Exhibit 4.22
THIRTY-FIFTH SUPPLEMENTAL
INDENTURE
DATED AS OF JANUARY 1, 2002
TO
INDENTURE OF MORTGAGE
DATED AS OF JANUARY 1, 1941
------------
PENNSYLVANIA SUBURBAN WATER COMPANY, as successor by merger to
Philadelphia Suburban Water Company
Consumers Pennsylvania Water Company - Shenango Valley Division
Consumers Pennsylvania Water Company - Roaring Creek Division
Consumers Pennsylvania Water Company - Susquehanna Division
Waymart Water Company
Fawn Lake Forest Water Company
Northeastern Utilities, Inc.
and
Western Utilities, Inc.
TO
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
------------
THIRTY-FIFTH SUPPLEMENTAL INDENTURE
THIRTY-FIFTH SUPPLEMENTAL INDENTURE dated as of the 1st day of January,
2002, by and between PENNSYLVANIA SUBURBAN WATER COMPANY, a corporation duly
organized and existing under the laws of the Commonwealth of Pennsylvania (the
"Company") as successor by merger to the Philadelphia Suburban Water Company
(the "Original Company"), party of the first part, and J.P. MORGAN TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association (the "Trustee"),
party of the second part.
WHEREAS, the Original Company heretofore duly executed and delivered
to The Pennsylvania Company for Insurances on Lives and Granting Annuities, as
trustee, an Indenture of Mortgage dated as of January 1, 1941 (the "Original
Indenture"), which by reference is hereby made a part hereof, and in and by the
Original Indenture the Original Company conveyed and mortgaged to 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; 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.; on October 1, 1991, First
Pennsylvania Bank N.A. merged with and into The Philadelphia National Bank,
which changed its name to CoreStates Bank, N.A.; on October 10, 1995, Mellon
Bank, N.A. succeeded Corestates Bank N.A. as trustee; on November 24, 1997,
Chase Manhattan Trust Company, National Association, succeeded Mellon Bank, N.A.
as trustee; on December 1, 2001, J.P. Morgan Trust Company, National
Association, became successor by merger to Chase Manhattan Trust Company,
National Association; such mergers and changes of name not involving any change
in the title, powers, rights or duties of the Trustee, as trustee under the
Original Indenture as supplemented at the respective dates thereof; and
WHEREAS, the Original Company duly executed and delivered to the
Trustee 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, (the
"Fifth Supplemental Indenture") 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 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, a 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, a Thirty-Second Supplemental
Indenture dated as of October 1, 1999, a Thirty-Third Supplemental Indenture
dated as of November 15, 1999, and a Thirty-Fourth Supplemental Indenture dated
as of October 15, 2001, so as to subject certain additional property to the lien
of the Original Indenture and to provide for the creation of additional series
of bonds; and
WHEREAS, the terms of the Original Indenture were amended by the Fifth
Supplemental Indenture; and
WHEREAS, the Original Company has issued under the Original Indenture,
as supplemented at the respective dates of issue, forty 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
2
Designation Indenture Amount
- ----------- --------- ------
8.40% Series due 2002 Eighteenth Supplemental 10,000,000
5.95% Series due 2002 Twenty-Seventh Supplemental 4,000,000
12.45% Series due 2003 Twentieth Supplemental 10,000,000
13% Series due 2005 Twenty-First Supplemental 8,000,000
10.65% Series due 2006 Twenty-Second Supplemental 10,000,000
9.89% Series due 2008 Twenty-Fourth Supplemental 5,000,000
7.15% Series due 2008 Twenty-Eighth Supplemental 22,000,000
9.12% Series due 2010 Twenty-Fifth Supplemental 20,000,000
8 7/8% Series due 2010 Nineteenth Supplemental 8,000,000
6.50% Series due 2010 Twenty-Seventh Supplemental 3,200,000
9.17% Series due 2011 Twenty-Sixth Supplemental 5,000,000
9.93% Series due 2013 Twenty-Fourth Supplemental 5,000,000
9.97% Series due 2018 Twenty-Fourth Supplemental 5,000,000
9.17% Series due 2021 Twenty-Sixth Supplemental 8,000,000
9.29% Series due 2026 Twenty-Sixth Supplemental 12,000,000
1995 Medium Term Note
Series Twenty-Ninth Supplemental 77,000,000
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
6.35% Series due 2025 Thirtieth Supplemental 22,000,000
1997 Medium Term Note
Series Thirty-First Supplemental 65,000,000
6.75% Subseries A due 2007 10,000,000
6.30% Subseries B due 2002 10,000,000
6.14% Subseries C due 2008 10,000,000
5.80% Subseries D due 2003 10,000,000
5.85% Subseries E due 2004 10,000,000
6.00% Subseries F due 2004 15,000,000
6.00% Series due 2029 Thirty-Second Supplemental 25,000,000
1999 Medium Term Note
Series Thirty-Third Supplemental
7.40% Subseries A due 2005 15,000,000
7.40% Subseries B due 2005 11,000,000
6.21% Subseries C due 2011 15,000,000
5.35% Series Due 2031 Thirty-Fourth Supplemental 30,000,000
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:
3
COUNTY
============================ ============ ================== ====================== ======================= =======================
Bucks Chester Delaware Montgomery
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Date of
Indenture Recording Book Page Book Page Book Page Book Page
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Original 2/20/41 496 1 H-13.Vol.307 20 1034 1 1625 1
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
First Supplemental 8/26/48 632 1 F-16.Vol.380 200 1668 169 2031 257
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Second Supplemental 7/1/52 768 438 18.Vol.425 186 1962 376 2360 517
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Third Supplemental 11/25/53 895 1 18.Vol.442 325 2052 1 2493 1
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Fourth Supplemental 1/9/56 1089 155 Z-20.Vol.499 1 2199 1 2722 425
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Fifth Supplemental 3/20/57 1181 316 B-22.Vol.536 601 2294 50 2850 335
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Sixth Supplemental 5/9/58 1254 1 G-23 201 2380 039 2952 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
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
4
COUNTY
============================ ============ ================== ====================== ======================= =======================
Bucks Chester Delaware Montgomery
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Date of
Indenture Recording Book Page Book Page Book Page Book Page
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Nineteenth Supplemental 6/23/80 2303 714 J-62 92 3261 293 5030 502
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twentieth Supplemental 8/2/83 2487 370 D-72 1 96 810 5662 1045
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-First Supplemental 8/27/85 2690 806 54 550 - - 5864 1347
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-First Supplemental 8/28/85 - - - - 264 159 - -
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Second Supplemental 4/22/86 2774 160 263 275 326 592 5944 360
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Third Supplemental 4/1/87 2960 693 - - - - - -
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Third Supplemental 4/2/87 - - 680 337 447 1807 6115 602
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Fourth Supplemental 7/25/88 3199 1095 1224 389 0593 0585 6324 143
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Fifth Supplemental 1/12/90 0136 0250 1848 205 731 1571 6538 376
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Sixth Supplemental 11/8/91 369 2190 2660 205 894 2241 6780 891
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Seventh Supplemental 6/29/92 0487 1829 3055 182 0969 2023 6918 302
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Eighth Supplemental 4/22/93 0652 1335 3542 1542 1081 0852 7112 0539
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Twenty-Ninth Supplemental 3/30/95 1045 1872 3875 1368 1349 0829 7561 1155
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Thirtieth Supplemental 8/30/95 1111 0798 3932 0471 1393 2255 7631 0689
- ---------------------------- ------------ -------- --------- ------------ --------- ----------- ----------- ------------ ----------
Thirty-First Supplemental 7/11/97 1421 2196 4201 2133 1607 138 7968 779
============================ ============ ======== ========= ============ ========= =========== =========== ============ ==========
Thirty-Second Supplemental 10/6/99 1939 421 4646 642 1936 1207 8548 1067
============================ ============ ======== ========= ============ ========= =========== =========== ============ ==========
Thirty-Third Supplemental 11/30/99 1970 1573 4675 1272 1936 1207 8548 1067
============================ ============ ======== ========= ============ ========= =========== =========== ============ ==========
Thirty-Fourth Supplemental 10/31/01 2471 1207 5101 2142 2288 0174 9225 761
============================ ============ ======== ========= ============ ========= =========== =========== ============ ==========
5
; and
WHEREAS, the Original Indenture was recorded in Berks County on August
16, 1999, the Thirty-Second Supplemental Indenture was recorded in Berks County
on October 6, 1999, the Thirty-Third Supplemental Indenture was recorded in
Berks County on November 30, 1999 and the Thirty-Fourth Supplemental Indenture
was recorded in Berks County on October 31, 2001 in Books 3113, 3132, 3149 and
3421 and at Pages 707, 1510, 1260 and 896, respectively; 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 lien of the Original Indenture, as supplemented, has been
perfected as a security interest under the Pennsylvania Uniform Commercial Code
by filing a financing statement in the office of the Secretary of the
Commonwealth; and
WHEREAS, Article XVIII of the Original Indenture provides that the
Original 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 evidencing the succession of another corporation to the Original
Company (and the assumption by such successor corporation of the covenants and
obligations of the Company under this Indenture), 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 Original Company
contained in the Original Indenture other covenants and agreements thereafter to
be observed by the Original Company, of surrendering any right or power in the
Original Indenture reserved to or conferred upon the Original Company, and of
making such provisions in regard to matters or questions arising under the
Indenture as may be necessary or desirable and not inconsistent therewith; and
WHEREAS, pursuant to an Agreement and Plan of Merger and
Reorganization dated December 20, 2001, and effective on January 1, 2002, the
Original Company agreed to merge, in conjunction with its affiliated
corporations, Consumers Pennsylvania Water Company - Shenango Valley Division,
Consumers Pennsylvania Water Company - Roaring Creek Division, Consumers
Pennsylvania Water Company - Susquehanna Division, Waymart Water Company, Fawn
Lake Forrest Water Company, Western Utilities, Inc., and Northeastern Utilities,
Inc. (such affiliates referred to hereinafter as the "Merging Entities") with
and into the Company; and
6
WHEREAS, the Company agrees to assume the obligations of the Original
Company under the Original Indenture and all supplements thereto; 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, Thirty-Second,
Thirty-Third and Thirty-Fourth Supplemental Indentures, the Company has acquired
certain other property and desires to confirm the lien of the Original Indenture
thereon; and
WHEREAS, in order to secure the Lien of the Original Indenture on the
properties of the Merging Entities, this Thirty-Fifth Supplemental Indenture,
with a true and correct copy of the Original Indenture (redacted to delete
property descriptions for counties in which such Original Indenture has already
been recorded), attached hereto as Exhibit B, is to be recorded in the counties
of Berks, Bradford, Bucks, Chester, Columbia, Delaware, Lawrence, Mercer,
Montgomery, Northumberland, Pike, Schuylkill and Wayne; and
WHEREAS, the Company and the Trustee, pursuant to Article XVIII of the
Original Indenture, wish, by means of this Thirty-Fifth Supplemental Indenture,
to amend the Thirty-Third Supplemental Indenture dated as of November 15, 1999
(the "Thirty-Third Supplemental Indenture"):
NOW, THEREFORE, THIS THIRTY-FIFTH 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-Fifth Supplemental Indenture, receipt whereof is hereby acknowledged, and
of other good and valuable consideration, and intending to be legally bound, has
granted, bargained, sold, aliened, enfeoffed, released and confirmed and by
these presents does grant, bargain, sell, alien, enfeoff, release and confirm
unto J.P. Morgan Trust Company, National Association, as Trustee, and to its
successors in said trust and its and their assigns forever:
All and singular the premises, property, assets, rights and franchises
of the Company, whether now or hereafter owned, constructed or acquired, of
whatever character and wherever situated (except as herein expressly excepted),
including among other things the following, but reference to or enumeration of
any particular kinds, classes, or items of property shall not be deemed to
exclude from the operation and effect of the Original Indenture or any indenture
supplemental thereto any kind, class or item not so referred to or enumerated:
7
I.
REAL ESTATE AND WATER RIGHTS.
The real estate described in the deeds from the grantors named in
Exhibit C hereto, dated and recorded as therein set forth, and any other real
estate and water rights acquired since the date of the Thirty-Fourth
Supplemental Indenture.
II.
BUILDINGS AND EQUIPMENT.
All mains, pipes, pipe lines, service pipes, buildings, improvements,
standpipes, reservoirs, wells, flumes, sluices, canals, basins, cribs,
machinery, conduits, hydrants, water works, plants and systems, tanks, shops,
structures, purification systems, pumping stations, fixtures, engines, boilers,
pumps, meters and equipment which are now owned or may hereafter be acquired by
the Company (except as herein expressly excepted), including all improvements,
additions and extensions appurtenant to any real or fixed property now or
hereafter subject to the lien of the Original Indenture or any indenture
supplemental thereto which are used or useful in connection with the business of
the Company as a water company or as a water utility, whether any of the
foregoing property is now owned or may hereafter be acquired by the Company.
It is hereby declared by the Company that all property of the kinds
described in the next preceding paragraph, whether now owned or hereafter
acquired, has been or is or will be owned or acquired with the intention of
using the same in carrying on the business or branches of the business of the
Company, and it is hereby declared that it is the intention of the Company that
all thereof (except property hereinafter specifically excepted) shall be subject
to the lien of the Original Indenture.
It is agreed by the Company that so far as may be permitted by law
tangible personal property now owned or hereafter acquired by the Company,
except such as is hereafter expressly excepted from the lien hereof, shall be
deemed to be and construed as fixtures and appurtenances to the real property of
the Company.
III.
FRANCHISES AND RIGHTS OF WAY.
All the corporate and other franchises of the Company, all water and
flowage rights, riparian rights, easements and rights of way, and all permits,
licenses, rights, grants, privileges and immunities, and all renewals,
extensions, additions or modifications of any of the foregoing, whether the same
or any thereof, or any renewals, extensions, additions or modifications thereof,
are now owned or may hereafter be acquired, owned, held, or enjoyed by the
Company.
8
IV.
AFTER ACQUIRED PROPERTY.
All real and fixed property and all other property of the character
hereinabove described which the Company may hereafter acquire.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any way appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders,
tolls, rents, revenues, issues, income, product and profits thereof, and all the
estate, right, title, interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to the
aforesaid premises, property, rights and franchises and every part and parcel
thereof.
EXCEPTING AND RESERVING, HOWEVER, certain premises, not used or useful
in the supplying of water by the Company, expressly excepted and reserved from
the lien of the Original Indenture and not subject to the terms thereof.
AND ALSO SAVING AND EXCEPTING from the property hereby mortgaged and
pledged, all of the following property (whether now owned by the Company or
hereafter acquired by it): All bills, notes and accounts receivable, cash on
hand and in banks, contracts, choses in action and leases to others (as distinct
from the property leased and without limiting any rights of the Trustee with
respect thereto under any of the provisions of the Original Indenture or of any
indenture supplemental thereto), all bonds, obligations, evidences of
indebtedness, shares of stock and other securities, and certificates or
evidences of interest therein, all automobiles, motor trucks, and other like
automobile equipment and all furniture, and all equipment, materials, goods,
merchandise and supplies acquired for the purpose of sale in the ordinary course
of business or for consumption in the operation of any properties of the Company
other than any of the foregoing which may be specifically transferred or
assigned to or pledged or deposited with the Trustee hereunder or required by
the provisions of the Original Indenture or any indenture supplemental thereto
so to be; provided, however, that if, upon the happening of a completed default,
as specified in Section 1 of Article XI of the Original Indenture, the Trustee
or any receiver appointed hereunder shall enter upon and take possession of the
mortgaged property, the Trustee or any such receiver may, to the extent
permitted by law, at the same time likewise take possession of any and all of
the property described in this paragraph then on hand and any and all other
property of the Company then on hand, not described or referred to in the
foregoing granting clauses, which is used or useful in connection with the
business of the Company as a water company or as a water utility, and use and
administer the same to the same extent as if such property were part of the
mortgaged property, unless and until such completed default shall be remedied or
waived and possession of the mortgaged property restored to the Company, its
successors or assigns.
9
SUBJECT, HOWEVER, to the exceptions, reservations and matters
hereinabove and in the Original Indenture recited, to releases executed since
the date of the Original Indenture in accordance with the provisions thereof, to
existing leases, to easements and rights of way for pole lines and electric
transmission lines and other similar encumbrances and restrictions which the
Company hereby certifies, in its judgment, do not impair the use of said
property by the Company in its business, to liens existing on or claims against,
and rights in and relating to, real estate acquired for right-of-way purposes,
to taxes and assessments not delinquent, to alleys, streets and highways that
may run across or encroach upon said lands, to liens, if any, incidental to
construction, and to Permitted Liens, as defined in the Original Indenture; and,
with respect to any property which the Company may hereafter acquire, to all
terms, conditions, agreements, covenants, exceptions and reservations expressed
or provided in such deeds and other instruments, respectively, under and by
virtue of which the Company shall hereafter acquire the same and to any and all
liens existing thereon at the time of such acquisition.
TO HAVE AND TO HOLD, all and singular the property, rights, privileges
and franchises hereby conveyed, transferred or pledged or intended so to be unto
the Trustee and its successors in the trust heretofore and hereby created, and
its and their assigns forever.
IN TRUST NEVERTHELESS, for the equal pro rata benefit and security of
each and every entity who may be or become the holders of bonds and coupons
secured by the Original Indenture or by any indenture supplemental thereto, or
both, without preference, priority or distinction as to lien or otherwise of any
bond or coupon over or from any other bond or coupon, so that each and every of
said bonds and coupons issued or to be issued, of whatsoever series, shall have
the same right, lien and privilege under the Original Indenture and all
indentures supplemental thereto and shall be equally secured hereby and thereby,
with the same effect as if said bonds and coupons had all been made, issued and
negotiated simultaneously on the date thereof; subject, however, to the
provisions with reference to extended, transferred or pledged coupons and claims
for interest contained in the Original Indenture and subject to any sinking or
improvement fund or maintenance deposit provisions, or both, for the benefit of
any particular series of bonds.
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto, that all such bonds and coupons are to be authenticated,
delivered and issued, and that all property subject or to become subject hereto
is to be held subject to the further covenants, conditions, uses and trusts
hereinafter set forth, and the Company, for itself and its successors and
assigns, does hereby covenant and agree to and with the Trustee and its
successor or successors in said trust, for the benefit of those who shall hold
said bonds and coupons, or any of them, issued under this Indenture or any
indenture supplemental hereto, or both, as follows:
10
ARTICLE I.
Succession
SECTION 1. The Company expressly assumes the due and punctual payment
of the principal and interest of all bonds issued under the Original Indenture
and all supplements thereto according to their tenor, and the due and punctual
performance and observance of all covenants and conditions of the Original
Indenture and of all supplements thereto to be performed and observed by the
Company.
SECTION 2. The Company further covenants that all additional plants
and properties and permanent improvements, extensions, betterments, or additions
(including equipment and appliances), which shall be acquired or constructed by
it to the extent to which the same or any undivided portion thereof shall from
time to time constitute in whole or in part appurtenances to the mortgaged
property or additions or accessions thereto reasonably necessary to the
maintenance or operation thereof, shall forthwith become subject to the lien of
the Original Indenture and all supplements thereto and subject to no mortgage
liens prior hereto except the lien of any mortgage subject to which the Company
shall acquire or construct such property.
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
11
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, or on or before
March 1 next occurring after the Bonds of any of the Subseries of the 1999
Medium Term Note Series issued under the Thirty-Third Supplemental Indenture
(consisting of the 7.40% Subseries A due 2005, the 7.40% Subseries B due 2005
and the 6.21% Subseries C due 2011) cease to be outstanding, or on or before
March 1 next occurring after the bonds of the 5.35% Series due 2031 cease to be
outstanding, whichever is latest, an amount in cash (the "Maintenance or
Improvement Deposit") equal to 9% of the Gross Operating Revenues of the Company
during the preceding calendar year less, to the extent that the Company desires
to take such credits, the following:
(a) the amount actually expended for maintenance during such
calendar year; and
(b) the Cost or Fair Value, whichever is less, of Permanent
Additions acquired during such calendar year which at the time of
taking such credit constitute Available Permanent Additions; and
(c) the unapplied balance, or any part thereof, of the Cost or
Fair Value, whichever is less, of Available Permanent Additions
acquired by the Company during the five calendar years preceding such
calendar year and specified in the Officers' Certificates delivered to
the Trustee pursuant to Section 2 of this Article, but only to the
extent that the Permanent Additions with respect to which such Cost or
Fair Value was determined shall at the time of taking such credit
constitute Available Permanent Additions.
SECTION 2. The Company covenants that it will on or before March 1 in
each year, beginning with the first deposit made with the Trustee under the
provisions of Section 1 of this Article, as long as any of the Bonds are
outstanding, deliver to the Trustee the following:
(A) An Officers' Certificate, which shall state:
(i) The amount of the Gross Operating Revenues for the
preceding calendar year;
(ii) 9% of such Gross Operating Revenues;
(iii) The amount actually expended by the Company for
maintenance during such calendar year;
(iv) The amount set forth in subparagraph (xii) of each
Officers' Certificate delivered to the Trustee pursuant to the
provisions of this Section during the preceding five calendar years
(specifying each such Officers' Certificate), after deducting from
each such amount the aggregate of (a) the Cost or Fair Value,
whichever is less, of all Permanent Additions represented by such
amount which have ceased to be Available Permanent Additions; and (b)
any part of such amount for which the Company has previously taken
credit against any Maintenance or Improvement Deposit (specifying the
Officers' Certificate in which such credit was taken); and (c) any
part of such amount for which the Company then desires to take credit
against the Maintenance or Improvement Deposit;
12
(v) An amount which shall be the aggregate of all amounts
set forth pursuant to the provisions of clause (c) of the foregoing
subparagraph (iv);
(vi) The Cost or Fair Value, whichever is less, of Available
Permanent Additions acquired by the Company during the preceding
calendar year;
(vii) That part of the amount set forth in subparagraph (vi)
which the Company desires to use as a credit against the Maintenance
or Improvement Deposit;
(viii) The amount of cash payable to the Trustee under the
provisions of Section 1 of this Article, which shall be the amount by
which the amount set forth in subparagraph (ii) hereof exceeds the sum
of the amounts set forth in subparagraphs (iii), (v) and (vii) hereof;
(ix) The sum of all amounts charged on the books of the
Company against any reserve for retirement or depreciation during the
preceding calendar year representing the aggregate of the Cost when
acquired of any part of the Company's plants and property of the
character described in the granting clauses hereof which has been
permanently retired or abandoned;
(x) The aggregate of the amounts set forth in subparagraphs
(v) and (vii) hereof;
(xi) The amount by which the amount set forth in
subparagraph (x) exceeds the amount set forth in subparagraph (ix),
being the amount required to be deducted from the Cost or Fair Value
of Available Permanent Additions in order to determine a Net Amount of
Available Permanent Additions pursuant to the provisions of Section 9
of Article I of the Original Indenture;
(xii) The amount set forth in subparagraph (vi) after
deducting the amount, if any, set forth in subparagraph (vii); and
13
(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
(b) The documents specified in paragraphs 2, 5, 6 and 7 of
subdivision (B) of Section 3 of Article IV of the Original Indenture,
with such modifications, additions and omissions as may be appropriate
in the light of the purposes for which they are used.
ARTICLE III.
Covenants of the Company.
SECTION 1. The Company hereby covenants and agrees with the Trustee,
for the benefit of the Trustee and all the present and future holders of the
Bonds, that the Company will pay the principal of, and premium, if any, and
interest on, all bonds issued or to be issued as aforesaid under and secured by
the Original Indenture as hereby supplemented, as well as all bonds which may be
hereafter issued in exchange or substitution therefor, and will perform and
fulfill all of the terms, covenants and conditions of the Original Indenture and
of this Thirty-Fifth Supplemental Indenture with respect to the additional bonds
to be issued under the Original Indenture as hereby supplemented.
14
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, 2000, and (ii)
$20,000,000; (b) Stock Payments made more than 40 days after the commencement,
and prior to the expiration, of any Restricted Period shall not exceed 65% of
the Company's Net Income during such Restricted Period; and (c) the Company will
not authorize a Stock Payment if there has occurred and is continuing an event
of default under subsections (a) and (b) of Section 1 of Article XI of the
Original Indenture.
For the purposes of this Section 2 the following terms shall have the
following meanings:
"Capitalization" shall mean the sum of (i) the aggregate principal
amount of all Debt at the time outstanding, (ii) the aggregate par or stated
value of all capital stock of the Company of all classes at the time
outstanding, (iii) premium on capital stock, (iv) capital surplus, and (v)
retained earnings.
"Debt" means (i) all indebtedness, whether or not represented by
bonds, debentures, notes or other securities, for the repayment of money
borrowed, (ii) all deferred indebtedness for the payment of the purchase price
of property or assets purchased (but Debt shall not be deemed to include
Customer Advances for construction or any bonds issued under the Indenture which
are not Outstanding Bonds), (iii) leases which have been or, in accordance with
generally accepted accounting principles, should be recorded as capital leases
and (iv) guarantees of the obligations of another of the nature described in
clauses (i), (ii) or (iii) which have been or, in accordance with generally
accepted accounting principles, should be recorded as debt.
"Determination Date" shall mean the last day of each calendar quarter.
Any calculation with respect to any Determination Date shall be based on the
Company's balance sheet as of such date.
"Excluded Earnings" shall mean 35% of the Company's Net Income during
any Restricted Period.
"Net Income" for any particular Restricted Period shall mean the
amount of net income properly attributable to the conduct of the business of the
Company for such period, as determined in accordance with generally accepted
accounting principles consistently applied, after payment of or provision for
taxes on income for such period.
"Outstanding Bonds" shall mean bonds which are outstanding within the
meaning indicated in Section 20 of Article I of the Original Indenture except
that, in addition to the bonds referred to in clauses (a), (b) and (c) of said
Section 20, said term shall not include bonds for the retirement of which
sufficient funds have been deposited with the Trustee with irrevocable
instructions to apply such funds to the retirement of such bonds at a specified
time, which may be either the maturity thereof or a specified redemption date,
whether or not notice of redemption shall have been given.
15
"Restricted Period" shall mean a period commencing on any
Determination Date on which the total Debt of the Company is, or as the result
of any Stock Payment then declared or set aside and to be made thereafter will
be, more than 70% of Capitalization, and continuing until the third consecutive
Determination Date on which the total Debt of the Company does not exceed 70% of
Capitalization.
"Stock Payment" shall mean any payment in cash or property (other than
stock of the Company) to any holder of shares of any class of capital stock of
the Company as such holder, whether by dividend or upon the purchase,
redemption, conversion or other acquisition of such shares, or otherwise.
SECTION 3. The Company covenants and agrees that so long as any of the
Bonds are outstanding, neither the Company nor any subsidiary of the Company
will, directly or indirectly, lend or in any manner extend its credit to, or
indemnify, or make any donation or capital contribution to, or purchase any
security of, any corporation which directly or indirectly controls the Company,
or any subsidiary or affiliate (other than an affiliate which is a subsidiary of
the Company) of any such corporation.
ARTICLE IV.
The Trustee.
SECTION 1. The Trustee hereby accepts the trust hereby declared and
provided, and agrees to perform the same upon the terms and conditions in the
Original Indenture, as supplemented by this Thirty-Fifth Supplemental Indenture.
SECTION 2. Subject to the provisions of Article XIII of the Original
Indenture, the Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through and consult with attorneys, agents,
officers or employees selected by the Trustee in its sole discretion. The
Trustee shall be entitled to advice of counsel concerning all matters of trusts
hereof and the duties hereunder and may in all cases pay such reasonable
compensation to all such attorneys, agents, officers and employees as may
reasonably be employed in connection with the trusts hereof. The Trustee may act
or refrain from acting and rely upon and be free from all liability for so
relying upon the opinion or advice of any attorney (who may be the attorney or
attorneys for the Company). The Trustee may act and rely on written opinions of
experts employed by the Trustee and such advice shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by the Trustee hereunder in good faith and in reliance thereon. The Trustee
shall not be responsible for any loss or damage resulting from any action or
non-action in good faith taken in reliance upon such opinion or advice. The
Trustee shall not be bound to confirm, verify or make any investigation into the
facts or matters stated in any financial or other statements, resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order or other paper or document furnished pursuant to the terms
hereof.
16
SECTION 3. Before the Trustee shall be required to foreclose on, or to
take control or possession of, the real property or leasehold interest (the
"Premises") which may be the subject of any mortgage or mortgages for which the
Trustee is mortgagee in connection with the issuance of the Bonds, the Trustee
shall be indemnified and held harmless by the holders and/or beneficial owners
of the Bonds from and against any and all expense, loss, or liability that may
be suffered by the Trustee in connection with any spill, leak or release which
may have occurred on or invaded the Premises or any contamination by any
Hazardous Substance (hereinafter defined), whether caused by the Company or any
other person or entity, including, but not limited to, (1) any and all
reasonable expenses that the Trustee may incur in complying with any of the
Environmental Statutes (hereinafter defined), (2) any and all reasonable costs
that the Trustee may incur in studying or remedying any spill, leak or release
which may have occurred on or invaded the Premises or any contamination, (3) any
and all fines or penalties assessed upon the Trustee by reason of such
contamination, (4) any and all loss of value of the Premises or the improvements
thereon by reason of such contamination, and (5) any and all legal fees and
costs reasonably incurred by the Trustee in connection with any of the
foregoing. As used in this Section, contamination by any Hazardous Substance
shall include contamination, arising from the presence, creation, production,
collection, treatment, disposal, discharge, release, storage, transport or
transfer of any Hazardous Substance at or from the Premises or any improvements
thereon. As used in this Section, the term "Hazardous Substance" shall mean
petroleum hydrocarbons or any substance which (a) constitutes a hazardous waste
or substance under any applicable federal, state or local law, rule, order or
regulation now or hereafter adopted; (b) constitutes a "hazardous substance" as
such term is defined under the Comprehensive Environmental Response,
Compensation and Liability Act, as amended (42 U.S.C. 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 and
any comparable state or local law or regulation; (d) constitutes a pollutant,
contaminant, chemical or industrial, toxic or hazardous substance or waste as
such terms are defined under Federal Clean Water Act, as amended (33 U.S.C.
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 Hazardous Substance contained
within or release from any underground or aboveground storage tanks. As used in
this Section, the term "Environmental Statutes" shall mean the statutes, laws,
rules, orders and regulations referred to in (a) through (h) inclusive in the
preceding sentence.
17
ARTICLE V.
Amendment of Thirty-Third Supplemental Indenture
The Thirty-Third Supplemental Indenture is amended as follows, by
inserting the following paragraph after the first paragraph of Section 3 of
Article I:
When any subseries of the Bonds is issued in order to secure the
Company's obligation under a Loan or Construction or Financing
Agreement with any municipal authority (a "Loan Agreement") securing
tax-exempt bonds of such authority, such obligation assumed by
operation of any merger, consolidation or acquisition, such subseries
of Bonds may contain such mandatory optional and extraordinary
optional redemption provisions as are required by any such Loan
Agreement. Furthermore, when any subseries of Bonds is issued as
Certificated Bonds as a substitute for mortgage bonds assumed by the
Company pursuant to any merger, succession or acquisition and such
mortgage bonds are secured by a lien on the real property acquired by
the Company pursuant to such merger, succession or acquisition, then
such subseries of Bonds may contain such redemption provisions as such
mortgage bonds contain therein, not inconsistent with the Original
Indenture or the supplements thereto and such bonds may be issued in
whatever whole dollar amount is remaining on such bonds,
notwithstanding the provisions of Section 1 of Article 1.
ARTICLE VI
Miscellaneous.
SECTION 1. This instrument is executed and shall be construed as an
indenture supplemental to the Original Indenture, and shall form a part thereof,
and except as hereby supplemented, the Original Indenture and the First, Second,
Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth,
Twenty-Fifth, Twenty-Sixth, Twenty-Seventh, Twenty-Eighth, Twenty-Ninth,
Thirtieth, Thirty-First, Thirty-Second, Thirty-Third and Thirty-Fourth
Supplemental Indentures are hereby confirmed. All references in this
Thirty-Fifth Supplemental Indenture to the Original Indenture shall be deemed to
refer to the Original Indenture as heretofore amended and supplemented, and all
terms used herein and not specifically defined herein shall be taken to have the
same meaning as in the Original Indenture, as so amended, except in the cases
where the context clearly indicates otherwise.
SECTION 2. Any notices to the Trustee under this Thirty-Fifth
Supplemental Indenture shall be delivered to the Trustee by registered or
certified mail, hand delivery or other courier or express delivery service (with
receipt confirmed) or by telecopy (with receipt confirmed) at the following
address:
J.P. Morgan Trust Company, National Association
Institutional Trust Services
1650 Market Street, Suite 5210
Philadelphia, PA 19103
Attention: Pennsylvania Suburban Water Administrator
Telecopy: (215) 972-1685
18
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-Fifth 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-Fifth Supplemental Indenture is dated
as of January 1, 2002 for convenience and for the purpose of reference, the
actual date or dates of execution hereof by the Company and the Trustee are as
indicated by their respective acknowledgments annexed hereto.
SECTION 5. In order to facilitate the recording or filing of this
Thirty-Fifth 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.
19
IN WITNESS WHEREOF the parties hereto have caused their corporate
seals to be hereunto affixed and their authorized officers have hereto affixed
their signatures, and their authorized officers have duly attested the execution
hereof, as of the 1st day of January, 2002.
[CORPORATE SEAL] PENNSYLVANIA SUBURBAN WATER
COMPANY, as successor by merger to
Philadelphia Suburban Water Company,
Consumers Pennsylvania Water Company -
Shenango Valley Division,
Consumers Pennsylvania Water Company -
Roaring Creek Division,
Consumers Pennsylvania Water Company -
Susquehanna Division,
Waymart Water Company,
Fawn Lake Forest Water Company,
Northeastern Utilities, Inc., and
Western Utilities, Inc.
Attest: /s/ Roy H. Stahl By: /s/ Kathy L. Pape
--------------------------- ---------------------------
Secretary Vice President and Treasurer
[CORPORATE SEAL] J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
Attest: /s/ Judy Wisniewski By: /s/ Catherine Lenhardt
--------------------------- ---------------------------
Authorized Officer Authorized Officer
20
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 $3,200,000 -- 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 $8,000,000 -- Sinking Fund
EXHIBIT B
The Original Indenture (redacted to delete property descriptions contained
therein for property contained in Bucks, Chester, Delaware and Montgomery
Counties)
For purposes of filing this Annual Report on Form 10-K, the Indenture of
Mortgage dated as of January 1, 1941 was previously filed as Exhibit 4.1 to
Annual Report on Form 10-K for the year ended December 31, 1983.
Exhibit C
New Property
Additional Property Secured by the Lien of the Indenture Subsequent to the Date
of the 34th Supplemental Indenture
There is no new property in Berks County since the recording of the
Thirty-fourth Supplemental Indenture on October 31, 2001.
There is no new property in Chester County since the recording of the
Thirty-fourth Supplemental Indenture on October 31, 2001.
There is no new property in Delaware County since the recording of the
Thirty-fourth Supplemental Indenture on October 31, 2001.
Properties acquired from 8/31/99 to 9/30/01
- ----------------------------------------------------------------------------------------------------------------------------
Name Grantor County Index No. Deed Date Book Page
---- ------- ------ --------- --------- ---- ----
- ----------------------------------------------------------------------------------------------------------------------------
Bubbling Springs Simpson Paper Montgomery VI-E-74 09/24/99 5293 1660
- ----------------------------------------------------------------------------------------------------------------------------
Reeser Parcel Martin M. & Faye A. Reecer Chester VIII-Q-1 09/20/99 4641 1163
- ----------------------------------------------------------------------------------------------------------------------------
East Marlborough Township of East Chester VI-E-75 12/07/99 4684 2168
Marlborough
- ----------------------------------------------------------------------------------------------------------------------------
Fenimore Parcel Richard D. Fenimore Chester VI-B-64 03/07/00 4724 1814
(Glenside)
- ----------------------------------------------------------------------------------------------------------------------------
Chatwood Chatwood Water Company Chester R-1 10/18/00 4850 35
- ----------------------------------------------------------------------------------------------------------------------------
Chatwood Chatwood Water Company Chester R-2 10/18/00 4850 35
- ----------------------------------------------------------------------------------------------------------------------------
Todd Cooke Parcel Todd Cooke Delaware I-A-28 05/01/00 2009 1451
- ----------------------------------------------------------------------------------------------------------------------------
Nase Booster Ruth V. Nase Berks VI-C-12 08/08/01 3382 47
- ----------------------------------------------------------------------------------------------------------------------------
Embreeville Tank Com. Of PA. Chester VI-B-60 05/15/01 4980 1763
- ----------------------------------------------------------------------------------------------------------------------------
There is no new property in Montgomery County since the recording of the
Thirty-fourth Supplemental Indenture on October 31, 2001.
EXHIBIT "C"
Schedule of Real Estate Owned
By the Consumers Pennsylvania Water Company
Susquehanna Division in Bradford County Pennsylvania
Borough or Lot No. or Date of Bradford
Township Location Deed County
Deed Book and
Page or
Instrument No.
- ------------------------------------------------------------------------------------------------------
1. Athens Lehigh Reservoir 03/30/1955 506/240
Township Mills Street
2. Athens Reservoir No. 1 11/11/1889 181/331
Township 02/16/1885 160/117
3. Athens Soper Well 04/05/1968 588/360
Borough Property
4. Athens Stover Well 03/26/1973 619/206
Borough Property 03/26/1973 619/208
5. Athens State Highway 07/18/1974 641/192
Township No. 08077
6. Athens Maple Street 06/06/1973 640/362
Borough
7. Athens South Main 05/11/2001 #200104955
Borough Street
Properties Acquired from October 1, 2001 through November 30, 2001
Name Grantor County Deed Date Book Page
- ---- ------- ------ --------- ---- ----
Well # 8 Borough of Chalfont Bucks 11/01/01 2477 1677
Well # 11 Borough of Chalfont Bucks 11/01/01 2477 1682
Well # 12 Borough of Chalfont Bucks 11/01/01 2477 1688
Tank # 2 Borough of Chalfont Bucks 11/01/01 2477 1672
Other Real Estate Acquired
Real Estate Subject to the Lien of the Indenture in Columbia and
Northumberland Counties, Pennsylvania, owned on November 1, 1964 by predecessors
to Pennsylvania Suburban Water Company.
COMPREHENSIVE LIST OF PROPERTY OWNED BY
CONSUMERS PA. WATER COMPANY -
SHENANGO VALLEY DIVISION
MERCER COUNTY
2001 BOND FINANCING
December 17, 2001
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Name Location Recorded Place of Recording
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Pumping Station and Filter Lots in the McGilvary Addition 1926 through N-21-458
Plant - Sharon Lots 4, 5, 6, 7, 8, 9, 10, 11, 1969 Y20-58
12, 13, 14, 15, 16, 17, 18, 19, 1969 D.R. 1288
20, 21, 22, 23, 25, 26, 27, 28, 1968 D.R. 3283
29, 30, 31, 32, 33, 34, 35, 36, 1964 D.R. 2626
37, 38, 39 Z-13-398
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Mercer Avenue Standpipe - 4 Freeble Heights 8/20/1947 Y-18-281 and corrected
Farrell deed description at
I-19-579
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Carnegie View Standpipe - 491, 492, 493, 494, south 10 ft 1/10/1952 I-20-79
Farrell of 459, 460, 461, part of south
10 ft. of 458, together with
vacated portions of Rhoda St.,
all in Carnegie View Plan
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Homewood Drive Standpipe - 264 Buena Vista Heights Plan 7/12/1957 R-21-34
Hermitage 265 and 266 Buena Vista Heights 11/3/1955 F-21-340
Plan
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Boyd Drive Booster Station Westerman Street Ext. 4/17/1958 U-21-501
- - Hermitage
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Rhoda Street Garage 16" Carnegie View Plan, Lot 406 1/6/1960 1960 D.R. 25
Main - Farrell and Hermitage 12/5/1960 1960 D.R. 2654
North 50' Lot 459 9/8/1959 1959 D.R. 2144
Carnegie View Lots 10/12/1984 84 D.R. 3574
454,455,456,457,458
- ----------------------------- ---------------------------------- ---------------- ---------------------------
West Middlesex Mitchell Road 8/26/1965 1965 D.R. 2219
Standpipe-Shenango Twp
- ----------------------------- ---------------------------------- ---------------- ---------------------------
New Wilmington Standpipe - Pa. Route No. 18 9/2/1965 1965 D.R. 2317
Wilmington Township
- ----------------------------- ---------------------------------- ---------------- ---------------------------
East State Street U.S. Route No. 62 10/14/1965 1965 D.R. 2870
Standpipe-Hermitage
- ----------------------------- ---------------------------------- ---------------- ---------------------------
North Keel Ridge Booster North Keel Ridge Road 11/12/1965 Part of 1965 D.R. 3197
Station-Hermitage
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Gail Drive Gail Drive 10/24/1984 84 D.R. 3574 (Parcel One)
Standpipe-Hermitage
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Office Building - 665 South South Dock Street (G.W. Becker) 8/3/1990 90 D.R. 08133
Dock Street
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Mercer Standpipe Lot Lot 1 Mandell Plan (Mandell) 6/14/1990 91 D.R. 7104
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Mercer Booster Station Lot 9 U.S. Route 62 (Holcroft) 7/24/1990 90 D.R. 07715
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Mercer County Lot one Treimer, Plan 97 7/30/1997 97 D.R. 10426
PL9607-143
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Meter Vault Property Parcel 3 Special Warranty Deed 3/26/1999 99-05839
- ----------------------------- ---------------------------------- ---------------- ---------------------------
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Western Utilities, Inc. Coolspring Township, Lot 917 in 11/30/1990 90 D.R. 13011
Mercer County Lake Latonka Subdivision
- ----------------------------- ---------------------------------- ---------------- ---------------------------
Lot 230 in Lake Latonka 11/30/1990 90 D.R. 13011
Subdivision
- ----------------------------- ---------------------------------- ---------------- ---------------------------
FAWN LAKE FOREST WATER COMPANY
- ----------------------------------------------------------------------------------------------------------------------
Name Grantor County Index/Tax No. Deed Date Book Page
---- ------- ------ ------------- --------- ---- ----
- ----------------------------------------------------------------------------------------------------------------------
Fawn Lake Forest Water Batco - 1989 - III, Inc., Pike County 1995-258 12/12/94 997 78
Company Philip Economv,
Attornery-in-Fact
- ----------------------------------------------------------------------------------------------------------------------
Tax Claim Bureau of Pike
Fawn Lake Forest Water County, Wesley Hains and Pike County 1985-14664 12/15/86 1094 265
Company Eileen Hains
- ----------------------------------------------------------------------------------------------------------------------
Fawn Lake Forest Water American Central Pike County 1980-5356 11/7/79 721 234
Company Corporation
- ----------------------------------------------------------------------------------------------------------------------
Pike County Tax Claim
Fawn Lake Forest Water Bureau, James Weir and Pike County 1983-3978 1/25/83 851 266
Company Margaret Weir
- ----------------------------------------------------------------------------------------------------------------------
Fawn Lake Forest Water American Central Pike County 1980-5358 11/7/79 721 240
Company Corporation
- ----------------------------------------------------------------------------------------------------------------------
Arthur Jebson, Sheriff,
Fawn Lake Forest Water Joseph Hirko and Patricia Pike County 1982-3566 1/6/81 814 223
Company Hirko
- ----------------------------------------------------------------------------------------------------------------------
Fawn Lake Forest Water Pike County Tax Claim Pike County 1983-3977 1/25/83 851 263
Company Bureau, Francis Parrish
- ----------------------------------------------------------------------------------------------------------------------
Pike County Tax Claim
Fawn Lake Forest Water Bureau, Brigitte Willis Pike County 1993-12684 11/6/93 798 285
Company and Harry Willis
- ----------------------------------------------------------------------------------------------------------------------
Fawn Lake Forest Water Clifford Holbert and Pike County 1990-9863 12/15/89 296 284
Company Thelma Holbert
- ----------------------------------------------------------------------------------------------------------------------
Fawn Lake Forest Water M.M. Fisher and Karen Pike County 1992-11228 8/29/92 608 55
Company Fisher
- ----------------------------------------------------------------------------------------------------------------------
Fawn Lake Forest Water Norman Prescott and Betty Pike County 1995-10108 8/21/95 1104 306
Company Prescott
- ----------------------------------------------------------------------------------------------------------------------
ADDITIONAL PROPERTIES
All real property and interests in real property, wherever situated, of
the type and nature contemplated in the Original Indenture, acquired by the
Company subsequent to November1, 1964, including, without limitation, the real
property and interests in real property more particularly described in the
following deeds:
1. Deed from Helker Construction Company to the Company dated August 12,
1992, and recorded in the Northumberland County Office for Recording of
Deeds in Book 869, Page 795;
2. Deed from Northeaster Enterprises, Inc. to the Company dated December 31,
1992, and recorded in the Northumberland County Office for Recording of
Deeds in Book 889, Page 131;
3. Deed from Northeaster Enterprises, Inc. to the Company dated August 12,
1992, and recorded in the Schuylkill County Office for Recording of Deeds
in Book 1491, Page 906;
4. Deed from Ronald Narke, et al,. to the Company dated January 6, 1992, and
recorded in the Northumberland County Office for Recording of Deeds in
Book 897, Page 791;
5. Deed from Susquehanna Coal Company to the Company dated January 6, 1992,
and recorded in the Northumberland County Office for Recording of Deeds in
Book 898, Page 876;
6. Deed from Community Banks, N.A. to the Company dated September 26, 1994,
and recorded in the Northumberland County Office for Recording of Deeds in
Book 977, Page 319;
7. Deed from County of Northumberland to the Company dated August 7, 1996,
and recorded in the Northumberland County Office for Recording of Deeds in
Book 1066, Page 863; and
8. Deed from Shamokin Area Industrial Corporation to the Company dated March
25, 1998, and recorded in the Northumberland County Office for Recording
of Deeds in Book 1150, Page 126.
Excepting, however, all real property and interests in real property,
wherever situated, conveyed by the Company subsequent to November 1, 1964, in
accordance with the terms and provisions of the Original Indenture including,
without limitation, the real property and interests in real property more
particularly described in the following deeds:
1. Deed from the Company to Northumberland County Authority dated
September 30, 1992, and recorded in the Northumberland County Office
for Recording of Deeds in Book 835, Page 428;
2. Deed from the Company to Schuylkill Economic Development Corporation
dated January 13, 1996, and recorded in the Schuylkill County Office
for Recording of Deeds in Book 1644, Page 97; and
3. Deed from the Company to Charles W. Remaley, Inc. dated July 31, 2000,
and recorded in the Schuylkill County Office for Recording of Deeds in
Book 1071, Page 151.
WAYMART WATER COMPANY
- -----------------------------------------------------------------------------------------------------------------------------
Name Grantor County Index/Tax No. Deed Date Book Page
---- ------- ------ ------------- --------- ---- ----
- -----------------------------------------------------------------------------------------------------------------------------
Waymart Water Company The Dime Bank Wayne County 28-3-99.3 1/27/92 645 108
- -----------------------------------------------------------------------------------------------------------------------------
Waymart Water Company Augustus L. Patterson Wayne County 28-6-11 2/1/21 115 373
- -----------------------------------------------------------------------------------------------------------------------------
Waymart Water Company Frank R. and Susan Sargent Wayne County 28-7-65.3 9/23/75 321 132
- -----------------------------------------------------------------------------------------------------------------------------
Waymart Water Company Vincent P. and Patricia E. Wayne County 28-10-23 9/7/74 311 396
Spaulding
- -----------------------------------------------------------------------------------------------------------------------------
Waymart Water Company Edward Marsh and Carolyn Wayne County 28-10-24 11/15/74 313 794
Marsh
- -----------------------------------------------------------------------------------------------------------------------------
Waymart Water Company Claire F. Carlin Wayne County 28-10-25 12/4/74 314 137
- -----------------------------------------------------------------------------------------------------------------------------
Waymart Water Company Harold & Mary French Wayne County 28-251-22.1 11/15/74 313 797
- -----------------------------------------------------------------------------------------------------------------------------
Waymart Water Company Armena Williams Wayne County 28-251-23.1 11/15/74 313 800
- -----------------------------------------------------------------------------------------------------------------------------
J.P. Morgan Trust Company National Association, Mortgagee and Trustee
named in the foregoing Thirty-Fifth Supplemental Indenture, hereby certifies
that its precise name and the post office address of its Institutional Trust
Services Group in Philadelphia, Pennsylvania are as follows:
J.P. Morgan Trust Company, National Association
Institutional Trust Services
1650 Market Street, Suite 5210
Philadelphia, PA 19103
Attention: Pennsylvania Suburban Water Administrator
Telecopy: (215) 972-1685
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Catherine Lenhardt
----------------------
Authorized Officer
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF MONTGOMERY
On the 18th day of December, 2001, 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 Pennsylvania
Suburban Water Company, a corporation, and that she as such Vice President and
Treasurer, being authorized to do so, executed the foregoing Thirty-Fifth
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/ Catherine A. Iezzi
-----------------------
Notary
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
On the 13th day of December, 2001 before me, the Subscriber, a Notary
Public for the Commonwealth of Pennsylvania, personally appeared Catherine
Lenhardt, who acknowledged herself to be a Vice President of J.P. Morgan Trust
Company, National Association, Trustee, a national banking association, and that
she as such Vice President, being authorized to do so, executed the foregoing
Thirty-Fifth 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/ Sandra M. Abrahams
-----------------------
Notary
This Thirty-Fifth Supplemental Indenture was recorded on December __,
2001 in the Office for the Recording of Deeds for each of the counties tabulated
below in the Mortgage Book and at the page indicated:
Mortgage
County Book Page
- ------ ---- ----
Berks ____ ____
Bradford ____ ____
Bucks ____ ____
Chester ____ ____
Columbia ____ ____
Delaware ____ ____
Lawrence ____ ____
Mercer ____ ____
Montgomery ____ ____
Northumberland ____ ____
Pike ____ ____
Schuylkill ____ ____
Wayne ____ ____
For the recording information with respect to the Original Indenture and the
first thirty-four supplemental indentures, see pages 4-6 of this Thirty-Fifth
Supplemental Indenture.