WESTERN MASSACHUSETTS ELECTRIC COMPANY and THE BANK OF NEW YORK TRUST COMPANY N.A., as TRUSTEE THIRD SUPPLEMENTAL INDENTURE Dated as of ______________, 2005 Supplemental to the Indenture dated as of September 1, 2003 Senior Notes, Series C, Due 20__
EXHIBIT
4.2
and
THE
BANK OF NEW YORK TRUST COMPANY N.A.,
as
TRUSTEE
_________________________
THIRD
SUPPLEMENTAL INDENTURE
Dated
as
of ______________, 2005
Supplemental
to the Indenture
dated
as
of September 1, 2003
Senior
Notes, Series C, Due 20__
THIRD
SUPPLEMENTAL INDENTURE, dated as of _________, 2005, between WESTERN
MASSACHUSETTS ELECTRIC COMPANY, a corporation 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 New
York
banking corporation organized and existing under the laws of the State of
New
York, 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 September 1, 2003 (the “Original Indenture”), to provide for the issuance
from time to time of its debentures, notes or other evidences of indebtedness
(the “Senior Notes”), 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 Senior Notes of any series as permitted in Sections 201 and 301 of the
Original Indenture, and (b) changing the provisions of the Original Indenture
as
they apply to any series created by such supplemental indenture.
The
Company has heretofore executed and delivered to the Trustee the following
Supplemental Indenture for the purpose of creating the following series of
bonds:
|
Date
|
Series
|
Amount
|
||
|
September
1, 2003
|
Senior
Notes, Series A, Due 2013
|
$55,000,000
|
||
|
September
1, 2004
|
Senior
Notes, Series B, Due 2034
|
$50,000,000
|
The
Company desires to create a new series of the Senior Notes in an aggregate
principal amount of up to $_________ to be designated the “Senior Notes, Series
C, Due 20__” (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 20___
|
SECTION
201.
|
Issue
of Notes.
|
A
series
of Senior Notes which shall be designated the “Senior Notes, Series C, Due 20__”
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 the 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 be $_________.
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 ______________), 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 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.
2
|
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.
|
Restrictions
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 ___________, Attention: Corporate
Trust
Administration.
ARTICLE
THREE
Miscellaneous
|
SECTION
301.
|
Execution
as Supplemental Indenture.
|
This
Third Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Third Supplemental Indenture forms a part thereof.
|
SECTION
302.
|
Conflict
with Trust Indenture Act.
|
If
any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Third Supplemental Indenture by
any of
the provisions of the Trust Indenture Act, such required provision shall
control.
|
SECTION
303.
|
Effect
of Headings.
|
The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
|
SECTION
304.
|
Successors
and Assigns.
|
All
covenants and agreements by the Company in this Third Supplemental Indenture
shall bind its successors and assigns, whether so expressed or not.
3
|
SECTION
305.
|
Separability
Clause.
|
In
case
any provision in this Third Supplemental Indenture or in the Notes shall
be
invalid, illegal or unenforceable, the validity, legality and enforceability
of
the remaining provisions shall not in any way be affected or impaired
thereby.
|
SECTION
306.
|
Benefits
of Third Supplemental Indenture.
|
Nothing
in this Third Supplemental Indenture or in the Notes, express or implied,
shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Third Supplemental Indenture.
|
SECTION
307.
|
Recitals.
|
The
Trustee shall have no responsibility for the recitals contained in this Third
Supplemental Indenture, all of which shall be taken as the statements of
the
Company, or for the validity or sufficiency of this Third Supplemental
Indenture.
|
SECTION
308.
|
Governing
Law.
|
This
Third Supplemental Indenture shall be governed by and construed in accordance
with the laws of the State of New York.
|
SECTION
309.
|
Execution
and Counterparts.
|
This
Third Supplemental Indenture may be executed in any number of counterparts,
each
of which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
4
IN
WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed, all as of the day and year first above
written.
|
By:_______________________________
|
||
|
Name:
|
||
|
Title:
|
||
|
THE
BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
|
||
|
By:________________________________
|
||
|
Name:
|
||
|
Title:
|
||
5
STATE
OF
CONNECTICUT )
) ss.:
COUNTY
OF
)
On
the
___ day of __________, 2005, before me personally came ________, to me known,
who, being by me duly sworn, did depose and say that he/she is the _______
of
Western Massachusetts Electric Company, one of the corporations described
in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by authority of the Board of Directors of said corporation.
|
___________________________
|
|
|
Notary
Public Information
|
STATE
OF
NEW YORK )
)
ss.:
COUNTY
OF
NEW YORK )
On
the
____ day of ______, 2005, before me personally came _________, to me known,
who,
being by me duly sworn, did depose and say that he/she is a _________ of
The
Bank of New York Trust Company, N.A., a New York banking corporation, one
of the
corporations described in and which executed the foregoing instrument; and
that
he/she signed his/her name thereto by authority of the Board of Directors
of
said corporation.
|
__________________________
|
|
|
Notary
Public Information
|
6
EXHIBIT
A
[Form
of
Face of Global Security]
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF
A
DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to Western Massachusetts Electric
Company or its agent for registration of transfer, exchange, or payment,
and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
SENIOR
NOTES, SERIES C, DUE 20___
CUSIP
NO
|
No.
1
|
$
|
WESTERN
MASSACHUSETTS ELECTRIC COMPANY, a corporation duly organized and existing
under
the laws of the Commonwealth of Massachusetts (the “Company” which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ________, or registered assigns,
the
principal sum of __________ Dollars ($__________) on ___________ ___, 20__
(the
“Final Maturity”), and to pay interest thereon from the date of original
issuance of the Notes or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually in arrears on
__________ and __________ in each year, commencing _____________, at the
rate of
___% per annum, until the principal hereof is paid or made available for
payment
and at the rate of ___% per annum on any overdue principal and premium and
(to
the extent that the payment of such interest shall be legally enforceable)
on
any overdue installment of interest.
A-1
The
amount of interest payable for any period other than a complete interest
payment
period will be computed on the basis of a 360-day year consisting of twelve
thirty day months and, for any period shorter than a full month, on the basis
of
the actual number of days elapsed in such period. In any case where any Interest
Payment Date, Stated Maturity or Redemption Date is not a Business Day, then
payment of principal and interest, if any, or principal and premium, if any,
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
in
each case with the same force and effect as if made on such date. A “Business
Day” shall mean any day, except a Saturday, a Sunday or a legal holiday in The
City of New York on which banking institutions are authorized or required
by
law, regulation or executive order to close.
The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in
whose
name this Security is registered at the close of business on the Regular
Record
Date for such interest, which shall be (1) the Business Day next preceding
such
Interest Payment Date if this Security remains in book-entry only form or
(2)
the 15th calendar day (whether or not a Business Day) next preceding such
Interest Payment Date if this Security does not remain in book-entry only
form.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such date and may either be paid to
the
Person in whose name this Security is registered at the close of business
on a
Special Record Date for the payment of such Defaulted Interest to be fixed
by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid
at
any time in any other lawful manner not inconsistent with the requirements
of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment
of the principal of (and premium, if any) and any interest on this Security
will
be made at the office or agency of the Company maintained for that purpose
in
the Borough of Manhattan, The City of New York, in such coin or currency
of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of
the
Person entitled thereto as such address shall appear in the Security
Register.
This
Security has initially been issued in the form of a Global Security, and
the
Company has initially designated _______________________ (the “Depositary,”
which term shall include any successor depositary) as the Depositary for
this
Security. For as long as this Security or any portion hereof is issued in
such
form, and notwithstanding the previous paragraph, all payments of interest,
principal and other amounts in respect of this Security or portion thereof
shall
be made to the Depositary or its nominee in accordance with its applicable
policies and procedures, in the coin or currency specified above and as further
provided on the reverse hereof.
A-2
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall
not
be entitled to any benefit under the Indenture or be valid or obligatory
for any
purpose.
A-3
[Form
of
Reverse of Global Security]
SENIOR
NOTES, SERIES C, DUE 20__
This
Security is one of a duly authorized issue of securities of the Company (herein
called the “Securities”), issued and to be issued in one or more series under an
Indenture, dated as of September 1, 2003 as amended and supplemented from
time
to time and as supplemented by the Third Supplemental Indenture dated as
of
___________, 2005 (herein called the “Indenture”, which term shall have the
meaning assigned to it in such instrument), between the Company and The Bank
of
New York Trust Company, N.A. (as successor to The Bank of New York), as Trustee
(herein called the “Trustee”, which term includes any successor trustee under
Indenture), as to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and
the
Holders and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated
on
the face hereof, limited in aggregate principal amount to $___________. The
provisions of this Security, together with the provisions of the Indenture,
shall govern the rights, obligations, duties and immunities of the Holder,
the
Company and the Trustee with respect to this Security, provided that, if
any
provision of this Security conflicts with any provision of the Indenture,
the
provision of this Security shall be controlling to the fullest extent permitted
under the Indenture.
The
Securities of this series are subject to redemption upon not less than thirty
(30) or more than sixty (60) days’ notice by mail to the Holders of such
securities at their addresses in the Security Register, at the option of
the
Company, in whole or in part, from time to time at a Redemption Price equal
to
the principal amount of the Securities being redeemed, plus accrued and unpaid
interest thereon to but excluding the Redemption Date, plus the Make-Whole
Premium. The “Make-Whole Premium” means an amount equal to the excess, if any,
of (i) the present value of all interest and principal payments scheduled
to
become due after the Redemption Date on the Securities being redeemed (such
present value to be determined on the basis of a discount rate equal to the
sum
of (a) the Treasury Rate and (b) __ basis points), over (ii) the principal
amount of the Securities being redeemed. The “Treasury Rate” means, with respect
to any redemption of Securities, the yield to maturity at the time of
computation of United States Treasury securities with a final maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.
15(519) which has become publicly available at least two Business Days in
New
York prior to the Redemption Date (or, if such statistical release is no
longer
published, any publicly available source or similar market data)) most nearly
equal to the remaining average life on the Redemption Date of the Securities
being redeemed; provided,
however,
that if
the period from the Redemption Date to the maturity date of the Securities
being
redeemed is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one
year
shall be used.
A-4
Except
as
otherwise provided in the Indenture, if notice has been given as provided
in the
Indenture and funds for the redemption of any Securities (or any portion
thereof) called for redemption shall have been made available on the Redemption
Date referred to in such notice, such Securities (or any portion thereof)
will
cease to bear interest on the date fixed for such redemption specified in
such
notice and the only right of the Holders of such Securities will be to receive
payment of the Redemption Price.
In
the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation
hereof.
The
Securities of this series will not be subject to any sinking fund.
If
an
Event of Default with respect to Securities of this series shall occur and
be
continuing, the principal of the Securities of this series may be declared
due
and payable in the manner and with the effect provided in the
Indenture.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company
and
the rights of the Holders of the Securities of each series to be affected
under
the Indenture at any time by the Company and the Trustee with the consent
of the
Holders of a majority in principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class). The Indenture
also contains provisions permitting the Holders of specified percentages
in
principal amount of the Securities of each series at the time Outstanding,
on
behalf of the Holders of all Securities of such series, to waive compliance
by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by
the
Holder of this Security shall be conclusive and binding upon such Holder
and
upon all future Holders of this Security and of any Security issued upon
the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
No
reference herein to the Indenture and no provision of this Security or of
the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium and interest on
this
Security at the time, place and rate, and in the coin or currency, herein
prescribed.
This
Security shall be exchangeable for Securities registered in the names of
Persons
other than the Depositary with respect to such series or its nominee only
as
provided in this paragraph. This Security shall be so exchangeable if (x)
the
Depositary notifies the Company that it is unwilling or unable to continue
as
Depositary for such series or at any time ceases to be a clearing agency
registered as such under the Securities Exchange Act of 1934, (y) the Company
executes and delivers to the Trustee an Officers’ Certificate providing that
this Security shall be so exchangeable or (z) there shall have occurred and
be
continuing an Event of Default with respect to the Securities of the series
of
which this Security is a part. Securities so issued in exchange for this
Security shall be of the same series, having the same interest rate, if any,
and
maturity and having the same terms as this Security, in authorized denominations
and in the aggregate having the same principal amount as this Security and
registered in such names as the Depositary for such Global Security shall
direct.
A-5
As
provided in the Indenture and subject to certain limitations therein set
forth,
the transfer of a Security of the series of which this Security is a part
is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of and any premium and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer
in
form satisfactory to the Company and the Security Registrar duly executed
by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued
to the
designated transferee or transferees.
The
Securities of the series of which this Security is a part are issuable only
in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable
for a
like aggregate principal amount of Securities of this series and of like
tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
Prior
to
due presentment of this Security for registration of transfer, the Company,
the
Trustee and any agent of the Company or the Trustee may treat the Person
in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
For
so
long as this Security is issued in the form of a Global Security, neither
the
Company nor the Trustee will have any responsibility with respect to the
policies and procedures of the Depositary or for any notices or other
communications among the Depositary, its direct and indirect participants
or the
beneficial owners of this Security.
Neither
the failure to give any notice nor any defect in any notice given to the
Holder
of this Security or any other Security of this series will affect the
sufficiency of any notice given to any other Holder of any Securities of
this
series.
The
Indenture provides that the Company, at its option (a) will be discharged
from
any and all obligations in respect of the Securities (except for certain
obligations to register the transfer or exchange of Securities, replace stolen,
lost or mutilated Securities, maintain paying agencies and hold moneys for
payment in trust) or (b) need not comply with certain restrictive covenants
of
the Indenture, in each case if the Company deposits, in trust, with the Trustee
money or U.S. Government Obligations which, through the payment of interest
thereon and principal thereof in accordance with their terms, will provide
money, in an amount sufficient to pay all the principal of, and premium,
if any,
and interest, if any, on the Securities on the dates such payments are due
in
accordance with the terms of such Securities, and certain other conditions
are
satisfied.
A-6
No
recourse shall be had for the payment of the principal of or the interest
on
this Security, or for any claim based hereon, or otherwise in respect hereof,
or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any trustee, incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or any successor corporation, either
directly or through the Company or any successor corporation, whether by
virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
This
Security shall be governed by and construed in accordance with the laws of
the
State of New York.
All
terms
used in this Security not defined herein which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-7
IN
WITNESS WHEREOF, Western Massachusetts Electric Company has caused this
instrument to be duly executed.
|
Dated:________________ __,
2005
|
|
By:
__________________________
|
||
|
Name:
|
||
|
Title:
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Securities of the series designated therein referred to in
the within
mentioned Indenture.
|
Dated:_______________,
0000
|
XXX
XXXX
XX XXX XXXX TRUST COMPANY N.A.,
as
Trustee
|
By:
|
__________________________ | |
|
Authorized
Signatory
|
A-8
