Exhibit No. 10(h)


 


EXECUTION COPY


 


AMENDMENT NO. 1


 


Dated
as of April 15, 2009


 


To the Lenders parties to the Credit Agreement


  referred to below:


 


Ladies
and Gentlemen:


 


Reference
is made to the $3,850,000,000 Second Amended and Restated Credit Agreement,
dated as of December 17, 2008 (the “Credit Agreement”), among
Constellation Energy Group, Inc. (the “Borrower”), the lenders
parties thereto and Wachovia Bank, National Association, as Administrative
Agent (in such capacity, “Administrative Agent”).  Capitalized terms used herein and not otherwise
defined herein have the meanings given such terms in the Credit Agreement.


 


Section 1.  Amendments. 
The parties agree that, subject to the satisfaction of the conditions
precedent to effectiveness set forth below, the Credit Agreement is, as of the
date hereof, amended as follows:


 


(a)            The definition of “LIBOR Market Rate Spread”
set forth in Section 1.01 is amended and restated in its entirety to read
as follows:


 


‘“LIBOR
Market Rate Spread” shall mean, for any Interest Period for any
Borrowing, 100% of the Borrower’s five-year credit default swap spread (as
obtained by the Administrative Agent from the Markit Group Limited website) (i) on
the date two Business Days prior to the first day of such Interest Period if
such Borrowing is a Eurodollar Borrowing and (ii) on the first day of such
Interest Period if such Borrowing is a Base Rate Borrowing.  The Administrative Agent will determine the
LIBOR Market Rate Spread no later than 11:00 A.M. on the date specified in
clause (i) or (ii) above, as applicable; provided, however, that in the event that the LIBOR Market
Rate Spread for such Interest Period is not available from Markit Group Limited
on such date, the Borrower and Wachovia (or any of its Affiliates) shall negotiate
in good faith (for a period of up to 30 days after the credit default swap
spread becomes unavailable (such 30-day period, the “Negotiation
Period”)) to agree on an alternative method for establishing the
LIBOR Market Rate Spread.  The LIBOR Market
Rate Spread at any date of determination thereof that falls during the
Negotiation Period shall be based upon the then most recently available quote
of the credit default swap spread determined pursuant to the first sentence of
this definition.  If no such alternative
method is agreed upon during the Negotiation Period, the LIBOR Market Rate
Spread for any Interest Period for any Borrowing as at any date of
determination after the end of the Negotiation Period shall be a rate per annum
equal to the greater of (i) 100% of the maximum Applicable Margin for the
Type of Advances made in connection with such Borrowing and (ii) the
average of the Borrower’s five-year credit default swap spreads (as 


 


[Amendment No. 1 to CEG
Second Amended and Restated Credit Agreement]


 

















 


obtained by the Administrative Agent from the Markit
Group Limited website) during the 30 day period ending on the date on which
such swap spread was most recently available from Markit Group Limited.’


 


(b)           Section 6.01(j) is amended and restated in
its entirety to read as follows:


 


“(j)  The Borrower shall own less than 100% of the then
outstanding common stock, membership interests or other equity interests of
each Material Subsidiary, free and clear of any Liens other than Liens
permitted under Section 5.02(a), provided,
that (A) the Borrower may dispose of the equity interests in any Material
Subsidiary to the extent permitted under Section 6.01(j) of the RBS
Credit Agreement and (B) the Borrower may transfer its ownership interests
in Constellation Generation pursuant to the EDFI Acquisition; or”


 


Section 2.  Conditions to Effectiveness.  Section 1
of this Amendment shall be effective as of the date hereof when and if the
following conditions are satisfied:


 


(i)     the Borrower and the Majority Lenders shall have
executed and delivered to the Administrative Agent executed counterparts of
this Amendment; and


 


(ii)    the representations and warranties of the Borrower set
forth in Section 3 below shall be
true and correct on and as of such date of effectiveness as though made on and
as of such date.


 


Section 3. 
Representations and Warranties.  The
Borrower represents and warrants that (i) the representations and
warranties contained in Section 4.01(a), (b), (d) and (e) of the
Credit Agreement, as amended hereby (with each reference therein to “this
Agreement”, “Credit Documents”, “hereunder” and words of like import referring
to the Credit Agreement or any Credit Document being deemed to be a reference
to this Amendment and the Credit Agreement, as amended hereby), are true and
correct on and as of the date hereof as though made on and as of such date and (ii) no event has occurred and is
continuing, or would result from the execution and delivery of this Amendment,
that constitutes an Event of Default or that would constitute an Unmatured
Default.


 


Section 4.  Effect on the Credit Agreement. 
The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under any Credit Document, nor constitute a waiver of any
provision of any of any Credit Document. 
Except as expressly amended above, each Credit Document is and shall continue to be in full force and effect
and is hereby in all respects ratified and confirmed. This Amendment
shall be binding on the parties hereto and their respective successors and
permitted assigns under the Credit Documents.


 


Section 5.  Costs, Expenses and Taxes.  The Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment and any other instruments and
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto, and all costs and expenses (including, without
limitation, counsel fees and expenses), if any, in connection with the
enforcement (whether 


 


2

















 


through negotiations,
legal proceedings or otherwise) of this Amendment or such other instruments and
documents.  In addition, the Borrower
agrees to pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Amendment and any
other instruments and documents to be delivered hereunder, and agree jointly
and severally to save the Lenders and the Administrative Agent harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.


 


Section 6.  Counterparts. 
This Amendment may be executed in any number of counterparts and by any
combination of the parties hereto in separate counterparts, each of which
counterparts shall constitute an original, and all of which taken together
shall constitute one and the same instrument.


 


Section 7.  Governing Law. 
This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York.


 


3

















 


If you consent and agree
to the foregoing, please evidence such consent and agreement by executing and
returning twelve counterparts of this Amendment to King & Spalding
LLP, 1185 Avenue of the Americas, New York, New York 10036, Attention: Alexander
Koretz (fax no. 212-556-2222, akoretz@kslaw.com) by April 27, 2009.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  CONSTELLATION
  ENERGY GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Jonathan W. Thayer

  
	
   

  	
   

  	
  Name:
  Jonathan W. Thayer

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


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  WACHOVIA
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Frederick W. Price

  
	
   

  	
   

  	
  Name:
  Frederick W. Price

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


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  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Patrick Martin

  
	
   

  	
   

  	
  Name:
  Patrick Martin

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


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  BARCLAYS
  BANK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Nicholas A. Bell

  
	
   

  	
   

  	
  Name:
  Nicholas A. Bell

  
	
   

  	
   

  	
  Title:
  Director

  



 


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  THE
  ROYAL BANK OF SCOTLAND PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Belinda Tucker

  
	
   

  	
   

  	
  Name:
  Belinda Tucker

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


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  BNP
  PARIBAS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Denis O’Meara

  
	
   

  	
   

  	
  Name:
  Denis O’Meara

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Ravina Advani

  
	
   

  	
   

  	
  Name:
  Ravina Advani

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


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  CREDIT
  SUISSE, CAYMAN ISLANDS BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  John D. Toronto

  
	
   

  	
   

  	
  Name:
  John D. Toronto

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Mikhail Faybusovich

  
	
   

  	
   

  	
  Name:
  Mikhail Faybusovich

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


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  JPMORGAN
  CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Juan J. Javellana

  
	
   

  	
   

  	
  Name:
  Juan J. Javellana

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


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  MORGAN
  STANLEY BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Melissa James

  
	
   

  	
   

  	
  Name:
  Melissa James

  
	
   

  	
   

  	
  Title:
  Authorized Signatory

  



 


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  WILLIAM
  STREET COMMITMENT CORPORATION

  (Recourse only to the assets of William Street Commitment Corporation)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Mark Walton

  
	
   

  	
   

  	
  Name:
  Mark Walton

  
	
   

  	
   

  	
  Title:
  Assistant Vice President

  



 


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  THE
  BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Thane Rattew

  
	
   

  	
   

  	
  Name:
  Thane Rattew

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


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  UBS
  LOAN FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Marie Haddad

  
	
   

  	
   

  	
  Name:
  Marie Haddad

  
	
   

  	
   

  	
  Title:
  Associate Director

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Mary E. Evans

  
	
   

  	
   

  	
  Name:
  Mary E. Evans

  
	
   

  	
   

  	
  Title:
  Associate Director

  



 


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  SUMITOMO
  MITSUI BANKING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Masakazu Hasegawa

  
	
   

  	
   

  	
  Name:
  Masakazu Hasegawa

  
	
   

  	
   

  	
  Title:
  General Manager

  



 


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  UNION
  BANK OF CALIFORNIA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Bryan Read

  
	
   

  	
   

  	
  Name:
  Bryan Read

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


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  COMMERZBANK
  AG, New York and Grand Cayman Branches

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Hans J. Scholz

  
	
   

  	
   

  	
  Name:
  Hans J. Scholz

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  Barbara Stacks

  
	
   

  	
   

  	
  Name:
  Barbara Stacks

  
	
   

  	
   

  	
  Title:
  Assistant Vice President

  



 


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