uilexh4-5.htm








EXHIBIT 4.5







EXECUTION COPY







___________________________________________________________________________________________________________________________________











$400,000,000


 


CREDIT AGREEMENT


 


Dated as of November 17, 2010


 


among


 


UIL HOLDINGS CORPORATION


 


THE UNITED ILLUMINATING COMPANY


 


and the other Borrowers from time to time parties hereto


 


as Borrowers


 


THE BANKS NAMED HEREIN


 


as Banks


 


JPMORGAN CHASE BANK, N.A.


 


and


 


UNION BANK, N.A.


 


as


 


LC Banks


 


and


 


JPMORGAN CHASE BANK, N.A.


 


as Administrative Agent


 



___________________________________________________________________________________________________________________________________











UNION BANK, N.A.


Syndication Agent







and







J.P. MORGAN SECURITIES INC.


and


UNION BANK, N.A.


Joint Lead Arrangers


 











1197483




  





  











  













TABLE OF CONTENTS








	  	  	
Page


	  	  	  
	ARTICLE I     DEFINITIONS AND ACCOUNTING TERMS	  	
1


	  	
SECTION 1.01.

	
Certain Defined Terms.

	  	
1


	  	
SECTION 1.02.

	
Computation of Time Periods.

	  	
12


	  	
SECTION 1.03.

	
Accounting Terms.

	  	
12


	  	  	  	  
	ARTICLE II   AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT	  	
12


	  	
SECTION 2.01.

	
The Advances.

	  	
12


	  	
SECTION 2.02.

	
Making the Advances.

	  	
13


	  	
SECTION 2.03.

	
Letters of Credit.

	  	
14


	  	
SECTION 2.04.

	
Fees.

	  	
20


	  	
SECTION 2.05.

	
Changes in the Commitments.

	  	
21


	  	
SECTION 2.06.

	
Repayment of Advances.

	  	
22


	  	
SECTION 2.07.

	
Interest on Advances.

	  	
22


	  	
SECTION 2.08.

	
Additional Interest on Eurodollar Rate Advances.

	  	
23


	  	
SECTION 2.09.

	
Interest Rate Determination.

	  	
23


	  	
SECTION 2.10.

	
Voluntary Conversion of Advances.

	  	
24


	  	
SECTION 2.11.

	
Optional Prepayments of Advances.

	  	
24


	  	
SECTION 2.12.

	
Increased Costs.

	  	
25


	  	
SECTION 2.13.

	
Illegality.

	  	
26


	  	
SECTION 2.14.

	
Payments and Computations.

	  	
26


	  	
SECTION 2.15.

	
Sharing of Payments, Etc.

	  	
27


	  	
SECTION 2.16.

	
Taxes.

	  	
28


	  	  	  	  
	ARTICLE III   CONDITIONS PRECEDENT	  	
29


	  	
SECTION 3.01.

	
Conditions Precedent to Initial Extension of Credit.

	  	
29


	  	
SECTION 3.02.

	
Conditions Precedent to Each Extension of Credit.

	  	
30


	  	
SECTION 3.03.

	
Conditions Precedent to Initial Extension of Credit


to New Borrowers.

	  	
 


31


	  	  	  	  
	ARTICLE IV   REPRESENTATIONS AND WARRANTIES	  	
32


	  	
SECTION 4.01.

	
Representations and Warranties of Each Borrower.

	  	
32


	  	  	  	  
	ARTICLE V   COVENANTS OF THE BORROWERS	  	
36


	  	
SECTION 5.01.

	
Affirmative Covenants.

	  	
36


	  	
SECTION 5.02.

	
Negative Covenants.

	  	
39


	  	
SECTION 5.03.

	
Financial Covenants.

	  	
41


	  	  	  	  
	ARTICLE VI   EVENTS OF DEFAULT	  	
42


	  	
SECTION 6.01.

	
Events of Default.

	  	
42


	  	
SECTION 6.02.

	
Cash Collateral Account.

	  	
43




















  





i











  



















	  	  	
Page


	  	  	  
	ARTICLE VII    THE ADMINISTRATIVE AGENT	  	
44


	  	
SECTION 7.01.

	
Authorization and Action.

	  	
44


	  	
SECTION 7.02.

	
Administrative Agent’s Reliance, Etc.

	  	
45


	  	
SECTION 7.03.

	
JPMorgan and Affiliates.

	  	
45


	  	
SECTION 7.04.

	
Bank Credit Decision.

	  	
45


	  	
SECTION 7.05.

	
Indemnification.

	  	
46


	  	
SECTION 7.06.

	
Successor Administrative Agent.

	  	
46


	  	
SECTION 7.07.

	
Other Agents.

	  	
47


	  	  	  
	ARTICLE VIII   MISCELLANEOUS	  	
47


	  	
SECTION 8.01.

	
Amendments, Etc.

	  	
47


	  	
SECTION 8.02.

	
Notices, Etc.

	  	
48


	  	
SECTION 8.03.

	
No Waiver; Remedies.

	  	
48


	  	
SECTION 8.04.

	
Costs, Expenses, Taxes and Indemnification.

	  	
49


	  	
SECTION 8.05.

	
Right of Set-off.

	  	
50


	  	
SECTION 8.06.

	
Binding Effect; Participations and Assignments; No Fiduciary Relationship.

	  	
50


	  	
SECTION 8.07.

	
Confidentiality

	  	
54


	  	
SECTION 8.08.

	
Governing Law; Consent to Jurisdiction; Waiver of Jury Trial; Certain Disclosures.

	  	
 


55


	  	
SECTION 8.09.

	
Execution in Counterparts.

	  	
55


	  	
SECTION 8.10.

	
USA PATRIOT Act Notice.

	  	
56


	  	
SECTION 8.11.

	
Defaulting Banks.

	  	
56


















	
Schedule I

	
-

	
List of Applicable Lending Offices


	  	  	  
	
Schedule II

	
-

	
Transferred Letters of Credit


	  	  	  
	
Schedule 4.01(h)

	
-

	
Agreements Imposing Dividend Restrictions


	  	  	  
	
Schedule 5.02

	
-

	
Existing Liens


	  	  	  
	
Exhibit A

	
-

	
Form of Notice of Borrowing


	  	  	  
	
Exhibit B

	
-

	
Form of Request for Issuance


	  	  	  
	
Exhibit C

	
-

	
Form of Joinder Agreement


	  	  	  
	
Exhibit D-1

	
-

	
Form of Opinion of Counsel to the Original Borrowers


	  	  	  
	
Exhibit D-2

	
-

	
Form of Opinion of Counsel to the New Borrowers


	  	  	  
	
Exhibit E

	
-

	
Form of Opinion of Special New York Counsel to the Administrative Agent




















  





ii











  













CREDIT AGREEMENT







Dated as of November 17, 2010







UIL HOLDINGS CORPORATION, a Connecticut corporation (the “Parent”), THE UNITED ILLUMINATING COMPANY, a specially chartered Connecticut corporation (“UI” and, together with the Parent and the other Persons that from time to time become parties hereto pursuant to Section 3.03, the “Borrowers”), the banks parties hereto (the “Banks”), JPMORGAN CHASE BANK, N.A. (“JPMorgan”) and UNION BANK, N.A., as LC Banks (as defined below), and JPMorgan, as administrative agent (the “Administrative Agent”) for the Banks and the LC Banks hereunder, agree as follows:


 


 


ARTICLE I


DEFINITIONS AND ACCOUNTING TERMS


 


SECTION 1.01. Certain Defined Terms.


 


As used in this agreement (this “Agreement”), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):


 


“Administrative Agent” has the meaning specified in the recital of parties to this Agreement.


 


“Advance” means an advance by a Bank to a Borrower as part of a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance, each of which shall be a “Type” of Advance.


 


“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person.


 


“Applicable Lending Office” means, with respect to each Bank, such Bank’s Domestic Lending Office in the case of a Base Rate Advance and such Bank’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.


 


“Applicable Margin” means with respect to any Base Rate Advance and any Eurodollar Rate Advance made to any Borrower, at all times during which any Applicable Rating Level set forth below is in effect for such Borrower, the rate per annum (except as provided below) for such Type of Advance set forth below next to such Applicable Rating Level:


 




  





  











  




 




 



	
 


Applicable Rating Level

	
Applicable Margin


For Eurodollar Rate


Advances

	
Applicable Margin


For Base Rate


Advances


	
1

	
1.30%

	
0.30%


	
2

	
1.50%

	
0.50%


	
3

	
1.70%

	
0.70%


	
4

	
1.90%

	
0.90%


	
5

	
2.10%

	
1.10%












provided, that the Applicable Margins set forth above will increase, for each Applicable Rating Level, upon the occurrence and during the continuance of any Event of Default by 2.0% per annum.


 


A change in the Applicable Margin resulting from a change in the Applicable Rating Level shall become effective upon the date of announcement of a change in the Reference Ratings that results in a change in the Applicable Rating Level.


 


“Applicable Rating Level” for any Borrower shall be determined in accordance with the Reference Ratings as follows:


 



	
Reference Ratings

	
Applicable Rating Level


	
A3 or higher by Moody’s or A- or higher by S&P

	
1


	
Baa1 by Moody’s or BBB+ by S&P

	
2


	
Baa2 by Moody’s or BBB by S&P

	
3


	
Baa3 by Moody’s or BBB- by S&P

	
4


	
lower than Baa3 by Moody’s or BBB- by S&P or no such Reference Rating

	
5












For the purposes of the foregoing, if the Reference Ratings issued by Moody’s or S&P are not the same (i.e., a “split rating”), the higher of such Reference Ratings shall control, unless (i) such Reference Ratings differ by more than one level, in which case the Reference Rating one level below the higher of the two Reference Ratings shall control, or (ii) a Reference Rating is below Baa3 or BBB- (as applicable), in which case the lower of the two Reference Ratings shall control.  The Applicable Rating Level for any Borrower shall be redetermined on the date of announcement of a change in the Reference Ratings for such Borrower.


 


“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the


 











 




  





2











  













reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a governmental authority or instrumentality thereof if and for so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such governmental authority or instrumentality) to reject, repudiate, disavow or disaffirm obligations such as those under this Agreement.


 


“Banks” means the Banks listed on the signature pages hereof and their successors and permitted assigns pursuant to Section 8.06.


 


“Base Rate” means, for any period, a fluctuating interest rate per annum as shall be in effect from time to time which rate per annum shall at all times be equal to the highest of:


 


(i)           the rate of interest announced publicly by JPMorgan in New York, New York, from time to time as JPMorgan’s prime rate;


 


(ii)           the sum of 1/2 of 1% per annum plus the Federal Funds Rate; and


 


(iii)          LIBOR, as appearing on Page 3750 of the Dow Jones Market Service (or another commercially available source providing quotations of LIBOR as designated by the Administrative Agent from time to time) at 11:00 a.m. (London time) such day for a term of one month (or if no such rates are quoted on such day, the previous day for which quotations are available) (the “One-Month LIBOR Rate”) plus 1%; provided, however, if more than one rate is specified on such service, the applicable rate shall be the arithmetic mean of all such rates plus 1%.


 


The Base Rate shall change concurrently with each change in such prime rate, the Federal Funds Rate or the One-Month LIBOR Rate, as the case may be.


 


“Base Rate Advance” means an Advance that bears interest as provided in Section 2.07(a).


 


“Base Rate Borrowing” means a Borrowing composed of Base Rate Advances.


 


“Berkshire Gas” means The Berkshire Gas Company, a Massachusetts corporation.


 


“Borrower” has the meaning specified in the recital of parties to this Agreement.


 


“Borrowing” means a borrowing by a Borrower consisting of simultaneous Advances of the same Type and, in the case of Eurodollar Rate Advances, having Interest Periods of the same duration, made by each of the Banks pursuant to Section 2.01 or Converted pursuant to Section 2.09 or 2.10.


 










  





3











  













“Business Day” means a day of the year other than a Saturday, Sunday or a public or bank holiday in New York City, Connecticut or Massachusetts, and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.


 


“Cash Collateral Account” has the meaning specified in Section 6.02.


 


“Change of Control” means (i) the Parent shall fail to own 100% of the common equity interests in any Borrower, free and clear of all Liens and encumbrances, or (ii) the occurrence, after the date of this Agreement, of (A) any Person or two or more Persons acting in concert acquiring beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended), directly or indirectly, of securities of the Parent (or other securities convertible into such securities) representing 50% or more of the combined voting power of all securities of the Parent entitled to vote in the election of directors; or (B) individuals who at the beginning of the term of this Agreement were directors ceasing for any reason to constitute a majority of the Board of Directors of the Parent unless the Persons replacing such individuals were nominated by the stockholders or the Board of Directors of the Parent in accordance with the Parent’s Bylaws; or (C) any Person or two or more Persons acting in concert acquiring by contract or otherwise, or entering into a contract or arrangement which upon consummation will result in its or their acquisition of, or control over, securities of the Parent (or other securities convertible into such securities) representing 50% or more of the combined voting power of all securities of the Parent entitled to vote in the election of directors.


 


“Commitment” has the meaning specified in Section 2.01 hereof.


 


“Commitment Increase” shall have the meaning given such term in Section 2.05(b).


 


“Commitment Percentage” shall mean, as to any Bank as of any date of determination, the percentage describing such Bank’s pro rata share of the Commitments on such date.


 


“Connecticut Gas” means Connecticut Natural Gas Corporation, a Connecticut corporation.


 


“Consolidated Capital” of any Borrower means the sum of (i) Consolidated Debt of such Borrower and (ii) the consolidated equity of all classes of stock (whether common, preferred or preference) of such Borrower, in each case determined in accordance with GAAP, except that unrealized gains and losses reflected in other comprehensive income in respect of qualified and non-qualified defined benefit pension plans, as well as other post-retirement benefit plans of such Borrower and its Consolidated Subsidiaries, for any period shall be excluded for purposes of such determination.


 


“Consolidated Debt” of any Borrower means the total principal amount of all Debt of such Borrower and its Consolidated Subsidiaries.


 


“Consolidated Subsidiary” means, with respect to any Person at any time, any Subsidiary or other Person the accounts of which would be consolidated with those of such first Person in its consolidated financial statements in accordance with GAAP.


 










  





4











  













“Convert”, “Conversion” and “Converted” each refers to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.09 or 2.10 or the selection of a new, or the renewal of the same, Interest Period for Eurodollar Rate Advances pursuant to Section 2.09 or 2.10.


 


“Credit Parties” means the Administrative Agent, the LC Banks and the Banks.


 


“Debt” of any Person means, without duplication, (i)  all indebtedness of such Person for borrowed money, (ii) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 60 days incurred in the ordinary course of such Person’s business), (iii) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (iv) all obligations of such Person as lessee under leases that have been, in accordance with GAAP, recorded as capital leases, (v) all obligations of such Person in respect of reimbursement agreements with respect to acceptances, letters of credit (other than trade letters of credit) or similar extensions of credit, (vi) all reasonably quantifiable obligations under indemnities or under support or capital contribution agreements and other reasonably quantifiable obligations (contingent or otherwise) to purchase or otherwise to assure a creditor against loss in respect of, or to assure an obligee against loss in respect of, all Debt of others referred to in clauses (i) through (v) above guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (A) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (B) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (C) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (D) otherwise to assure a creditor against loss, and (vii) preferred securities issued by any Consolidated Subsidiary of the Borrower held directly or indirectly by any person other than the Parent; provided, however, for the avoidance of doubt, “Debt” shall not include any obligation of any Person under indemnities, reimbursement agreements or similar arrangements with respect to surety bonds and other performance guaranties.


 


“Defaulting Bank” shall mean any Bank, as reasonably determined by the Administrative Agent, that (i) has failed, within three Business Days after the date required to be funded or paid, (A) to fund any portion of its Advances, (B) to fund its Commitment Percentage of any Unreimbursed LC Disbursement or (C) to pay over to any Credit Party any other amount required to be paid by it under this Agreement, unless, in the case of clause (A) above, such Bank notifies the Administrative Agent in writing that such failure is the result of such Bank’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (ii) has notified the Borrowers or any Credit Party in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Bank’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding an Advance cannot be satisfied) or generally under other agreements in which it commits to extend credit, (iii) has failed, within three Business Days after request by the Administrative Agent, acting in good


 










  





5











  













faith, to provide a certification in writing from an authorized officer of such Bank that it will comply with its obligations to fund prospective Advances, provided that such Bank shall cease to be a Defaulting Bank pursuant to clause (iii) upon such requesting party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (iv) has become the subject of a Bankruptcy Event.


 


“Domestic Lending Office” means, with respect to any Bank, the office of such Bank specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or such other office of such Bank as such Bank may from time to time specify to the Borrowers and the Administrative Agent.


 


“Environmental Event” with respect to any Borrower means (i) the generation, storage, disposal, removal, transportation or treatment of Hazardous Materials in violation of applicable law (A) on any real property owned, occupied or operated by such Borrower or any Person for whose conduct such Borrower is responsible (“Real Property”), or (B) in the vicinity of any Real Property, which through soil or ground water migration is reasonably likely to come to be located at or on such Real Property; (ii) the receipt by such Borrower of any written notice or claim of any violation of any Environmental Law or of any action based upon nuisance, negligence or other tort theory alleging liability on the basis of improper generation, storage, disposal, removal, transportation or treatment of Hazardous Materials on any Real Property; or (iii) the presence or release of Hazardous Materials at or from any Real Property, that has resulted in contamination or deterioration of any portion of such property in or to a level of contamination greater than the levels permitted or established by any governmental authority having jurisdiction over the Borrower or any Real Property.


 


“Environmental Laws” means any and all federal, state and local statutes, laws, regulations, ordinances, judgments, orders, decrees, and permits and all other governmental rules, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or the release of any materials into the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Clean Water Act (33 U.S.C. Sections 1251 et seq.), the Clean Air Act (42 U.S.C. Sections 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Sections 1801 et seq.), and the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et seq.).


 


“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.


 


“ERISA Event” means (i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, unless the 30-day notice requirement with respect thereto has been waived by the PBGC; (ii) the provision by the administrator of any Plan of notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (iii) the cessation of operations at a facility in the circumstances described in Section 4062(e) of ERISA; (iv) the withdrawal by the Borrower or an Affiliate of the Borrower from a Multiple-Employer Plan during a plan year for which it was a “substantial employer”, as defined in Section 4001(a)(2) of ERISA; (v) the failure by the Borrower or an Affiliate of the Borrower to make a payment to a


 










  





6











  













Plan required under Section 302(f)(1) of ERISA, which Section imposes a Lien for failure to make required payments; (vi) the adoption of an amendment to a Plan requiring the provision of security to such Plan, pursuant to Section 307 of ERISA; or (vii) the institution by the PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, a Plan, and, in the case of any event described in clause (ii), (iv), (v), (vi) or (vii), the then-present value of such Plan’s vested benefits exceeds the then-current value of assets accumulated in such Plan by more than $10,000,000 (or in the case of withdrawal of a “substantial employer” (as defined in Section 4001(a)(2) of ERISA), the withdrawing employer’s proportionate share of such excess shall exceed such amount) and, in any other case, the net liability of any Borrower and its affiliates in respect of such event exceeds $10,000,000.


 


“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.


 


“Eurodollar Lending Office” means, with respect to any Bank, the office of such Bank specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto, or such other office of such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.


 


“Eurodollar Rate” means, for the Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing an interest rate per annum equal to the rate appearing on page 3750 of the Dow Jones Market Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time) at 11:00 a.m. (London time), two Business Days prior to the commencement of such Interest Period, for dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate (rounded upward to the nearest 1/16 of 1%) at which deposits in U.S. dollars of $5,000,0000 for delivery on the first day of such Interest Period and with a term equivalent to such Interest Period would be offered by JPMorgan’s (or its Affiliate’s) principal London branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period; subject, however, to the provisions of Section 2.09 hereof.


 


“Eurodollar Rate Advance” means an Advance that bears interest as provided in Section 2.07(b).


 


“Eurodollar Rate Borrowing” means a Borrowing composed of Eurodollar Rate Advances.


 


“Eurodollar Rate Reserve Percentage” of any Bank for the Interest Period for any Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages for


 










  





7











  













those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Bank with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.


 


“Event of Default” has the meaning specified in Section 6.01.


 


“Extension of Credit” shall mean (i) the making of an Advance or (ii) (A) the issuance of a Letter of Credit or (B) the amendment of any Letter of Credit having the effect of extending the stated termination date thereof or increasing the maximum amount available to be drawn thereunder.


 


“Facility Fee Percentage” shall mean, at all times during which any Applicable Rating Level set forth below is in effect for the Parent, the rate per annum set forth below next to the Applicable Rating Level of the Parent:


 



	
Applicable Rating Level

	
Facility Fee


Percentage


	
1

	
0.20%


	
2

	
0.25%


	
3

	
0.30%


	
4

	
0.35%


	
5

	
0.40%












A change in the Facility Fee Percentage resulting from a change in the Applicable Rating Level of the Parent shall become effective upon the date of announcement of a change in the Reference Ratings that results in a change in the Applicable Rating Level of the Parent.


 


“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.


 


“Fronting Commitment” shall mean, with respect to any LC Bank, the aggregate stated amount of all Letters of Credit that such LC Bank agrees to issue, as such amount may be modified from time to time pursuant to agreement among such LC Bank, the Borrowers and the Administrative Agent.  The Fronting Commitment of JPMorgan on the date hereof is


 










  





8











  













$25,000,000.  The Fronting Commitment of Union Bank, N.A. on the date hereof is $25,000,000.  The Fronting Commitment with respect to any Bank or Affiliate thereof that becomes an LC Bank after the date hereof shall be the amount agreed upon among the Borrowers, the Administrative Agent and such LC Bank at the time such Bank or Affiliate thereof becomes an LC Bank; and provided further that, at no time shall LC Outstandings be greater than $50,000,000.


 


“GAAP” has the meaning specified in Section 1.03.


 


“Hazardous Materials” means any solid wastes, toxic or hazardous substances, wastes or contaminants, polychlorinated biphenyls, paint containing lead, urea, formaldehyde foam insulation and discharges of sewage or effluent, as any of such terms is defined from time to time in or for the purposes of any Environmental Laws, friable asbestos, pesticides, petroleum or petroleum products.


 


“Interest Period” means, for each Eurodollar Rate Advance constituting part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Advance into such a Eurodollar Rate Advance and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by such Borrower pursuant to the provisions below.  The duration of each such Interest Period shall be one week or one, two, three or six months or such other periods acceptable to all the Banks, as the applicable Borrower may select, upon notice received by the Administrative Agent in accordance with Section 2.02(a) or Section 2.10; provided, however, that:


 


(i)           the duration of any Interest Period that commences before the Maturity Date and otherwise ends after the Maturity Date shall end on the Maturity Date;


 


(ii)           if any Interest Period begins on a day for which there is no corresponding day in the calendar month during which such Interest Period is to end, such Interest Period shall end on the last Business Day of such month; and


 


(iii)           whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day.


 


“Joinder Agreement” means an agreement, substantially in the form of Exhibit C, by a New Borrower and accepted by the Administrative Agent.


 


“JPMorgan” has the meaning specified in the recital of parties to this Agreement.


 


“LC Bank” means JPMorgan, Union Bank, N.A. and any other Bank or any Affiliate thereof that agrees to issue Letters of Credit pursuant to Section 2.03.


 










  





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“LC Commitment” means, for each Bank, the obligation of such Bank to participate in the LC Outstandings.  “LC Commitments” shall refer to the aggregate of the Banks’ LC Commitments hereunder.


 


“LC Outstandings” of any Borrower shall mean, on any date of determination, the sum of (i) the undrawn stated amounts of all Letters of Credit that were issued for the account of such Borrower and that are outstanding on such date plus (ii) the aggregate principal amount of all Unreimbursed LC Disbursements of such Borrower.


 


“Letter of Credit” shall mean a standby letter of credit issued by an LC Bank pursuant to Section 2.03, as such standby letter of credit may from time to time be amended, modified or extended in accordance with the terms of this Agreement.


 


“Letter of Credit Fee” shall have the meaning assigned to that term in Section 2.04(b).


 


“Lien” has the meaning specified in Section 5.02(a).


 


“Loan Document” means this Agreement, any Joinder Agreement, any agreement referred to in Section 2.04(c) or (d) and any promissory notes delivered pursuant to Section 2.01(b), 3.01(a) or 3.03(b).


 


“Majority Banks” means at any time, if there are Advances outstanding, Banks holding in excess of 50% of the Advances then outstanding, or, if there are no Advances outstanding, Banks holding in excess of 50% of the Commitments.


 


“Maturity Date” means November 17, 2014 or the earlier date of termination in whole of the Commitments pursuant to Section 2.05 or Section 6.01 hereof.


 


“Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.


 


“Multiple-Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of any Borrower or an Affiliate of such Borrower and at least one Person other than such Borrower and its Affiliates or (ii) was so maintained and in respect of which such Borrower or an Affiliate of such Borrower could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.


 


“New Borrower” has the meaning specified in Section 3.03.


 


“Non-Defaulting Bank” means, at the time of determination, a Bank that is not a Defaulting Bank.


 


“Notice of Borrowing” has the meaning specified in Section 2.02(a) hereof.


 


“Old Credit Agreement” means the Credit Agreement, dated as of December 22, 2006, as amended, among the Parent , UI, certain banks and the administrative agent party thereto.


 


“Original Borrower” has the meaning specified in Section 3.01.


 










  





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“Outstanding Credits” of any Borrower shall mean, on any date of determination, an amount equal to (i) the aggregate principal amount of all Advances outstanding to such Borrower on such date plus (ii) the LC Outstandings of such Borrower on such date.


 


“Parent” has the meaning specified in the recital of parties to this Agreement.


 


“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.


 


“Purchase Agreement” means the Purchase Agreement, dated as of May 25, 2010, between Iberdrola USA, Inc. and the Parent.


 


“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.


 


“Plan” means a Single-Employer Plan or a Multiple-Employer Plan.


 


“Reference Ratings” means, with respect to any Borrower, the ratings assigned by S&P and Moody’s to the long-term senior unsecured non-credit enhanced debt of such Borrower (the “Borrower Debt”); provided that:


 


(i)           if neither S&P nor Moody’s maintains a rating on the Borrower Debt of a Borrower, then the Reference Ratings shall be based on the ratings assigned by Moody’s and S&P to the long-term senior secured debt (the “Secured Debt”) of such Borrower, but such ratings shall be deemed to correspond to the Applicable Rating Level that is one level lower than the level that would otherwise correspond to such Secured Debt ratings; and


 


(ii)           if neither S&P nor Moody’s maintains a rating on the Borrower Debt of a Borrower or on the Secured Debt of a Borrower, then the Reference Rating of such Borrower shall be based on such Borrower’s long-term corporate/issuer ratings maintained by S&P and Moody’s.


 


“Request for Issuance” shall mean a request made pursuant to Section 2.03(a) in the form of Exhibit B.


 


“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc., or any successor thereto.


 


“Single-Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of a Borrower or an Affiliate of such Borrower and no Person other than such Borrower and its Affiliates, or (ii) was so maintained and in respect of which such Borrower or an Affiliate of such Borrower could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.


 


“Southern Connecticut” means The Southern Connecticut Gas Company, a Connecticut corporation.


 










  





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“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (i) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (ii) the interest in the capital or profits of such limited liability company, partnership or joint venture or (iii) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.


 


“Type” has the meaning assigned to such term in the definition of “Advance” when used in such context.


 


“UI” has the meaning specified in the recital of parties to this Agreement.


 


“Unreimbursed LC Disbursement” shall mean the unpaid obligation (or, if the context so requires, the amount of such obligation) of any Borrower to reimburse an LC Bank for a payment made by such LC Bank under a Letter of Credit, but shall not include any portion of such obligation that has been repaid with the proceeds of Advances hereunder.


 


SECTION 1.02. Computation of Time Periods.


 


In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”.


 


SECTION 1.03. Accounting Terms. 


 


All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(e) hereof (“GAAP”).


 


 


ARTICLE II


AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT


 


SECTION 2.01. The Advances.


 


(a) Each Bank severally agrees, on the terms and conditions hereinafter set forth, to make Advances to the Borrowers from time to time on any Business Day during the period from the date hereof until the day immediately preceding the Maturity Date in an aggregate amount not to exceed at any time outstanding the amount set opposite such Bank’s name on Schedule I hereto as such amount may be reduced or increased pursuant to Section 2.05 hereof (such Bank’s “Commitment”); provided, however, that (i) the Outstanding Credits of the Parent shall not exceed $400,000,000 at any time, (ii) the Outstanding Credits of UI shall not exceed $250,000,000 at any time, (iii) the Outstanding Credits of each of Southern Connecticut and Connecticut Gas shall not exceed $150,000,000 at any time, and (iv) the Outstanding Credit of Berkshire Gas shall not exceed $50,000,000 at any time; and provided further, the aggregate


 










  





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Outstanding Credits of all of the Borrowers shall not exceed the amount of the Commitments at any time.  Each Base Rate Borrowing shall be in an integral multiple of $1,000,000, and each Eurodollar Rate Borrowing shall be in an aggregate amount not less than $5,000,000, or an integral multiple of $1,000,000 in excess thereof.  Each Borrowing shall consist of Advances of the same Type and, in the case of Eurodollar Rate Advances, having Interest Periods of the same duration, made on the same day to a single Borrower by the Banks ratably according to their respective Commitments.  Within the limits of each Bank’s Commitment, the Borrowers may from time to time borrow, repay, prepay pursuant to Section 2.11 hereof, reborrow under this Section 2.01 and request the issuance of Letters of Credit under Section 2.03.


 


(b) Any Bank may request that any Advances made by it be evidenced by one or more promissory notes.  In such event, each Borrower shall prepare, execute and deliver to such Bank one or more promissory notes payable to the order of such Bank (or, if requested by such Bank, to such Bank and its assignees) and in a form approved by the Administrative Agent.


 


SECTION 2.02. Making the Advances.


 


(a) Each Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City time) on the date of a proposed Base Rate Borrowing or on the third Business Day prior to the date of a proposed Eurodollar Rate Borrowing, by the applicable Borrower to the Administrative Agent, which shall give to each Bank prompt notice thereof by telecopier, telex or cable.  Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Advances constituting such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Eurodollar Rate Borrowing, the initial Interest Period for each of the Advances constituting such Borrowing.  Each Bank shall, before 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 8.02 such Bank’s ratable portion of such Borrowing, in same day funds.  After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the applicable Borrower at the Administrative Agent’s aforesaid address.


 


(b) Each Notice of Borrowing shall be irrevocable and binding on the Borrower that delivers such Notice of Borrowing.  In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the applicable Borrower shall indemnify each Bank against any loss, cost or expense incurred by such Bank as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the Advance to be made by such Bank as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.


 


(c) Unless the Administrative Agent shall have received notice from a Bank prior to the date of any Borrowing that such Bank will not make available to the Administrative Agent such Bank’s ratable portion of such Borrowing, the Administrative Agent may assume that such


 










  





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Bank has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.  If and to the extent that such Bank shall not have so made such ratable portion available to the Administrative Agent, such Bank and the applicable Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to Advances constituting such Borrowing and (ii) in the case of such Bank, the Federal Funds Rate.  If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Advance as part of such Borrowing for purposes of this Agreement.


 


(d) The failure of any Bank to make the Advance to be made by it as part of any Borrowing shall not relieve any other Bank of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Bank shall be responsible for the failure of any other Bank to make the Advance to be made by such other Bank on the date of any Borrowing.


 


SECTION 2.03. Letters of Credit.


 


(a) Upon the written request of a Borrower and subject to the terms and conditions hereof, each LC Bank, in reliance upon the agreements of the other Banks set forth in this Section 2.03, shall issue one or more Letters of Credit hereunder for the account of such Borrower, provided that no LC Bank shall be required to issue Letters of Credit having stated amounts, in the aggregate, greater than such LC Bank’s Fronting Commitment.  Each Letter of Credit shall be issued in a form acceptable to the applicable LC Bank, and each Borrower shall execute and deliver to each LC Bank such standard letter of credit applications or continuing agreements for standby letters of credit as such LC Bank may reasonably request.  Each Letter of Credit shall be issued (or the stated maturity thereof extended or terms thereof modified or amended) on not less than two Business Days’ (or such shorter period as may be agreed to by the applicable Borrower and the applicable LC Bank) prior notice thereof by delivery of a Request for Issuance of a Letter of Credit to such LC Bank (which shall promptly forward copies thereof to the Administrative Agent for distribution to the Banks).  Each such Request for Issuance shall specify (i) the date (which shall be a Business Day) of issuance of such Letter of Credit (or the date of effectiveness of such extension, modification or amendment) and the stated expiry date thereof (which shall be no later than the third Business Day preceding the Maturity Date), (ii) the proposed stated amount of such Letter of Credit, (iii) the name and address of the beneficiary of such Letter of Credit and (iv) a statement of drawing conditions applicable to such Letter of Credit, and if such request for issuance relates to an amendment or modification of a Letter of Credit, it shall be accompanied by the consent of the beneficiary of the Letter of Credit thereto.  Each request for issuance of a Letter of Credit shall be irrevocable unless modified or rescinded by the applicable Borrower not less than one Business Day prior to the proposed date of issuance (or effectiveness) specified therein and, in any event, not later than the actual issuance (or effectiveness) specified therein.  Not later than 12:00 noon on the proposed date of issuance (or effectiveness) specified in such request for issuance of a Letter of Credit, and upon fulfillment of the applicable conditions precedent and the other requirements set forth herein, the applicable LC Bank shall issue (or extend, amend or modify) such Letter of Credit and provide notice and a


 










  





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copy thereof to the applicable Borrower and to the Administrative Agent.  The Administrative Agent shall furnish (i) to each Bank, a copy of such notice and (ii) to each Bank that may so request, a copy of such Letter of Credit.  Each LC Bank shall provide to the Administrative Agent, on a monthly basis, a list of the amounts and expiration dates of all undrawn Letters of Credit issued by such LC Bank, a copy of which list the Administrative Agent shall furnish to each Bank that may so request.


 


(b) No Letter of Credit shall be requested or issued hereunder if, after giving effect to the issuance thereof, (i) the LC Outstandings would exceed $50,000,000, (ii) the aggregate Outstanding Credits would exceed the aggregate Commitments, (iii) the Outstanding Credits of the Parent would exceed $400,000,000, (iv) the Outstanding Credits of UI would exceed $250,000,000, (v) the Outstanding Credits of either Southern Connecticut or Connecticut Gas would exceed $150,000,000, or (vi) the Outstanding Credits of Berkshire Gas would exceed $50,000,000.  No LC Bank shall be under any obligation to issue any Letter of Credit if (A) any order, judgment or decree of any governmental authority or arbitrator shall by its terms purport to enjoin or restrain such LC Bank from issuing such Letter of Credit, (B) any law applicable to such LC Bank or any request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over such LC Bank shall prohibit, or request that such LC Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such LC Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such LC Bank is not otherwise compensated hereunder) not in effect on the date hereof, or shall impose upon such LC Bank any unreimbursed loss, cost or expense that was not applicable on the date hereof and that such LC Bank in good faith deems material to it or (C) the issuance of such Letter of Credit would violate one or more policies of such LC Bank.


 


(c) Each Borrower hereby agrees to pay to the Administrative Agent for the account of the applicable LC Bank, on demand made by such LC Bank or the Administrative Agent, on and after each date on which such LC Bank shall pay any amount under any Letter of Credit issued by it for the account of such Borrower, a sum equal to the amount so paid plus interest on such amount from the date so paid by such LC Bank until repayment to such LC Bank in full at a fluctuating interest rate per annum equal to the Base Rate plus the Applicable Margin for Base Rate Advances plus, if any amount paid by such LC Bank under a Letter of Credit is not reimbursed by such Borrower within one Business Day (whether with the proceeds of Advances or otherwise), 2%.


 


(d) No Letter of Credit shall be amended or modified after issuance without the prior written consent of the Borrower for the account of which such Letter of Credit was issued, which consent may be sent by telecopy.


 


(e) Each Bank, upon issuance of a Letter of Credit, shall be deemed to have purchased without recourse a risk participation from the applicable LC Bank in such Letter of Credit and the rights and obligations arising thereunder, in each case in an amount equal to its Commitment Percentage of the obligations under such Letter of Credit, and shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the applicable LC Bank therefor and discharge when due, its Commitment Percentage of the obligations arising under such Letter of Credit.  Without limiting the scope and nature of each


 










  





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Bank’s participation in any Letter of Credit, if an LC Bank shall not have been reimbursed in full for any payment made by such LC Bank under any Letter of Credit on the date of such payment, such LC Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Bank of such Unreimbursed LC Disbursement and the amount thereof.  Upon receipt of such notice from the Administrative Agent, each Bank shall pay to the Administrative Agent for the account of such LC Bank an amount equal to such Bank’s Commitment Percentage of such Unreimbursed LC Disbursement, plus interest on such amount at a rate per annum equal to the Federal Funds Rate from the date of such payment by such LC Bank to the date of payment to such LC Bank by such Bank.  All such payments by each Bank shall be made in United States dollars and in same day funds not later than 3:00 P.M. on the later to occur of (A) the Business Day immediately following the date of such payment by such LC Bank and (B) the Business Day on which such Bank shall have received notice of such Unreimbursed LC Disbursement; provided, however, that if such notice is received by such Bank later than 11:00 A.M. on such Business Day, such payment shall be payable on the next Business Day.  Each Bank agrees that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  If a Bank shall have paid to such LC Bank its Commitment Percentage of any Unreimbursed LC Disbursement, together with all interest thereon required by the second sentence of this subsection (e), such Bank shall be entitled to receive its Commitment Percentage of all interest paid by the applicable Borrower in respect of such Unreimbursed LC Disbursement.  If such Bank shall have made such payment to such LC Bank, but without all such interest thereon required by the second sentence of this subsection (e), such Bank shall be entitled to receive its Commitment Percentage of the interest paid by the applicable Borrower in respect of such Unreimbursed LC Disbursement only from the date it shall have paid all interest required by the second sentence of this subsection (e).


 


(f) The failure of any Bank to make any payment to an LC Bank in accordance with subsection (e) above shall not relieve any other Bank of its obligation to make payment, but neither such LC Bank nor any Bank shall be responsible for the failure of any other Bank to make such payment.  If any Bank shall fail to make any payment to an LC Bank in accordance with subsection (e) above, then such Bank shall pay to such LC Bank forthwith on demand such corresponding amount together with interest thereon, for each day until the date such amount is repaid to such LC Bank at the Federal Funds Rate.  Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non-performing Bank.


 


(g) The payment obligations of each Borrower under Section 2.03(c) in respect of any payment under any Letter of Credit issued for the account of such Borrower shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation, the following circumstances:


 


(i) any lack of validity or enforceability of this Agreement or any other agreement or instrument relating thereto or to such Letter of Credit;


 


(ii) any amendment or waiver of, or any consent to departure from, the terms of this Agreement or such Letter of Credit;


 










  





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(iii) the existence of any claim, set-off, defense or other right that such Borrower may have at any time against any beneficiary, or any transferee, of such Letter of Credit (or any Person for which any such beneficiary or any such transferee may be acting), or any other Person, whether in connection with this Agreement, the transactions contemplated thereby or by such Letter of Credit, or any unrelated transaction;


 


(iv) any statement or any other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;


 


(v) payment in good faith by an LC Bank under a Letter of Credit against presentation of a draft or certificate that does not comply with the terms of such Letter of Credit;


 


(vi) any failure to issue a Letter of Credit (or any amendment thereto) in accordance with the specifications set forth by the applicable Borrower pursuant to Section 2.03(a), provided that such Borrower may cause such a Letter of Credit (or such amendment) to be replaced or rescinded if (A) it provides written notice to the applicable LC Bank (which shall promptly forward copies to the Administrative Agent for distribution to the Banks) of any discrepancy from such specifications within three Business Days after the Borrower shall have received a copy of such Letter of Credit (or such amendment), (B) such discrepancy is material and consequential, and (C) the beneficiary of such Letter of Credit consents in writing to such replacement or revocation;


 


(vii) any claim or potential claim for breach of warranty by the applicable LC Bank, the Banks or the applicable Borrower against the beneficiary of a Letter of Credit;


 


(viii) any action or inaction taken or not taken by an LC Bank or any of its correspondents in connection with any Letter of Credit or any sight draft, certificate or other document presented pursuant thereto, if taken or not taken, as the case may be, in good faith and in conformity with applicable law.


 


(h) Without limiting any other provision of this Section 2.03, for purposes of this Section 2.03 each LC Bank and any of its correspondents:


 


(i) may rely upon any oral, telephonic, telegraphic, facsimile, electronic, written or other communication believed in good faith to have been authorized by the applicable Borrower, whether or not given or signed by an authorized person of such Borrower;


 


(ii) shall not be responsible for errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document in connection with a Letter of Credit, whether transmitted by courier or facsimile, or for errors in interpretation of technical terms or in translation (and such LC Bank and its correspondents may transmit Letter of Credit terms without translating them), other than those errors resulting from gross negligence or willful misconduct of such LC Bank or such correspondent, as the case may be;


 










  





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(iii) shall not be responsible, absent the gross negligence or willful misconduct of such LC Bank or its correspondents, for verifying the identity or authority of any signer of, or the form, accuracy, genuineness, falsification or legal effect of, any draft, certificate or other document presented under any Letter of Credit if such draft, certificate or other document on its face appears to be in order;


 


(iv) shall not be responsible for any acts or omissions by, or the solvency of, the beneficiary of any Letter of Credit or any other person or entity having any role in any transaction underlying such Letter of Credit;


 


(v) may accept or pay as complying with the terms and conditions of any Letter of Credit, any draft, certificate or other document appearing on its face (A) substantially to comply with the terms and conditions of such Letter of Credit, (B) to be signed or presented by, or issued to any successor of, the beneficiary or any other person required or authorized by such Letter of Credit to sign or present any sight draft, certificate or other document under such Letter of Credit, including any administrator, executor, personal representative, trustee in bankruptcy, debtor in possession, liquidator, receiver, or successor by merger or consolidation, or any other person or entity purporting to act as the representative of or in place of any of the foregoing, or (C) to have been signed, presented or issued after a change of name of the beneficiary of such Letter of Credit;


 


(vi) may disregard any discrepancies known to it in any Letter of Credit that do not reduce, in the good faith judgment of such LC Bank or its correspondents, the value of the performance to the applicable Borrower by the beneficiary of such Letter of Credit in any transaction underlying such Letter of Credit;


 


(vii) shall not be responsible for the effectiveness or suitability of any Letter of Credit with respect to the applicable Borrower’s purpose in requesting such Letter of Credit;


 


(viii) shall not be liable to any Borrower for any consequential or special damages, or for any damages resulting from any change in the value of any goods or other property subject to or underlying any Letter of Credit;


 


(ix) absent any gross negligence or willful misconduct on part of such LC Bank or its correspondents, may honor a previously dishonored presentation under a Letter of Credit, whether pursuant to court order, to settle or compromise any claim wrongfully dishonored, or otherwise, and shall be entitled to reimbursement of amounts paid under such Letter of Credit to the same extent as if such presentation had been honored initially; and


 


(x) may pay amounts owed to any paying or negotiating bank (designated or permitted by the terms of any Letter of Credit) claiming that it rightfully honored, under the laws or practices of the place where it is located, any sight draft, certificate or other document presented under any Letter of Credit.


 










  





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(i) Each Borrower assumes all risks of the acts and omissions of any beneficiary or transferee of any Letter of Credit.  Neither the Administrative Agent, any LC Bank, the Banks nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be liable or responsible for (i) the use that may be made of such Letter of Credit or any acts or omissions of any beneficiary or transferee thereof in connection therewith; (ii) the validity, sufficiency or genuineness of documents, or of any endorsement thereon made by another Person, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by any LC Bank against presentation of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or adequate reference to such Letter of Credit; or (iv) any other circumstances whatsoever in making or failing to make payment under a Letter of Credit, except that the applicable Borrower shall have the right to bring suit against the applicable LC Bank, and such LC Bank shall be liable to such Borrower, to the extent of any direct, as opposed to consequential, damages suffered by such Borrower that such Borrower proves (as determined in a final judgment by a court of competent jurisdiction) were caused by such LC Bank’s willful misconduct or gross negligence, including such LC Bank’s willful failure to make timely payment under such Letter of Credit following the presentation to it by the beneficiary thereof of a draft and accompanying certificate(s) that strictly comply with the terms and conditions of such Letter of Credit.  In furtherance and not in limitation of the foregoing, any LC Bank may accept sight drafts and accompanying certificates presented under any Letter of Credit issued by such LC Bank that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and payment against such documents shall not constitute willful misconduct or gross negligence by such LC Bank. Notwithstanding the foregoing, no Bank shall be obligated to indemnify the LC Bank for damages caused by any LC Bank’s willful misconduct or gross negligence.


 


(j) Each Borrower acknowledges that the rights and obligations of the applicable LC Bank under any Letter of Credit are independent of the existence, performance or nonperformance of any contract or arrangement underlying such Letter of Credit. Each LC Bank may, without incurring any liability to any Borrower or impairing its entitlement to reimbursement under this Agreement, honor any Letter of Credit despite notice from the applicable Borrower of, and without any duty to inquire into, any defense to payment or any adverse claims or other rights against the beneficiary of the applicable Letter of Credit or any other Person.  Each LC Bank shall have no duty to request or require the presentation of any document, including any default certificate, not required to be presented under the terms and conditions of any Letter of Credit.  Each LC Bank shall have no duty to seek any waiver of discrepancies from the applicable Borrower, nor any duty to grant any waiver of discrepancies that such Borrower approves or requests.  Each LC Bank shall have no duty to extend the expiration date or term of any Letter of Credit or, except as provided under Section 2.03(g)(vi), to issue a replacement letter of credit on or before the expiration date of such Letter of Credit or the end of such term.  No LC Bank shall be liable to any Borrower under this Section 2.03(j) for any action or inaction by it, unless such action or inaction results from such LC Bank’s gross negligence or willful misconduct, as determined in a final judgment by a court of competent jurisdiction.


 


(k) Unless otherwise expressly agreed by the applicable LC Bank and the applicable Borrower when a Letter of Credit is issued, the rules of the “International Standby Practices


 










  





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1998” written by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each Letter of Credit.


 


(l) Notwithstanding any provision to the contrary contained in this Agreement, each Borrower and each Bank shall have the right to bring suit against any LC Bank, and such LC Bank shall be liable to such Borrower and such Bank, to the extent of any direct, as opposed to consequential, damages suffered by such Borrower or such Bank that such Borrower or such Bank proves were caused by such LC Bank’s willful misconduct or gross negligence.


 


(m) In addition to the LC Banks named herein, the Borrowers may from time to time appoint one or more other Banks (with the consent of any such Bank, which consent may be withheld in the sole discretion of each Bank) to act, either directly or through an Affiliate of such Bank, as an LC Bank hereunder.  Any such appointment and the terms thereof, including, without limitation, the Fronting Commitment of such LC Bank, shall be evidenced in a separate written agreement executed by the Borrowers and the applicable LC Bank, a copy of which agreement shall be delivered by the Borrowers to the Administrative Agent.  The Administrative Agent shall give prompt notice of any such appointment to the other Banks.  Upon such appointment, if and for so long as such Bank shall have any obligation to issue any Letters of Credit hereunder or any Letter of Credit issued by such Bank shall remain outstanding, such Bank shall be deemed to be, and shall have all the rights and obligations of, an “LC Bank” under this Agreement.


 


(n) Each LC Bank may resign at any time that no Letter of Credit issued by such LC Bank remains outstanding by giving written notice thereof to the Administrative Agent and the Borrowers.


 


(o) Subject to the satisfaction of the applicable conditions precedent set forth in Sections 3.01 and 3.02, and the execution and delivery by each applicable Borrower of such standard letter of credit applications or continuing agreements for standby letters of credit as each applicable LC Bank may reasonably request, each letter of credit issued under the Old Credit Agreement and identified on Schedule II to this Agreement shall be deemed to be a Letter of Credit issued under this Agreement by the applicable LC Bank.


 


SECTION 2.04. Fees.


 


(a) Except as set forth in Section 8.11(a), the Parent agrees to pay to the Administrative Agent for the account of each Bank a facility fee on the total amount of such Bank’s Commitment from the date hereof until the later of the Maturity Date and the date all Advances are paid in full and there are no LC Outstandings at the rate per annum equal, regardless of usage, to the Facility Fee Percentage from time to time in effect.  Such fee shall be payable quarterly in arrears on the last day of each March, June, September and December during such period, commencing on December 31, 2010, and on such later date to occur.


 


(b) Each Borrower agrees to pay to the Administrative Agent for the account of each Bank a letter of credit fee (the “Letter of Credit Fee”), at a rate per annum equal to the Applicable Margin for Eurodollar Rate Advances made to such Borrower on the daily average amount of such Bank’s Commitment Percentage multiplied by the LC Outstandings of such


 










  





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Borrower, from the date hereof until the later of the Maturity Date and the date on which there are no LC Outstandings, payable quarterly in arrears on the last day of each March, June, September and December during such period, commencing on December 31, 2010, and on such later date to occur.


 


(c) The Parent agrees to pay to the Administrative Agent an agency fee in such amounts and payable at such times, as shall be agreed to between them in writing.


 


(d) Each Borrower agrees to pay to each LC Bank the issuance and other fees as may be separately agreed by such Borrower and such LC Bank with respect to Letters of Credit issued by such LC Bank.


 


SECTION 2.05. Changes in the Commitments.


 


(a) The Parent shall have the right, upon at least three Business Days’ notice to the Administrative Agent, to terminate in whole or reduce ratably in part the unused portions of the respective Commitments of the Banks, provided that the aggregate amount of the Commitments of the Banks shall not be reduced to an amount that is less than the aggregate Outstanding Credits at such time and provided, further, that each partial reduction shall be in the aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and provided, further, that any such termination or reduction shall not affect the Borrowers’ rights under Section 2.05(b) below.  Once terminated or reduced, a Commitment may not be reinstated.  The Administrative Agent shall promptly notify each Bank and LC Bank of any reduction in the Commitments pursuant to this Section 2.05.


 


(b) (i)  On any date prior to the Maturity Date, the Borrowers may increase the aggregate amount of the Commitments by up to $100,000,000 (any such increase, a “Commitment Increase”) up to a maximum aggregate amount of $500,000,000 by designating either one or more of the existing Banks (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more assignees reasonably acceptable to the Administrative Agent and each LC Bank that at the time agree, in the case of an existing Bank, to increase its Commitment (an “Increasing Bank”) and, in the case of any other assignee (an “Additional Bank”), to become a party to this Agreement.  The sum of the increases in the Commitments of the Increasing Banks pursuant to this subsection (b) plus the Commitments of the Additional Banks upon giving effect to the Commitment Increase shall not in the aggregate exceed the amount of the Commitment Increase.  The Borrowers shall provide prompt notice of any proposed Commitment Increase pursuant to this Section 2.05(b) to the Administrative Agent, which shall promptly provide a copy of such notice to the Banks.


 


(ii) Any Commitment Increase shall become effective upon (A) the receipt by the Administrative Agent of (1) an agreement in form and substance satisfactory to the Administrative Agent signed by each Borrower, each Increasing Bank, each Additional Bank and each LC Bank, setting forth the new Commitments of each such Bank and setting forth the agreement of each Additional Bank to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Bank and the consent of each LC to such Commitment Increase, and (2) such customary opinions of


 










  





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counsel for the Borrowers with respect to the Commitment Increase as the Administrative Agent may reasonably request, (B) the funding by each Bank of the Advance(s) to be made by each such Bank described in paragraph (iii) below and (C) receipt by the Administrative Agent of a certificate (the statements contained in which shall be true) of a duly authorized officer of each Borrower stating that both before and after giving effect to such Commitment Increase (1) no Event of Default or event that with the giving of notice or the passage of time, or both, would constitute an Event of Default has occurred and is continuing, and (2) all representations and warranties made by such Borrower in this Agreement are true and correct in all material respects.


 


(iii) Upon the effective date of any Commitment Increase, each Borrower shall be deemed to have prepaid its outstanding Borrowings (if any) in full, and shall simultaneously be deemed to have made new Borrowings hereunder in an amount equal to such prepayment, so that, after giving effect thereto, the Borrowings are held ratably by the Banks in accordance with their respective Commitments (after giving effect to such Commitment Increase).  Prepayments made under this paragraph (iii) shall not be subject to the notice requirements of Section 2.11.


 


(iv) Notwithstanding any provision contained herein to the contrary, from and after the date of any Commitment Increase and the making of any Advances on such date pursuant to paragraph (iii) above, all calculations and payments of the fees payable to the Banks under Section 2.04 and of interest on the Advances shall take into account the actual Commitment of each Bank and the principal amount outstanding of each Advance made by such Bank during the relevant period of time.


 


SECTION 2.06. Repayment of Advances.


 


Each Borrower shall repay to the Administrative Agent for the ratable account of the Banks on the Maturity Date the aggregate principal amount of the Advances made to such Borrower then outstanding.  Without limiting the foregoing, each Borrower (other than the Parent) shall repay each Advance made to such Borrower no later than the 364th day following the date such Advance was made, unless, in the case of each such Borrower, such Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to it that no authorization or approval or other action by, and no notice to or filing with, any governmental authority is required for the borrowing by such Borrower of Advances that are outstanding for more than 364 days, other than such authorizations and approvals that have been obtained and are in full force and effect, and such actions, notices and filings that have been duly completed.


 


SECTION 2.07. Interest on Advances.


 


Each Borrower shall pay interest on the unpaid principal amount of each Advance made by each Bank to such Borrower from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:


 


(a) Base Rate Advances.  If such Advance is a Base Rate Advance, a rate per annum equal at all times to the Base Rate plus the Applicable Margin for such Borrower, payable















  





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quarterly on the last day of each March, June, September and December during the term hereof, on the Maturity Date and on the date such Base Rate Advance shall be Converted or paid in full.


 


(b) Eurodollar Rate Advances.  If such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during the Interest Period for such Advance to the Eurodollar Rate for such Interest Period plus the Applicable Margin for such Borrower, payable on the last day of such Interest Period, provided, however, that if the Interest Period for such Advance is greater than three months then interest shall also be payable at the end of each three month interval following the date of such Advance.


 


SECTION 2.08. Additional Interest on Eurodollar Rate Advances.


 


Each Borrower shall pay to each Bank, so long as such Bank shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each Eurodollar Rate Advance of such Bank made to such Borrower, from the date of such Advance until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period, payable on each date on which interest is payable on such Advance.  Such additional interest shall be determined by such Bank and notified to the applicable Borrower through the Administrative Agent.


 


SECTION 2.09. Interest Rate Determination.


 


(a) The Administrative Agent shall give prompt notice to the applicable Borrower and the Banks of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.07(a) or (b) hereof.


 


(b) If, with respect to any Eurodollar Rate Advances, (i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrowers) that, by reason of circumstances affecting the relevant interbank market, adequate means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) the Majority Banks notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Majority Banks of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrowers and the Banks, whereupon


 


(i) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and


 


(ii) the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist.


 










  





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(c) If the applicable Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify such Borrower and the Banks, and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base Rate Advances.


 


(d) On the date on which the aggregate unpaid principal amount of Advances constituting any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $1,000,000, such Advances shall, if they are Eurodollar Rate Advances, automatically Convert into Base Rate Advances, and on and after such date the right of the applicable Borrower to Convert such Advances into Eurodollar Rate Advances shall terminate; provided, however, that if and so long as each such Advance shall be of the same Type and have the same Interest Period as Advances constituting another Borrowing or other Borrowings made to such Borrower, and the aggregate unpaid principal amount of all such Advances shall equal or exceed $1,000,000, such Borrower shall have the right to continue all such Advances as, or to Convert all such Advances into, Advances of such Type having such Interest Period.


 


SECTION 2.10. Voluntary Conversion of Advances.


 


So long as no Event of Default with respect to a Borrower or event that would constitute an Event of Default with respect to such Borrower but for the requirement that notice be given or time elapse or both has occurred and is continuing, then such Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.09 and 2.13 hereof, Convert all Advances of one Type constituting the same Borrowing into Advances of another Type or Advances of the same Type to a new Interest Period; provided, however, that any Conversion of any Eurodollar Rate Advances into Base Rate Advances or Eurodollar Rate Advances into Eurodollar Rate Advances having new Interest Periods shall be made on, and only on, the last day of an Interest Period for such Eurodollar Rate Advances, unless such Borrower shall also reimburse the Banks in respect thereof pursuant to Section 8.04(b) hereof on the date of such Conversion.  Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is into or relating to Eurodollar Rate Advances, the duration of the Interest Period for each such Advance.  The Administrative Agent shall promptly notify each Bank of any notice received from a Borrower pursuant to this Section.


 


SECTION 2.11. Optional Prepayments of Advances.


 


Upon notice, given not later than 11:00 a.m. (New York City time) on the date of a proposed prepayment for Base Rate Advances and on the third Business Day prior to the date of such prepayment for Eurodollar Rate Advances, each Borrower may, and if such notice is given such Borrower shall, prepay the outstanding principal amounts of the Advances constituting part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (i) each partial prepayment shall be in an aggregate principal amount not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, the aggregate amount of all Advances constituting the same Borrowing), and (ii) in the case of any such prepayment of a Eurodollar


 










  





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Rate Advance, such Borrower shall be obligated to reimburse the Banks in respect thereof pursuant to Section 8.04(b).  Except as provided in this Section 2.11, no Borrower shall have any right to prepay any principal amount of any Advances.


 


SECTION 2.12. Increased Costs.


 


(a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements in the case of Eurodollar Rate Advances included in any Bank’s Eurodollar Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority (whether or not having the force of law), including without limitation all requests, rules, guidelines and directives in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act regardless of the date enacted, adopted or issued, there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurodollar Rate Advances or of any LC Bank of issuing or maintaining any Letter of Credit, then the Parent shall from time to time, upon demand by such Bank or LC Bank, as the case may be (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank or LC Bank, as the case may be, additional amounts sufficient to compensate such Bank or LC Bank, as the case may be, for such increased cost.  A certificate as to the amount of such increased cost, submitted to the Borrowers and the Administrative Agent by such Bank, shall be conclusive and binding for all purposes, absent manifest error.


 


(b) If any Bank or LC Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Bank or LC Bank or any corporation controlling such Bank or LC Bank and that the amount of such capital is increased by or based upon the existence of such Bank’s commitment to lend hereunder and other commitments of this type or such LC Bank’s commitment to issue Letters of Credit, then, upon demand by such Bank or LC Bank, as the case may be (with a copy of such demand to the Administrative Agent), the Parent shall immediately pay to the Administrative Agent for the account of such Bank or LC Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank or such corporation in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital to be allocable to the existence of such Bank’s commitment to lend or to issue Letters of Credit, as the case may be, hereunder.  For the avoidance of doubt, this Section 2.12(b) shall apply to all requests, rules, guidelines or directives concerning capital adequacy issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act regardless of the date adopted, issued, promulgated and implemented.  A certificate as to such amounts submitted to the Borrowers and the Administrative Agent by such Bank shall be conclusive and binding for all purposes, absent manifest error.


 


(c) Each Bank and each LC Bank will notify the Borrowers and the Administrative Agent of any increase in cost incurred by such Bank or LC Bank, as the case may be, pursuant to subsection (a) or of any determination made by such Bank, or LC Bank, as the case may be, pursuant to subsection (b) as promptly as practicable.  Each Bank will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of,


 







 










  





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such compensation and will not, in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank.


 


SECTION 2.13. Illegality. 


 


Notwithstanding any other provision of this Agreement, if any Bank shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for such Bank or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, (i) the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist and (ii) each Borrower shall forthwith prepay in full all Eurodollar Rate Advances of all Banks then outstanding to such Borrower, together with interest accrued thereon, unless such Borrower, within five Business Days of notice from the Administrative Agent, Converts all Eurodollar Rate Advances of all Banks then outstanding to such Borrower into Base Rate Advances in accordance with Section 2.10; provided, however, that no Borrower will be permitted to Convert such Eurodollar Rate Advances to Base Rate Advances if the applicable law or regulation requires immediate compliance on the part of such affected Bank.


 


SECTION 2.14. Payments and Computations.


 


(a) Each Borrower shall make each payment to be made by such Borrower hereunder, without condition or deduction for counterclaim, defense, recoupment or setoff, not later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Administrative Agent at its address at 10 South Dearborn, Chicago, Illinois 60603, Mid Corp Loan & Agency, in same day funds.  The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal, interest or facility fees ratably (other than amounts payable pursuant to Section 2.08, 2.12 or 2.15 hereof and except as provided otherwise in Sections 2.15(b) and 8.11) to the Banks for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Bank to such Bank for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.


 


(b) Each Borrower hereby authorizes each Bank, if and to the extent payment owed by such Borrower to such Bank is not made (to such Bank or to the Administrative Agent for such Bank) when due hereunder, to charge from time to time against any or all of such Borrower’s accounts with such Bank any amount so due.


 


(c) All computations of interest based on clause (a) of the definition of “Base Rate” shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on clause (b) or (c) of the definition of “Base Rate” or on the Eurodollar Rate and of all fees (including, without limitation, fees under Sections 2.04(a) and (b)) shall be made by the Administrative Agent, and all computations of interest pursuant to Section 2.08 shall be made by a Bank, in each case on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the


 










  





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period for which such interest or fees are payable.  Each determination by the Administrative Agent (or, in the case of Section 2.08 hereof, by a Bank) of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.


 


(d) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be; provided, however, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.


 


(e) Unless the Administrative Agent shall have received notice from such Borrower prior to the date on which any payment is due to the Banks hereunder from such Borrower that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Bank on such due date an amount equal to the amount then due such Bank.  If and to the extent that such Borrower shall not have so made such payment in full to the Administrative Agent, each Bank shall repay to the Administrative Agent forthwith on demand such amount distributed to such Bank together with interest thereon for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.


 


(f) Notwithstanding anything to the contrary contained herein, any amount payable by any Borrower hereunder, other than the principal amount of the Advances, that is not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear interest from the date when due until paid in full at a rate equal at all times to the sum of the Base Rate plus the Applicable Margin in effect for the applicable Borrower, plus 2% per annum, payable upon demand.


 


SECTION 2.15. Sharing of Payments, Etc. 


 


(a) If any Bank shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances made by it (other than pursuant to Section 2.08 or 2.12 hereof) in excess of its ratable share of payments on account of the Advances or Unreimbursed LC Disbursements obtained by all the Banks, such Bank shall forthwith purchase from the other Banks such participations in their Advances or Unreimbursed LC Disbursements (as applicable) as shall be necessary to cause such purchasing Bank to share the excess payment ratably with each of them, provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Bank, such purchase from each Bank shall be rescinded and such Bank shall repay to the purchasing Bank the purchase price to the extent of such recovery together with an amount equal to such Bank’s ratable share (according to the proportion of (i) the amount of such Bank’s required repayment to (ii) the total amount so recovered from the purchasing Bank) of any interest or other amount paid or payable by the purchasing Bank in respect of the total amount so recovered.  The Borrower agrees that any Bank so purchasing a participation from another Bank pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-


 










  





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off) with respect to such participation as fully as if such Bank were the direct creditor of the Borrower in the amount of such participation.


 


(b) If any Bank shall fail to make any payment required to be made by it pursuant to Sections 2.02(a), 2.03(e) or 7.05, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Bank for the benefit of the Administrative Agent and the LC Banks to satisfy such Bank’s obligations to it or them under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Bank under any such Section in any order as determined by the Administrative Agent in its discretion until all such unsatisfied payment obligations of such Bank are fully paid.


 


SECTION 2.16. Taxes.


 


(a) Any and all payments by each Borrower hereunder shall be made, in accordance with Section 2.14, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges, or withholdings, and all liabilities with respect thereto, excluding, in the case of each Credit Party, federal, state, local or foreign taxes imposed on its net income and franchise taxes imposed on it by the jurisdiction under the laws of which such Credit Party is organized or any political subdivision thereof and, in the case of each Bank, taxes imposed on its overall net income and franchise taxes imposed on it by the jurisdiction of such Bank’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Taxes”).  If any Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Credit Party, (i) the sum payable shall be increased as may be necessary so that after making all required deductions for Taxes (including deductions applicable to additional sums payable under this Section 2.16) such Credit Party receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.


 


(b) Each Borrower will indemnify each Credit Party for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 2.16) paid by such Credit Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted.  This indemnification shall be made within 30 days from the date such Credit Party makes written demand therefor.


 


(c) Within 30 days after the date of any payment of Taxes by any Credit Party, such Borrower will furnish to the Administrative Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt evidencing payment thereof.


 


(d) Each Credit Party, within 30 days following receipt of any refund of amounts with respect to Taxes for which such Credit Party was previously indemnified under Section 2.16(a) or (b) (as determined by such Credit Party in its sole discretion), shall pay to each Borrower such refunded amounts.


 










  





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(e) Each Bank that is organized under the laws of a jurisdiction outside of the United States agrees that, on or prior to the date upon which it shall become a party hereto, and upon the reasonable request from time to time of any Borrower or the Administrative Agent, such Bank will deliver to such Borrower and the Administrative Agent duly completed copies of such form or forms as may from time to time be prescribed by the United States Internal Revenue Service indicating that such Bank is entitled to receive payments without deduction or withholding of any United States Federal income taxes, as permitted by the Code.  Each Bank that delivers to any Borrower and the Administrative Agent the form or forms referred to in the preceding sentence further undertakes to deliver to such Borrower and the Administrative Agent further copies of such form or forms, or successor applicable form or forms, as the case may be, as and when any previous form filed by it hereunder shall expire or shall become incomplete or inaccurate in any respect, unless such Bank is no longer permitted under United States law to deliver such form or forms.  Each such Bank represents and warrants that each such form supplied by it to the Administrative Agent and any Borrower pursuant to this subsection (e), and not superseded by another form supplied by it, is or will be, as the case may be, complete and accurate.


 


(f) Any Bank claiming any additional amounts payable pursuant to this Section 2.16 shall use its best efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts which may thereafter accrue and would not, in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank.


 


(g) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of each Borrower contained in this Section 2.16 shall survive the payment in full of principal and interest hereunder.


 


(h) Nothing set forth in this Section 2.16 shall require any Credit Party to disclose to any Borrower any tax return filed by such Person or any Affiliate of such Person.


 


 


ARTICLE III


CONDITIONS PRECEDENT


 


SECTION 3.01. Conditions Precedent to Initial Extension of Credit. 


 


The obligation of each Bank to make its initial Advance to the Parent or UI (each, an “Original Borrower”) and of the LC Banks to issue the initial Letter of Credit for the account of any Original Borrower is subject to the conditions precedent that each of the Administrative Agent, the LC Banks and the Banks shall have received on or before the day of the initial Extension of Credit payment of all fees then due and payable to the Administrative Agent, each LC Bank and the Banks, respectively, and the following, each dated such day, in form and substance satisfactory to the Administrative Agent and (except for the promissory notes referred to in (a) below) in sufficient copies for each Bank:


 


(a) Promissory notes of each Original Borrower payable to the order of each Bank requesting such a note in a form acceptable to the Administrative Agent.


 










  





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(b) Certified copies of the resolutions of the Board of Directors of each Original Borrower approving this Agreement and the other Loan Documents to which such Original Borrower is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such other Loan Documents, together with certified copies of the certificate of incorporation and bylaws (or equivalent documents) of each Original Borrower, and a certificate from the Secretary of State of the State of Connecticut (or other appropriate authority of such jurisdiction) evidencing the legal existence of each Original Borrower.


 


(c) A certificate of the Secretary or an Assistant Secretary of each Original Borrower certifying the names and true signatures of the officers of such Original Borrower authorized to sign this Agreement, the other Loan Documents to which such Original Borrower is a party and the other documents to be delivered hereunder and attesting to the accuracy of the representations and warranties of such Original Borrower set forth in Section 4.01.


 


(d) A favorable opinion of Wiggin and Dana LLP, counsel for the Borrowers, substantially in the form of Exhibit D-1 hereto and as to such other matters as any Bank or LC Bank through the Administrative Agent may reasonably request.


 


(e) A favorable opinion of King & Spalding LLP, counsel for the Administrative Agent, substantially in the form of Exhibit E hereto.


 


(f) Evidence that the “Commitments” under, and as defined in, the Old Credit Agreement have been terminated, and all amounts outstanding under the Old Credit Agreement have been paid in full by the Original Borrowers (or will be paid in full upon the application of the proceeds of the initial Borrowings hereunder).


 


(g) A certified copy of the Purchase Agreement which shall be a true, correct and complete copy thereof.


 


(h) Such information as shall be sufficient for the Administrative Agent and each Bank to verify the identity of each Original Borrower for purposes of complying with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001), as contemplated by Section 8.10 hereof.


 


(i) Such other information or documentation as the Administrative Agent reasonably requests for any Original Borrower.


 


SECTION 3.02. Conditions Precedent to Each Extension of Credit. 


 


The obligation of each Bank to make an Advance on the occasion of each Borrowing (including the initial Borrowing) and of each LC Bank to issue any Letter of Credit (including the initial Letter of Credit) or to amend any Letter of Credit having the effect of extending the stated termination date thereof or increasing the maximum amount available to be drawn thereunder shall be subject to the further conditions precedent that on the date of such Extension of Credit, (i) the applicable Borrower shall certify that the following statements shall be true (and each of the giving of the applicable Notice of Borrowing or Request for Issuance and the acceptance by such Borrower of the proceeds of such Borrowing or the issuance or amendment


 










  





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of such Letter of Credit (as the case may be) shall constitute a representation and warranty by such Borrower that on the date of such Extension of Credit such statements are true):


 


(a) The representations and warranties of such Borrower contained in Section 4.01 (other than the last sentence of subsections (e)(i) and (e)(ii), as applicable, and subsection (g)(ii) thereof, except in the case of the initial Extension of Credit) are true and correct in all material respects on and as of the date of such Extension of Credit, before and after giving effect to such Extension of Credit and to the application of the proceeds therefrom, as though made on and as of such date, and


 


(b) No event has occurred and is continuing, or would result from such Extension of Credit or from the application of the proceeds therefrom, that constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both;


 


and (ii) the Administrative Agent shall have received such other approvals, opinions or documents as any Bank or LC Bank through the Administrative Agent may reasonably request.


 


SECTION 3.03. Conditions Precedent to Initial Extension of Credit to New Borrowers.


 


The obligation of each Bank to make its initial Advance to any of Southern Connecticut, Connecticut Gas and Berkshire Gas (each, a “New Borrower”) and of the LC Banks to issue any Letter of Credit for the account of any New Borrower is subject to the satisfaction of: (i) the conditions precedent with respect to the Original Borrowers set forth in Section 3.01, (ii) the conditions precedent with respect to such New Borrower set forth in Section 3.02 and (iii) the condition precedent that each of the Administrative Agent, the LC Banks and the Banks shall have received the following, each in form and substance satisfactory to the Administrative Agent and (except for the promissory notes referred to in (b) below) in sufficient copies for each Bank:


 


(a) A Joinder Agreement, duly executed by such New Borrower;


 


(b) Promissory notes of such New Borrower payable to the order of each Bank requesting such a note in a form acceptable to the Administrative Agent.


 


(c) Certified copies of the resolutions of the Board of Directors of such New Borrower approving this Agreement and the other Loan Documents to which such New Borrower is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such other Loan Documents and the applicable Joinder Agreement, together with certified copies of the certificate of incorporation and bylaws (or equivalent documents) of such New Borrower, and a certificate from the Secretary of state of organization of such New Borrower (or other appropriate authority of such jurisdiction) evidencing the legal existence of such New Borrower.


 


(d) A certificate of the Secretary or an Assistant Secretary of such New Borrower certifying the names and true signatures of the officers of such New Borrower authorized to sign the Joinder Agreement and the other Loan Documents to which such New Borrower is a party


 







 










  





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and the other documents to be delivered hereunder and attesting to the accuracy of the representations and warranties of such New Borrower set forth in Section 4.01.


 


(e) A revised Schedule 4.01(h), with such information regarding such New Borrower as may be required to make the representation and warranty set forth in Section 4.01(h) true and correct with respect to such New Borrower.


 


(f) A revised Schedule 5.02, describing Liens on the property of such New Borrower and its Subsidiaries existing on the date of the execution and delivery of the Joinder Agreement described in subsection (a) above.


 


(g) A favorable opinion of Wiggin and Dana LLP, counsel for the Borrowers, substantially in the form of Exhibit D-2 hereto and as to such other matters as any Bank or LC Bank through the Administrative Agent may reasonably request.


 


(h) Evidence that the commitments under Iberdrola USA, Inc.’s $475,000,000 Second Amended and Restated Credit Agreement, dated as of May 16, 2007, as amended, with respect to each New Borrower, Iberdrola USA, Inc.’s $100,00,000 Intercompany Loan Agreement, dated as of October 20, 2009, as amended, between Southern Connecticut and Energy East Corporation, and Iberdrola USA, Inc.’s $100,000,000 Intercompany Loan Agreement, dated as of October 20, 2009, as amended, between Connecticut Gas and Energy East Corporation, each as described in the Purchase Agreement (as in effect on the date hereof), and such entity’s other liquidity facilities with other financial institutions have been terminated and all amounts outstanding thereunder have been paid in full.


 


(i) Such information as shall be sufficient for the Administrative Agent and each Bank to verify the identity of such New Borrower for purposes of complying with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001), as contemplated by Section 8.10 hereof.


 


(j) Such other information or documentation as the Administrative Agent reasonably requests for such New Borrower.


 


 


ARTICLE IV


REPRESENTATIONS AND WARRANTIES


 


SECTION 4.01. Representations and Warranties of Each Borrower.


 


Each Borrower represents and warrants as follows with respect to itself only (x) in the case of each Original Borrower, on the date hereof, (y) in the case of each New Borrower, on the date it executes and delivers a Joinder Agreement pursuant to Section 3.03, and (z) in the case of any Borrower, at such other times as specified herein:


 


(a) Such Borrower is a corporation duly incorporated and validly existing under the laws of the jurisdiction where it is organized and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified.  Except where failure to procure the same will not materially affect the conduct of its business,


 










  





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such Borrower has validly procured and now possesses all franchises, rights, licenses and permits and other similar authorizations which are required for its present operations by each jurisdiction in which it is carrying on any material portion of its business.  Such Borrower is in compliance in all material respects with all applicable laws, rules, regulations and orders (such compliance to include, without limitation, compliance with ERISA, all Environmental Laws and payment of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent contested in good faith), non-compliance with which would materially adversely affect the business, operations, affairs, assets, condition, financial or otherwise, or prospects of such Borrower or in any way affect the ability of such Borrower to perform its obligations under this Agreement or any other Loan Document to which such Borrower is a party.


 


(b) The execution, delivery and performance by such Borrower of each Loan Document to which such Borrower is a party and all other instruments and documents to be delivered hereunder, and the transactions contemplated hereby and thereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) such Borrower’s certificate of incorporation or bylaws or (ii) any law, rule, regulation, order or judgment applicable to, or any contractual restriction binding on or affecting, such Borrower, and do not result in or require the creation of any Lien, security interest or other charge or encumbrance upon or with respect to any of its properties, except pursuant to this Agreement.


 


(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Borrower of each Loan Document to which such Borrower is a party or any other document or instrument to be delivered by such Borrower hereunder.


 


(d) This Agreement and any other Loan Document to which such Borrower is a party are, and any promissory note when delivered pursuant to Section 2.01(b) will be, the legal, valid and binding obligations of such Borrower enforceable against such Borrower in accordance with their respective terms, except as limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and (ii) general principles of equity that restrict the availability of equitable remedies.


 


(e) (i)           With respect to the Parent, the consolidated balance sheet (including the notes thereto) of the Parent and its Subsidiaries as at December 31, 2009 and the related consolidated statements of income and retained earnings of the Parent and its Subsidiaries for the fiscal year then ended, audited by PricewaterhouseCoopers LLP, independent public accountants, and the unaudited consolidated balance sheet of the Parent and its Subsidiaries as at September 30, 2010, and the related consolidated statements of income of the Parent and its Subsidiaries for the fiscal quarter then ended, certified by the chief financial officer of the Parent, copies of which have been furnished to each Bank and LC Bank, fairly present (subject, in the case of such balance sheet and statements of income for the fiscal quarter ended September 30, 2010, to normal year-end adjustments) the consolidated financial condition of the Parent and its Subsidiaries as at such dates and the consolidated results of the operations of the Parent and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP.  Except as described in said September 30, 2010 financial statements, since December 31, 2009 there has


 










  





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been no material adverse change in the business, operations, affairs, assets, condition, financial or otherwise, or prospects of the Parent and its Subsidiaries on a consolidated basis.


 


(ii) With respect to UI, the consolidated balance sheet (including the notes thereto) of UI and its Subsidiaries as at December 31, 2009 and the related statements of income and retained earnings of UI and its Subsidiaries for the fiscal year then ended, audited by PricewaterhouseCoopers LLP, independent public accountants, and the unaudited consolidated balance sheet of UI and its Subsidiaries as at June 30, 2010, and the related unaudited consolidated statements of income of UI and its Subsidiaries for the fiscal quarter then ended, copies of which have been furnished to each Bank and LC Bank, fairly present (subject, in the case of such balance sheet and statements of income for the fiscal quarter ended June 30, 2010, to normal year-end adjustments) the financial condition of UI as at such dates and the results of the operations of UI for the periods ended on such dates, all in accordance with GAAP.  Except as described in said June 30, 2010 financial statements, since December 31, 2009 there has been no material adverse change in the business, operations, affairs, assets, condition, financial or otherwise, of UI and its Subsidiaries on a consolidated basis.


 


(iii) With respect to each New Borrower, the consolidated balance sheet (including the notes thereto) of such New Borrower and its Subsidiaries as at December 31, 2009 and the related statements of income and retained earnings of such New Borrower and its Subsidiaries for the fiscal year then ended, audited by PricewaterhouseCoopers LLP, independent public accountants, and the unaudited consolidated balance sheet of such New Borrower and its Subsidiaries as at September 30, 2010, and the related unaudited consolidated statements of income of such New Borrower and its Subsidiaries for the fiscal quarter then ended, copies of which have been furnished to each Bank and LC Bank, fairly present (subject, in the case of such balance sheet and statements of income for the fiscal quarter ended September 30, 2010, to normal year-end adjustments) the financial condition of such New Borrower as at such dates and the results of the operations of such New Borrower for the periods ended on such dates, all in accordance with GAAP.  Except as described in said September 30, 2010 financial statements, since December 31, 2009 there has been no material adverse change in the business, operations, affairs, assets, condition, financial or otherwise, of such New Borrower and its Subsidiaries on a consolidated basis.


 


(f) There has not been any failure by such Borrower or, in the case of the Parent, UI or any other Borrower to file at or prior to the time required any report or other filing with any regulatory or other governmental authority having jurisdiction over it, which failure would materially adversely affect the business, operations, affairs, assets, condition, financial or otherwise, or prospects of such Borrower and its Subsidiaries, taken as a whole.


 


(g) Except as described in the Parent’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009 or in the Parent’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2010 (including in each case, the notes in the financial statements included therein) or in the Purchase Agreement (as in effect on the date hereof), there are neither (i) any actions, suits or proceedings pending or, to the knowledge of such Borrower, threatened against or affecting such Borrower or any of its Subsidiaries or the property of such Borrower or any of


 










  





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its Subsidiaries in any court or before any arbitrator of any kind or before or by any governmental body, nor (ii) any developments or determinations in any such suits or proceedings, which actions, suits, proceedings, developments or determinations may materially adversely affect the business, operations, affairs, assets, condition, financial or otherwise, or prospects of such Borrower and its Subsidiaries, taken as a whole, or that may materially adversely affect the ability of such Borrower to perform its obligations under any Loan Document to which such Borrower is a party.  Neither such Borrower nor, in the case of the Parent, any other Borrower is in default with respect to any order of any court, arbitrator or governmental body, except for defaults with respect to orders of governmental agencies, which defaults are not material to the business or operations of such Borrower or, in the case of the Parent, such other Borrower.


 


(h) Schedule 4.01(h) hereto (as revised pursuant to Section 3.03(e)) is a complete list of all agreements, contracts, arrangements and other obligations imposing restrictions on the ability of any Borrower (other than Parent), to make or declare any dividends or distributions to its shareholders.


 


(i) No proceeds of any Advance will be used by such Borrower to acquire any security in any transaction that is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, other than, in the case of the Parent, the repurchase of stock of the Parent.


 


(j) Such Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.


 


(k) Such Borrower is not an “investment company” as defined in, or is otherwise subject to regulation under, the Investment Company Act of 1940.


 


(l) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan which reasonably could be expected to materially adversely affect the business, operations, affairs, assets or condition, financial or otherwise, or prospects of such Borrower and its subsidiaries on a consolidated basis, or the ability of such Borrower to perform its obligations hereunder.  Such Borrower is not an employer under any Multiple-Employer Plan.


 


(m)  Such Borrower and, in the case of the Parent, each other Borrower carries insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which such Borrower and, in the case of the Parent, each other Borrower operates.


 


(n) No Environmental Event has occurred and is continuing except for such Environmental Events as have been disclosed to the Banks and LC Banks in writing, and as do not, in the reasonable opinion of such Borrower, materially adversely affect the assets, liabilities, financial condition, business, operations or prospects of such Borrower.


 










  





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(o) Such Borrower and each of its Subsidiaries has filed all tax returns (Federal, state and local) required to be filed and paid taxes shown thereon to be due, including interest and penalties, or, to the extent such Borrower or such Subsidiary is contesting in good faith an assertion of liability based on such returns, has provided adequate reserves in accordance with generally accepted accounting principles for payment thereof.


 


(p) The information (other than any financial projections) furnished by or on behalf of such Borrower to the Administrative Agent or any Bank or LC Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto is and will, when taken as a whole, be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made.  The financial projections, if any, that have been or will be prepared by such Borrower and made available to the Administrative Agent or any Bank or LC Bank have been or will be prepared in good faith based upon assumptions that management of the Borrowers believes in good faith to be reasonable (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrowers’ control, and that no assurance can be given that the projections will be realized).


 


 


ARTICLE V


COVENANTS OF THE BORROWERS


 


SECTION 5.01. Affirmative Covenants.


 


So long as any Bank shall have any Commitment hereunder or any Advance or Letter of Credit shall remain outstanding, each Borrower will (with the exception of subsection (k), which shall apply to only the Parent) and the Parent will cause each other Borrower to, unless the Majority Banks shall otherwise consent in writing:


 


(a) Compliance with Laws, Etc.  Comply in all material respects with all applicable laws, rules, regulations and orders (such compliance to include, without limitation, compliance with ERISA and all Environmental Laws), non-compliance with which would materially adversely affect the business, operations, affairs, assets or condition, financial or otherwise, or prospects of such Person or in any way affect the ability of such Borrower to perform its obligations under this Agreement and the other Loan Documents to which such Borrower is a party.


 


(b) Preservation of Corporate Existence.  Preserve and maintain its corporate existence, rights, licenses, permits, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction where the failure of such Person to preserve and maintain such existence, rights, franchises, privileges and qualification would materially adversely affect the interests of the Banks or the LC Banks under this Agreement, or the ability of such Borrower to perform its obligations under this Agreement and the other Loan Documents to which such Borrower is a party.


 










  





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(c) Performance and Compliance with Other Agreements.  Perform and comply with each of the material provisions of each indenture, credit agreement, contract or other agreement by which such Person or its properties are bound, non-performance or non-compliance with which would have a material adverse effect upon the business or credit of such Person or in any way affect the ability of such Borrower to perform its obligations under this Agreement and the other Loan Documents to which such Borrower is a party.


 


(d) Maintenance of Insurance.  Maintain insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which such Person operates.


 


(e) Visitation Rights.  Subject to applicable law, during normal business hours and upon reasonable notice, permit the Administrative Agent or any of the Banks or LC Banks or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, such Person and to discuss the affairs, finances and accounts of such Person with any of its officers or directors; provided, that such records and books of accounts and information concerning the affairs, finances and accounts of such Person are not subject to legal privilege that, in the good faith judgment of such Borrower, may be lost or impaired by virtue of such disclosure, and provided, further that if such Borrower’s confidentiality obligations to Persons that are not Affiliates of such Borrower do not permit such Borrower to disclose such records and books of account or such information concerning the affairs, finances and accounts of such Person, then such Borrower shall not be obligated to do so, and provided, further that by requesting any such copy or abstract, by visiting such properties, and by requesting information concerning such affairs, finances and accounts of such Person, the Administrative Agent or any LC Bank or Bank (a “Requesting Person”), or any agent or representative thereof, will be deemed to have agreed that all such information received by the Requesting Person in response to such request or in the course of such visit will constitute “Information”, as defined in Section 8.07, and that the Requesting Person will use such Information in accordance with the provisions of Section 8.07.


 


(f) Keeping of Books.  Keep proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of such Person in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements of such Borrower referred to in Section 4.01(e) hereof.


 


(g) Maintenance of Properties, Etc.  Maintain and preserve all of its properties that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted.


 


(h) Payment of Taxes, Etc.  Pay and discharge before the same shall become delinquent all taxes, assessments and governmental charges, royalties or levies imposed upon it or upon its property, except to the extent the same are being contested in good faith by appropriate proceedings and for which such Person has set aside adequate reserves in accordance with GAAP for the payment thereof.


 










  





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(i) Reporting Requirements.  Furnish to each of the Banks:


 


(i) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of such Borrower, (A) in the case of the Parent, the Parent’s Quarterly Report on Form 10-Q for such fiscal quarter, and (B) in the case of each other Borrower, the unaudited consolidated balance sheet of such Borrower and its Subsidiaries for such fiscal quarter and the related consolidated statements of income for such Borrower and its Subsidiaries, in each case, together with a certificate of the chief financial officer of such Borrower (x) stating that no event has occurred and is continuing that constitutes an Event of Default with respect to such Borrower or would constitute an Event of Default with respect to such Borrower but for the requirement that notice be given or time elapse or both, or, if an Event of Default with respect to such Borrower or an event that would constitute an Event of Default with respect to such Borrower has occurred and is continuing, a statement as to the nature thereof and the action that such Borrower proposes to take with respect thereto and (y) demonstrating compliance with Section 5.03 hereof for and as of the end of such quarter, such demonstration to be in a schedule which sets forth the computations used in demonstrating such compliance;


 


(ii) as soon as available and in any event within 120 days after the end of each fiscal year of such Borrower, (A) in the case of the Parent, the Parent’s Annual Report on Form 10-K for such fiscal year, and (B) in the case of each other Borrower, the consolidated balance sheet of such Borrower and its Subsidiaries for such fiscal year and the related statements of income and retained earnings for such Borrower and its Subsidiaries, audited by PricewaterhouseCoopers LLP (or another nationally recognized accounting firm), in each case, together with a certificate of the chief financial officer of such Borrower (x) stating that no event has occurred and is continuing that constitutes an Event of Default with respect to such Borrower or would constitute an Event of Default with respect to such Borrower but for the requirement that notice be given or time elapse or both, or, if an Event of Default with respect to such Borrower or an event that would constitute an Event of Default with respect to such Borrower has occurred and is continuing, a statement as to the nature thereof and the action that such Borrower proposes to take with respect thereto and (y) demon­strating compliance with Section 5.03 hereof for and as of the end of the last fiscal quarter, such demonstration to be in a schedule which sets forth the computations used in demonstrating such compliance;


 


(iii) promptly after the sending or filing thereof, copies of all reports that such Borrower sends to any of its shareholders and copies of all other reports and registration statements that such Borrower files with the Securities and Exchange Commission or any national securities exchange, other than registration statements relating to employee benefit plans, and to registrations of securities for any selling security holder;


 


(iv) promptly after the filing or receiving thereof, copies of all reports and notices with respect to any Reportable Event defined in Article IV of ERISA that such Borrower files under ERISA with the Internal Revenue Service or the PBGC or the U.S. Department of Labor or which such Borrower receives from the PBGC;


 










  





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(v) as soon as possible and in any event within five days after the occurrence of each Event of Default applicable to such Borrower or each event that, with the giving of notice or lapse of time or both, would constitute an Event of Default applicable to such Borrower, the statement of the chief financial officer or chief accounting officer of such Borrower setting forth details of such Event of Default or event and the action that such Borrower proposes to take with respect thereto;


 


(vi) as soon as possible and in any event within five days after the commencement thereof or any adverse determination or development therein, notice of all actions, suits and proceedings that may adversely affect such Borrower’s ability to perform its obligations under the Agreement; and


 


(vii) subject to applicable law, during normal business hours and upon reasonable notice, such other information, documents, records or reports respecting the business, operations, affairs, assets or condition, financial or otherwise, or prospects of such Borrower or LC Bank as any Bank through the Administrative Agent may from time to time reasonably request; provided, that such records and books of accounts and information concerning the affairs, finances and accounts of such Person are not subject to legal privilege that, in the good faith judgment of such Borrower, may be lost or impaired by virtue of such disclosure, and provided, further that if such Borrower’s confidentiality obligations to Persons that are not Affiliates of such Borrower do not permit such Borrower to disclose such records and books of account or such information concerning the affairs, finances and accounts of such Person, then such Borrower shall not be obligated to do so, and provided, further that by requesting any such information, documents, records or reports, the Requesting Person will be deemed to have agreed that the Requesting Person will use the information, documents, records or reports received in response to such request for the Requesting Person’s own use in connection with this Agreement, and will keep such information, documents, records or reports confidential and will not (except as required by applicable law, regulation or legal or audit  process), without such Borrower’s prior written consent, disclose any of such information, documents, records or reports to any third person in any manner whatsoever.


 


(j) Use of Proceeds.  Use the proceeds of Advances for general corporate purposes including, among other things, supporting the commercial paper program and the money market loan program of such Borrower or the repurchase of stock of the Parent.


 


(k) Ownership of Subsidiaries.  The Parent will own at all times, directly or indirectly and free and clear of all Liens, 100% of the capital stock or other ownership interest of UI and each New Borrower following the acquisition of such New Borrower by the Parent or any of its Subsidiaries, other than preferred stock of UI, Connecticut Gas, Southern Connecticut and Berkshire Gas issued and outstanding from time to time.


 


SECTION 5.02. Negative Covenants.


 


So long as any Bank shall have any Commitment hereunder or any Advance or Letter of Credit shall remain outstanding, such Borrower, with the exception of subsections (c) and (e),


 







 










  





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which shall apply to only the Parent, will not, and the Parent will not cause or permit any other Borrower to, without the written consent of the Majority Banks:


 


(a) Liens, Etc.  Create, assume or suffer to exist any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance, or any other type of preferential arrangement (each of the foregoing, a “Lien”), upon or with respect to any of its properties or rights, whether now owned or hereafter acquired, or assign as collateral any right to receive income, services or property; provided, however, that the following shall be permitted to exist:


 


(i) Liens for taxes, assessments or governmental charges not delinquent;


 


(ii) Liens for workmen’s compensation awards and similar obligations not delinquent;


 


(iii) Liens for taxes, assessments or governmental charges delinquent but the validity of which is being contested at the time in good faith by appropriate proceedings;


 


(iv) Liens existing upon any property acquired by such Person in the ordinary course of business (other than any such Lien created in contemplation of such acquisition);


 


(v) Liens arising in connection with sales or transfers of, or financings secured by, accounts receivable or related contracts;


 


(vi) Liens securing obligations incurred in the ordinary course of business in respect of any interest rate, currency or commodity swap or hedge or any other interest rate, currency or commodity risk protection arrangement;


 


(vii) Liens in respect of property of any Borrower or any Subsidiary of such Borrower (A) existing on the date hereof (in the case of each Original Borrower) and described in Schedule 5.02 or (B) existing on the date of the Purchase Agreement and as permitted by such agreement (in the case of any New Borrower);


 


(viii) Liens in respect of property acquired or constructed by any Borrower or any Subsidiary of such Borrower after the date hereof that are created at the time of or within 120 days after acquisition or completion of construction of such property to secure Debt assumed or incurred to finance all or any part of the purchase price or cost of construction of such property, provided that in any such case (A) no such Lien shall extend to or cover any other property of such Borrower or any Subsidiary of such Borrower, as the case may be, and (B) the aggregate principal amount of Debt secured by all such Liens in respect of any such property shall not exceed the cost of such property and any improvements then being financed;


 


(ix) extensions, renewals or replacements of any Liens permitted by clause (vii) or (viii) above (including successive extensions, renewals and replacements), provided in each case that the principal amount of Debt (or the maximum commitment therefore) secured by any such Lien is not increased and such Lien does not extend to or


 







 










  





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cover any property other than the property covered by such Lien on the date of such extension, renewal or replacement; and


 


(x) Liens created by or resulting from litigation or legal proceedings that are currently being contested in good faith by appropriate proceedings and do not involve amounts that in the aggregate would exceed $10,000,000; and


 


(xi) Liens incidental to the normal conduct of the business of any Borrower or any Subsidiary of such Borrower or the ownership of its property that are not incurred in connection with the incurrence of Debt and that do not in the aggregate materially impair the use of such property in the operation of the business of such Borrower and its Subsidiaries taken as a whole or the value of such property for the purposes of such business.


 


(b) Mergers, Sale of Assets, Etc.  Merge or consolidate with any Person or sell, assign, lease, transfer or otherwise dispose of, (whether in one transaction or a series of transactions) all or substantially all of its assets or properties (whether now owned or hereafter acquired) or any material asset or property to any Person, except for the following (with such exceptions not being intended to characterize the assets described therein as “material” or otherwise):  (i) dispositions of receivables; (ii) dispositions arising in the ordinary course of its business as conducted on the date hereof; (iii) dispositions of assets having an aggregate fair market value of less than $20,000,000 in connection with sale leaseback transactions with respect to such assets where such Borrower or one of its Subsidiaries is the lessee of such assets; (iv) the merger of any Subsidiary of such Borrower into any other Subsidiary of such Borrower; and (v) the sale of UI’s Electric Systems Work Center Facility located in Shelton, Connecticut.


 


(c) Dividend Restrictions.  Cause or permit any other Borrower or any Subsidiary of the Parent that directly or indirectly owns equity interests in any Borrower to enter into any agreement, contract, arrangement or other obligation if the effect of such agreement, contract, arrangement or other obligation is to impose any restriction on the ability of such Person to make or declare any dividends or distributions to its shareholder that is more restrictive than any such restriction existing on the date hereof.


 


(d) Change in Nature of Business.  Make any material change in the nature of its business as conducted on the date hereof.


 


(e) Additional Debt of Parent.  The Parent shall not create, incur, assume or suffer to exist any Debt, other than (i) Debt (including the Advances of the Parent) of up to $525,000,000 to finance the acquisition of Southern Connecticut, Connecticut Gas and Berkshire Gas and (ii) additional Debt (including the Advances of the Parent) not exceeding $400,000,000 in an aggregate principal amount at any one time outstanding.


 


SECTION 5.03. Financial Covenant.


 


So long as any Bank shall have any Commitment hereunder or any Advance or Letter of Credit shall remain outstanding, each Borrower will maintain a ratio of Consolidated Debt to Consolidated Capital, as of the last day of each March, June, September and December, of not greater than 0.65 to 1.00.


 










  





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ARTICLE VI


EVENTS OF DEFAULT


 


SECTION 6.01. Events of Default.


 


If any of the following events (as to the applicable Borrower, except, in the case of subsection (j), which shall apply to all Borrowers, an “Event of Default”) shall occur and be continuing with respect to any Borrower:


 


(a) Such Borrower shall fail to pay any principal of any Advance when due, or shall fail to pay any interest on any Advance or any facility fees, Letter of Credit Fees or other amounts payable hereunder or under any other Loan Document within 3 Business Days of when due; or


 


(b) Any representation or warranty made, or deemed made, by such Borrower herein or by such Borrower (or any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made or deemed made; or


 


(c) Such Borrower shall fail to perform or observe any of the covenants and agreements contained in Section 5.01(i)(v), Section 5.02 or Section 5.03; or


 


(d) Such Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Loan Document on its part to be performed or observed and any such failure shall remain unremedied for 10 days after written notice thereof shall have been given to such Borrower by the Administrative Agent or any Bank or LC Bank; or


 


(e) Such Borrower or, in the case of the Parent, any other Borrower shall fail to pay when due any interest or principal due with respect to any Debt outstanding in the principal or notional amount of at least $10,000,000, or any interest or premium thereon in an aggregate amount of at least $10,000,000, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or


 


(f) Such Borrower or, in the case of the Parent, any other Borrower shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against such Person seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debts, or seeking the entry of an order for relief or the appointment of a receiver,


 










  





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trustee or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against such Person (but not instituted by such Person) such proceeding shall continue undismissed or unstayed for a period of 30 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, such Person or any substantial part of the property of such Person) shall occur or such Person shall consent to or acquiesce in any such proceeding; or such Person shall take any corporate action to authorize any of the actions set forth above in this subsection; or


 


(g) Any judgment or order for the payment of money in excess of $10,000,000 shall be rendered against the Borrower or, in the case of the Parent, any other Borrower and enforcement proceedings shall have been commenced by any creditor upon such judgment or order or there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or


 


(h) Any ERISA Event shall have occurred with respect to a Plan and, 30 days after notice thereof shall have been given to such Borrower by the Administrative Agent or any Bank, such ERISA Event shall still exist; or


 


(i) An Environmental Event shall have occurred that materially adversely affects the assets, liabilities, financial condition, business, operations or prospects of such Borrower; or


 


(j) A Change of Control shall occur;


 


then, and in any such event, (i) each Eurodollar Rate Advance then outstanding to such Borrower will, at the end of the Interest Period applicable to such Advance, Convert to a Base Rate Advance and (ii) the Administrative Agent (A) shall at the request, or may with the consent, of the Majority Banks, declare the obligation of each Bank to make Advances to such Borrower and of each LC Bank to issue or amend Letters of Credit for the account of such Borrower, to be terminated, whereupon the same shall forthwith terminate, and (B) shall at the request, or may with the consent, of the Majority Banks, by notice to such Borrower, declare the Advances (if any) of such Borrower, all interest thereon and all other amounts payable by such Borrower under this Agreement and each other Loan Document to which such Borrower is a party to be forthwith due and payable, whereupon such Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to any Borrower under the Federal Bankruptcy Code, (A) the obligation of each Bank to make Advances to such Borrower and of each LC Bank to issue or amend Letters of Credit for the account of such Borrower, shall automatically be terminated and (B) the Advances, all such interest and all such other amounts payable by such Borrower shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.


 


SECTION 6.02. Cash Collateral Account.


 










  





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Notwithstanding anything to the contrary contained herein, no notice given or declaration made by the Administrative Agent pursuant to Section 6.01 shall affect the obligation of any LC Bank to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit; provided, however, that upon the occurrence and during the continuance of any Event of Default with respect to any Borrower, the Administrative Agent shall at the request, or may with the consent, of the Majority Banks, upon notice to such Borrower, require such Borrower to deposit with the Administrative Agent an amount in the cash collateral account (such Borrower’s “Cash Collateral Account”) described below equal to the aggregate maximum amount available to be drawn under all Letters of Credit issued for the account of such Borrower and outstanding at such time; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to any Borrower under the Federal Bankruptcy Code, such Borrower shall automatically deposit with the Administrative Agent in the Cash Collateral Account an amount equal to the aggregate maximum amount available to be drawn under all Letters of Credit issued for the account of such Borrower and outstanding at such time, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.  Such Cash Collateral Account shall at all times be free and clear of all rights or claims of third parties.  Each Cash Collateral Account shall be maintained with the Administrative Agent in the name of, and under the sole dominion and control of, the Administrative Agent, and amounts deposited in each Cash Collateral Account shall bear interest at a rate equal to the rate generally offered by the Administrative Agent for deposits equal to the amount deposited by such Borrower in its Cash Collateral Account, for a term to be determined by the Administrative Agent in its sole discretion.  Each Borrower hereby grants to the Administrative Agent for the benefit of the Banks and the LC Banks a Lien on, and hereby assigns to the Administrative Agent for the benefit of the Banks and the LC Banks all of its right, title and interest in, such Borrower’s Cash Collateral Account and all funds from time to time on deposit therein to secure its reimbursement obligations in respect of Letters of Credit issued for the account of such Borrower.  If any drawings then outstanding or thereafter made are not reimbursed in full immediately upon demand or, in the case of subsequent drawings, upon being made, then, in any such event, the Administrative Agent may, and, upon such Borrower’s request, shall, apply the amounts then on deposit in such Borrower’s Cash Collateral Account, in such priority as the Administrative Agent shall elect, toward the payment in full of any or all of such Borrower’s obligations hereunder as and when such obligations shall become due and payable.  Upon the earlier to occur of (i) payment in full, after the termination of the Letters of Credit issued for the account of a Borrower, of all such obligations and (ii) the date on which all Events of Default with respect to such Borrower shall have been cured or waived, the Administrative Agent will repay and reassign to such Borrower any cash then on deposit in such Borrower’s Cash Collateral Account, and the Lien of the Administrative Agent on such Cash Collateral Account and the funds therein shall automatically terminate.


 


 


ARTICLE VII


THE ADMINISTRATIVE AGENT


 


SECTION 7.01. Authorization and Action.


 


Each Bank and LC Bank hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are


 










  





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delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto.  As to any matters not expressly provided for by this Agreement, the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Banks, and such instructions shall be binding upon all Banks and LC Banks; provided, however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or which is contrary to this Agreement or applicable law.


 


SECTION 7.02. Administrative Agent’s Reliance, Etc.


 


Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (i) may treat the payee of any promissory note delivered pursuant to Section 2.01(b) as the holder thereof until the Administrative Agent receives written notice of the assignment or transfer thereof signed by such payee and in form reasonably satisfactory to the Administrative Agent; (ii) may consult with legal counsel (including counsel for the Borrowers), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Bank  or LC Bank and shall not be responsible to any Bank or LC Bank for any statements, warranties or representations made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of any Borrower or to inspect the property (including the books and records) of any Borrower or any of its subsidiaries; (v) shall not be responsible to any Bank or LC Bank for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.


 


SECTION 7.03. JPMorgan and Affiliates.


 


With respect to its Commitment, and the Advances made by it, JPMorgan shall have the same rights and powers under this Agreement as any other Bank or LC Bank, as applicable, and may exercise the same as though it were not the Administrative Agent; and the terms “Bank”, “Banks”, “LC Bank” and “LC Banks” shall, unless otherwise expressly indicated, include JPMorgan in its individual capacity.  JPMorgan and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with, any Borrower, any of its Subsidiaries and any Person who may do business with or own securities of any Borrower or any such Subsidiary, all as if JPMorgan were not the Administrative Agent and without any duty to account therefor to the Banks or LC Banks.


 


SECTION 7.04. Bank Credit Decision.


 










  





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Each Bank and LC Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, any other Bank or LC Bank or any Person identified in this Agreement as a Joint Lead Arranger or a Syndication Agent and based on the financial statements referred to in Section 4.01 hereof and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Bank and LC Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, any other Bank or LC Bank or any Person identified in this Agreement as a Joint Lead Arranger or a Syndication Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.


 


SECTION 7.05. Indemnification.


 


The Banks agree to indemnify the Administrative Agent and each LC Bank (to the extent not reimbursed by the Borrowers), ratably according to the respective principal amounts of the Advances held by each of them (or if no Advances are at the time outstanding, ratably according to their Commitment Percentages), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent or such LC Bank, as the case may be, in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent or such LC Bank, as the case may be, under this Agreement, provided that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct.  Without limitation of the foregoing, each Bank agrees to reimburse the Administrative Agent or such LC Bank, as the case may be, promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent or such LC Bank, as the case may be, is not reimbursed for such expenses by the Borrowers.


 


SECTION 7.06. Successor Administrative Agent.


 


The Administrative Agent may resign at any time by giving written notice thereof to the Banks and the Borrowers and may be removed at any time with or without cause by the Majority Banks.  Upon any such resignation or removal, the Majority Banks shall have the right to appoint a successor Administrative Agent.  If no successor Administrative Agent shall have been so appointed by the Majority Banks, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation or the Majority Banks’ removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Banks, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $250,000,000.  Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights,


 










  





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powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement.  After any retiring Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.


 


SECTION 7.07. Other Agents.


 


No Person identified in this Agreement as a Joint Lead Arranger or a Syndication Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement except in its capacity as a Bank or an LC Bank.  Without limiting the foregoing, no such Person shall have or be deemed to have a fiduciary relationship with any Bank.


 


 


ARTICLE VIII


MISCELLANEOUS


 


SECTION 8.01. Amendments, Etc.


 


No amendment or waiver of any provision of this Agreement or any other Loan Document, nor consent to any departure by any Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Banks, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all the Banks, do any of the following:  (i) waive any of the conditions specified in Section 3.01, 3.02 or 3.03 hereof, (ii) except as provided in Section 2.05(b) or 8.11, increase the Commitment of any Bank or subject any Bank to any additional obligations, (iii) reduce the principal of, or interest on, the outstanding Advances or any fees, Letter of Credit reimbursement obligations or other amounts payable hereunder or under any other Loan Document, (iv) except as provided in Section 8.11, postpone any date fixed for any payment of principal of, or interest on, the outstanding Advances or any fees, Letter of Credit reimbursement obligations or other amounts payable hereunder or under any other Loan Document, (v) except as provided in Section 8.11, change the percentage of the Commitments or of the aggregate unpaid principal amount of the outstanding Advances, or the number of Banks, that shall be required for the Banks or any of them to take any action hereunder or (vi) amend the definition of Majority Banks or this Section 8.01; and provided, further, that (A) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Banks required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement, (B) no amendment, waiver or consent shall, unless in writing and signed by the affected LC Bank in addition to the Banks required above to take such action, affect the rights or duties of such LC Bank under this Agreement, and (C) this Agreement may be amended and restated without the consent of any Bank, LC Bank or the Administrative Agent if, upon giving effect to such amendment and restatement, such Bank, LC Bank or the Administrative Agent, as the case may be, shall no longer be a party to this Agreement (as so amended and restated) or have any Commitment or other obligation hereunder or under any Letter of Credit and shall have been paid in full all amounts payable hereunder and each other Loan Document to such Bank, LC Bank or the Administrative Agent, as the case may be.


 










  





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SECTION 8.02. Notices, Etc.


 


(a)           All notices and other communications provided for hereunder shall be in writing (including telegraphic communication) and mailed, telecopied, telexed, telegraphed or delivered, if to any Borrower, at its address at 157 Church Street, P.O. Box 1564, New Haven, Connecticut 06506-0901, Attention:  Treasurer; telecopy no. 203-499-2414; if to any Bank, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any LC Bank, to it at such address as shall be designated by such LC Bank in a written notice to the other  parties; and if to the Administrative Agent, at its address at 10 South Dearborn, Chicago, Illinois 60603, Letter of Credit Servicing Team, Attention: Jetuan A. Patterson, Telecopy Number. (312) 385-7107; or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties, provided that materials required to be delivered pursuant to Section 5.01(i)(i), (ii) or (iii) shall be delivered to the Administrative Agent as specified in Section 8.02(b) or as otherwise specified to the Borrowers by the Administrative Agent.  All such notices and communications shall, when mailed, telecopied, telexed, telegraphed or e-mailed, be effective when deposited in the mails, sent by telecopy or telex, delivered to the telegraph company or confirmed by e-mail, respectively, addressed as aforesaid, except that notices and communications delivered pursuant to Article II or VII shall not be effective until received.


 


(b)           So long as JPMorgan or any of its Affiliates is the Administrative Agent, materials required to be delivered pursuant to Section 5.01(i)(i), (ii) and (iii) shall be delivered to the Administrative Agent in an electronic medium in a format acceptable to the Administrative Agent and the Banks by e-mail at large.corporate.agency@jpmchase.com.  The Borrowers agree that the Administrative Agent may make such materials, as well as any other written information, documents, instruments and other material relating to the Borrowers, any of their Subsidiaries or any other materials or matters relating to this Agreement or any of the transactions contemplated hereby (collectively, the “Communications”) available to the Banks by posting such notices on Intralinks or a substantially similar electronic system (the “Platform”).  The Borrowers acknowledge that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Administrative Agent or any of its Affiliates in connection with the Platform.


 


SECTION 8.03. No Waiver; Remedies.


 


No failure on the part of any Bank, any LC Bank or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.


 










  





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SECTION 8.04. Costs, Expenses, Taxes and Indemnification.


 


(a) Each Borrower agrees to pay on demand all reasonable costs and expenses in connection with the preparation, execution, delivery, modification and amendment of this Agreement and the other documents to be delivered hereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent and each LC Bank with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities under this Agreement and the other Loan Documents.  Each Borrower further agrees to pay on demand all costs and expenses of the Administrative Agent, the Banks and the LC Banks, if any (including, without limitation, reasonable fees and expenses of counsel for the Administrative Agent and counsel for each Bank and LC Bank), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other documents to be delivered hereunder, including, without limitation, reasonable counsel fees and expenses of the Administrative Agent, the Banks and the LC Banks in connection with the enforcement of rights under this Section 8.04(a).  In addition, each Borrower shall pay any and all stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other documents to be delivered hereunder, and agrees to save the Administrative Agent and each Bank, LC Bank and their Affiliates harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes.


 


(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance of any Borrower is made other than on the last day of the Interest Period for such Eurodollar Rate Advance, as a result of a payment or Conversion pursuant to Section 2.09(f), 2.12 or 2.13 hereof, or any acceleration of the maturity of the Advances of any Borrower pursuant to Section 6.01 hereof or if any Borrower fails to borrow or Convert (including, without limitation, failure to borrow or Convert resulting from any failure to fulfill on the date specified for such Borrowing or Conversion the applicable conditions set forth in Article III hereof) in accordance with notices delivered pursuant to Section 2.02 or 2.10 hereof or for any other reason, such Borrower shall, upon demand by any Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Eurodollar Rate Advance.


 


(c) Each Borrower hereby agrees to indemnify and hold harmless each Bank, each LC Bank the Administrative Agent, counsel to the Administrative Agent and their respective officers, directors, partners, employees, Affiliates and advisors (each, an “Indemnified Person”) from and against any and all claims, damages, losses, liabilities, costs, or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding and whether or not such proceeding is brought by such Borrower or any of its Affiliates or any of their respective directors, securityholders or creditors, an Indemnified Person or any other Person) that any of them may incur or which may be claimed against any of them by any Person:


 










  





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(i) by reason of or in connection with the execution, delivery, or performance of this Agreement, or the use by each Borrower of the proceeds of any Advance or any Letter of Credit; and


 


(ii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release, or ownership of any Hazardous Material (A) at, upon, or under any property of each Borrower or any of its Affiliates or (B) by or on behalf of each Borrower or any of its Affiliates at any time and in any place.


 


(d) Each Borrower’s obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Banks, the LC Bank and the Administrative Agent hereunder and the termination of the Commitments and the expiry of all Letters of Credit.  If and to the extent that the obligations of any Borrower under this Section 8.04 are unenforceable for any reason, such Borrower agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law.


 


(e) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower hereby waives, any claim against any Indemnified Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any transaction, agreement or instrument contemplated hereby, any Advance or any Letter of Credit or the use or intended use of the proceeds thereof.


 


SECTION 8.05. Right of Set-off.


 


Upon the occurrence and during the continuance of any Event of Default with respect to any Borrower, each Bank and each LC Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Bank or such LC Bank, as the case may be, to or for the credit or the account of such Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement and the other Loan Documents, whether or not such Bank or such LC Bank, as the case may be, shall have made any demand under this Agreement or such other Loan Documents and although such obligations may be unmatured.  Each Bank and each LC Bank agrees promptly to notify such Borrower after any such set-off and application made by such Bank or such LC Bank, as the case may be, provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of each Bank and each LC Bank under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Bank or such LC Bank, as the case may be, may have.


 


SECTION 8.06. Binding Effect; Participations and Assignments; No Fiduciary Relationship.


 


(a) This Agreement shall become effective when it shall have been executed by the Original Borrower and the Administrative Agent and when the Administrative Agent shall have been notified by each Bank and LC Bank that such Bank and LC Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Original Borrowers, the


 










  





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Administrative Agent, each Bank and each LC Bank and their respective successors and assigns, except that the Original Borrowers shall not have the right to assign their respective rights hereunder or any interest herein without the prior written consent of the Banks.  This Agreement shall become effective as to a New Borrower when such New Borrower shall have executed a Joinder Agreement accepted by the Administrative Agent, and thereafter this Agreement shall be binding upon and inure to the benefit of such New Borrower, except that such New Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Banks.


 


(b) Each Bank may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it); provided, however, that (i) such Bank’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any promissory notes held pursuant to Section 2.01(b) for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the other Banks and the LC Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and (v) such Bank shall retain the sole right to enforce the obligations of the Borrowers under this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers (x) decreasing any fees payable hereunder or the amount of principal of, or the rate at which interest is payable on, the Advances, (y) extending any scheduled principal payment date or date fixed for the payment of interest on the Advances or (z) extending the Commitments).


 


(c) Any Bank shall have the right to assign its Commitment, Advances and other rights and obligations hereunder, with the prior consent of the Borrowers (which consent shall not be unreasonably withheld and which consent shall not be required if and for so long as an Event of Default has occurred and is continuing), and the Administrative Agent and each LC Bank (which consents shall not be unreasonably withheld), in accordance with subsection (e) below; provided that each assignment shall be in a minimum amount of $10,000,000 and in increments of $1,000,000 in excess thereof (or the total amount of such assigning Bank’s Commitment, Advances and other rights and obligations hereunder); and further provided that no Borrower shall be responsible for any costs or expenses relating to such assignment.


 


(d) If any Bank shall have made a demand for compensation under Section 2.12 or 2.16 hereof or shall become a Defaulting Bank, then within 15 days of such demand for compensation (and without relieving the applicable Borrower of its obligation to pay such compensation, if applicable) or such Bank’s becoming a Defaulting Bank, the applicable Borrower may demand that such Bank assign (at the cost and expense of such Borrower) in accordance with this Section, to an assignee designated by such Borrower and reasonably acceptable to the Administrative Agent and each LC Bank, all (but not less than all) of such Bank’s Commitment, Advances and other rights and obligations hereunder; provided, (i) that any such demand by such Borrower during the continuance of an Event of Default or an event which with the giving of notice or the passage of time, or both, would constitute an Event of Default, shall be ineffective without the consent of such Bank and the Majority Banks and (ii) as of the


 










  





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effective date of any assignment pursuant to this Section 8.06(d), such Borrower shall have satisfied all of its obligations under this Agreement with respect to the assigning Bank and paid all costs and expenses relating to such assignment.  If within the period ending on the later to occur of the date 30 days from the date of such Borrower’s demand and the last day of the longest of the then current Interest Periods for such Advances, any such assignee so designated shall fail to consummate such assignment for any reason, or if such Borrower shall fail to designate an assignee reasonably acceptable to the Administrative Agent and each LC Bank, then such demand by such Borrower shall become ineffective.  Notwithstanding anything set forth above in this subsection (d) to the contrary, no Borrower shall be entitled to compel such an assignment by any Bank making a demand for compensation under Section 2.12(a) hereof if, prior to or promptly following any such demand by such Borrower, such Bank shall have changed or shall change its Applicable Lending Office for its Eurodollar Rate Advances so as to eliminate the further incurrence of such increased cost.


 


(e) Upon its receipt of an assignment agreement executed by an assigning Bank and an assignee pursuant to subsection (c) or (d) above and, if the assignee is not a party to this Agreement immediately prior to such assignment, a $3,500 administrative fee, the Administrative Agent shall (i) accept such assignment agreement, (ii) record the information contained therein in its records and (iii) give prompt notice thereof to the Borrowers; provided, however, such administrative fee shall not be required if the proposed assignee is an Affiliate of an assigning Bank.


 


(f) By executing and delivering an assignment agreement, the Bank assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows:  (i) other than as provided in such assignment agreement, such assigning Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other instrument or document furnished pursuant hereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) hereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such assignment agreement; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Bank or any other Bank or LC Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Bank.


 










  





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(g) Notwithstanding anything to the contrary contained herein, any Bank (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”) of such Granting Bank identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Advance that such Granting Bank would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any such SPC to make any Advance, (ii) if such SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms hereof and (iii) no SPC or Granting Bank shall be entitled to receive any greater amount pursuant to Section 2.08, 2.12 or 2.16 than the Granting Bank would have been entitled to receive had the Granting Bank not otherwise granted such SPC the option to provide any Advance to the Borrowers.  The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank.  Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Bank would otherwise be liable so long as, and to the extent that, the related Granting Bank provides such indemnity or makes such payment.  In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against or join any other person in instituting against such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof.  Notwithstanding the foregoing, the Granting Bank unconditionally agrees to indemnify each Borrower, the Administrative Agent, each Bank and each LC Bank against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the Administrative Agent, such Bank or such LC Bank, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPC.  Each party hereto hereby acknowledges and agrees that no SPC shall have the rights of a Bank hereunder, such rights being retained by the applicable Granting Bank.  Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPC shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPC shall be exercised only by the relevant Granting Bank and that each Granting Bank shall serve as the administrative agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive any and all payments made for the benefit of such SPC and take all actions hereunder to the extent, if any, such SPC shall have any rights hereunder.  In addition, notwithstanding anything to the contrary contained in this Agreement any SPC may (i) with notice to, but without the prior written consent of any other party hereto, assign all or a portion of its interest in any Advances to the Granting Bank and (ii) in accordance with this Section 8.06(g), disclose on a confidential basis any Confidential Information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC.  This Section may not be amended without the prior written consent of each Granting Bank, all or any part of whose Advance is being funded by an SPC at the time of such amendment.


 


(h) Any Bank may, in connection with any completed or proposed participation, assignment or grant to an SPC pursuant to this Section 8.06, disclose to the participant or


 










  





53











  













assignee or proposed participant or assignee, any information relating to any Borrower furnished to such Bank by or on behalf of such Borrower; provided, that, prior to any such disclosure, the participant or assignee or proposed participant or assignee shall agree to preserve the confidentiality of any confidential information relating to such Borrower received by it from such Bank.


 


(i) Anything in this Section 8.06 to the contrary notwithstanding, any Bank may assign and pledge all or any portion of its Commitment and the Advances owing to it to any Federal Reserve Bank (and its transferees) as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank, provided, that no such assignment shall release the assigning Bank from its obligations hereunder.


 


(j) Each Borrower agrees that the Credit Parties do not have any fiduciary, advisory or agency relationship with such Borrower and are not advising such Borrower as to any legal, accounting, regulatory or tax matters as a result of the transactions contemplated by this Agreement.  Each Borrower waives, to the fullest extent permitted by law, any claims it may have against the Credit Parties for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Credit Parties will have no liability (whether direct or indirect) to such Borrower in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on such Borrower’s behalf, including such Borrower’s equity holders, employees or creditors.


 


SECTION 8.07. Confidentiality


 


(a) Each of the Administrative Agent, each Bank and each LC Bank agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates' directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority, (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement or (B)  any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrowers and their obligations, (vii) with the consent of the Borrowers or (viii) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section or (B) becomes available to the Administrative Agent, the Banks or the LC Banks on a nonconfidential basis from a source other than the Borrower.


 


(b) For purposes of this Section 8.07 the term “Information” means all information received from any Borrower relating to any Borrower or its business, other than any such information that is available to the Administrative Agent, the Banks or the LC Banks on a nonconfidential basis prior to disclosure by any Borrower; provided that, in the case of


 










  





54











  













information received from any Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.


 


SECTION 8.08. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial; Certain Disclosures.


 


(a) This Agreement shall be governed by, and construed in accordance with, the law of the State of New York.


 


(b) Each Borrower hereby irrevocably (i) submits to the jurisdiction of any New York State or Federal court sitting in New York City in any action or proceeding arising out of or relating to this Agreement, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State or Federal court, (iii) waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding and (iv) waives all right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any other instrument or document delivered hereunder or thereunder.  Each Borrower irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such Borrower at its address specified in Section 8.02 hereof.  Each Borrower agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.


 


(c) Nothing in this Section shall affect the right of the Administrative Agent, the Banks or the LC Banks to serve legal process in any other manner permitted by law or affect the right of the Administrative Agent, the Banks or the LC Banks to bring any action or proceeding against any Borrower or its property in the courts of any other jurisdictions.


 


(d) Notwithstanding anything else contained in this Agreement, each party hereto (and each employee, representative, or other agent of such party) may disclose to any and all Persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to any party relating to such U.S. tax treatment and U.S. tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws.


 


SECTION 8.09. Execution in Counterparts.


 


This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.


 










  





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SECTION 8.10. USA PATRIOT Act Notice.


 


Each Bank that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Bank) hereby notifies each Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow such Bank or the Administrative Agent, as applicable, to identify such Borrower in accordance with the Act.


 


SECTION 8.11. Defaulting Banks.


 


Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:


 


(a) Facility fees shall cease to accrue pursuant to Section 2.04 on the unused portion of the Commitment of such Defaulting Bank; and


 


(b) the Commitment of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 8.01); provided, that this paragraph (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification pursuant to clauses (i) through (vi) of Section 8.01.


 


(c) if any LC Outstandings exist at the time such Bank becomes a Defaulting Bank, then:


 


(i) all or any part of the LC Outstandings of such Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Banks’ Outstanding Credits plus such Defaulting Bank’s LC Outstandings does not exceed the total of all non-Defaulting Banks’ Commitments, (y) the sum of each non-Defaulting Bank’s Outstanding Credits plus the portion of such Defaulting Bank’s LC Outstandings allocated to such non-Defaulting Bank does not exceed such non-Defaulting Bank’s Commitment and (z) the sum of each non-Defaulting Bank’s Outstanding Credits with respect to any Borrower plus the portion of such Defaulting Bank’s LC Outstandings with respect to such Borrower allocated to such non-Defaulting Bank does not exceed such non-Defaulting Bank’s Commitment Percentage of the sublimit applicable to such Borrower pursuant to Section 2.01(a);


 


(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the LC Banks only such Borrower’s obligations corresponding to such Defaulting Bank’s LC Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in a manner reasonably acceptable to such Borrower, the Administrative Agent and the applicable LC Banks for so long as such LC Outstandings are outstanding;


 










  





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(iii) if any Borrower cash collateralizes any portion of such Defaulting Bank’s LC Outstandings pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.04(b) with respect to such Defaulting Bank’s LC Outstandings during the period such Defaulting Bank’s LC Outstandings is cash collateralized;


 


(iv) if the LC Outstandings of the non-Defaulting Banks are reallocated pursuant to clause (i) above, then the fees payable to the Banks pursuant to Section 2.04(b) shall be adjusted in accordance with such non-Defaulting Banks’ Applicable Percentages;


 


(v) if all or any portion of such Defaulting Bank’s LC Outstandings are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any LC Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Outstandings) and the Letter of Credit Fees payable under Section 2.04(b) with respect to such Defaulting Bank’s LC Outstandings shall be payable to the Administrative Agent, for the account of the LC Banks (ratably in accordance with the respective aggregate stated amounts of the Letters of Credit issued by the LC Banks), until and to the extent that such LC Outstandings are reallocated and/or cash collateralized; and


 


(vi) so long as such Bank is a Defaulting Bank, no LC Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s LC Outstandings will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Borrower in accordance with Section 8.11(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 8.11(c)(i) (and such Defaulting Bank shall not participate therein).


 


If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, no LC Bank shall be required to issue, amend or increase any Letter of Credit, unless the LC Banks shall have entered into arrangements with the Borrower or such Bank, satisfactory to such LC Banks to defease any risk to it in respect of such Bank hereunder.


 


In the event that the Administrative Agent, the Borrower and the LC Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then LC Outstandings of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, and on such date such Bank shall purchase at par such of the Advances of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Advances in accordance with its Commitment Percentage.


 


 


 


 


 


 











[Signature pages follow]




  





57











  



 















IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.


 








	  	  	  	
UIL HOLDINGS CORPORATION


	  	  	  	  
	  	  	
By:

	
/s/ Richard J. Nicholas


	  	  	  	
Richard J. Nicholas


	  	  	  	
Executive Vice President


	  	  	  	
And Chief Financial Officer


















	  	  	  	
THE UNITED ILLUMINATNG COMPANY


	  	  	  	  
	  	  	
By:

	
/s/ Richard J. Nicholas


	  	  	  	
Richard J. Nicholas


	  	  	  	
Executive Vice President


	  	  	  	
And Chief Financial Officer












 


 


 


 


 




 











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JPMORGAN CHASE BANK, N.A., as


	  	  	  	
Administrative Agent


	  	  	  	  
	  	  	
By:

	
/s/ Kenneth Coons


	  	  	  	
Name: Kenneth Coons


	  	  	  	
Title: AVP/Underwriter


	  	  	  	  










 


 


 


 


 


 











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JPMORGAN CHASE BANK, N.A.


	  	  	  	  
	  	  	
By:

	
/s/ Kenneth Coons


	  	  	  	
Name: Kenneth Coons


	  	  	  	
Title: AVP/Underwriter


	  	  	  	  





 


 


 


 


 




 
















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UNION BANK, N.A.


	  	  	  	  
	  	  	
By:

	
/s/ Jeff Fesenmaier


	  	  	  	
Name: Jeff Fesenmaier


	  	  	  	
Title: Vice President


	  	  	  	  





 


 


 


 


 




 
















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BANK OF AMERICA, N.A.


	  	  	  	  
	  	  	
By:

	
/s/ James M. Clark III


	  	  	  	
Name: James M. Clark III


	  	  	  	
Title: Senior Vice President


	  	  	  	  





 


 


 


 


 




 
















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MORGAN STANLEY BANK, N.A.


	  	  	  	  
	  	  	
By:

	
/s/ Ryan Vetsch


	  	  	  	
Name: Ryan Vetsch


	  	  	  	
Title: Authorized Signatory


	  	  	  	  










 


 


 


 


 




 











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RBS CITIZENS, N.A.


	  	  	  	  
	  	  	
By:

	
/s/ Anthony Castellon


	  	  	  	
Name: Anthony Castellon


	  	  	  	
Title: Senior Vice President


	  	  	  	  





 


 


 


 


 




 











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TD BANK, N.A.


	  	  	  	  
	  	  	
By:

	
/s/ Ted Hopkinson


	  	  	  	
Name: Ted Hopkinson


	  	  	  	
Title: Managing Director


	  	  	  	  





 


 


 


 


 




 











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WELLS FARGO BANK, N.A.


	  	  	  	  
	  	  	
By:

	
/s/ Keith Luettel


	  	  	  	
Name: Keith Luettel


	  	  	  	
Title: Vice President


	  	  	  	  





 


 


 


 


 




 











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GOLDMAN SACHS BANK USA


	  	  	  	  
	  	  	
By:

	
/s/ Mark Walton


	  	  	  	
Name: Mark Walton


	  	  	  	
Title: Authorized Signatory


	  	  	  	  










 


 


 


 


 




 






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PCN BANK, N.A.


	  	  	  	  
	  	  	
By:

	
/s/ Robert M. Martin


	  	  	  	
Name: Robert M. Martin


	  	  	  	
Title: Senior Vice President


	  	  	  	  





 


 


 


 


 




 











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SOVEREIGN BANK


	  	  	  	  
	  	  	
By:

	
/s/ A. Neil Sweeny


	  	  	  	
Name: A. Neil Sweeny


	  	  	  	
Title: Senior Banker


	  	  	  	  





 


 


 


 


 




 











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WEBSTER BANK, NATIONAL ASSOCIATION


	  	  	  	  
	  	  	
By:

	
/s/ Michele L. Lynch


	  	  	  	
Name: Michele L. Lynch


	  	  	  	
Title: Vice President


	  	  	  	  





 


 


 


 


 




 











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PEOPLE’S UNITED BANK


	  	  	  	  
	  	  	
By:

	
/s/ Richard J. Iovanne


	  	  	  	
Name: Richard J. Iovanne


	  	  	  	
Title: Senior Commercial Loan Officer, SVP


	  	  	  	  





 


 


 


 


 




 











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TAIPEI FUBON COMMERCIAL BANK


CO., LTD.


	  	  	  	  
	  	  	
By:

	
/s/ Robin Wu


	  	  	  	
Name: Robin Wu


	  	  	  	
Title: Vice President &


Deputy Branch Manager


	  	  	  	  





 


 


 


 


 




 











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MEGA INTERNATIONAL COMMERCIAL


	  	  	  	
BANK CO., LTD., LOS ANGELES BRANCH


	  	  	
By:

	
/s/ Chia Jang Liu


	  	  	  	
Name: Chia Jang Liu


	  	  	  	
Title: SVP & GM


	  	  	  	  





 


 


 


 


 




 











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SCHEDULE I







$400,000,000 Credit Agreement







UIL Holdings Corporation







The United Illuminating Company







and the Other Borrowers from time to time Parties Hereto













	
 


Name of Bank

	
 


Commitment


	  	
 


	
JPMorgan Chase Bank, N.A.

	
$55,000,000


	
Union Bank, N.A.

	
$55,000,000


	
Bank of America, N.A.

	
$47,500,000


 


 


	
Morgan Stanley Bank, N.A

	
$47,500,000


 


 


	
RBS Citizens, N.A.

	
$47,500,000


 


 


	
TD Bank, N.A.


 


 

	
$25,000,000


	
Wells Fargo Bank, N.A.


 


 

	
$25,000,000


	
Goldman Sachs Bank USA

	
$15,000,000


 


 


	
PNC Bank, N.A.


 


 

	
$15,000,000


	
Sovereign Bank

	
$15,000,000


 


 


	
Webster Bank, National Association


 


 

	
$15,000,000





 


 


 


 




  





  











  






 


 



	
 


Name of Bank

	
 


Commitment







	
People’s United Bank

	
$15,000,000


 


 


	
Taipei Fubon Commercial Bank, Co., Ltd.

	
$12,500,000


 


 


	
Mega International


Commercial Bank Co., Ltd. Los Angles Branch

	
$10,000,000


 


 















  





  











  













SCHEDULE II







Transferred Letters of Credit








	
Letter of Credit No.

	
LC Bank

	
Date of Issuance

	
Stated Amount

	
Expiry Date


	
TPTS-305398

	
JPMorgan Chase Bank, N.A.

	
March 4, 2008

	
$1,025,000.00

	
January 31, 2011


	
TPTS-745791

	
JPMorgan Chase Bank, N.A.

	
March 19, 2009

	
$1.00

	
December 31, 2010


	  	  	  	  	  
	  	  	  	  	  























  





  











  























Schedule 4.01(h)







AGREEMENTS IMPOSING RESTRICTIONS ON ABILITY OF UI TO PAY OR DECLARE DIVIDENDS













	
1.

	
Indenture, dated as of May 1, 1991, of The United Illuminating Company to The Bank of New York, as Trustee.  Currently, there are no securities outstanding under this Indenture.

























  





  











  













Schedule 5.02







EXISTING LIENS







None










  





  











  













EXHIBIT A







NOTICE OF BORROWING







[Date]












JPMorgan Chase Bank, N.A., as Administrative Agent


  for the Banks parties


  to the Credit Agreement


  referred to below


[ADDRESS INFORMATION]












Attention:                        [CONTACT INFORMATION]







Ladies and Gentlemen:







The undersigned, [UIL HOLDINGS CORPORATION][THE UNITED ILLUMINATING COMPANY] [and the other borrowers from time to time parties thereto], refers to the Credit Agreement, dated as of November 17, 2010 (as amended or supplemented, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the undersigned, [The United Illuminating Company][UIL Holdings Corporation] [The Southern Connecticut Gas Company] [Connecticut Natural Gas Corporation] [The Berkshire Gas Company], certain Banks and LC Banks parties thereto and JPMorgan, N.A., as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the Credit Agreement:







(a)           The Business Day of the Proposed Borrowing is ______________, 200_.







(b)           The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].







(c)           The aggregate amount of the Proposed Borrowing is $__________.







(d)           The Interest Period for each Eurodollar Rate Advance made as part of the Proposed Borrowing is __ [week] [month[s]].










  





  











  













The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:







(a)           the representations and warranties of the undersigned contained in Section 4.01 (other than the last sentence of subsections (e)(i) and (e)(ii), as applicable, and subsection (g)(ii) thereof except in the case of the initial Extension of Credit) of the Credit Agreement are correct, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date; and







(b)           no event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom, that constitutes an Event of Default with respect to the undersigned or would constitute an Event of Default with respect to the undersigned but for the requirement that notice be given or time elapse or both.







Very truly yours,







[UIL HOLDINGS CORPORATION]


[THE UNITED ILLUMINATING COMPANY]


[THE SOUTHERN CONNECTICUT GAS COMPANY]


[CONNECTICUT NATURAL GAS CORPORATION]


[THE BERKSHIRE GAS COMPANY]

















By________________________________


  Name:


  Title:







cc: JPMorgan Chase Bank, N.A.


     [JPMORGAN ADDRESS INFORMATION]















  





2











  













EXHIBIT B







FORM OF REQUEST FOR ISSUANCE


 


[Date]












JPMorgan, N.A., as Administrative Agent


  for the Banks parties


  to the Credit Agreement


  referred to below


[JPMORGAN ADDRESS INFORMATION]












Attention:                        [CONTACT INFORMATION]







Ladies and Gentlemen:







The undersigned, [UIL HOLDINGS CORPORATION][THE UNITED ILLUMINATING COMPANY] [and the other borrowers from time to time parties thereto], refers to the Credit Agreement, dated as of November 17, 2010 (as amended or supplemented, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the undersigned, [The United Illuminating Company][UIL Holdings Corporation] [The Southern Connecticut Gas Company] [Connecticut Natural Gas Corporation] [The Berkshire Gas Company], certain Banks and LC Banks parties thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, and hereby gives you notice pursuant to Section 2.03(b) of the Credit Agreement that the undersigned hereby requests the [issuance] [extension] [modification] [amendment] [of Letter of Credit No. ______, issued ______ (the “Specified Letter of Credit”)] of a Letter of Credit (the “Specified Letter of Credit”) in accordance with the following terms:







(i)           the LC Bank is _____________;







(ii)           the requested date of [issuance] [extension] [modification] [amendment] of the Specified Letter of Credit (which is a Business Day) is _____________;







(iii)           the expiration date of the Specified Letter of Credit requested hereby is ___________;1







(iv)           the requested stated amount of the Specified Letter of Credit is _______________;2









____________________________


 




1  Expiry date shall be no later than the third Business Day preceding the Maturity Date.




2  Must be minimum $100,000.


 












  





  











  













(v)           the beneficiary of the Specified Letter of Credit is _____________, with an address at ______________; and







(vi)   [the conditions under which a drawing may be made under the Specified Letter of Credit are as follows: ___________________; and] 3







[(iii)           the Specified Letter of Credit is to be [extended] [modified] [amended] as follows: _____________; and] 4







(__)           any other additional conditions are as follows: ___________________.







The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the [issuance] [extension] [modification] [amendment] of the Specified Letter of Credit:


 


(A)           the representations and warranties of the undersigned contained in Section 4.01 (other than the last sentence of subsections (e)(i) and (e)(ii), as applicable, and subsection (g)(ii) thereof) of the Credit Agreement are correct, before and after giving effect to the proposed [issuance] [extension] [modification] [amendment] of the Specified Letter of Credit as though made on and as of such date; and







(b)           no event has occurred and is continuing, or would result from such proposed [issuance] [extension] [modification] [amendment] of the Specified Letter of Credit that constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both.












 


                              [UIL HOLDINGS CORPORATION]


                              [THE UNITED ILLUMINATING COMPANY]


                              [THE SOUTHERN CONNECTICUT GAS COMPANY]


                              [CONNECTICUT NATURAL GAS CORPORATION]


                              [THE BERKSHIRE GAS COMPANY]


 



 



	  	  	
By

	
 


	  	  	  	
Name: 


	  	  	  	
Title: 


	  	  	  	  





 


 






_________________________


  

3 Insert for an issuance of a new Letter of Credit. 





4 Insert for an extension, modification or amendment.












  





2











  













cc: JPMorgan Chase Bank, N.A.


     [JPMORGAN ADDRESS INFORMATION]










  





3











  













EXHIBIT C







FORM OF JOINDER AGREEMENT







This JOINDER AGREEMENT is made as of [INSERT DATE] by ______________________________, a ___________________________ (the “Company”) and delivered pursuant to Section 3.03 of the Credit Agreement (as defined below).


 


Reference is made to (i) the Credit Agreement, dated as of November 17, 2010, as modified, supplemented or amended from time to time, including as of the date hereof (the “Credit Agreement”), among UIL Holdings Corporation, The United Illuminating Company, [OTHER BORROWERS], certain Banks and LC Banks parties thereto and JPMorgan Chase Bank, N.A., as administrative agent for the Banks and LC Banks (the “Administrative Agent”), and (ii) the other Loan Documents referred to in the Credit Agreement, as the same may be modified, supplemented or amended from time to time.  Capitalized terms defined in the Credit Agreement are used herein as defined therein.


 


The Company hereby agrees that, effective as of the date hereof, it hereby is, and shall be deemed to be, a Borrower and a New Borrower under the Credit Agreement and agrees that, from the date hereof and so long as any Bank shall have any Commitment hereunder or any Advance or Letter of Credit shall remain outstanding, the Company has assumed the obligations of a Borrower and a New Borrower under, the Company shall be deemed to be a party to, and the Company shall perform, comply with and be subject to and bound by, each of the terms, provisions and waivers of, the Credit Agreement and each of the other Loan Documents that are stated to apply to or are made by a Borrower or a New Borrower (except to the extent that any such term, provision, waiver or Loan Document applies by its terms, or is made specifically by, any Borrower other than the Company).  Without limiting the generality of the foregoing, the Company hereby represents and warrants that (i) each of the representations and warranties set forth in Article IV of the Credit Agreement that applies to a Borrower is true and correct in all material respects as to the Company on and as of the date hereof as if made on and as of the date hereof by the Company (except to the extent that any such representation and warranty applies by its terms to any Borrower other than the Company), and (ii) the Company has heretofore received a true and correct copy of the Credit Agreement and each of the other Loan Documents (including any modifications thereof or supplements or waivers thereto) as in effect on the date hereof.


 


The Company hereby makes, affirms, and ratifies in favor of the Banks, the LC Banks and the Administrative Agent each of the terms, provisions and waivers of the Credit Agreement and each of the other Loan Documents that are stated to apply to or are made by a Borrower or a New Borrower (except to the extent that any such term, provision, waiver or Loan Document applies by its terms, or is made specifically by, any Borrower other than the Company).


 


In furtherance of the foregoing, the Company shall execute and deliver or cause to be executed and delivered at any time and from time to time such further instruments and documents and do or cause to be done such further acts as may be reasonably necessary or proper in the opinion of Administrative Agent to carry out more effectively the provisions and purposes of this Joinder Agreement.


 










  





  











  













IN WITNESS WHEREOF, the Company has duly executed this Joinder Agreement and delivered the same to the Administrative Agent for the benefit of the Administrative Agent, the Banks and the LC Banks, as of the date and year first above written.


 


 


                           




 



	 	             [NAME OF NEW BORROWER]
	 	 	 	 
	  	  	
By

	
 


	  	  	  	
Name: 


	  	  	  	
Title: 


	  	  	  	  





 






 


 


 


Acknowledged:


 


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent


 




 



	
By

	
 


	  	
Name: 


	  	
Title: 


	  	  





 






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