__________________________________________________________
NORTHEAST UTILITIES
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
AS TRUSTEE
_________________________
THIRD SUPPLEMENTAL INDENTURE
Dated as of June 1, 2008
Supplemental to the Indenture dated as of April
1, 2002
Senior Notes, Series C, Due 2013
______________________________________________________________
THIRD SUPPLEMENTAL INDENTURE, dated as of June
1, 2008 (this “Third Supplemental Indenture”),
between NORTHEAST UTILITIES, a voluntary association duly
organized and existing under the laws of the Commonwealth of
Massachusetts (the “Company”), and THE BANK OF NEW
YORK TRUST COMPANY, N.A. (as successor to The Bank of New York),
a national banking association duly organized and existing under
the laws of the United States of America, as Trustee under the
Original Indenture referred to below (the
“Trustee”).
RECITALS OF THE COMPANY
The Company has heretofore executed and
delivered to the Trustee an indenture dated as of April 1,
2002(the “Original Indenture”), as supplemented and
amended, to provide for the issuance from time to time of its
notes, debentures or other evidences of indebtedness (the
“Securities”), the form and terms of which are to be
established as set forth in Sections 201 and 301 of the Original
Indenture.
Section 901 of the Original Indenture provides,
among other things, that the Company and the Trustee may enter
into indentures supplemental to the Original Indenture for,
among other things, (a) the purpose of establishing the form and
terms of the Securities of any series as
permitted by Sections 201 and 301 of the
Original Indenture, and (b) changing any of the provisions of
the Original Indenture as they apply to any series of Securities
created by such supplemental indenture.
The Company has heretofore executed and
delivered to the Trustee the following Supplemental Indentures
for the purpose of creating the following series of
Securities:
Supplemental
Indenture
Date
Series
Amount
First
April 1, 2002
Series A, Due 2012
$263,000,000
Second
June 1, 2003
Series B, Due 2008
$150,000,000
The Company desires to create a new series of
Securities, in an initial aggregate principal amount of
$250,000,000, to be designated the “Senior Notes, Series
C, Due 2013” (the “Notes”), and all action on
the part of the Company necessary to authorize the issuance of
the Notes under the Original Indenture and this Third
Supplemental Indenture has been duly taken.
All acts and things necessary to make the Notes,
when executed by the Company and completed, authenticated and
delivered by the Trustee as provided in the Original Indenture
and this Third Supplemental Indenture, the valid and binding
obligations of the Company and to constitute these presents a
valid and binding supplemental indenture and agreement according
to its terms, have been done and performed.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL
INDENTURE WITNESSETH:
That in consideration of the premises and of the
acceptance and purchase of the Notes by the Holders thereof and
of the acceptance of this trust by the Trustee, the Company
covenants and agrees with the Trustee, for the equal and ratable
benefit of the Holders of the Notes, as follows:
ARTICLE ONE
Definitions
The use of the terms and expressions herein is
in accordance with the definitions, uses and constructions
contained in the Original Indenture and form of the Notes
attached hereto as Exhibit A .
ARTICLE TWO
Terms and Issuance of the Senior Notes, Series C,
Due 2013
SECTION 201.
Issue of Notes .
A series of Securities which shall be designated
the “Senior Notes, Series C, Due 2013” shall be
executed, authenticated and delivered from time to time in
accordance with the
provisions of, and shall in all respects be
subject to, the terms and conditions and covenants of, the
Original Indenture and this Third Supplemental Indenture
(including the form of Note attached hereto as Exhibit A
). The aggregate principal amount of the Notes which will
initially be authenticated and delivered under this Third
Supplemental Indenture shall not, except as permitted by the
provisions of the Original Indenture, exceed $250,000,000.
Additional Senior Notes, without limitation as to amount, having
substantially the same terms as the Notes (except a different
issue date, issue price and bearing interest from the last
Interest Payment Date to which interest has been paid or duly
provided for on the Outstanding Notes, and, if no interest has
been paid, from June 5, 2008) may also be issued by the Company
pursuant to this Third Supplemental Indenture without the
consent of the existing Holders of the Notes. Such
additional Senior Notes shall be part of the same series as the
Outstanding Notes.
SECTION 202.
Form of Notes; Incorporation of Terms .
The Notes shall be in substantially the form set
forth in Exhibit A attached hereto. The terms of
the Notes contained in such form are hereby incorporated herein
by reference and are made a part of this Third Supplemental
Indenture.
SECTION 203.
Global Security; Depositary for Global
Securities .
The Notes shall be issued initially in the form
of a Global Security. The Depositary for any Global
Securities of the series of which the Notes are a part shall be
The Depository Trust Company, New York, New York.
SECTION 204.
Limitations on Liens .
The provisions of Section 1007 of the Original
Indenture shall be applicable to the Notes.
SECTION 205.
Sale and Leaseback Transactions .
The provisions of Section 1012 of the Original
Indenture shall be applicable to the Notes.
SECTION 206.
Place of Payment .
The Place of Payment in respect of the Notes
shall be at the Corporate Trust Office, which, at the date
hereof, is located at 222 Berkeley Street, 2nd Fl., Boston, MA.
02116, Attn: Corporate Trust Administration.
SECTION 207.
Optional Redemption .
The Notes may be redeemed in whole at any time
or in part from time to time at the option of the Company at a
redemption price equal to the greater of:
•
one hundred percent (100%) of the principal
amount of the Notes being redeemed, plus accrued interest
thereon to the redemption date; or
•
as determined by the Quotation Agent, the sum of
the present value of the remaining scheduled payments of
principal and interest on the Notes to be redeemed (not
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including any portion of payments of interest
accrued as of the redemption date) discounted to the redemption
date on a semi-annual basis at the Adjusted Treasury Rate plus
35 basis points, plus accrued interest to the redemption date.
The redemption price will be calculated assuming
a 360-day year consisting of twelve 30-day months.
“Adjusted Treasury Rate”
means, with respect to any redemption date, the rate per year
equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for that
redemption date.
“Comparable Treasury Issue” means
the United States Treasury security selected by the Quotation
Agent as having a maturity comparable to the remaining term of
the Notes that would be used, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to
the remaining term of the Notes.
“Comparable Treasury Price” means,
with respect to any redemption date: (i) the average of
the Reference Treasury Dealer Quotations for that redemption
date, after excluding the highest and lowest of the Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer
than three Reference Treasury Dealer Quotations, the average of
all Reference Treasury Dealer Quotations so received.
“Quotation Agent” means the
Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means a
primary U.S. Government securities dealer in New York City
selected by the Company.
“Reference Treasury Dealer
Quotations” means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by that
Reference Treasury Dealer at 5:00 p.m., New York City time, on
the third business day preceding that redemption date.
If less than all of the Notes are to be
redeemed, the Trustee will select the Notes to be redeemed by a
method that the Trustee deems fair and appropriate and which may
provide for the selection for the redemption of portions (equal
to $1,000 or any multiple thereof) of the principal amount of
the Notes larger than $1,000. Notice of redemption will be
mailed, first-class mail postage prepaid, to each holder of
Notes to be redeemed at the holder’s address in the
Security Register for the Notes. If any Note is to be
redeemed in part only, the notice of redemption that relates to
that Note will state the portion of the principal amount of that
Note to be redeemed. In that case, the Company will issue
a new Note of any authorized denomination, as requested, in an
aggregate principal amount equal to the unredeemed portion of
such Note, in the name of the holder upon cancellation of the
original Note.
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The Company will mail notice of any redemption
to holders of the Notes, not more than sixty (60) nor less than
thirty (30) days before the redemption date.
Unless the Company defaults in payment of the
redemption price, on and after the redemption date, interest
will cease to accrue on the Notes called for redemption.
The Notes are not subject to any sinking
fund.
ARTICLE THREE
Amendment of Original Indenture
SECTION 301.
Amendment to Section 401 of the Original Indenture .
Section 401 of the Original Indenture is hereby
amended with respect to the Notes to read as follows in its
entirety:
“Section 401. Satisfaction and
Discharge of Indenture .
This Indenture shall upon Company Request cease
to be of further effect, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either (A) all Securities theretofore
authenticated and delivered (other than (x) Securities which
have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306 hereof and (y) Securities for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided
in Section 1003 hereof) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation have become due and
payable and the Company has irrevocably deposited or caused to
be irrevocably deposited (in each case except as provided in
Section 402(c) hereof and the last paragraph of Section 1003
hereof) with the Paying Agent or with the Trustee as trust funds
in trust for the purpose an amount of money sufficient to pay
and discharge, or has otherwise paid, the entire Indebtedness on
such Securities for principal and interest, if any;
(2) the Company has paid or caused to be paid
all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with;
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provided, however, that if the Trustee or any
Paying Agent is required to return any money deposited with it
as described in this Section 401 to the Company or its
representative under any applicable Federal or state bankruptcy,
insolvency or similar law, this Indenture shall retroactively be
deemed not to have been satisfied and discharged and
automatically shall be reinstated and shall remain in full force
and effect without any further action, but the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee
under Section 607 hereof, the obligations of the Trustee to any
Authenticating Agent under Section 614 hereof and, if money
shall have been deposited with the Paying Agent or the Trustee
pursuant to subclause (B) of clause (1) of this Section 401, the
obligations of the Company and the Trustee under Sections 401,
402, 1002 and 1003 hereof shall survive.”
SECTION 302.
Amendment to Section 403 of the Original
Indenture .
Section 403 of the Original Indenture is hereby
amended with respect to the Notes to read as follows in its
entirety:
“Section 403. Satisfaction, Discharge
and Defeasance of the Notes .
The Company shall be deemed to have paid and
Discharged the entire Indebtedness on all the Outstanding Notes
upon the deposit referred to in subparagraph (1) hereof, and the
provisions of this Indenture, as they relate to such Outstanding
Notes, shall no longer be in effect (and the Trustee, at the
expense of the Company, shall at Company Request execute proper
instruments acknowledging the same), except as to:
(a)
the rights of Holders of the Notes to receive,
from the trust funds described in subparagraph (1) hereof,
payment of the principal of (and premium, if any) or interest,
if any, on the Outstanding Notes on the Stated Maturity; or to
and including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (4) hereof;
(b)
the Company's obligations with respect to such
Notes under Sections 305, 306, 1002 and 1003 hereof and, if the
Company shall have irrevocably designated a Redemption Date
pursuant to subparagraph (5) hereof, Sections 1101, 1104 and
1106 hereof as they apply to such Redemption Date;
(c)
the Company's obligations with respect to the
Trustee under Section 607 hereof; and
(d)
the rights, powers, trust and immunities of the
Trustee hereunder and the duties of the Trustee under Section
402 hereof and, if the
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Company shall have irrevocably designated a
Redemption Date pursuant to subparagraph (5) hereof, Article 11
and the duty of the Trustee to authenticate Notes on
registration of transfer or exchange;
provided that, the following conditions shall
have been satisfied:
(1) the Company has irrevocably deposited or
caused to be irrevocably deposited (in each case except as
provided in Section 402(c) hereof and the last paragraph of
Section 1003 hereof) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Notes, an amount of (i) money,
or (ii) U.S. Government Obligations or a combination of money
and U.S. Government Obligations, in each case sufficient, in the
opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which the
Trustee shall be instructed to apply to pay and discharge, the
principal of and interest, if any, on the Notes on the Stated
Maturity or to and including the Redemption Date irrevocably
designated by the Company pursuant to subparagraph (4) hereof;
provided, however , that (A) all money and U.S.
Government Obligations deposited pursuant to this Section 403
shall be denominated in U.S. Dollars; and (B) U.S. Government
Obligations shall be valued at the amount of money that they
will provide through the payment of principal and interest in
respect thereof in accordance with their terms no later than one
day prior to the Stated Maturity or such Redemption Date, and
shall not contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof prior to the
Stated Maturity or such Redemption Date;
(2) no Event of Default or event which with
notice or lapse of time would become an Event of Default
(including by reason of such deposit) with respect to the Notes
shall have occurred and be continuing on the date of such
deposit;
(3) the Company has delivered to the Trustee an
unqualified opinion, in form and substance reasonably acceptable
to the Trustee, of independent counsel of national standing
selected by the Company and satisfactory to the Trustee to the
effect that (i) Holders of the Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of the
deposit, defeasance and discharge, which opinion shall be based
on a change in law or a ruling by the U.S. Internal Revenue
Service after the date hereof and (ii) the defeasance trust is
not, or is registered as, an investment company under the
Investment Company Act of 1940;
(4) if the Company has deposited or caused to be
deposited money or U.S. Government Obligations to pay or
discharge the principal of (and premium, if any) and interest,
if any, on the Outstanding Securities of a
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series to and including a Redemption Date on
which all of the Outstanding Securities of such series are to be
redeemed, such Redemption Date shall be irrevocably designated
by a Board Resolution delivered to the Trustee on or prior to
the date of deposit of such money or U.S. Government
Obligations, and such Board Resolution shall be accompanied by
an irrevocable Company Request that the Trustee give notice of
such redemption in the name and at the expense of the Company
not less than 30 nor more than 60 days prior to such Redemption
Date in accordance with Section 1104 hereof;
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of the Securities have been
complied with.
The condition set forth in clause (i) of
subparagraph (3) hereof shall not apply if the Company shall
have complied with the remaining conditions of subparagraphs 1-5
hereof as of a date which is no less than 60 days prior to the
maturity date.
Anything herein to the contrary notwithstanding,
(a) if the Trustee or any Paying Agent is required to return any
money or U.S. Government Obligations deposited with it pursuant
to this Section 403 to the Company or its representative under
any Federal or state bankruptcy, insolvency or similar law, such
Security shall thereupon be deemed retroactively not to have
been paid and any satisfaction and discharge of the
Company’s Indebtedness in respect thereof shall
retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and the
provisions of the Indenture relating to such Security shall be
reinstated and shall remain in full force and effect and (b) any
satisfaction and discharge of the Company’s Indebtedness
in respect of any Security shall be subject to the provisions of
the last paragraph of Section 1003.”
SECTION 303.
Amendment to Section 1009 of the Original
Indenture .
Subparagraph (i) of Section 1009 of the Original
Indenture is hereby amended with respect to the Notes to read as
follows in its entirety:
“the Company has irrevocably deposited or
caused to be irrevocably deposited (in each case except as
provided in Section 402(c) hereof and the last paragraph of
Section 1003 hereof) with the Trustee (specifying that each
deposit is pursuant to this Section 1009) as trust funds in
