82% Subseries B due 2005 10,000,000
6.89% Subseries C due 2015 12,000,000
6.99% Subseries D due 2006 10,000,000
7.47% Subseries E due 2003 10,000,000
6.83% Subseries F due 2003 10,000,000
7.06% Subseries G due 2004 10,000,000
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
6.00% Subseries F due 2004 15,000,000
6.00% Series due 2029 Thirty-Second Supplemental 25,000,000
and
WHEREAS, all of the bonds of each of said series are presently
outstanding other than the bonds listed on Exhibit A attached hereto and made a
part hereof; and
WHEREAS, the Original Indenture and said Supplemental
Indentures were duly recorded in the Commonwealth of Pennsylvania on the dates
and in the office for the Recording of Deeds for the following counties in the
Mortgage Books and at the pages indicated in the following table:
[continued on next page]
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COUNTY
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Bucks Chester Delaware Montgomery
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Date of
Indenture Recording Book Page Book Page Book Page Book Page
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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
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 797
Thirty -Second Supplemental 10/6/99 1936 1207 8548 1067
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4
and
WHEREAS, the Original Indenture was recorded in Berks County
on August 16, 1999 and the Thirty-Second Supplemental Indenture was recorded in
Berks County on October 6, 1999 in Books 3113 and 3132 at Pages 707 and 1510,
respectively; and
WHEREAS, the Company proposes to create under the Original
Indenture, as supplemented, one or more new series of bonds to be designated
"First Mortgage Bonds, 1999 Medium Term Note Series, Subseries __" (the "Bonds")
to be limited in aggregate principal amount to $300,000,000, to be issued
hereunder only as registered bonds without coupons, to be dated as provided in
the Original Indenture and this Thirty-Third Supplemental Indenture, to bear
interest at the rates and mature on the dates as determined hereunder by the
Company; and
WHEREAS, the Bonds may be issued in a single series or from
time to time in more than one series designated as a "subseries" and, if so
issued in more than one subseries, each subseries of the Bonds shall bear a
separate letter designation and the first such subseries of the Bonds shall be
designated "First Mortgage Bonds, 1999 Medium Term Note Series, Subseries A";
and
WHEREAS, the Company proposes to issue $300,000,000 principal
amount of the Bonds under the provisions of Article IV of the Original
Indenture, as supplemented by this Thirty-Third Supplemental Indenture, in one
or more transactions over a period of up to five years from November 18, 1999
through November 17, 2004 (the "Offering Period"), and, for each such
transaction, 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
5
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, in addition to the property described in 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 and Thirty-Second
Supplemental Indentures, the Company has acquired or will acquire certain other
property and desires to confirm the lien of the Original Indenture thereon; and
WHEREAS, the Company, by proper corporate action, has duly
authorized the creation of said new series of Bonds (to be issued in accordance
with the terms and provisions of the Original Indenture and indentures
supplemental thereto, including this Thirty-Third Supplemental Indenture, and to
be secured by said Original Indenture and indentures supplemental thereto,
including this Thirty-Third Supplemental Indenture), and has further duly
authorized the execution, delivery and recording of this Thirty-Third
Supplemental Indenture setting forth the terms and provisions of the Bonds
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 Thirty-Third Supplemental Indenture to conform to any
pertinent law or usage:
[continued on next page]
6
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND SALES OR OTHER TRANSFERS HEREOF MAY BE MADE ONLY TO QUALIFIED
INSTITUTIONAL BUYERS AS DEFINED IN RULE 144A UNDER THE ACT ("QUALIFIED
INSTITUTIONAL BUYERS"), APPROVED BY [AGENT(S)] OR ANOTHER DULY APPOINTED
PLACEMENT AGENT (THE "PLACEMENT AGENTS") OR BY THE COMPANY IN TRANSACTIONS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE ACT.
BY ITS ACCEPTANCE OF THIS BOND, THE HOLDER REPRESENTS AND AGREES THAT IT IS A
QUALIFIED INSTITUTIONAL BUYER AND THAT THIS BOND IS BEING ACQUIRED FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY FOR OTHERS FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR SALE IN CONNECTION WITH, THE PUBLIC
DISTRIBUTION HEREOF IN ANY TRANSACTION THAT WOULD BE IN VIOLATION OF FEDERAL OR
STATE SECURITIES LAWS, AND THAT ANY RESALE OR OTHER TRANSFER HEREOF OR ANY
INTEREST HEREIN PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF (A) ITS
DATE OF ISSUE OR (B) THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES
WAS THE BENEFICIAL OWNER HEREOF WILL BE MADE ONLY (1) TO A PLACEMENT AGENT OR
THE COMPANY, (2) THROUGH ANY PLACEMENT AGENT OR BY ANY PLACEMENT AGENT ACTING AS
PRINCIPAL TO A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE APPROVED BY SUCH
PLACEMENT AGENT, (3) DIRECTLY TO A QUALIFIED INSTITUTIONAL BUYER APPROVED BY THE
COMPANY IN A TRANSACTION APPROVED BY THE COMPANY, (4) THROUGH A DEALER OTHER
THAN A PLACEMENT AGENT TO A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE IN A
TRANSACTION APPROVED BY THE COMPANY, OR (5) DIRECTLY TO A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A
UNDER THE ACT, SUBJECT TO IN EACH CASE THE DISPOSITION OF THE PURCHASER'S
PROPERTY BEING AT ALL TIMES WITHIN ITS CONTROL. IN THE CASE OF CERTIFICATED
BONDS, ANY TRANSFER DESCRIBED IN CLAUSE (3), (4) OR (5) ABOVE REQUIRES THE
SUBMISSION TO THE TRUSTEE (AS DEFINED HEREIN) OR DULY AUTHORIZED PAYING AGENT
(AS DEFINED HEREIN) OF THE CERTIFICATE OF TRANSFER ATTACHED HERETO DULY
COMPLETED OR A DULY COMPLETED TRANSFER INSTRUMENT SUBSTANTIALLY IN THE FORM OF
THE CERTIFICATE OF TRANSFER. THE COMPANY SHALL NOT RECOGNIZE ANY RESALE OR OTHER
TRANSFER, OR ATTEMPTED RESALE OR OTHER TRANSFER, OF THIS BOND NOT MADE IN
COMPLIANCE WITH THE FOREGOING PROVISIONS. THIS BOND AND RELATED DOCUMENTATION
MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON
THE PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS BOND TO REFLECT ANY
CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR
PROVIDE ALTERNATIVE PROCEDURES IN COMPLIANCE WITH APPLICABLE LAW AND PRACTICES
RELATING TO THE RESALE OR OTHER TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE
HOLDER OF THIS BOND SHALL BE DEEMED, BY THE ACCEPTANCE OF THIS BOND, TO HAVE
AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
[Bonds eligible for deposit at The Depository Trust Company shall also bear the
following legend:]
THIS BOND IS A PERMANENT GLOBAL BOND. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
7
No. R- $_________
PHILADELPHIA SUBURBAN WATER
COMPANY
(Incorporated under the Laws of the Commonwealth
of Pennsylvania)
First Mortgage Bond, 1999 Medium Term Note Series,
Subseries _____
PRINCIPAL AMOUNT ______________________________
ORIGINAL ISSUE DATE ___________________________
INTEREST RATE _________________________________
MATURITY DATE _________________________________
INITIAL REDEMPTION DATE _______________________
INITIAL REDEMPTION PERCENTAGE _________________
ANNUAL REDEMPTION REDUCTION PERCENTAGE ________
[OPTIONAL TENDER DATE__________________________]
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 Cede & Co., as nominee for The Depository Trust Company
("DTC") or its registered assigns, on the Maturity Date referred to above, the
sum of and to pay interest thereon at the Interest Rate per annum specified
above, until the principal hereof is paid or duly made available for payment,
semiannually on January 1 and July 1 (each an "Interest Payment Date") in each
year commencing on the first Interest Payment Date next succeeding the Original
Issue Date specified above (the "Original Issue Date"), unless the Original
Issue Date or the date of authentication occurs between a Record Date, as
defined below, and the next succeeding Interest Payment Date, in which case
commencing on the second Interest Payment Date succeeding the Original Issue
Date, to the registered holder of this bond of the 1999 Medium Term Note Series,
as defined below, on the Record Date with respect to such Interest Payment Date,
and on the maturity date specified on the face hereof (the "Maturity Date"), any
date fixed for redemption pursuant to the terms hereof (the "Redemption Date")
or any date fixed for the optional tender pursuant to the terms hereof (the
"Tender Date"). Interest on this Bond of the 1999 Medium Term Note Series, as
defined below, will accrue from the most recent Interest Payment Date to which
interest has been paid or duly provided for or, if no interest has been paid,
from the Original Issue Date specified above, until the principal hereof has
been paid or made duly available for payment. If the Maturity Date (or any
Redemption Date or Tender Date) or an Interest Payment Date falls on a day which
is not a Business Day, as defined below, principal (and premium, if any) or
8
interest payable with respect to such Maturity Date (or Redemption Date or
Tender Date) or Interest Payment Date will be paid on the next succeeding
Business Day with the same force and effect as if made on such Maturity Date (or
Redemption Date or Tender Date) or Interest Payment Date, as the case may be,
and no interest shall accrue with respect to such payment for the period from
and after such Maturity Date (or Redemption Date or Tender Date) or Interest
Payment Date. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, subject to certain exceptions, be paid to the
nominee of DTC, in whose name this Bond of the 1999 Medium Term Note Series is
registered at the close of business on the Record Date for such interest, which
shall be the 15th day of the calendar month preceding such Interest Payment
Date; provided, however, that interest payable on the Maturity Date (or any
Redemption Date or Tender Date) will be payable to the person to whom the
principal hereof shall be payable. As used herein, "Business Day" means any day
other than a Saturday or Sunday, on which the Trustee, any paying agent, or
banks in New York, New York are not required or authorized by law, or executive
order, to close.
The interest so payable will (except as otherwise provided in
the Thirty-Third Supplemental Indenture referred to herein) be calculated on the
basis of a 360-day year of twelve 30-day months.
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 Company to The Pennsylvania Company
for Insurances on Lives and Granting Annuities (now Chase Manhattan Trust
Company, National Association, as successor trustee), as Trustee (hereinafter
called the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the holders and
registered owners of the bonds and of the Trustee in respect of such security,
and the terms and conditions under which the bonds are and are to be secured and
may be issued under the Indenture; but neither the foregoing reference to the
Indenture nor any provision of this bond or of the Indenture or of any indenture
supplemental thereto shall affect or impair the obligation of the Company, which
is absolute and unconditional, to pay at the stated or accelerated maturity
herein and in the Indenture provided, the principal of, (premium if any) and
interest on this bond as herein provided. As provided in the Indenture, the
bonds may be issued in series for various principal amounts, may bear different
dates and mature at different times, may bear interest at different rates and
may otherwise vary as in the Indenture provided or permitted. This bond is one
of the bonds described in an indenture supplemental to said Indenture known as
the "Thirty-Third Supplemental Indenture" dated as of November 15, 1999, and
designated therein as "First Mortgage Bonds, 1999 Medium Term Note Series,
Subseries __" (the "Bonds of the 1999 Medium Term Note Series").
The Bonds of the 1999 Medium Term Note Series will be issued
in fully registered form, without coupons. The Bonds of the 1999 Medium Term
Note Series will be deposited with, or on behalf of DTC and registered in the
name of a nominee of DTC in the form of one or more global securities (the
"Global Bonds")
9
or will remain in the custody of the Trustee pursuant to a Medium-Term Note
Certificate Agreement, dated December 2, 1988, between DTC and The Chase
Manhattan Bank, which was merged into Chemical Bank, which changed its name to
The Chase Manhattan Bank. DTC was created to hold securities of persons who have
accounts with DTC ("participants") and to facilitate the clearance and
settlement of securities transactions among its participants in such securities
through electronic book-entry changes in accounts of the participants.
Upon the issuance of a Global Bond, DTC or its nominees will
credit the respective Bonds of the 1999 Medium Term Note Series represented by
such Global Bond to accounts of participants. The accounts to be credited shall
be designated by the purchasers. Ownership of beneficial interests in such
Global Bonds will be limited to participants or persons that may hold interests
through participants. Ownership of beneficial interests by participants in such
Global Bonds will be shown on, and the transfer of those ownership interests
will be effected only through, records maintained by DTC or its nominee for such
Global Bonds. Ownership of beneficial interests in such Global Bonds by persons
that hold through participants will be shown on, and the transfer of that
ownership interest within such participant will be effected only through,
records maintained by such participant.
So long as DTC or its nominee is the registered owner of a
Global Bond, DTC or such nominee, as the case may be, will be considered the
sole owner or holder of those Bonds of the 1999 Medium Term Note Series
beneficially owned by other persons for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in such Global Bonds will not
be entitled to have the Bonds of the 1999 Medium Term Note Series registered in
their names, will not receive or be entitled to receive physical delivery of the
Bonds of the 1999 Medium Term Note Series in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Payment of principal of and any interest on the Bonds of the
1999 Medium Term Note Series registered in the name of or held by DTC or its
nominee will be made to DTC or its nominee, as the case may be, as the
registered owner or the holder of the Global Bond. Neither the Company, the
Trustee nor any paying agent for the Bonds of the 1999 Medium Term Note Series
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Bond or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. Payment of principal or any interest on the
Certificated Bonds (as defined below), if any, will be made to the registered
owners thereof.
The Company expects that DTC, upon receipt of any payment of
principal or interest in respect of a permanent Global Bond, will credit
immediately participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of such Global
Bond as shown on the records of DTC. The Company also expects that payments by
participants to owners of beneficial interests in such Global Bond held through
such participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of customers
in bearer form or registered in "street name", and will be the responsibility of
such participants.
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A Global Bond may not be transferred except as a whole by DTC
to a nominee or a successor of DTC. If DTC is at any time unwilling or unable to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue Bonds of the 1999 Medium Term
Note Series in definitive registered form (the "Certificated Bonds") in exchange
for the Global Bond or Bonds representing such Bonds of the 1999 Medium Term
Note Series. In addition, the Company may at any time and in its sole discretion
determine not to have some of or all the bonds of the 1999 Medium Term Note
Series represented by one or more Global Bonds and, in such event, will issue
bonds of the 1999 Medium Term Note Series in definitive registered form in
exchange for all of the Global Bonds representing such Bonds of the 1999 Medium
Term Note Series. In any such instance, an owner of a beneficial interest in a
Global Bond will be entitled to physical delivery of Certificated Bonds
represented by such Global Bond equal in amount to that represented by such
beneficial interest and to have such Certificated Bonds registered in its name.
Payments of principal, premium, if any, and interest shall be
made in such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts. Payments of interest,
other than interest payable at the Maturity Date, or any earlier Redemption Date
or Tender Date, will be paid in immediately available funds by wire transfer to
the account of Cede & Co., as nominee for DTC, or, in the case of Certificated
Bonds, by check mailed to the registered holder of such bond at the address
shown in the Register maintained by the Trustee, or at the option of the
registered holder, at such place in the United States of America as the
registered holder shall designate to the Trustee in writing. Notwithstanding the
foregoing, the registered holder of $10,000,000 or more of Certificated Bonds
with the same Interest Payment Date shall be entitled to receive payment by wire
transfer of immediately available funds, provided that written instructions
designating the account number and bank in New York, New York (or other bank
consented to by the Company) shall have been received by the Trustee not less
than ten (10) days prior to the Record Date for such Interest Payment Date. Once
such wire transfer instructions have been received by the Trustee they shall
remain in effect unless (i) the Trustee is notified, in writing, of a change
thereof not less than ten (10) days prior to the Record Date for an Interest
Payment Date; or (ii) the registered holder no longer holds an aggregate
principal amount of at least $10,000,000 of Certificated Bonds having the same
Interest Payment Date.
The principal amount hereof, premium, if any, and interest due
on the Redemption Date, Tender Date or at the Maturity Date will be paid on the
Redemption Date, Tender Date or at the Maturity Date in immediately available
funds by wire transfer to such account at a bank in New York, New York (or such
other bank consented to by the Company) as such holder of the bond of the 1999
Medium Term Note Series shall have designated for such payment or for the
payment of interest as provided above. Payment to a registered holder of Bonds
of the 1999 Medium Term Note Series for which appropriate instructions for
payment have not been received by the Trustee not later than ten (10) days prior
to the related date of payment shall be made by check mailed by the Trustee to
the person entitled thereto at such person's address appearing in the registry
maintained by the Trustee. Wire transfer instructions received by the Trustee in
connection with the payment of principal, premium, if any, and interest due on
the Redemption Date, Tender Date or the Maturity Date of the Bond of the 1999
Medium Term Note Series shall remain in effect unless the Trustee is notified of
a change thereof not less than ten (10) days prior to the Redemption Date,
Tender Date or Maturity Date. Payment of principal, premium, if any, and
interest due on the Redemption Date, Tender Date or the Maturity Date on the
Bond of the 1999 Medium Term Note Series shall only be made against presentation
and surrender of this bond at a delivery office designated by the Trustee and
maintained for that purpose in Dallas, Texas, or at such other office or agency
of the Company as the Company shall designate.
11
So long as the Bonds of the 1999 Medium Term Note Series are
in book-entry form represented by Global Bonds registered in the name of Cede &
Co., or another nominee of DTC, then Cede & Co., or such other nominee of DTC,
as the case may be, will be considered the sole owner or holder of the Bonds of
the 1999 Medium Term Note Series represented by such Global Bond for the purpose
of receiving payment on the Bonds of the 1999 Medium Term Note Series, receiving
notices and for all other purposes under the Indenture or the Global Bond.
Ownership of beneficial interests in Global Bonds will be limited to persons who
have accounts with DTC (the "participants") or persons that may hold interests
through participants. Beneficial interests in a Global Bond will be evidenced
only by, and transfers thereof will be effected only through, records maintained
by DTC. Ownership of beneficial interests in such Global Bonds by persons that
hold through participants will be shown on, and the transfer of that ownership
interest within such participant will be effected only through, records
maintained by such participant. In the case of Certificated Bonds, subject to
certain restrictions set forth on the face hereof and in the Indenture, this
bond may be transferred at the aforesaid office of the Trustee by surrendering
this bond for cancellation, accompanied by a written instrument of transfer in
form satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing, and
thereupon the Trustee will issue in the name of the transferee or transferees,
in exchange hereof, a new bond or bonds having identical terms and provisions
and having a like aggregate principal amount in authorized denominations,
subject to the terms and conditions set forth herein; provided, however, that
the Trustee will not be required to register the exchange or transfer of any
Bond of the 1999 Medium Term Note Series after the first notice of redemption of
such bond has been mailed or after the first notice of Tender (hereinafter
defined) of such Bond has been received by the Trustee or during a period
beginning at the opening of business ten (10) days preceding an Interest Payment
Date. Bonds of the 1999 Medium Term Note Series are exchangeable at said office
for other Bonds of the 1999 Medium Term Note Series of other authorized
denominations of equal aggregate principal amount and having identical terms and
provisions. All such exchanges of Bonds of the 1999 Medium Term Note Series will
be free of charge, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge in connection therewith. All bonds of
the 1999 Medium Term Note Series surrendered for exchange shall be accompanied
by a written instrument of transfer in the form attached hereto to the Trustee
and executed by the registered holder in person or by the holder's attorney duly
authorized in writing.
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
12
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 of the 1999 Medium Term Note Series are subject to
redemption at the option of the Company on or after the Initial Redemption Date
specified on the face hereof (if any), either as a whole or in part, in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $100,000) on any Interest Payment Date in coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts at the Redemption Price equal to the Initial Redemption
Percentage specified on the face hereof of the principal amount hereof, which
shall decline on each anniversary of the Initial Redemption Date by the Annual
Redemption Reduction Percentage specified on the face hereof of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount, in each case plus accrued interest to the Redemption Date.
The Bonds of the 1999 Medium Term Note Series are subject to
mandatory redemption (i) in connection with the sale to or other acquisition by
or on behalf of one or more governments or municipal corporations or other
governmental subdivisions, bodies, authorities or agencies of all or
substantially all of the property of the Company, or (ii) in connection with any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
occurring in connection with or subsequent to the acquisition of all or
substantially all of the stock of the Company ordinarily entitled to voting
rights by or on behalf of one or more governments or municipal corporations or
other governmental subdivisions, bodies, authorities or agencies. In such a
mandatory redemption, the Bonds of the 1999 Medium Term Note Series are
redeemable 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, at
one hundred per cent (100%) of the principal amount thereof, together with
interest accrued thereon to the Redemption Date.
Any redemption shall be effected by notice mailed to the
registered owners thereof, as provided in the Indenture, at least thirty (30)
days before the Redemption Date, all on the conditions and in the manner
provided in the Indenture.
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 Redemption Date. In the event of redemption of this bond in part only,
a new bond for the unredeemed portion hereof shall be issued in the name of the
holder hereof upon the surrender hereof.
14
[Tender Bonds only - This bond is subject to optional tender
("Tender"), in its entirety, by holders thereof on the first Interest Payment
Date ("Tender Date") next succeeding the tenth anniversary of the Original Issue
Date 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 at a tender
price ("Tender Price") of one hundred percent (100%) of the principal amount
thereof, plus accrued interest to the Tender Date.
Any Tender shall be effectuated by (1) notice ("Tender
Notice") mailed (by registered mail with return receipt requested or other
courier or express delivery service) by the registered owner of a Bond of the
1999 Medium Term Note Series to the Trustee at least thirty (30) days prior to
the Tender Date, and (2) presentment to the Trustee of said Bond[s] of the 1999
Medium Term Note Series at least five (5) Business Days prior to the Tender
Date.
If a Bond of the 1999 Medium Term Note Series which is subject
to Tender is tendered and payment thereof is duly provided for, interest shall
cease to accrue hereon from and after the Tender Date.
By delivery of the Tender Notice, the owner irrevocably agrees
to deliver the bond or bonds described therein (if such bonds are in
certificated form) to the delivery office of the Trustee at least five (5)
Business Days prior to the Tender Date. The determination by the Trustee of a
bondholder's compliance with the requirement of the Tender Notice is in its sole
discretion and binding on the Company and the holder of the bond or bonds. Any
Tender Notice which is determined not to be in compliance with the Thirty-Third
Supplemental Indenture shall be of no force and effect.
If a holder who gives a Tender Notice shall fail to deliver
the bond identified in the Tender Notice to the Trustee at or prior to 10:00
a.m. on the Purchase Date, such bond shall be deemed purchased and shall cease
to accrue interest on such Tender Date and the holder thereof shall thereafter
be entitled only to payment of the Tender Price therefor and to no other
benefits of the Thirty-Third Supplemental Indenture.
Notwithstanding anything to the contrary herein, the right of
the holders of a bond to tender the bonds shall cease immediately and without
further notice from and including the date on which the Trustee notifies the
holder of such bond of an acceleration under Article XI of the Indenture.]
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 then
outstanding, including the Bonds of the 1999 Medium Term Note Series, to annul
such declaration.
The Company, the Trustee and any Paying Agent 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.
14
When any notice to holders of the Bonds of the 1999 Medium
Term Note Series requesting consents, waivers, votes or other actions of such
holders is given by the Trustee hereunder at any time that the Bonds of the 1999
Medium Term Note Series are represented by Global Bonds registered in the name
of Cede & Co., or another nominee of DTC, such notice shall be sent by the
Trustee to DTC with a request that DTC forward (or cause to be forwarded) the
notice to the DTC participants so that DTC participants may forward (or cause to
be forwarded) the notice to the beneficial owners. The Trustee shall be entitled
to rely on any omnibus proxy delivered by DTC and to consider those DTC
participants to whose account the Bonds of the 1999 Medium Term Note Series are
credited on any record date or special record date, as appropriate, and
identified in a listing attached to the omnibus proxy, as owners of the
aggregate amount of Bonds of the 1999 Medium Term Note Series set forth on such
listing for purposes of any consent, waiver, vote or other action of holders of
such Bonds of the 1999 Medium Term Note Series.
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.
The Bonds of the 1999 Medium Term Note Series and related
documentation may be amended or supplemented from time to time by the Company
without the consent of any holder of Bonds of the 1999 Medium Term Note Series
to modify the restrictions on and procedures for resale and other transfers of
the Bonds of the 1999 Medium Term Note Series to reflect any change in
applicable law or regulation (or the interpretation thereof) or provide
alternative procedures in compliance with applicable law and practices relating
to the resale or other transfer of restricted securities generally. Each holder
of any bond of the 1999 Medium Term Note Series will be deemed, by the
acceptance of such bond, to have agreed to any such amendment or supplement.
The Company agrees to make available to any holder of Bonds of
the 1999 Medium Term Note Series or a prospective purchaser of Bonds of the 1999
Medium Term Note Series, each of whom is a Qualified Institutional Buyer as
defined in Rule 144A of the Securities Act of 1933, as amended, such information
required by Rule 144A to enable resales of the Bonds of the 1999 Medium Term
Note Series to be made pursuant to Rule 144A. However, the Company shall not be
required to provide more information than was required by Rule 144A as
originally adopted but may elect to do so, if necessary, under subsequent
revisions of Rule 144A.
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 Chase Manhattan Trust Company, National Association, as
Trustee under the Indenture, or a successor trustee thereunder, shall have
signed the certificate of authentication endorsed hereon.
This Bonds of the 1999 Medium Term Note Series shall be deemed
to be a contract and shall be construed in accordance with and governed by the
laws of the Commonwealth of Pennsylvania (excluding laws governing conflicts of
law).
15
IN WITNESS WHEREOF, Philadelphia Suburban Water Company 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 ____________.
PHILADELPHIA SUBURBAN
Attest: WATER COMPANY
By______________________________
- -----------------------------
Assistant Secretary Vice President and Treasurer
[Form of Trustee's Certificate]
This bond is one of the bonds, of the series designated
therein, referred to in the within-mentioned Thirty-Third Supplemental
Indenture.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, TRUSTEE
By:____________________________
Authorized Officer
[Form of Certificate of Transfer]
(To be delivered with a Certificated Bond to the Trustee)
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
(please print or typewrite name and address including postal zip code of
assignee and insert Taxpayer Identification No.)
this bond and all rights hereunder, hereby irrevocably constituting and
appointment attorney to transfer this bond the books of the Company with full
power of substitution in the premises.
16
CERTIFICATE OF TRANSFER
(The following is not required for sales or other transfers of
this bond to or through the Company or a Placement Agent).
In connection with any transfer of this bond occurring prior
to the date which is two years after the later of (a) the Original Issue Date of
this bond, or (b) the last date the Company or any of its affiliates was the
beneficial owner of this bond, the undersigned confirms that:
[ ] This bond is being transferred by the undersigned to a
transferee that is, or that the undersigned reasonably
believes to be, a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act of 1933, as amended)
pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
If the foregoing box is not checked, then, so long as the
accompanying bond shall bear a legend on its face restricting resales and other
transfers thereof (except in the case of a resale or other transfer made (i) to
the Placement Agent referred to in such legend or to the Company or (ii) through
the Placement Agent or by the Placement Agent acting as principal to a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
of 1933, as amended, in a transaction approved by the Placement Agent) the
Trustee shall not be obligated to register this bond in the name of any person
other than the registered owner hereof.
Dated:
NOTICE: The signature of the beneficial owner to this
assignment must correspond with the name as written on the face of this bond in
every particular, without alteration or enlargement or any change whatsoever.
TO BE COMPLETED BY PURCHASER IF THE BOX ABOVE IS CHECKED:
The undersigned represents and warrants that it is a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
of 1933, as amended, and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
registered owner is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an officer.
and;
17
WHEREAS, all acts and things necessary to make the bonds, when
executed by the Company and authenticated and delivered by the Trustee as in
this Thirty-Third Supplemental Indenture provided and issued by the Company,
valid, binding and legal obligations of the Company, and this Thirty-Third
Supplemental Indenture a valid and enforceable supplement to said Original
Indenture, have been done, performed and fulfilled, and the execution of this
Thirty-Third Supplemental Indenture has been in all respects duly authorized:
NOW, THEREFORE, THIS THIRTY-THIRD SUPPLEMENTAL INDENTURE
WITNESSETH: That, in order to secure the payment of the principal and interest
of all bonds issued under the Original Indenture and all indentures supplemental
thereto, according to their tenor and effect, and according to the terms of the
Original Indenture and of any indenture supplemental thereto, and to secure the
performance of the covenants and obligations in said bonds and in the Original
Indenture and any indenture supplemental thereto respectively contained, and to
provide for the proper issuing, conveying and confirming unto the Trustee, its
successors in said trust and its and their assigns forever, upon the trusts and
for the purposes expressed in the Original Indenture and in any indenture
supplemental thereto, all and singular the estates, property and franchises of
the Company thereby mortgaged or intended so to be, the Company, for and in
consideration of the premises and of the sum of One Dollar ($1.00) in hand paid
by the Trustee to the Company upon the execution and delivery of this
Thirty-Third Supplemental Indenture, receipt whereof is hereby acknowledged, and
of other good and valuable consideration, has granted, bargained, sold, aliened,
infefted, released and confirmed and by these presents does grant, bargain,
sell, alien, enfeoff, release and confirm unto Chase Manhattan Trust Company,
National Association as Trustee, and to its successors in said trust and its and
their assigns forever:
All and singular the premises, property, assets, rights and
franchises of the Company, whether now or hereafter owned, constructed or
acquired, of whatever character and wherever situated (except as herein
expressly excepted), including among other things the following, but reference
to or enumeration of any particular kinds, classes, or items of property shall
not be deemed to exclude from the operation and effect of the Original Indenture
or any indenture supplemental thereto any kind, class or item not so referred to
or enumerated:
I.
REAL ESTATE AND WATER RIGHTS.
The real estate described in the deeds from the grantors named
in Exhibit B hereto, dated and recorded as therein set forth, and any other real
estate and water rights acquired since the date of the Thirty-Second
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.
18
It is hereby declared by the Company that all property of the
kinds described in the next preceding paragraph, whether now owned or hereafter
acquired, has been or is or will be owned or acquired with the intention of
using the same in carrying on the business or branches of the business of the
Company, and it is hereby declared that it is the intention of the Company that
all thereof (except property hereinafter specifically excepted) shall be subject
to the lien of the Original Indenture.
It is agreed by the Company that so far as may be permitted by
law tangible personal property now owned or hereafter acquired by the Company,
except such as is hereafter expressly excepted from the lien hereof, shall be
deemed to be and construed as fixtures and appurtenances to the real property of
the Company.
III.
FRANCHISES AND RIGHTS OF WAY.
All the corporate and other franchises of the Company, all
water and flowage rights, riparian rights, easements and rights of way, and all
permits, licenses, rights, grants, privileges and immunities, and all renewals,
extensions, additions or modifications of any of the foregoing, whether the same
or any thereof, or any renewals, extensions, additions or modifications thereof,
are now owned or may hereafter be acquired, owned, held, or enjoyed by the
Company.
IV.
AFTER ACQUIRED PROPERTY.
All real and fixed property and all other property of the
character hereinabove described which the Company may hereafter acquire.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in any way appertaining to the aforesaid property
or any part thereof, with the reversion and reversions, remainder and
remainders, tolls, rents, revenues, issues, income, product and profits thereof,
and all the estate, right, title, interest and claim whatsoever, at law as well
as in equity, which the Company now has or may hereafter acquire in and to the
aforesaid premises, property, rights and franchises and every part and parcel
thereof.
19
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 expected property 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 I of Article XI of the Original
Indenture, the Trustee or any receiver appointed hereunder shall enter upon and
take possession of the mortgaged property, the Trustee or any such receiver may,
to the extent permitted by law, at the same time likewise take possession of any
and all of the property described in this paragraph then on hand and any and all
other property of the Company then on hand, not described or referred to in the
foregoing granting clauses, which is used or useful in connection with the
business of the Company as a water company or as a water utility, and use and
administer the same to the same extent as if such property were part of the
mortgaged property, unless and until such completed default shall be remedied or
waived and possession of the mortgaged property restored to the Company, its
successors or assigns.
SUBJECT, HOWEVER, to the exceptions, reservations and matters
hereinabove and in the Original Indenture recited, to releases executed since
the date of the Original Indenture in accordance with the provisions thereof, to
existing leases, to easements and rights of way for pole lines and electric
transmission lines and other similar encumbrances and restrictions which the
Company hereby certifies, in its judgment, do not impair the use of said
property by the Company in its business, to liens existing on or claims against,
and rights in and relating to, real estate acquired for right-of-way purposes,
to taxes and assessments not delinquent, to alleys, streets and highways that
may run across or encroach upon said lands, to liens, if any, incidental to
construction, and to Permitted Liens, as defined in the Original Indenture; and,
with respect to any property which the Company may hereafter acquire, to all
terms, conditions, agreements, covenants, exceptions and reservations expressed
or provided in such deeds and other instruments, respectively, under and by
virtue of which the Company shall hereafter acquire the same and to any and all
liens existing thereon at the time of such acquisition.
TO HAVE AND TO HOLD, all and singular the property, rights,
privileges and franchises hereby conveyed, transferred or pledged or intended so
to be unto the Trustee and its successors in the trust heretofore and hereby
created, and its and their assigns forever.
20
IN TRUST NEVERTHELESS, for the equal pro rata benefit and
security of each and every person or corporation who may be or become the
holders of bonds and coupons secured by the Original Indenture or by any
indenture supplemental thereto, or both, without preference, priority or
distinction as to lien or otherwise of any bond or coupon over or from any other
bond or coupon, so that each and every of said bonds and coupons issued or to be
issued, of whatsoever series, shall have the same right, lien and privilege
under the Original Indenture and all indentures supplemental thereto and shall
be equally secured hereby and thereby, with the same effect as if said bonds and
coupons had all been made, issued and negotiated simultaneously on the date
thereof; subject, however, to the provisions with reference to extended,
transferred or pledged coupons and claims for interest contained in the Original
Indenture and subject to any sinking or improvement fund or maintenance deposit
provisions, or both, for the benefit of any particular series of bonds.
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between
the parties hereto, that all such bonds and coupons are to be authenticated,
delivered and issued, and that all property subject or to become subject hereto
is to be held subject to the further covenants, conditions, uses and trusts
hereinafter set forth, and the Company, for itself and its successors and
assigns, does hereby covenant and agree to and with the Trustee and its
successor or successors in said trust, for the benefit of those who shall hold
said bonds and coupons, or any of them, issued under this Indenture or any
indenture supplemental hereto, or both, as follows:
ARTICLE I.
Form, Authentication and Delivery of the Bonds;
Redemption and Tender Provisions
-----------------------------------------------
SECTION 1. There shall be a thirty-ninth series (and later
series as described herein) of bonds, limited in aggregate principal amount to
$300,000,000 designated as "Philadelphia Suburban Water Company First Mortgage
Bonds, 1999 Medium Term Note Series, Subseries "__" (the "Bonds"). The Bonds may
be issued at any time during the Offering Period in a single subseries or from
time to time during the Offering Period in more than one subseries pursuant to
this Thirty-Third Supplemental Indenture and the Original Indenture. Each
subseries of the Bonds issued hereunder shall constitute a separate series for
purposes of this Thirty-Third Supplemental Indenture and the Original Indenture.
Each subseries of the Bonds shall be initially authenticated and delivered from
time to time upon delivery to the Trustee of the items specified in Article IV
of the Original Indenture, including the initial authorizing resolution of the
Board of Directors of the Company for the issuance of the Bonds (a "Series
Authorizing Resolution") and a certificate of an authorized officer of the
Company issued pursuant to said resolution (a "Subseries Authorizing
Certificate") specifying the principal amount of the Bonds of such subseries to
be issued on the specified date of issuance, the numbers, denominations,
redemption date or dates, tender date if any, maturity date or dates, redemption
prices and interest rate or rates of such Bonds.
Interest on each subseries of the Bonds shall be payable
semiannually on January 1 and July 1 (each an "Interest Payment Date") in each
year commencing on the first Interest Payment Date next succeeding the date of
authentication of such Bond (the "Original Issue Date"), unless the Original
Issue Date or the date of authentication occurs between a Record Date, as
defined below, and the next succeeding Interest Payment Date, in which case
commencing on the second Interest Payment Date succeeding the Original Issue
21
Date or the date of authentication, to the registered holders of the Bonds on
the Record Date with respect to such Interest Payment Date, and on the maturity
date specified on the face of the Bond (the "Maturity Date") or any date fixed
for tender or redemption pursuant to the terms of such Bond (the "Tender Date"
or "Redemption Date" respectively). Interest on each subseries of Bonds will
accrue from the most recent Interest Payment Date to which interest has been
paid or duly provided for or, if no interest has been paid, from its Original
Issue Date, until the principal has been paid or made duly available for
payment. If the Maturity Date (or any Redemption Date or Tender Date) or an
Interest Payment Date falls on a day which is not a Business Day, as defined
below, principal (and premium, if any) or interest payable with respect to such
Maturity Date (or Redemption Date or Tender Date) or Interest Payment Date will
be paid on the next succeeding Business Day with the same force and effect as if
made on such Maturity Date (or Redemption Date or Tender Date) or Interest
Payment Date, as the case may be, and no interest shall accrue with respect to
such payment for the period from and after such Maturity Date (or Redemption
Date or Tender Date) or Interest Payment Date. The term "Record Date" as used in
this Section 1 with respect to any regular Interest Payment Date shall mean the
15th day of the calendar month preceding such Interest Payment Date. As used
herein, "Business Day" means any day other than a Saturday or Sunday, on which
the Trustee, any paying agent or banks in New York, New York are not required or
authorized by law or executive order to close.
Each subseries of the Bonds shall be stated to mature (subject
to the right of earlier redemption or Tender at the prices and dates and upon
the terms and conditions hereinafter set forth) and shall bear interest at the
rates set forth in the Subseries Authorizing Certificate.
The Bonds shall be issuable only as registered bonds without
coupons, shall be in the form hereinabove recited, in the minimum denomination
of $100,000 or any integral multiple of $1,000 in excess thereof, shall be
lettered "R", and shall bear such numbers as the Company may reasonably require.
Payments of principal, premium, if any, and interest shall be
made in such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts. Payments of interest,
other than interest payable at the Maturity Date, or any earlier Redemption Date
or Tender Date, will be paid in immediately available funds by wire transfer to
the account of Cede & Co., as nominee for DTC, or, in the case of Certificated
Bonds, by check mailed to the registered holder of such bond at the address
shown in the Register maintained by the Trustee, or at the option of the
registered holder, at such place in the United States of America as the
registered holder shall designate to the Trustee in writing. Notwithstanding the
foregoing, the registered holder of $10,000,000 or more of Certificated Bonds
with the same Interest Payment Date shall be entitled to receive payment by wire
transfer of immediately available funds, provided that written instructions
designating the account number and bank in New York, New York (or other bank
consented to by the Company) shall have been received by the Trustee not less
than ten (10) days prior to the Record Date for such Interest Payment Date. Once
such wire transfer instructions have been received by the Trustee they shall
remain in effect unless (i) the Trustee is notified, in writing, of a change
thereof not less than ten (10) days prior to the Record Date for an Interest
Payment Date; or (ii) the registered holder no longer holds an aggregate
principal amount of at least $10,000,000 of Certificated Bonds having the same
Interest Payment Date.
22
The person in whose name any Bond is registered at the close
of business on any Record Date with respect to any Interest Payment Date shall
be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Bond upon any transfer or exchange
subsequent to the Record Date and prior to such Interest Payment Date; provided,
however, that if and to the extent the Company shall default in the payment of
the interest due on such Interest Payment Date, such defaulted interest shall be
paid to the persons in whose names outstanding Bonds are registered at the close
of business on a subsequent Record Date established by notice given by mail by
or on behalf of the Company to the holders of Bonds not less than fifteen (15)
days preceding such subsequent Record Date, such Record Date to be not less than
ten (10) days preceding the date of payment of such defaulted interest.
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.
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.
SECTION 2. Each subseries of the Bonds shall be subject to
redemption at the option of the Company on and after the Initial Redemption Date
indicated on the face of the Bonds. On and after the Initial Redemption Date,
the Bonds of such subseries may be redeemed in whole or in part in increments of
$1,000 (provided that any remaining principal hereof shall be at least $100,000)
at the option of the Company at the Redemption Price (hereinafter defined),
together with interest thereon payable to the Redemption Date.
The Redemption Price shall initially be the Initial Redemption
Percentage specified on the face of such subseries of the Bonds of the principal
amount of such subseries and, if applicable, shall decline on each anniversary
of the Initial Redemption Date by the Annual Redemption Reduction Percentage
specified on the face of such Subseries of the Bonds, of the principal amount to
be redeemed until the Redemption Price is 100% of such principal amount.
SECTION 3. Each subseries of the Bonds shall be subject to
mandatory redemption (i) in connection with the sale to or other acquisition by
or on behalf of one or more governments or municipal corporations or other
governmental subdivisions, bodies, authorities or agencies of all or
substantially all of the property of the Company, or (ii) in connection with any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
occurring in connection with or subsequent to the acquisition of all or
substantially all of the stock of the Company ordinarily entitled to voting
rights by or on behalf of one or more governments or municipal corporations or
other governmental subdivisions, bodies, authorities or agencies. The Bonds are
redeemable 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, at
one hundred per cent (100%) of the principal amount thereof, together with
interest accrued thereon to the date fixed for redemption.
SECTION 4. Any redemption of the Bonds shall be effected in
accordance with the provisions of Article V of the Original Indenture.
SECTION 5. During the Offering Period, there will be delivered
to the Trustee an adequate number of executed Bonds which will have the Bond
number, principal amount, Original
23
Issue Date, interest rate, Maturity Date, Initial Redemption Date, Initial
Redemption Percentage and Annual Redemption Reduction Percentage left blank.
Each Bond will be signed and sealed manually or by facsimile on behalf of the
Company, to be held in safekeeping by the Trustee for the account of the
Company. If an officer of the Company whose signature is on a Bond no longer
holds such office at the time the Trustee delivers the Bond in accordance with
the Indenture, the Bond will be valid nevertheless. Each subseries of the Bonds
may 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 and receipt of a
Series Authorizing Resolution for such subseries.
SECTION 6. A Bond of the 1999 Medium Term Note Series which
has a Maturity Date which is more than ten years after the Original Issue Date
may, at the option of the Company, be issued by the Company subject to optional
tender ("Tender"), in its entirety, by holders thereof on the first Interest
Payment Date next succeeding the tenth anniversary of the Original Issue Date
("Tender Date") 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
at a tender price ("Tender Price") of one hundred percent (100%) of the
principal amount thereof, plus accrued interest to the Tender Date.
Any Tender shall be effectuated by (1) notice ("Tender
Notice") mailed (by registered mail with return receipt requested or other
courier or express delivery service) by the registered owner of a Bond of the
Medium Term Notes Series to the Trustee at least thirty (30) days prior to the
Tender Date, and (2) presentment to the Trustee of said Bond[s] of the 1999
Medium Term Note Series at least five (5) Business Days prior to the Tender
Date.
If a Bond of the 1999 Medium Term Note Series which is subject
to Tender is tendered and payment thereof is duly provided for, interest shall
cease to accrue hereon from and after the Tender Date.
By delivery of the Tender Notice, the owner irrevocably agrees
to deliver the bond or bonds described therein (if such bonds are in
certificated form) to the delivery office of the Trustee designated in Article
V, Section 2 hereof at least five (5) Business Days prior to the Tender Date.
The determination by the Trustee of a bondholder's compliance with the
requirement of the Tender Notice is in its sole discretion and binding on the
Company and the holder of the bond or bonds. Any Tender Notice which is
determined not to be in compliance with this Thirty-Third Supplemental Indenture
shall be of no force and effect.
If a holder who gives a Tender Notice shall fail to deliver
the bond identified in the Tender Notice to the Trustee at or prior to 10:00
a.m. on the Purchase Date, such bond shall be deemed purchased and shall cease
to accrue interest on such Tender Date and the holder thereof shall thereafter
be entitled only to payment of the Tender Price therefor and to no other
benefits of this Thirty-Third Supplemental Indenture.
Notwithstanding anything to the contrary herein, the right of
the holders of a bond to tender the bonds shall cease immediately and without
further notice from and including the date on which the Trustee notifies the
holder of such bond of an acceleration under Article XI of the Indenture.
24
ARTICLE II.
Maintenance or Improvement Deposit.
SECTION 1. The Company covenants that it will deposit with the
Trustee on or before the March 1 next occurring after the bonds of the 9.89%
Series due 2008 cease to be outstanding, or on or before the March 1 next
occurring after the bonds of the 9.93% Series due 2013 cease to be outstanding,
or on or before the next March 1 next occurring after the bonds of the 9.97%
Series due 2018 cease to be outstanding, or on or before the March 1 next
occurring after the bonds of the 9.12% Series due 2010 cease to be outstanding,
or on or before the March 1 next occurring after the bonds of the 9.29% Series
due 2026 cease to be outstanding, or on or before the March 1 next occurring
after the bonds of the 9.17% Series due 2021 cease to be outstanding, or on or
before the next March 1 next occurring after the bonds of the 9.17% Series due
2011 cease to be outstanding, or on or before the March 1 next occurring after
the bonds of the 6.50% Series due 2010 cease to be outstanding, or on or before
the next March 1 next occurring after the bonds of the 5.95% Series due 2002
cease to be outstanding, or on or before the March 1 next occurring after the
bonds of the 7.15% Series due 2008 cease to be outstanding, or on or before the
March 1 next occurring after the bonds of any of the Subseries of the 1995
Medium Term Note Series issued under the Twenty-Ninth Supplemental Indenture
(consisting of the 7.72% Subseries A due 2025, the 6.82% Subseries B due 2005,
the 6.89% Subseries C due 2015, the 6.99% Subseries D due 2006, the 7.47%
Subseries E due 2003, the 6.83% Subseries F due 2003, and the 7.06% Subseries G
due 2004) shall cease to be outstanding, or on or before the March 1 next
occurring after bonds of the 6.35% Series due 2025 shall cease to be
outstanding, on or before the March 1 next occurring after the bonds of any of
the Subseries of the 1997 Medium Term Note Series issued under the Thirty-First
Supplemental Indenture (consisting of the 6.75% Subseries A due 2007, the 6.30%
Subseries B due 2002, the 6.14% Subseries C due 2008, the 5.80% Subseries D due
2003, the 5.85% Subseries E due 2004 and the 6.00% Subseries F due 2004) 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, whichever is latest, and on or
before March 1 in each year thereafter if and so long as any of the Bonds are
outstanding, 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
(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.
25
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 subparagraph
(ii) hereof exceeds the sum of the amounts set forth in
subparagraphs (iii), (v) and (vii) hereof;
26
(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
27
(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,
the Tender Price of and interest on all bonds issued or to be issued as
aforesaid under and secured by the Original Indenture as hereby supplemented, as
well as all bonds which may be hereafter issued in exchange or substitution
therefor, and will perform and fulfill all of the terms, covenants and
conditions of the Original Indenture and of this Thirty-Third 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, 1998, and (ii)
$20,000,000; (b) Stock Payments made more than forty (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:
"Stock Payment" shall mean any payment in cash or property
(other than common 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.
"Excluded Earnings" shall mean 35% of the Company's Net Income
during any Restricted Period.
"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.
28
"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 Restricted Period, as determined in accordance with
generally accepted accounting principles consistently applied, after payment of
or provision for taxes on income for such Restricted Period.
"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.
"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 (as defined in the Indenture) 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.
"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.
"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.
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 or a natural person (or his estate)) of any such
corporation.
29
ARTICLE IV.
The Trustee.
SECTION 1. The Trustee hereby accepts the trust hereby
declared and provided, and agrees to perform the same upon the terms and
conditions in the Original Indenture, as supplemented by this Thirty-Third
Supplemental Indenture, and in this Thirty-Third Supplemental Indenture set
forth, and upon the terms and conditions set forth in Article IV hereof.
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, including the reimbursement of expenses, to all such attorneys,
agents, officers and employees as may reasonably be employed in connection with
the trusts hereof. The Trustee may act and rely upon the opinion or advice of
any attorney (who may be the attorney or attorneys for the Company) and shall be
free from all liability for any action taken or not taken in reliance on such
opinion or advice. 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 Outstanding 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 or for any Environmental Claim (as such
terms are 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
30
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. ss.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. ss.6991) and the regulations issued thereunder; (d)
constitutes a pollutant, contaminant, chemical or industrial, toxic or hazardous
substance or waste as such terms are defined under the Federal Clean Water Act,
as amended (33 U.S.C. ss.1251 et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. ss. 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. ss.ss.655 and 657 and 29 C.F.R.
Part 1910, subpart 2); and (h) any asbestos, petroleum-based products, or any
substance contained within or released 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 (h) inclusive in the preceding sentence and the term "Environmental
Claim" shall mean with respect to any person, any action, suit, proceeding,
investigation, notice, claim, complaint, demand, request for information or
other communication (written or oral) by any other person (including any
governmental authority, citizens group or employee or former employee of such
person) alleging, asserting or claiming any actual or potential: (a) violation
of any Environmental Statutes, (b) liability under any Environmental Statutes or
(c) liability for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries, fines or
penalties arising out of, based on, or resulting from, the presence or release
into the environment of any Hazardous Substances at any location, whether or not
owned by such person.
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 and Thirty-Second Supplemental Indentures
are hereby confirmed. All references in this Thirty-Third 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 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.
31
SECTION 2. Any notices to the Trustee under this Thirty-Third
Supplemental Indenture shall be delivered to the Trustee at its administrative
office 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:
Chase Manhattan Trust Company, National Association
Capital Markets Fiduciary Services
1650 Market Street, Suite 520
Philadelphia, PA 19103
Attention: Philadelphia Suburban Water Administrator
Telecopy: (215) 972-1685
Any Bonds of the 1999 Medium Term Note Series being delivered to the Trustee for
payment, exchange or which have been tendered, if certificated, shall be
delivered to the Trustee's delivery office currently located at:
Chase Bank of Texas, N.A.
CT Services
1201 Main St., 18th Fl.
Dallas, TX 75202
Any change in such address or telecopy number may be made by notice to the
Company delivered in the manner set forth above.
SECTION 3. All recitals in this Thirty-Third Supplemental
Indenture are made by the Company only and not by the Trustee; and all of the
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect hereof as fully and with like effect as if set forth herein in full.
SECTION 4. Although this Thirty-Third Supplemental Indenture
is dated for convenience and for the purpose of reference as of November 15,
1999, the actual date or dates of execution hereof by the Company and the
Trustee are as indicated by their respective acknowledgments annexed hereto.
SECTION 5. In order to facilitate the recording or filing of
this Thirty-Third 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.
32
ARTICLE VI
Environmental Matters
SECTION 1. The Company represents as follows:
(a) It is in compliance with all applicable Environmental Statutes
except for matters which, individually or in the aggregate, could not have a
Material Adverse Effect.
(b) It has all Environmental Approvals necessary or desirable for the
ownership and operation of its properties, facilities and businesses as
presently owned and operated except for matters which, individually or in the
aggregate, could not have a Material Adverse Effect.
(c) There is no Environmental Claim pending or, to its knowledge after
due inquiry, threatened, and there are no past or present acts, omissions,
events or circumstances that could form the basis of any Environmental Claim,
against it except for matters which, individually or in the aggregate, could not
have a Material Adverse Effect.
(d) No facility or property now or previously owned, operated or leased
by it is an Environmental Cleanup Site.
SECTION 2. The Company covenants as follows:
(a) It will comply with all applicable Environmental Statutes.
(b) Promptly upon becoming aware of any Environmental Claim pending or
threatened against it, or any past or present acts, omissions, events or
circumstances that could form the basis of such Environmental Claim, which if
adversely resolved, individually or in the aggregate, could have a Material
Adverse Effect, it shall give the Trustee prompt written notice thereof,
together with a written statement of an Authorized Executive Officer of the
Company setting forth the details thereof and any action with respect thereto
taken or proposed to be taken by the Company.
SECTION 3. The Company agrees to indemnify and hold harmless
the Trustee, all its directors, officers, employees and agents, against any and
all losses, claims, damages or liabilities, joint or several, to which it may
become subject under the law of any jurisdiction insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any violation or breach by the Company of any Environmental Statutes, or
any Environmental Claim arising out of the management, use, control, ownership
or operation of the Premises.
SECTION 4. For purposes of this Article VI, the following
terms shall have the indicated meanings.
"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material, hazardous waste,
toxic substance, solid waste, pollutant, contaminant or any related material,
raw material, substance, product or by-product of any substance specified in, or
regulated by, any "Environmental Statute", (b) any toxic chemical or other
substance from or related to industrial, commercial or institutional activities,
and (c) asbestos, gasoline, diesel fuel, motor oil, waste and used oil, heating
oil and other petroleum products or compounds, polychlorinated biphenyls, radon
and urea formaldehyde.
33
"Material Adverse Effect" shall mean a material adverse effect
on the business, operations, condition (financial or otherwise) or prospects of
the Company.
"Environmental Cleanup Site" shall mean any location which is
listed or proposed for listing on the National Priorities List, on CERCLIS or on
any similar state list of sites requiring investigation or cleanup, or which is
the subject of any pending or threatened action, suit, proceeding or
investigation related to or arising from any alleged violation of any
Environmental Law.
"Environmental Approvals" shall mean any governmental action
pursuant to or required under any Environmental Law.
34
IN WITNESS WHEREOF the parties hereto, intending to be legally
bound, have caused their corporate seals to be hereunto affixed and their
Presidents or Vice-Presidents, under and by the authority vested in them, have
hereto affixed their signatures, and their Secretaries or Assistant Secretaries
or Authorized Officers have duly attested the execution hereof, as of the ___
day of November, 1999.
[CORPORATE SEAL] PHILADELPHIA SUBURBAN WATER
COMPANY
Attest /s/ Patricia M. Mycek By:/s/ Kathy Lee Pape
---------------------------- ----------------------------
Secretary Vice President and Treasurer
[CORPORATE SEAL] CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
Attest: /s/ Michael J. Judge By:/s/ Catherine Lenhardt
-------------------- ----------------------------
Authorized Signer Assistant Vice President
35
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF MONTGOMERY:
On the 19th day of November, 1999, before me, the Subscriber,
a Notary Public for the Commonwealth of Pennsylvania, personally appeared Kathy
L. Pape, who acknowledged herself to be the Vice President and Treasurer of
Philadelphia Suburban Water Company, a corporation, and that she as such Vice
President and Treasurer, being authorized to do so, executed the foregoing
Thirty-Third Supplemental Indenture as and for the act and deed of said
corporation and for the uses and purposes therein mentioned, by signing the name
of the corporation by herself as such officer.
In Witness Whereof I hereunto set my hand and official seal.
[NOTARIAL SEAL] /s/ Suzanne Falcone
Notary
36
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
On the 18th day of November, 1999 before me, the Subscriber, a
Notary Public for the Commonwealth of Pennsylvania, personally appeared
Catherine Lenhardt, who acknowledged herself to be an Assistant Vice President
of Chase Manhattan Trust Company National Association, Trustee, a national
banking association, and that she as such Assistant Vice President, being
authorized to do so, executed the foregoing Thirty-Third Supplemental Indenture
as and for the act and deed of said national banking association and for the
uses and purposes therein mentioned by signing the name of said national banking
association by herself as such officer.
In Witness Whereof I hereunto set my hand and official seal.
[NOTARIAL SEAL] /s/ Joan F. Wilson
Notary
37
EXHIBIT A
---------
Exhibit A
Bonds Redeemed or Paid at Maturity
Principal Amount
Paid or Redeemed
(If less than all Date
Series Bonds of Series) Paid Maturity
- ------ ----------------- ---- --------
3.25% Series Due 1971 12/31/1970 Redemption
9.63% Series Due 1975 06/15/1975 Maturity
9.15% Series Due 1977 01/01/1977 Maturity
3.00% Series Due 1978 07/01/1978 Maturity
3.38% Series Due 1982 07/01/1982 Maturity
3.90% Series Due 1983 07/01/1983 Maturity
3.50% Series Due 1986 01/01/1986 Maturity
4.50% Series Due 1987 01/01/1987 Maturity
4.13% Series Due 1988 05/01/1988 Maturity
5.00% Series Due 1989 09/01/1989 Maturity
4.63% Series Due 1991 05/01/1991 Maturity
4.70% Series Due 1992 04/01/1992 Maturity
6.88% Series Due 1993 01/01/1993 Maturity
4.55% Series Due 1994 03/01/1994 Maturity
10.13% Series Due 1995 $ 6,300,000 - Sinking Fund
10.13% Series Due 1995 $ 3,700,000 05/17/1993 Redemption
9.20% Series Due 2001 $ 3,850,000 - Sinking Fund
9.20% Series Due 2001 $ 3,150,000 05/01/1993 Redemption
8.40% Series Due 2002 $ 5,850,000 - Sinking Fund
8.40% Series Due 2002 $ 4,150,000 01/02/1996 Redemption
5.95% Series Due 2002 $ 2,400,000 - Sinking Fund
12.45% Series Due 2003 $ 1,000,000 08/01/1993 Sinking Fund
12.45% Series Due 2003 $ 9,000,000 08/02/1993 Redemption
8.88% Series Due 2010 $ 800,000 - Sinking Fund
8.88% Series Due 2010 $ 7,200,000 06/30/1992 Redemption
13.00% Series Due 2005 08/02/1995 Redemption
7.88% Series Due 1997 01/02/1996 Redemption
10.65% Series Due 2006 04/02/1996 Redemption
5.50% Series Due 1996 11/01/1996 Maturity
8.44% Series Due 1997 04/01/1997 Maturity
7.15% Series Due 2008 $ 4,000,000 - Sinking Fund
A-1
EXHIBIT B
No New Property
B-1
This Thirty-Third Supplemental Indenture was recorded on November 30,
1999 in the Office for the Recording of Deeds for each of the five counties
tabulated below in the Mortgage Book and at the page indicated:
Mortgage
Book Page
---- ----
County
Berks......................... ____ ____
Bucks......................... ____ ____
Chester....................... ____ ____
Delaware...................... ____ ____
Montgomery.................... ____ ____
For the recording information with respect to the Original Indenture
and the first thirty-two supplemental indentures, see pages 4 and 5 of this
Thirty-Third Supplemental Indenture.