exc-ex102_20210930






Execution Version    #94716785v22             $880,000,000  364-DAY TERM LOAN CREDIT AGREEMENT  dated as of August 6, 2021  among  EXELON GENERATION COMPANY, LLC,  as Borrower,   VARIOUS FINANCIAL INSTITUTIONS,  as Lenders,           and  BARCLAYS BANK PLC,  as Administrative Agent and Sole Lead Arranger and Bookrunner    





 






  -i-  #94716785v22   TABLE OF CONTENTS  Page  ARTICLE I    DEFINITIONS AND INTERPRETATION  Section 1.01 Certain Defined Terms ...................................................................................... 1  Section 1.02 Other Interpretive Provisions .......................................................................... 24  Section 1.03 Accounting Principles ..................................................................................... 25  Section 1.04 Divisions ......................................................................................................... 27  Section 1.05 Interest Rates; LIBOR Notification ................................................................ 25  ARTICLE II    AMOUNTS AND TERMS OF THE COMMITMENTS  Section 2.01 Commitments .................................................................................................. 27  Section 2.02 Procedures for Advances; Limitations on Borrowings ................................... 27  Section 2.03 Fees ................................................................................................................. 28  Section 2.04 Termination of Commitments ......................................................................... 28  Section 2.05 Repayment of Advances ................................................................................. 28  Section 2.06 Interest on Advances ....................................................................................... 28  Section 2.07 Alternate Rate of Interest ................................................................................ 29  Section 2.08 [Reserved] ....................................................................................................... 31  Section 2.09 Continuation and Conversion of Advances .................................................... 31  Section 2.10 Prepayments .................................................................................................... 32  Section 2.11 Increased Costs ............................................................................................... 32  Section 2.12 Illegality .......................................................................................................... 33  Section 2.13 Payments and Computations ........................................................................... 34  Section 2.14 Taxes ............................................................................................................... 35  Section 2.15 Sharing of Payments, Etc ................................................................................ 39  Section 2.16 Defaulting Lenders.......................................................................................... 40  ARTICLE III    CONDITIONS PRECEDENT  Section 3.01 Conditions Precedent to Effectiveness............................................................ 40  ARTICLE IV    REPRESENTATIONS AND WARRANTIES  Section 4.01 Representations and Warranties of the Borrower ........................................... 41  





 






TABLE OF CONTENTS  (continued)  Page    -ii-  #94716785v22   ARTICLE V    COVENANTS OF THE BORROWER  Section 5.01 Affirmative Covenants .................................................................................... 43  Section 5.02 Negative Covenants ........................................................................................ 48  ARTICLE VI    EVENTS OF DEFAULT  Section 6.01 Events of Default ............................................................................................ 51  ARTICLE VII    THE ADMINISTRATIVE AGENT  Section 7.01 Authorization and Action ................................................................................ 53  Section 7.02 Administrative Agent’s Reliance, Etc............................................................. 54  Section 7.03 Administrative Agent and Affiliates ............................................................... 54  Section 7.04 Lender Credit Decision ................................................................................... 54  Section 7.05 Indemnification ............................................................................................... 55  Section 7.06 Successor Administrative Agent ..................................................................... 55  Section 7.07 Arranger .......................................................................................................... 55  Section 7.08 Acknowledgements of Lenders....................................................................... 55  Section 7.09 Certain ERISA Matters ................................................................................... 57  ARTICLE VIII    MISCELLANEOUS  Section 8.01 Amendments, Etc ............................................................................................ 59  Section 8.02 Notices, Etc ..................................................................................................... 59  Section 8.03 No Waiver; Remedies ..................................................................................... 60  Section 8.04 Costs and Expenses; Indemnification ............................................................. 60  Section 8.05 Right of Set-off ............................................................................................... 61  Section 8.06 Binding Effect ................................................................................................. 61  Section 8.07 Assignments and Participations ...................................................................... 61  Section 8.08 Governing Law ............................................................................................... 66  Section 8.09 Consent to Jurisdiction; Certain Waivers ....................................................... 66  Section 8.10 Waiver of Jury Trial ........................................................................................ 66  Section 8.11 Execution in Counterparts; Integration ........................................................... 67  Section 8.12 USA PATRIOT ACT NOTIFICATION ........................................................ 68  Section 8.13 No Advisory or Fiduciary Responsibility ....................................................... 68  





 






TABLE OF CONTENTS  (continued)  Page    -iii-  #94716785v22   Section 8.14 [Reserved] ....................................................................................................... 69  Section 8.15 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions....................................................................................................... 69  Section 8.16 Confidentiality ................................................................................................ 69  Section 8.17 Material Non-Public Information ................................................................... 70  Section 8.18 Interest Rate Limitation .................................................................................. 71  Section 8.19 Severability ..................................................................................................... 71  Section 8.20 Headings ......................................................................................................... 71  Section 8.21 Survival ........................................................................................................... 71  Section 8.22 Acknowledgement Regarding Any Supported QFCs ..................................... 71      SCHEDULE I COMMITMENTS      EXHIBIT A FORM OF ASSIGNMENT AND ASSUMPTION  EXHIBIT B FORM OF NOTICE OF BORROWING  EXHIBIT C [RESERVED]  EXHIBIT D FORM OF ANNUAL AND QUARTERLY COMPLIANCE CERTIFICATE  EXHIBIT E FORMS OF U.S. TAX COMPLIANCE CERTIFICATE  EXHIBIT F    FORM OF NOTICE OF CONTINUATION OR CONVERSION  





 






    #94716785v22   364-DAY TERM LOAN CREDIT AGREEMENT  THIS 364-DAY TERM LOAN CREDIT AGREEMENT dated as of August 6, 2021 is  among EXELON GENERATION COMPANY, LLC, a Pennsylvania limited liability company,  the banks and other financial institutions or entities listed on the signature pages hereof, and  BARCLAYS BANK PLC, as Administrative Agent.  The parties hereto, intending to be legally  bound hereby, agree as follows:  ARTICLE I    DEFINITIONS AND INTERPRETATION  SECTION 1.01  Certain Defined Terms.  As used in this Agreement, each of the following  terms shall have the meaning set forth below (each such meaning to be equally applicable to both  the singular and plural forms of the term defined):  “ABR”, when used in reference to any Advance or Borrowing, refers to whether such  Advance, or the Advances comprising such Borrowing, bear interest at a rate determined by  reference to the Alternate Base Rate.  “Adjusted Funds From Operations” means, for any period, Net Cash Flows From  Operating Activities for such period plus Interest Expense for such period minus the portion (but  not less than zero) of Net Cash Flows From Operating Activities for such period attributable to  any consolidated Subsidiary that has no Debt other than Nonrecourse Indebtedness.  “Adjusted LIBO Rate” means, with respect to any Term Benchmark Borrowing for any  Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)  equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate;  provided that if any Adjusted LIBO Rate shall be less than 0.00%, such rate shall be deemed to be  0.00% for the purposes of this Agreement.   “Administrative Agent” means Barclays Bank PLC in its capacity as administrative agent  for the Lenders pursuant to Article VII, and not in its individual capacity as a Lender, and any  successor Administrative Agent appointed pursuant to Section 7.06.  “Administrative Questionnaire” means an administrative questionnaire, substantially in the  form supplied by the Administrative Agent, completed by a Lender and furnished to the  Administrative Agent in connection with this Agreement.  “Advance” means an advance by a Lender to the Borrower hereunder.  An Advance may  be a Base Rate Advance or a Term Benchmark Advance, each of which shall be a “Type” of  Advance.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.   





 






  -2-  #94716785v22   “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.  “Aggregate Commitment Amount” means the total of the Commitment Amounts of all  Lenders as in effect from time to time.  “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the  Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 1⁄2 of 1%  and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not  a Business Day, the immediately preceding Business Day) plus 1%, provided that for the purpose  of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or  if the LIBO Screen Rate is not available for such one month Interest Period, the LIBO Interpolated  Rate) at approximately 11:00 a.m. London time on such day.  Any change in the Alternate Base  Rate due to a change in the Prime Rate, the Federal Funds Rate or the Adjusted LIBO Rate shall  be effective from and including the effective date of such change in the Prime Rate, the Federal  Funds Rate or the Adjusted LIBO Rate, respectively; provided that if any Alternate Base Rate shall  be less than 0.00%, such rate shall be deemed to be 0.00% for the purposes of this Agreement.  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to the Borrower or any of its Affiliates from time to time concerning or relating to  money-laundering, bribery or corruption.   “Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic  Lending Office in the case of a Base Rate Advance and such Lender’s Term Benchmark Lending  Office in the case of a Term Benchmark Advance.  “Applicable Margin” means (i) prior to March 31, 2022, (x) 0.875% with respect to Term  Benchmark Advances and (y) 0.00% with respect to Base Rate Advances to Borrower and (ii) on  or after March 31, 2022, (x) 1.00% with respect to Term Benchmark Advances and (y) 0.00% with  respect to Base Rate Advances to Borrower.  “Approved Fund” has the meaning set forth in Section 8.07(a).  “Arranger” means Barclays Bank PLC, in its capacity as the sole lead arranger and  bookrunner.   “Assignment and Assumption” means an assignment and assumption entered into by a  Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the  form of Exhibit A.  “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, any tenor for such Benchmark or payment period for interest calculated with  reference to such Benchmark, as applicable, that is or may be used for determining the length of  an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance  of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest  Period” pursuant to clause (f) of Section 2.07.  





 






  -3-  #94716785v22    “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law, regulation rule or requirement for such EEA Member Country from  time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the  United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time)  and any other law, regulation or rule applicable in the United Kingdom relating to the resolution  of unsound or failing banks, investment firms or other financial institutions or their affiliates (other  than through liquidation, administration or other insolvency proceedings).  “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  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 in, or the acquisition of any  ownership interest in or the exercise of control over, such Person or its parent company by a  Governmental Authority or instrumentality thereof, provided, further, that 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 any contracts or agreements made by such Person.  “Base Rate Advance” means an Advance that bears interest as provided in Section 2.06(a).  “Benchmark” means, initially, with respect to any Term Benchmark Advance, the Relevant  Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, an Early  Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark  Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current  Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that  such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or  clause (c) of Section 2.07.  “Benchmark Replacement” means, for any Available Tenor, the first alternative set forth  in the order below that can be determined by the Administrative Agent for the applicable  Benchmark Replacement Date; provided that, in the case of an Other Benchmark Rate Election,  “Benchmark Replacement” shall mean the alternative set forth in (3) below:  (1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement  Adjustment;  (2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement  Adjustment;  





 






  -4-  #94716785v22   (3) the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrower as the replacement for the then-current  Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any  selection or recommendation of a replacement benchmark rate or the mechanism for  determining such a rate by the Relevant Governmental Body or (ii) any evolving or then- prevailing market convention for determining a benchmark rate as a replacement for the  then-current Benchmark for syndicated credit facilities denominated in Dollars at such  time in the United States and (b) the related Benchmark Replacement Adjustment;  provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed  on a screen or other information service that publishes such rate from time to time as selected by  the Administrative Agent in its reasonable discretion; provided further that, in the case of clause  (3), when such clause is used to determine the Benchmark Replacement in connection with the  occurrence of an Other Benchmark Rate Election, the alternate benchmark rate selected by the  Administrative Agent and the Borrower shall be the term benchmark rate that is used in lieu of a  LIBOR-based rate in the relevant other Dollar-denominated syndicated credit facilities; provided  further that, notwithstanding anything to the contrary in this Agreement, upon the occurrence of  a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable  Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be  deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement  Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).  If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be  less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes  of this Agreement and any documents executed in connection herewith.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the  then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest  Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:  (1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,”  the first alternative set forth in the order below that can be determined by the  Administrative Agent:  (a) the spread adjustment, or method for calculating or determining such spread  adjustment, (which may be a positive or negative value or zero) as of the Reference  Time such Benchmark Replacement is first set for such Interest Period that has been  selected or recommended by the Relevant Governmental Body for the replacement  of such Benchmark with the applicable Unadjusted Benchmark Replacement for  the applicable Corresponding Tenor;  (b) the spread adjustment (which may be a positive or negative value or zero)  as of the Reference Time such Benchmark Replacement is first set for such Interest  Period that would apply to the fallback rate for a derivative transaction referencing  the ISDA Definitions to be effective upon an index cessation event with respect to  such Benchmark for the applicable Corresponding Tenor; and  





 






  -5-  #94716785v22   (2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the  spread adjustment, or method for calculating or determining such spread adjustment,  (which may be a positive or negative value or zero) that has been selected by the  Administrative Agent and the Borrower for the applicable Corresponding Tenor giving  due consideration to (i) any selection or recommendation of a spread adjustment, or  method for calculating or determining such spread adjustment, for the replacement of  such Benchmark with the applicable Unadjusted Benchmark Replacement by the  Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii)  any evolving or then-prevailing market convention for determining a spread adjustment,  or method for calculating or determining such spread adjustment, for the replacement of  such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated  credit facilities denominated in Dollars at such time;  provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time  as selected by the Administrative Agent in its reasonable discretion.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the  definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest  Period,” timing and frequency of determining rates and making payments of interest, timing of  borrowing requests or prepayment, conversion or continuation notices, length of lookback periods,  the applicability of breakage provisions, and other technical, administrative or operational matters)  that the Administrative Agent decides may be appropriate to reflect the adoption and  implementation of such Benchmark Replacement and to permit the administration thereof by the  Administrative Agent in a manner substantially consistent with market practice (or, if the  Administrative Agent decides that adoption of any portion of such market practice is not  administratively feasible or if the Administrative Agent determines that no market practice for the  administration of such Benchmark Replacement exists, in such other manner of administration as  the Administrative Agent decides is reasonably necessary in connection with the administration of  this Agreement and any agreements executed in connection therewith).  “Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to  occur of the following events with respect to such then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,”  the later of (a) the date of the public statement or publication of information referenced  therein and (b) the date on which the administrator of such Benchmark (or the published  component used in the calculation thereof) permanently or indefinitely ceases to provide  all Available Tenors of such Benchmark (or such component thereof);  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the  date of the public statement or publication of information referenced therein;  (3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after  the date a Term SOFR Notice is provided to the Lenders and the Borrower pursuant to  Section 2.07(c); or  





 






  -6-  #94716785v22   (4) in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the  sixth (6th) Business Day after the date notice of such Early Opt-in Election or Other  Benchmark Rate Election, as applicable, is provided to the Lenders, so long as the  Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth  (5th) Business Day after the date notice of such Early Opt-in Election or Other  Benchmark Rate Election, as applicable, is provided to the Lenders, written notice of  objection to such Early Opt-in Election or Other Benchmark Rate Election, as applicable,  from Lenders comprising the Majority Lenders.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs  on the same day as, but earlier than, the Reference Time in respect of any determination, the  Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for  such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred  in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable  event or events set forth therein with respect to all then-current Available Tenors of such  Benchmark (or the published component used in the calculation thereof).  “Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of  one or more of the following events with respect to such then-current Benchmark:  (1) a public statement or publication of information by or on behalf of the  administrator of such Benchmark (or the published component used in the calculation  thereof) announcing that such administrator has ceased or will cease to provide all  Available Tenors of such Benchmark (or such component thereof), permanently or  indefinitely, provided that, at the time of such statement or publication, there is no  successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof);  (2) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation  thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction  over the administrator for such Benchmark (or such component), a resolution authority  with jurisdiction over the administrator for such Benchmark (or such component) or a  court or an entity with similar insolvency or resolution authority over the administrator  for such Benchmark (or such component), in each case, which states that the  administrator of such Benchmark (or such component) has ceased or will cease to  provide all Available Tenors of such Benchmark (or such component thereof)  permanently or indefinitely; provided that, at the time of such statement or publication,  there is no successor administrator that will continue to provide any Available Tenor of  such Benchmark (or such component thereof); or  (3) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation  thereof) announcing that all Available Tenors of such Benchmark (or such component  thereof) are no longer representative.  





 






  -7-  #94716785v22   For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred  with respect to any Benchmark if a public statement or publication of information set forth above  has occurred with respect to each then-current Available Tenor of such Benchmark (or the  published component used in the calculation thereof).  “Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if  any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2)  of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then- current Benchmark for all purposes hereunder in accordance with Section 2.07 and (y) ending at  the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes  hereunder in accordance with Section 2.07.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  or control as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is  subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or  (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for  purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit  plan” or “plan”.  “BHC Act Affiliate” of a party means an “affiliate’ (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Borrower” means Exelon Generation Company, LLC or any Eligible Successor thereof.  “Borrowing” means a group of Advances of the same Type made, continued or converted  on the same day by the Lenders ratably according to their Pro Rata Shares and, in the case of a  Borrowing of Term Benchmark Advances, having the same Interest Period.  “Business Day” means a day on which banks are not required or authorized to close in  Philadelphia, Pennsylvania, Chicago, Illinois or New York, New York, and, if the applicable  Business Day relates to any Term Benchmark Advance, on which dealings are carried on in the  London interbank market.  “Change in Control” means that (i) at any time that Exelon owns (directly or indirectly)  less than a majority of the membership interests or capital stock (as applicable) of the Borrower,  any person, entity or group (within the meaning of Rule 13d-5 under the Exchange Act), excluding  Exelon, shall beneficially own, directly or indirectly, 30% or more of the membership interests or  capital stock (as applicable) of the Borrower having ordinary voting power; or (ii) at any time after  the Borrower has a Board of Directors or similar governing body (a “Board”), Continuing  Directors shall fail to constitute a majority of the Board of the Borrower; provided that, for  purposes of this definition, the planned separation of the Borrower from Exelon as approved by  Exelon’s Board of Directors on February 21, 2021 (the “Separation Transaction”) shall not  constitute a Change in Control.  For purposes of the foregoing, “Continuing Director” means an  individual who (x) is elected or appointed to be a member of the Board of the Borrower by Exelon  





 






  -8-  #94716785v22   or an affiliate of Exelon at a time when Exelon owns (directly or indirectly) a majority of the  membership interests or capital stock (as applicable) of the Borrower or (y) is nominated to be a  member of such Board by a majority of the Continuing Directors then in office.  “Change in Law” means (a) the adoption of any law, rule, regulation or treaty after the date  of this Agreement, (b) any change in any law, rule, regulation or treaty or in the interpretation or  application thereof by any Governmental Authority after the date of this Agreement or (c)  compliance by any Lender (or, for purposes of Section 2.11(b), by any lending office of such  Lender or by such Lender’s holding company, if any) with any request, rule, guideline or directive  (whether or not having the force of law) of any Governmental Authority made or issued after the  date of this Agreement; provided that notwithstanding anything herein to the contrary, (i) the  Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines  or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or  directives promulgated by the Bank for International Settlements, the Basel Committee on Banking  Supervision (or any successor or similar authority) or the United States or foreign regulatory  authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law”, regardless of the date enacted, adopted or issued.   “Code” means the Internal Revenue Code of 1986, as amended.  “ComEd” means Commonwealth Edison Company, an Illinois corporation, or any  successor thereof.   “ComEd Entity” means ComEd and each of its Subsidiaries.  “Commitment” means, with respect to each Lender, the commitment of such Lender to  make an Advance, expressed as an amount representing the maximum principal amount of the  Advance to be made by such Lender.  The initial amount of each Lender’s Commitment is set forth  on Schedule I attached hereto.  “Commitment Amount” means, for any Lender after the initial Advance on the Effective  Date, the aggregate principal amount of all outstanding Advances for such Lender.  “Commodity Trading Obligations” means the obligations of the Borrower under (i) any  commodity swap agreement, commodity future agreement, commodity option agreement,  commodity cap agreement, commodity floor agreement, commodity collar agreement, commodity  hedge agreement, commodity forward contract or derivative transaction and any put, call or other  agreement, arrangement or transaction, including natural gas, power, electric energy, emissions  forward contracts, renewable energy credits, or any combination of any such arrangements,  agreements and/or transactions, employed in the ordinary course of the Borrower’s business,  including the Borrower’s energy marketing, trading and asset optimization business, or (ii) any  commodity swap agreement, commodity future agreement, commodity option agreement,  commodity cap agreement, commodity floor agreement, commodity collar agreement, commodity  hedge agreement, commodity forward contract or derivative transaction and any put, call or other  agreement or arrangement, or combination thereof (including an agreement or arrangement to  hedge foreign exchange risks) in respect of commodities entered into by the Borrower pursuant to  asset optimization and risk management policies and procedures adopted pursuant to authority  





 






  -9-  #94716785v22   delegated by the Board of Directors of the Borrower.  The term “commodities” shall include  electric energy and/or capacity, transmission rights, coal, petroleum, natural gas liquids, natural  gas, fuel transportation rights, emissions allowances, weather derivatives and related products and  by-products and ancillary services.   “Communication” shall have the meaning specified in Section 5.01(b).  “Connection Income Taxes” means Other Connection Taxes that are imposed on or  measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.  “Constellation” means Constellation Energy Group, Inc.  “Constellation Nuclear” means Constellation Energy Nuclear Group, LLC, a Maryland  limited liability company.  “Constellation Nuclear Entity” means Constellation Nuclear, LLC, CE Nuclear, LLC and  Constellation Nuclear and its Subsidiaries.  “Controlled Group” means each person (as defined in Section 3(9) of ERISA) that, together  with the Borrower, would be deemed to be a “single employer” within the meaning of Section  414(b) or 414(c) of the Code.  “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a  tenor (including overnight) or an interest payment period having approximately the same length  (disregarding business day adjustment) as such Available Tenor.  “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 382.2(b).  “Covered Party” has the meaning assigned to it in Section 8.23.  “Credit Extension” means the making of an Advance hereunder.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which  may include a lookback) being established by the Administrative Agent in accordance with the  conventions for this rate selected or recommended by the Relevant Governmental Body for  determining “Daily Simple SOFR” for business loans; provided, that if the Administrative Agent  decides that any such convention is not administratively feasible for the Administrative Agent,  then the Administrative Agent may establish another convention in its reasonable discretion.  





 






  -10-  #94716785v22   “Debt” means (i) indebtedness for borrowed money, (ii) obligations evidenced by bonds,  debentures, notes or other similar instruments, (iii) obligations to pay the deferred purchase price  of property or services (other than trade payables incurred in the ordinary course of business), (iv)  obligations as lessee under leases that shall have been or are required to be, in accordance with  GAAP, recorded as capital leases or finance leases, (v) obligations (contingent or otherwise) under  reimbursement or similar agreements with respect to the issuance of letters of credit (other than  obligations in respect of documentary letters of credit opened to provide for the payment of goods  or services purchased in the ordinary course of business) and (vi) obligations under direct or  indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise  acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of  others of the kinds referred to in clauses (i) through (v) above.  “Debt Issuance” means the incurrence of Debt by the Borrower (excluding (i)  intercompany debt among the Borrower and any Affiliate, (ii) credit extensions under the Existing  Credit Facility as in effect as of the date hereof (including the renewal, replacement or refinancing  thereof; provided that the aggregate commitments thereunder do not exceed the aggregate  commitments in respect of the Existing Credit Facility as of the date hereof), (iii) any renewal,  replacement or refinancing of that certain Credit Agreement dated as of March 31, 2020 among  the Borrower, the lenders party thereto and Sumitomo Mitsui Banking Corporation, and that  certain 364-Day Term Loan Agreement dated as of March 19, 2020 between the Borrower and  Wells Fargo Bank, National Association (collectively, the “Existing Term Loan Credit  Agreements”); provided that, in each case, the aggregate loans thereunder do not exceed the  aggregate loans in respect of the applicable Existing Term Loan Credit Agreement as of the date  hereof, (iv) up to $1,000,000,000 in new term loan facilities, (v) commercial paper issuances, (vi)  ordinary course letter of credit facilities, overdraft protection and short term working capital  facilities, ordinary course foreign credit facilities (including the renewal, replacement or  refinancing thereof), capital leases, hedging and cash management, (vii) financing secured by  accounts receivable or related contracts pursuant to that certain Receivables Purchase Agreement  dated as of April 8, 2020 among NewEnergy Receivables LLC, Constellation NewEnergy, Inc.,  MUFG Bank, Ltd. as agent and the conduits, financial institutions and purchaser agents party  thereto, and (viii) purchase money and equipment financings and similar obligations (collectively,  “Excluded Debt”)).  “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means any Lender, as reasonably determined by the Administrative  Agent, that has (a) failed to fund any portion of its Advances within three Business Days after the  date required to be funded by it hereunder, unless the subject of a good faith dispute of which such  Lender has notified the Administrative Agent, (b) notified the Borrower, the Administrative Agent  or any Lender 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 relates to  such Lender’s obligation to fund an Advance hereunder and states that such position is based on  such Lender’s determination that a condition precedent to funding (which condition precedent,  together with any applicable default on the part of the Borrower, shall be specifically identified in  such writing or public statement) cannot be satisfied), (c) failed, within three Business Days after  





 






  -11-  #94716785v22   written request by the Administrative Agent, to confirm that it will comply with the terms of this  Agreement relating to its obligations to fund prospective Advances; provided that any such Lender  shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by  the Administrative Agent, (d) otherwise failed to pay over to the Administrative Agent or any other  Lender any other amount required to be paid by it hereunder within three Business Days after the  date when due, unless the subject of a good faith dispute of which such Lender has notified the  Administrative Agent, or (e) has become the subject of a (1) Bankruptcy Event or (2) Bail-In  Action, unless, in the case of any Lender referred to in clause (e)(1), the Borrower and the  Administrative Agent shall determine in their sole and absolute discretion that such Lender intends  and has all approvals to continue to perform its obligations as a Lender hereunder in accordance  with all of the terms of this Agreement.  “Dollars” or “$” refers to lawful money of the United States of America.  “Domestic Lending Office” means, with respect to any Lender, the office of such Lender  specified as its “Domestic Lending Office” in its Administrative Questionnaire or in the  Assignment and Assumption pursuant to which it became a Lender, or such other office of such  Lender as such Lender may from time to time specify to the Borrower and the Administrative  Agent.  “Early Opt-in Election” means, if the then current Benchmark with respect to Dollars is  LIBO Rate, the occurrence of:  (1) a notification by the Administrative Agent to (or the request by the Borrower to the  Administrative Agent to notify) each of the other parties hereto that at least five currently  outstanding Dollar denominated syndicated credit facilities at such time contain (as a result  of amendment or as originally executed) a SOFR-based rate (including SOFR, a term  SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit  facilities are identified in such notice and are publicly available for review), and  (2) the joint election by the Administrative Agent and the Borrower to trigger a fallback  from LIBO Rate and the provision, as applicable, by the Administrative Agent of written  notice of such election to the Borrower and the Lenders.  “EEA Financial Institution” means (a) any credit institution or investment firm established  in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,  (b) any entity established in an EEA Member Country which is a parent of an institution described  in clause (a) of this definition, or (c) any financial institution established in an EEA Member  Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and  is subject to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person  entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.  





 






  -12-  #94716785v22   “Effective Date” means the date on which all conditions precedent set forth in Section 3.01  have been satisfied.  “Electronic Signature” means an electronic sound, symbol, or process attached to, or  associated with, a contract or other record and adopted by a Person with the intent to sign,  authenticate or accept such contract or record.  “Electronic System” means any electronic system, including e-mail, e-fax, Intralinks®,  ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether such  electronic system is owned, operated or hosted by the Administrative Agent or any Lender and  any of its respective Related Parties or any other Person, providing for access to data protected by  passcodes or other security system.  “Eligible Assignee” means (i) a commercial bank organized under the laws of the United  States, or any State thereof; (ii) a commercial bank organized under the laws of any other country  that is a member of the OECD or has concluded special lending arrangements with the  International Monetary Fund associated with its “General Arrangements to Borrow”, or a political  subdivision of any such country, provided that such bank is acting through a branch or agency  located in the United States; (iii) a finance company, insurance company or other financial  institution or fund (whether a corporation, partnership or other entity) engaged generally in  making, purchasing or otherwise investing in commercial loans in the ordinary course of its  business; (iv) the central bank of any country that is a member of the OECD; (v) any Lender; or  (vi) any Affiliate (excluding any individual) of a Lender; provided that, unless otherwise agreed  by the Borrower and the Administrative Agent in their sole discretion, (A) any Person described  in clause (i), (ii) or (iii) above shall also (x) have outstanding unsecured long-term debt that is rated  BBB- or better by S&P and Baa3 or better by Moody’s (or an equivalent rating by another  nationally recognized credit rating agency of similar standing if either such corporation is no  longer in the business of rating unsecured indebtedness of entities engaged in such businesses) and  (y) have combined capital and surplus (as established in its most recent report of condition to its  primary regulator) of not less than $100,000,000 (or its equivalent in foreign currency), and (B)  any Person described in clause (ii), (iii), (iv), (v) or (vi) above shall, on the date on which it is to  become a Lender hereunder, be entitled to receive payments hereunder without deduction or  withholding of any United States Federal income taxes (as contemplated by Section 2.14(e)).  In  no event shall an Eligible Assignee include an Ineligible Institution.  “Eligible Successor” means a Person that (i) is a corporation, limited liability company or  business trust duly incorporated or organized, validly existing and in good standing under the laws  of one of the states of the United States or the District of Columbia, (ii) as a result of a contemplated  acquisition, consolidation or merger, will succeed to all or substantially all of the consolidated  business and assets of the Borrower or Exelon, as applicable, (iii) upon giving effect to such  contemplated acquisition, consolidation or merger, will have all or substantially all of its  consolidated business and assets conducted and located in the United States and (iv) in the case of  the Borrower, is acceptable to the Majority Lenders as a credit matter.  “Equity Interests” means shares of capital stock, partnership interests, membership  interests in a limited liability company, beneficial interests in a trust or other equity ownership  





 






  -13-  #94716785v22   interests in a Person, and any warrants, options or other rights entitling the holder thereof to  purchase or acquire any such equity interest.  “Equity Issuance” means the issuance of any Equity Interests by the Borrower (excluding  (i) issuances pursuant to employee stock plans and retirement plans or issued as compensation to  officers and/or non-employee directors or other benefit or employee incentive arrangements and  (ii) issuances of directors’ qualifying shares and/or other nominal amounts required to be held by  persons other than the Borrower or its Subsidiaries under applicable law (collectively, “Excluded  Equity Issuance”)); provided that, for purposes of this definition, the Separation Transaction shall  not constitute an Equity Issuance.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from  time to time, and the rules and regulations promulgated thereunder.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor Person), as in effect from time to time.  “Event of Default” shall have the meaning specified in Section 6.01.  “Exchange Act” means the Securities Exchange Act of 1934.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a  Recipient or required to be withheld or deducted from a payment to a Recipient:  (a) Taxes imposed  on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,  in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having  its principal office or, in the case of any Lender, its applicable lending office located in, the  jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other  Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on  amounts payable to or for the account of such Lender with respect to an applicable interest in an  Advance or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires  such interest in the Advance or Commitment (other than pursuant to an assignment request by the  Borrower under Section 8.07(g)) or (ii) such Lender changes its lending office, except in each case  to the extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either  to such Lender’s assignor immediately before such Lender acquired the applicable interest in an  Advance or Commitment or to such Lender immediately before it changed its lending office, (c)  Taxes attributable to such Recipient’s failure to comply with Section 2.14(f) and (d) any U.S.  Federal withholding Taxes imposed under FATCA.   “Exelon” means Exelon Corporation, a Pennsylvania corporation, or any Eligible  Successor thereof.  “Existing Credit Agreement” means the credit facility evidenced by that certain Credit  Agreement, dated as of March 23, 2011, as restated as of May 26, 2016 and as otherwise amended,  restated or otherwise modified form time to time, by and among the Borrower, the lenders party  thereto and JPMorgan Chase Bank, N.A. as administrative agent.   “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more  





 






  -14-  #94716785v22   onerous to comply with), any current or future regulations or official interpretations thereof and  any agreement entered into pursuant to Section 1471(b)(1) of the Code.  “FCA” has the meaning specified in Section 1.04.  “Federal Funds Rate” means, for any day, the rate calculated by the NYFRB based on such  day’s federal funds transactions by depositary institutions, as determined in such manner as the  NYFRB shall set forth on its public website from time to time, and published on the next  succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if any  Federal Funds Rate shall be less than 0.00%, such rate shall be deemed to be 0.00% for the  purposes of this Agreement.  “Fee and Syndication Letter” means that certain Fee and Syndication Letter dated as of  August 6, 2021 among the Borrower and Barclays Bank PLC.  “Fitch” means Fitch Ratings, Inc. or any successor.  “Fitch Rating” means, at any time, the rating issued by Fitch and then in effect with respect  to the Borrower’s senior unsecured long-term public debt securities without third-party credit  enhancement (it being understood that if the Borrower does not have any outstanding debt  securities of the type described above but has an indicative rating from Fitch for debt securities of  such type, then such indicative rating shall be used for determining the “Fitch Rating”).  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of  the execution of this Agreement, the modification, amendment or renewal of this Agreement or  otherwise) with respect to the Adjusted LIBO Rate.   “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S.  Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under  the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  “GAAP” shall have meaning specified in Section 1.03(a).   “Governmental Authority” means the government of the United States of America or any  other nation or any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  government (including any supra-national bodies such as the European Union or the European  Central Bank) and any group or body charged with setting financial accounting or regulatory  capital rules or standards (including, without limitation, the Financial Accounting Standards  Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or  any successor or similar authority to any of the foregoing).  “Granting Bank” shall have the meaning specified in Section 8.07(i).  “Hedging Obligations” mean, with respect to any Person, the obligations of such Person  under any interest rate or currency swap agreement, interest rate or currency future agreement,  interest rate collar agreement, interest rate or currency hedge agreement, and any put, call or other  





 






  -15-  #94716785v22   agreement or arrangement designed to protect such Person against fluctuations in interest rates or  currency exchange rates.  “Impacted Interest Period” has the meaning assigned to it in the definition of “LIBO Rate.”  “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by the Borrower under this Agreement, and (b) Other Taxes.  “Ineligible Institution” has the meaning assigned to it in Section 8.07(a).  “Interest Coverage Ratio” means, for any period of four consecutive fiscal quarters of the  Borrower, the ratio of Adjusted Funds From Operations for such period to Net Interest Expense  for such period.  “Interest Election Request” means a request by the Borrower to convert or continue  Borrowing in accordance with Section 2.16.  “Interest Expense” means, for any period, “interest expense” as shown on a consolidated  statement of operations and comprehensive income of the Borrower for such period prepared in  accordance with GAAP.  “Interest Period” means, for each Term Benchmark Advance, the period commencing on  the date such Term Benchmark Advance is made or is converted from a Base Rate Advance and  ending on the last day of the period selected by the 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 the Borrower pursuant to the  provisions below.  The duration of each such Interest Period shall be 1, 3 or 6 months, as the  Borrower may select in accordance with Section 2.02 or 2.09; provided that:  (i) the Borrower may not select any Interest Period that ends after the latest  scheduled Termination Date;  (ii) Interest Periods commencing on the same date for Advances made as part  of the same Borrowing shall be of the same duration;  (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, unless such extension would cause the last day of  such Interest Period to occur in the next following calendar month, in which case the last  day of such Interest Period shall occur on the next preceding Business Day; and  (iv) if there is no day in the appropriate calendar month at the end of such  Interest Period numerically corresponding to the first day of such Interest Period, then such  Interest Period shall end on the last Business Day of such appropriate calendar month.   “IRS” means the United States Internal Revenue Service.  





 






  -16-  #94716785v22   “ISDA Definitions” means the 2006 ISDA Definitions published by the International  Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented  from time to time, or any successor definitional booklet for interest rate derivatives published from  time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.  “Lenders” means each of the financial institutions listed on the signature pages hereof and  each Eligible Assignee that shall become a party hereto pursuant to Section 8.07.  “Lender Parent” means, with respect to any Lender, any Person as to which such Lender  is, directly or indirectly, a subsidiary.  “LIBO Interpolated Rate” means, at any time, with respect to any Term Benchmark  Borrowing denominated in Dollars and for any Interest Period, the rate per annum (rounded to the  same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent  (which determination shall be conclusive and binding absent manifest error) to be equal to the rate  that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest  period that is shorter than the Impacted LIBO Rate Interest Period; and (b) the LIBO Screen Rate  for the shortest period that exceeds the Impacted LIBO Rate Interest Period, in each case, at such  time; provided that if any LIBO Interpolated Rate shall be less than 0.00%, such rate shall be  deemed to be 0.00% for the purposes of this Agreement.  “LIBO Rate” means, with respect to any Term Benchmark Advance for any Interest Period,  the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the  commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be  available at such time for such Interest Period (an “Impacted LIBO Interest Period”) then the LIBO  Rate shall be the LIBO Interpolated Rate.  “LIBO Screen Rate” means, for any day and time, with respect to any Term Benchmark  Borrowing and for any Interest Period, the London interbank offered rate as administered by ICE  Benchmark Administration (or any other Person that takes over the administration of such rate)  for Dollars for a period equal in length to such Interest Period as displayed on such day and time  on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such  rate does not appear on a Reuters page or screen, on any successor or substitute page on such  screen that displays such rate, or on the appropriate page of such other information service that  publishes such rate from time to time as selected by the Administrative Agent in its reasonable  discretion); provided that if the LIBO Screen Rate as so determined would be less than 0.00%,  such rate shall be deemed to be 0.00% for the purposes of this Agreement.  “LIBOR” has the meaning assigned to such term in Section 1.04.  “Lien” means any lien (statutory or other), mortgage, pledge, security interest or other  charge or encumbrance, or any other type of preferential arrangement in the nature of a security  interest (including the interest of a vendor or lessor under any conditional sale, capitalized lease or  other title retention agreement).   “Majority Lenders” means Lenders having Pro Rata Shares of more than 50% (provided  that, for purposes of this definition, neither the Borrower nor any of its Affiliates, if a Lender, shall  be included in calculating the amount of any Lender’s Pro Rata Share or the amount of the  





 






  -17-  #94716785v22   Commitment Amounts or Outstanding Credit Extensions, as applicable, required to constitute  more than 50% of the Pro Rata Shares).  “Material Adverse Change” and “Material Adverse Effect” each means, relative to any  occurrence, fact or circumstances of whatsoever nature (including any determination in any  litigation, arbitration or governmental investigation or proceeding), (i) any materially adverse  change in, or materially adverse effect on, the financial condition, operations, assets or business of  the Borrower and its consolidated Subsidiaries, taken as a whole, provided that, except as  otherwise expressly provided herein, the assertion against the Borrower or any Subsidiary of  liability for any obligation arising under ERISA for which the Borrower or such Subsidiary bore  joint and several liability with any ComEd Entity, or the payment by the Borrower or any  Subsidiary of any such obligation, shall not be considered in determining whether a Material  Adverse Change or Material Adverse Effect has occurred); or (ii) any materially adverse effect on  the validity or enforceability against the Borrower of this Agreement.  “Moody’s” means Moody’s Investors Service, Inc. or any successor.  “Moody’s Rating” means, at any time, the rating issued by Moody’s and then in effect with  respect to the Borrower’s senior unsecured long-term public debt securities without third-party  credit enhancement (it being understood that if the Borrower does not have any outstanding debt  securities of the type described above but has an indicative rating from Moody’s for debt securities  of such type, then such indicative rating shall be used for determining the “Moody’s Rating”).   “Multiemployer Plan” means a Plan that meets the definition in Section 4001(a)(3) of  ERISA.  “Net Cash Flows From Operating Activities” means, for any period, “Net Cash Flows  provided by Operating Activities” as shown on a consolidated statement of cash flows of the  Borrower for such period prepared in accordance with GAAP, excluding any “Changes in assets  and liabilities” (as shown on such statement of cash flows) taken into account in determining such  Net Cash Flows provided by Operating Activities.  “Net Cash Proceeds” means:  (i) with respect to any Debt Issuance, the excess, if any, of (A) cash received  by the Borrower in connection with such incurrence, issuance, offering or placement over  (B) the sum of (I) payments made to retire any Indebtedness that is required to be repaid in  connection with such issuance, offering or placement (other than the Advances) and (II)  the underwriting discounts and commissions and other fees and expenses incurred by the  Borrower in connection with such incurrence, issuance, offering or placement; and  (ii) with respect to any Equity Issuance, the excess of (A) the cash received by  the Borrower in connection with such issuance over (B) the underwriting discounts and  commissions and other fees and expenses incurred by the Borrower in connection with  such issuance.  “Net Interest Expense” means, for any period, Interest Expense for such period minus  interest on Nonrecourse Indebtedness.  





 






  -18-  #94716785v22    “Nonrecourse Indebtedness” means any Debt that finances the acquisition, development,  ownership or operation of an asset in respect of which the Person to which such Debt is owed has  no recourse whatsoever to the Borrower or any of its Affiliates other than:  (i) recourse to the named obligor with respect to such Debt (the “Debtor”) for  amounts limited to the cash flow or net cash flow (other than historic cash flow) from the  asset;  (ii) recourse to the Debtor for the purpose only of enabling amounts to be  claimed in respect of such Debt in an enforcement of any security interest or lien given by  the Debtor over the asset or the income, cash flow or other proceeds deriving from the asset  (or given by any shareholder or the like in the Debtor over its shares or like interest in the  capital of the Debtor) to secure the Debt, but only if the extent of the recourse to the Debtor  is limited solely to the amount of any recoveries made on any such enforcement; and  (iii) recourse to the Debtor generally or indirectly to any Affiliate of the Debtor,  under any form of assurance, undertaking or support, which recourse is limited to a claim  for damages (other than liquidated damages and damages required to be calculated in a  specified way) for a breach of an obligation (other than a payment obligation or an  obligation to comply or to procure compliance by another with any financial ratios or other  tests of financial condition) by the Person against which such recourse is available.  “Notice of Borrowing” has the meaning set forth in Section 2.02(a).  “NYFRB” means the Federal Reserve Bank of New York.  “OECD” means the Organization for Economic Cooperation and Development.  “Other Benchmark Rate Election” means, with respect to any Loan denominated in  Dollars, if the then-current Benchmark is the LIBO Rate, the occurrence of:  (a) a request by the Borrower to the Administrative Agent to notify each of the other  parties hereto that, at the determination of the Borrower, Dollar-denominated syndicated credit  facilities at such time contain (as a result of amendment or as originally executed), in lieu of a  LIBOR-based rate, a term benchmark rate as a benchmark rate, and  (b) the Administrative Agent, in its sole discretion, and the Borrower jointly elect to  trigger a fallback from the LIBO Rate and the provision, as applicable, by the Administrative  Agent of written notice of such election to the Borrower and the Lenders.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result  of a present or former connection between such Recipient and the jurisdiction imposing such Tax  (other than connections arising from such Recipient having executed, delivered, become a party  to, performed its obligations under, received payments under, received or perfected a security  interest under, engaged in any other transaction pursuant to or enforced this Agreement or any  document related hereto, or sold or assigned an interest in any Loan, Facility LC or document  related thereto.  





 






  -19-  #94716785v22   “Other Taxes” means all present or future stamp, court or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, this Agreement, except any such Taxes that are Other  Connection Taxes imposed with respect to an assignment (other than an assignment under Section  8.07(g)).  “Outstanding Credit Extensions” means the sum of the aggregate principal amount of all  outstanding Advances.  “Participant” has the meaning assigned to such term in Section 8.07(e).  “Participant Register” has the meaning assigned to such term in Section 8.07(e).  “PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to  any or all of its functions under ERISA.  “Permitted Encumbrance” means (a) any right reserved to or vested in any municipality or  other governmental or public authority (i) by the terms of any right, power, franchise, grant  (including, without limitation, any financial assistance grant), license or permit granted or issued  to the Borrower or (ii) to purchase or recapture or to designate a purchaser of any property of the  Borrower; (b) any easement, restriction, exception or reservation in any property and/or right of  way of the Borrower for the purposes of roads, pipelines, transmission lines, distribution lines,  transportation lines or removal of minerals or timber or for other like purposes or for the joint or  common use of real property, rights of way, facilities and/or equipment, and defects, irregularities  and deficiencies in title of any property and/or rights of way, which, in each case described in this  clause (b), whether considered individually or collectively with all other items described in this  clause (b), do not materially impair the use of the relevant property and/or rights of way for the  purposes for which such property and/or rights of way are held by the Borrower; (c) rights reserved  to or vested in any municipality or other Governmental Authority to control or regulate any  property of the Borrower or to use such property in a manner that does not materially impair the  use of such property for the purposes for which it is held by the Borrower; and (d) obligations or  duties of the Borrower to any municipality or other Governmental Authority that arise out of any  franchise, grant, license or permit and that affect any property of the Borrower (including, without  limitation, obligations with respect to nuclear waste disposal and related arrangements).  “Permitted Obligations” mean (1) Hedging Obligations of the Borrower or any Subsidiary  arising in the ordinary course of business and in accordance with the applicable Person’s  established risk management policies that are designed to protect such Person against, among other  things, fluctuations in interest rates or currency exchange rates and which in the case of agreements  relating to interest rates shall have a notional amount no greater than the payments due with respect  to the applicable obligations being hedged and (2) Commodity Trading Obligations.  “Person” means an individual, partnership, corporation (including a business trust), joint  stock company, trust, unincorporated association, joint venture, limited liability company or other  entity, or a government or any political subdivision or agency thereof.  





 






  -20-  #94716785v22    “Plan” means an employee pension benefit plan that is covered by Title IV of ERISA or  subject to the minimum funding standards under Section 412 of the Code as to which the Borrower  or any other member of the Controlled Group has or may have any liability (including contingent  liability).  “Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic  transmission system.  “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime  Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum  interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15  (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted  therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar  release by the Federal Reserve Board (as determined by the Administrative Agent). Each change  in the Prime Rate shall be effective from and including the date such change is publicly announced  as being effective.  “Principal Subsidiary” means each Subsidiary, other than, except as provided in the proviso  below, any Constellation Nuclear Entity, (i) the consolidated assets of which, as of the date of any  determination thereof, constitute at least 10% of the consolidated assets of the Borrower (after  giving effect to the acquisition of Constellation by Exelon and any related transfer of assets to the  Borrower) or (ii) the consolidated earnings before taxes of which constitute at least 10% of the  consolidated earnings before taxes of the Borrower for the most recently completed fiscal year;  provided, that, regardless of whether Constellation Nuclear or any of its Subsidiaries is a  consolidated Subsidiary of the Borrower, (A) the Constellation Nuclear Entities shall be subject to  being tested as Principal Subsidiaries under clauses (i) and (ii) above only at any time that the  Borrower shall own, directly or indirectly through one or more other Subsidiaries, 51% or more of  the outstanding capital stock (or other comparable interest) of Constellation Nuclear having  ordinary voting power (irrespective of whether or not at the time capital stock, or comparable  interests, of any other class or classes of such corporation or entity shall or might have voting  power upon the occurrence of any contingency), and (B) the assets and earnings of Constellation  Nuclear and its Subsidiaries shall be included in the computation of the 10% tests set forth in  clauses (i) and (ii) above, as applicable, only to the extent of the Borrower’s proportional equity  interest in Constellation Nuclear.  “Pro Rata Share” means, with respect to a Lender, the percentage that such Lender’s  Commitment Amount is of the Aggregate Commitment Amount (disregarding, in the case of  Section 2.16 when a Defaulting Lender exists, any Defaulting Lender’s Commitment Amount).  If  the Commitments have terminated or expired, the Pro Rata Shares shall be determined based upon  the Commitment Amounts most recently in effect, giving effect to any assignments and to any  Lender’s status as a Defaulting Lender at the time of determination.  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  





 






  -21-  #94716785v22   “QFC Credit Support” has the meaning assigned to it in Section 8.23.  “Recipient” means, as applicable, (a) the Administrative Agent and (b) any Lender.  “Reference Time” with respect to any setting of the then-current Benchmark means if such  Benchmark is LIBO Rate, 11:00 a.m. (London time) on the day that is two London banking days  preceding the date of such setting.  “Register” has the meaning set forth in Section 8.07(c).  “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and  the respective trustees, administrators, managers, representatives, directors, officers, employees,  agents and advisors of such Person and such Person’s Affiliates.  “Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or  a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or,  in each case, any successor thereto.  “Relevant Rate” means with respect to any Term Benchmark Borrowing denominated in  Dollars, the LIBO Rate.  “Reportable Event” means a reportable event as defined in Section 4043 of ERISA and  regulations issued under such Section with respect to a Single Employer Plan, excluding such  events as to which the requirement of Section 4043(a) of ERISA that the PBGC be notified within  30 days after the occurrence of such event is waived under PBGC Regulation Section 4043,  provided that a failure to meet the minimum funding standard of Section 412 of the Code and  Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waivers  in accordance with either Section 4043(a) of ERISA or Section 412(c) of the Code.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “S&P” means Standard and Poor’s Financial Services, LLC, or any successor.  “S&P Rating” means, at any time, the rating issued by S&P and then in effect with respect  to the Borrower’s senior unsecured long-term public debt securities without third-party credit  enhancement (it being understood that if the Borrower does not have any outstanding debt  securities of the type described above but has an indicative rating from S&P for debt securities of  such type, then such indicative rating shall be used for determining the “S&P Rating”).  “Sanctioned Country” means, at any time, a country, region or territory which is itself, or  whose government is, the subject or target of any Sanctions (as of the Effective Date, Cuba, Iran,  North Korea, Sudan, Syria and Crimea).  “Sanctioned Person” means, at any time, any Person that is the target of Sanctions,  including, without limitation, (a) any Person listed in any Sanctions-related list of designated  Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the  Treasury, the U.S. Department of State, or by the United Nations Security Council, the European  





 






  -22-  #94716785v22   Union or any European Union member state or Her Majesty's Treasury of the United Kingdom,  (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned  or controlled by any such Person or Persons described in the foregoing clause (a) or (b).  “Sanctions” means economic or financial sanctions or trade embargoes imposed,  administered or enforced from time to time by (a) the U.S. government, including those  administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or  the U.S. Department of State, or (b) the United Nations Security Council, the European Union,  any European Union member state or Her Majesty’s Treasury of the United Kingdom.   “Single Employer Plan” means a Plan other than a Multiemployer Plan, maintained by the  Borrower or any other member of the Controlled Group for employees of the Borrower or any  other member of the Controlled Group.  “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured  overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR  Administrator’s Website on the immediately succeeding Business Day.  “SOFR Administrator” means the NYFRB (or a successor administrator of the secured  overnight financing rate).  “SOFR Administrator’s Website” means the NYFRB’s website, currently at  http://www.newyorkfed.org, or any successor source for the secured overnight financing rate  identified as such by the SOFR Administrator from time to time.  “SPC” has the meaning set forth in Section 8.07(i).  “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of  which is the number one and the denominator of which is the number one minus the aggregate of  the maximum reserve percentages (including any marginal, special, emergency or supplemental  reserves) expressed as a decimal established by the Federal Reserve Board to which the  Administrative Agent is subject, with respect to the Adjusted LIBO Rate, for Term Benchmark  funding (currently referred to as “Term Benchmark Liabilities” in Regulation D of the Federal  Reserve Board).  Such reserve percentages shall include those imposed pursuant to such  Regulation D.  Term Benchmark Advances shall be deemed to constitute Term Benchmark  funding and to be subject to such reserve requirements without benefit of or credit for proration,  exemptions or offsets that may be available from time to time to any Lender under such Regulation  D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on  and as of the effective date of any change in any reserve percentage.  “Subsidiary” means, with respect to any Person, any corporation or unincorporated entity  of which more than 50% of the outstanding capital stock (or comparable interest) having ordinary  voting power (irrespective of whether or not at the time capital stock, or comparable interests, of  any other class or classes of such corporation or entity shall or might have voting power upon the  occurrence of any contingency) is at the time directly or indirectly owned by such Person (whether  directly or through one or more other Subsidiaries).  Unless otherwise indicated, each reference to  a “Subsidiary” means a Subsidiary of the Borrower.  





 






  -23-  #94716785v22   “Supported QFC” has the meaning assigned to it in Section 8.23.  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), value added taxes, or any other goods and services, use or sales  taxes, assessments, fees or other charges imposed by any Governmental Authority, including any  interest, additions to tax or penalties applicable thereto.  “Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether  such Advance or Advances comprising such Borrowing, are bearing interest at a rate determined  by reference to the Adjusted LIBO Rate.  “Term Benchmark Advance” means any Advance that bears interest as provided in Section  2.06(b).  “Term Benchmark Lending Office” means, with respect to any Lender, the office of such  Lender specified as its “Term Benchmark Lending Office” in its Administrative Questionnaire or  in the Assignment and Assumption pursuant to which it became a Lender (or, if no such office is  specified, its Domestic Lending Office), or such other office of such Lender as such Lender may  from time to time specify to the Borrower and the Administrative Agent.  “Termination Date” means August 5, 2022.  “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable  Reference Time, the forward-looking term rate based on SOFR that has been selected or  recommended by the Relevant Governmental Body.  “Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and  the Borrower of the occurrence of a Term SOFR Transition Event.  “Term SOFR Transition Event” means the determination by the Administrative Agent that  (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the  administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a  Benchmark Transition Event or an Early Opt-in Election, as applicable (and, for the avoidance of  doubt, not in the case of an Other Benchmark Rate Election), has previously occurred resulting in  a Benchmark Replacement in accordance with Section 2.07 that is not Term SOFR.  “Type” - see the definition of Advance.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under  the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended  from time to time) promulgated by the United Kingdom Financial Conduct Authority, which  includes certain credit institutions and investment firms, and certain affiliates of such credit  institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  





 






  -24-  #94716785v22   “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unfunded Liabilities” means, (i) in the case of any Single Employer Plan, the amount (if  any) by which the present value of all vested nonforfeitable benefits under such Plan exceeds the  fair market value of all Plan assets allocable to such benefits, all determined as of the then most  recent actuarial valuation date for such Plan using the actuarial assumptions set forth in the most  recent actuarial valuation report for such Single Employer Plan, and (ii) in the case of any  Multiemployer Plan, the Withdrawal Liability that would be incurred by the Controlled Group if  all members of the Controlled Group completely withdrew from such Multiemployer Plan.  “Unmatured Event of Default” means any event which (if it continues uncured) will, with  lapse of time or notice or both, become an Event of Default.  “U.S. Person” means a “United States” person within the meaning of Section 7701(a)(30)  of the Code.  “U.S. Special Resolution Regime” has the meaning assigned to it in Section 8.23.  “U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section  2.14(f)(ii)(B)(3).  “Withdrawal Liability” shall have the meaning specified in Part 1 of Subtitle E of Title IV  of ERISA.  “Withholding Agent” means the Borrower and the Administrative Agent.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down  and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect  to the United Kingdom,  any powers of the applicable Resolution Authority  under the Bail-In  Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial  Institution  or any contract or instrument under which that liability arises, to convert all or part of  that liability into shares, securities or obligations of that person or any other person, to provide that  any such contract or instrument is to have effect as if a right had been exercised under it or to  suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  SECTION 1.02  Other Interpretive Provisions.  In this Agreement, (a) 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”; (b) the term “including”  means “including without limitation”; and (c) unless otherwise indicated, (i) any reference to an  Article, Section, Exhibit or Schedule means an Article or Section hereof or an Exhibit or Schedule  hereto; (ii) any reference to a time of day means such time in Chicago, Illinois; (iii) any reference  to a law or regulation means such law or regulation as amended, modified or supplemented from  time to time and includes all statutory and regulatory provisions consolidating, replacing or  interpreting such law or regulation; and (d) any reference to an agreement, instrument or other  





 






  -25-  #94716785v22   document means such agreement, instrument or other document as amended, supplemented or  otherwise modified from time to time. Except as expressly provided herein, all amounts payable  by the Borrower hereunder shall be in Dollars.  SECTION 1.03  Accounting Principles.  (a) As used in this Agreement, “GAAP” means generally accepted accounting  principles in the United States, applied on a basis consistent with the principles used in preparing  the Borrower’s audited consolidated financial statements as of December 31, 2020 and for the  fiscal year then ended, as such principles may be revised as a result of changes in GAAP  implemented by the Borrower subsequent to such date.  In this Agreement, except to the extent, if  any, otherwise provided herein, all accounting and financial terms shall have the meanings  ascribed to such terms by GAAP, and all computations and determinations as to accounting and  financial matters shall be made in accordance with GAAP.  In the event that the financial  statements generally prepared by the Borrower reflect a change in GAAP that affects the  computation of any financial ratio or requirement set forth herein (as contemplated by Section  1.03(b)), the compliance certificate delivered pursuant to Section 5.01(b)(iv) accompanying such  financial statements shall include information in reasonable detail reconciling such financial  statements which reflect such change in GAAP to financial information that does not reflect such  change to the extent relevant to the calculations set forth in such compliance certificate.  (b) If at any time any change in GAAP would affect the computation of any  financial ratio or requirement set forth herein and the Borrower or the Majority Lenders shall so  request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to  amend such ratio or requirement to preserve the original intent thereof in light of such change in  GAAP (subject to the approval of the Majority Lenders); provided that, until so amended, such  ratio or requirement shall continue to be computed in accordance with GAAP prior to such change  therein.  (c) For purposes of any calculation or determination which is to be made on a  consolidated basis (including compliance with Section 5.02(c)), such calculation or determination  shall exclude any assets, liabilities, revenues and expenses that are included in Borrower’s  financial statements from “variable interest entities” as a result of the application of FIN No. 46,  Consolidation of Variable Interest Entities – an Interpretation of ARB No. 51, as updated through  FIN No. 46-R and as modified by FIN No. 94.  SECTION 1.04  Interest Rates; LIBOR Notification. The interest rate on a Loan  denominated in Dollars may be derived from an interest rate benchmark that is, or may in the  future become, the subject of regulatory reform. Regulators have signaled the need to use  alternative benchmark reference rates for some of these interest rate benchmarks and, as a result,  such interest rate benchmarks may cease to comply with applicable laws and regulations, may be  permanently discontinued, and/or the basis on which they are calculated may change. The London  interbank offered rate (“LIBOR”) is intended to represent the rate at which contributing banks may  obtain short-term borrowings from each other in the London interbank market. On March 5, 2021,  the U.K. Financial Conduct Authority (“FCA”) publicly announced that: immediately after  December 31, 2021, publication of all seven euro LIBOR settings, all seven Swiss Franc LIBOR  settings, the spot next, 1-week, 2-month and 12-month Japanese Yen LIBOR settings, the  





 






  -26-  #94716785v22   overnight, 1-week, 2-month and 12-month British Pound Sterling LIBOR settings, and the 1-week  and 2-month U.S. Dollar LIBOR settings will permanently cease; immediately after June 30, 2023,  publication of the overnight and 12-month U.S. Dollar LIBOR settings will permanently cease;  immediately after December 31, 2021, the 1-month, 3-month and 6-month Japanese Yen LIBOR  settings and the 1-month, 3-month and 6-month British Pound Sterling LIBOR settings will cease  to be provided or, subject to consultation by the FCA, be provided on a changed methodology (or  “synthetic”) basis and no longer be representative of the underlying market and economic reality  they are intended to measure and that representativeness will not be restored; and immediately  after June 30, 2023, the 1-month, 3-month and 6-month U.S. Dollar LIBOR settings will cease to  be provided or, subject to the FCA’s consideration of the case, be provided on a synthetic basis  and no longer be representative of the underlying market and economic reality they are intended  to measure and that representativeness will not be restored. There is no assurance that dates  announced by the FCA will not change or that the administrator of LIBOR and/or regulators will  not take further action that could impact the availability, composition, or characteristics of LIBOR  or the currencies and/or tenors for which LIBOR is published. Each party to this agreement should  consult its own advisors to stay informed of any such developments. Public and private sector  industry initiatives are currently underway to identify new or alternative reference rates to be used  in place of LIBOR. Upon the occurrence of a Benchmark Transition Event, a Term SOFR  Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, Section 2.07(b)  and (c) provide a mechanism for determining an alternative rate of interest. The Administrative  Agent will promptly notify the Borrower, pursuant to Section 2.07(e), of any change to the  reference rate upon which the interest rate on Term Benchmark Advances is based. However, the  Administrative Agent does not warrant or accept any responsibility for, and shall not have any  liability with respect to, the administration, submission, performance or any other matter related  to LIBOR or other rates in the definition of “LIBO Rate” or with respect to any alternative or  successor rate thereto, or replacement rate thereof (including, without limitation, any such  alternative, successor or replacement rate implemented pursuant to Section 2.07(b) or (c), whether  upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early  Opt-in Election or an Other Benchmark Rate Election, and the implementation of any Benchmark  Replacement Conforming Changes pursuant to Section 2.07(d)), including without limitation,  whether the composition or characteristics of any such alternative, successor or replacement  reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO  Rate or have the same volume or liquidity as did the London interbank offered rate prior to its  discontinuance or unavailability. The Administrative Agent may select information sources or  services in its reasonable discretion to ascertain the Term Benchmark, any component thereof, or  rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and  shall have no liability to the Borrower, any Lender or any other person or entity for damages of  any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs,  losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any  error or calculation of any such rate (or component thereof) provided by any such information  source or service. The parties hereto agree and acknowledge that the announcements resulted in  the occurrence of a Benchmark Transition Event with respect to the London interbank offered rate  pursuant to the terms of this Agreement and that any obligation of the Administrative Agent to  notify any parties of such Benchmark Transition Event pursuant to clause (e) of Section 2.07 shall  be deemed satisfied.  





 






  -27-  #94716785v22   SECTION 1.05  Divisions.  For all purposes under this Agreement, in connection with any  division or plan of division under Delaware law (or any comparable event under a different  jurisdiction’s laws): if any asset, right, obligation or liability of any Person becomes the asset,  right, obligation or liability of a different Person, then it shall be deemed to have been transferred  from the original Person to the subsequent Person, and if any new Person comes into existence,  such new Person shall be deemed to have been organized and acquired on the first date of its  existence by the holders of its Equity Interests at such time.  ARTICLE II    AMOUNTS AND TERMS OF THE COMMITMENTS  SECTION 2.01  Commitments.  Each Lender severally agrees, on the terms and conditions  hereinafter set forth, to make an Advance in Dollars to the Borrower on the Effective Date, in a  principal amount not to exceed such Lender’s Commitment.  Amounts prepaid or repaid in respect  of such Advances may not be reborrowed.  SECTION 2.02  Procedures for Advances; Limitations on Borrowings.  (a) The Borrower shall request the Advance to be made on the Effective Date  by giving notice (a “Notice of Borrowing”) to the Administrative Agent (which shall promptly  advise each Lender of its receipt thereof) not later than 10:00 A.M. on the second Business Day  prior to the Effective Date of any proposed borrowing of Term Benchmark Advances and on the  Effective Date of any proposed borrowing of Base Rate Advances.  Each Notice of Borrowing  shall be in substantially the form of Exhibit B, specifying therein (i) the requested date of  borrowing (which shall be a Business Day), (ii) the Type of Advances requested, (iii) the aggregate  principal amount of the requested Advances and (iv) in the case of a borrowing of Term  Benchmark Advances, the initial Interest Period therefor.  Each Lender shall, before 12:00 noon  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, in same day funds, such  Lender’s ratable portion of the requested borrowing.  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 Borrower at the Administrative  Agent’s aforesaid address.  (b) Each Notice of Borrowing shall be irrevocable and binding on the  Borrower.  If a Notice of Borrowing requests Term Benchmark Advances, the Borrower shall  indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any  failure of the Borrower to fulfill on or before the requested borrowing date the applicable  conditions set forth in Article III, including any loss, cost or expense incurred by reason of the  liquidation or reemployment of deposits or other funds acquired by such Lender to fund the  requested Advance to be made by such Lender.  (c) Unless the Administrative Agent shall have received notice from a Lender  prior to the date of the requested borrowing (or, in the case of a borrowing of Base Rate Advances  to be made on the same Business Day as the Administrative Agent’s receipt of the relevant Notice  of Borrowing, prior to 10:30 A.M. on such Business Day) that such Lender will not make available  





 






  -28-  #94716785v22   to the Administrative Agent such Lender’s ratable portion of such borrowing, the Administrative  Agent may assume that such Lender has made such portion available to the Administrative Agent  on the requested borrowing date in accordance with Section 2.02(a) 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 Lender shall not have so made such ratable  portion available to the Administrative Agent, such Lender and the 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 the Borrower, the  interest rate applicable at the time to Advances made in connection with such borrowing and (ii)  in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative  Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance  as part of such Borrowing for purposes of this Agreement.  (d) The failure of any Lender to make the Advance to be made by it on any  borrowing date shall not relieve any other Lender of its obligation, if any, hereunder to make its  Advance on such date, but no Lender shall be responsible for the failure of any other Lender to  make any Advance to be made by such other Lender.  (e) Each Borrowing of Base Rate Advances shall at all times be in an aggregate  amount of $5,000,000 or a higher integral multiple of $1,000,000; and each Borrowing of Term  Benchmark Advances shall at all times be in an aggregate amount of $10,000,000 or a higher  integral multiple of $1,000,000. Notwithstanding anything to the contrary contained herein, the  Borrower may not have more than five Borrowings of Term Benchmark Advances outstanding at  any time.  SECTION 2.03  Fees.  The Borrower agrees to pay to the Administrative Agent, for its  own account, fees payable in the amounts and at the times separately agreed upon between the  Borrower and the Administrative Agent.  SECTION 2.04  Termination of Commitments.  The Commitments shall terminate in full  on the Effective Date after the proceeds of the Advances have been made available to the  Borrower.  SECTION 2.05  Repayment of Advances.  The Borrower shall repay all outstanding  Advances made by each Lender, and all other obligations of the Borrower to such Lender  hereunder, on such Lender’s Termination Date.  SECTION 2.06  Interest on Advances.  The Borrower shall pay interest on the unpaid  principal amount of each Advance from the date of such Advance until such principal amount shall  be paid in full, as follows:  (a) At all times such Advance is a Base Rate Advance, a rate per annum equal  to the Alternate Base Rate in effect from time to time plus the Applicable Margin in effect from  time to time, payable quarterly on the last day of each March, June, September and December, on  the date such Base Rate Advance is converted to a Term Benchmark Advance or paid in full and  on such Lender’s Termination Date (and, if applicable, thereafter on demand).  





 






  -29-  #94716785v22   (b) At all times such Advance is a Term Benchmark Advance, a rate per annum  equal to the sum of the Adjusted LIBO Rate for each applicable Interest Period plus the Applicable  Margin in effect from time to time, payable on the last day of each Interest Period for such Term  Benchmark Advance (and, if any Interest Period for such Advance is six months, on the day that  is three months after the first day of such Interest Period) or, if earlier, on the date such Term  Benchmark Advance is converted to a Base Rate Advance or paid in full and on such Lender’s  Termination Date (and, if applicable, thereafter on demand).  SECTION 2.07 Alternate Rate of Interest.  (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.07:  (i) the Administrative Agent determines (which determination shall be  conclusive absent manifest error) prior to the commencement of any Interest Period  for a Term Benchmark Borrowing, that adequate and reasonable means do not exist  for ascertaining the Adjusted LIBO Rate or the LIBO Rate for such Interest Period,  including because the Relevant Screen Rate is not available or published on a  current basis); or  (ii) the Administrative Agent is advised by the Majority Lenders that  prior to the commencement of any Interest Period for a Term Benchmark  Borrowing, the Adjusted LIBO Rate or the LIBO Rate for such Interest Period will  not adequately and fairly reflect the cost to such Lenders (or Lender) of making or  maintaining their Loans (or its Loan) included in such Borrowing for such Interest  Period.  then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by  telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the  Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to  such notice no longer exist, (A) any interest election request that requests the conversion of any  Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing shall be  ineffective and (B) if the Borrower requests a Term Benchmark Borrowing in Dollars, such  Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise to  such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be  permitted.  Furthermore, if any Term Benchmark Advance is outstanding on the date of the  Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.07(a)  with respect to a Relevant Rate applicable to such Term Benchmark Advance, then until the  Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to  such notice no longer exist, then on the last day of the Interest Period applicable to such Loan (or  the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted  by the Administrative Agent to, and shall constitute, an ABR Borrowing denominated in Dollars  on such day.  (b) Notwithstanding anything to the contrary herein, if a Benchmark Transition  Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related  Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting  of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance  





 






  -30-  #94716785v22   with clause (1) or (2) of the definition of “Benchmark Replacement” with respect to Dollars for  such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark  for all purposes hereunder in respect of such Benchmark setting and subsequent Benchmark  settings without any amendment to, or further action or consent of any other party to, this  Agreement and (y) if a Benchmark Replacement is determined in accordance with clause (3) of  the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such  Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any  Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time)  on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided  to the Lenders without any amendment to, or further action or consent of any other party to, this  Agreement or any other Loan Document so long as the Administrative Agent has not received, by  such time, written notice of objection to such Benchmark Replacement from Lenders comprising  the Majority Lenders.  (c) Notwithstanding anything to the contrary herein and subject to the proviso  below in this paragraph, with respect to a Loan denominated in Dollars, if a Term SOFR Transition  Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in  respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement  will replace the then-current Benchmark for all purposes hereunder in respect of such Benchmark  setting and subsequent Benchmark settings, without any amendment to, or further action or consent  of any other party to, this Agreement; provided that, this clause (c) shall not be effective unless  the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice.   For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR  Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion.  (d) In connection with the implementation of a Benchmark Replacement, the  Administrative Agent will have the right to make Benchmark Replacement Conforming Changes  from time to time and, notwithstanding anything to the contrary herein, any amendments  implementing such Benchmark Replacement Conforming Changes will become effective without  any further action or consent of any other party to this Agreement.  (e) The Administrative Agent will promptly notify the Borrower and the  Lenders of (ii) any occurrence of a Benchmark Transition Event, an Early Opt-in Election or an  Other Benchmark Rate Election, as applicable, (ii) the implementation of any Benchmark  Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the  removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the  commencement or conclusion of any Benchmark Unavailability Period.  Any determination,  decision or election that may be made by the Administrative Agent or, if applicable, any Lender  (or group of Lenders) pursuant to this Section 2.07 including any determination with respect to a  tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date  and any decision to take or refrain from taking any action or any selection, will be conclusive and  binding absent manifest error and may be made in its or their sole discretion and without consent  from any other party to this Agreement, except, in each case, as expressly required pursuant to this  Section 2.07.  (f) Notwithstanding anything to the contrary herein, at any time (including in  connection with the implementation of a Benchmark Replacement), (i)  if the then-current  





 






  -31-  #94716785v22   Benchmark is a term rate (including Term SOFR and LIBO Rate) and either (A) any tenor for such  Benchmark is not displayed on a screen or other information service that publishes such rate from  time to time as selected by the Administrative Agent in its reasonable discretion or (B) the  regulatory supervisor for the administrator of such Benchmark has provided a public statement or  publication of information announcing that any tenor for such Benchmark is or will be no longer  representative, then the Administrative Agent may modify the definition of “Interest Period” for  any Benchmark settings at or after such time to remove such unavailable or non-representative  tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (x) is subsequently  displayed on a screen or information service for a Benchmark (including a Benchmark  Replacement) or (y) is not, or is no longer, subject to an announcement that it is or will no longer  be representative for a Benchmark (including a Benchmark Replacement), then the Administrative  Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such  time to reinstate such previously removed tenor.  (g) Upon the Borrower’s receipt of notice of the commencement of a  Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark  Borrowing, conversion to or continuation of Term Benchmark Advances to be made, converted or  continued during any Benchmark Unavailability Period and, failing that the Borrower will be  deemed to have converted any request for a Term Benchmark Borrowing denominated in Dollars  into a request for a Borrowing of or conversion to ABR Borrowings.  During any Benchmark  Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available  Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark or such  tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate  Base Rate.  SECTION 2.08  [Reserved]  SECTION 2.09  Continuation and Conversion of Advances.  (a) The Borrower may on any Business Day, upon notice given to the  Administrative Agent, substantially in the form of Exhibit F to this Agreement, not later than 10:00  A.M. on the third Business Day prior to the date of any proposed continuation of or conversion  into Term Benchmark Advances, and on the date of any proposed conversion into Base Rate  Advances, and subject to the provisions of Sections 2.08 and 2.12, continue Term Benchmark  Advances for a new Interest Period or convert a Borrowing of Advances of one Type into  Advances of the other Type; provided that any continuation of Term Benchmark Advances or  conversion of Term Benchmark Advances into Base Rate Advances shall be made on, and only  on, the last day of an Interest Period for such Term Benchmark Advances, unless, in the case of  such a conversion, the Borrower shall also reimburse the Lenders pursuant to Section 8.04(b) on  the date of such conversion.  Each such notice of a continuation or conversion shall, within the  restrictions specified above, specify (i) the date of such continuation or conversion, (ii) the  Advances to be continued or converted, and (iii) in the case of continuation of or conversion into  Term Benchmark Advances, the duration of the Interest Period for such Advances.  (b) If the Borrower fails to select the Type of any Advance or the duration of  any Interest Period for any Borrowing of Term Benchmark Advances in accordance with the  provisions contained in the definition of “Interest Period” in Section 1.01 and Section 2.09(a), the  





 






  -32-  #94716785v22   Administrative Agent will forthwith so notify the Borrower and the Lenders and such Advances  will automatically, on the last day of the then existing Interest Period therefor, convert into Base  Rate Advances.  SECTION 2.10  Prepayments.    (a) The Borrower may, upon notice to the Administrative Agent not later than  10:00 A.M. at least three Business Days prior to any prepayment of Term Benchmark Advances  or on the date of any prepayment of Base Rate Advances, in each case stating the proposed date  and aggregate principal amount of the prepayment, and if such notice is given, the Borrower shall,  prepay the outstanding principal amounts of the Advances made as 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 that (i) each partial prepayment shall be in an aggregate  principal amount not less than $10,000,000 or a higher integral multiple of $1,000,000 in the case  of any prepayment of Term Benchmark Advances and $5,000,000 or a higher integral multiple of  $1,000,000 in the case of any prepayment of Base Rate Advances and (ii) in the case of any such  prepayment of a Term Benchmark Advance, the Borrower shall be obligated to reimburse the  Lenders pursuant to Section 8.04(b) on the date of such prepayment.  (b) In the event that the Borrower actually receives any Net Cash Proceeds  arising from any Equity Issuance or Debt Issuance, then the Borrower shall prepay the Advances  in an amount equal to 100% of such Net Cash Proceeds not later than one Business Day following  the receipt by the Borrower of such Net Cash Proceeds.  The Borrower shall promptly (and not  later than the date of receipt thereof) notify the Agent of the receipt by the Borrower of such Net  Cash Proceeds from any Equity Issuance or Debt Issuance, and such notice shall be accompanied  by a reasonably detailed calculation of the Net Cash Proceeds.  Each prepayment of Advances  shall be applied ratably and shall be accompanied by accrued interest and fees on the amount  prepaid to the date fixed for prepayment, plus, in the case of any Term Benchmark Advance, any  amounts due to the Lenders under Section 8.04(b).  SECTION 2.11  Increased Costs.  If any Change in Law, or other circumstance affecting  the London interbank Eurodollar market, shall:  (i) impose, modify or deem applicable any reserve, special deposit,  liquidity or similar requirement (including any compulsory loan requirement,  insurance charge or other assessment) against assets of, deposits with or for the  account of, or credit extended by, any Lender (except any such reserve requirement  reflected in the Adjusted LIBO Rate);  (ii) impose on any Lender or the London interbank market any other  condition, cost or expense (other than Taxes) affecting this Agreement or Term  Benchmark Advances made by such Lender; or  (iii) subject any Recipient to any Taxes (other than (A) Indemnified  Taxes (B) Taxes described in clauses (b) through (d) of the definition of Excluded  Taxes and (C) Connection Income Taxes on its loans, loan principal, letters of  





 






  -33-  #94716785v22   credit, commitments, or other obligations, or its deposits, reserves, other liabilities  or capital attributable thereto;  and the result of any of the foregoing shall be to increase the cost to such Lender or such other  Recipient of making, continuing, converting or maintaining any Term Benchmark Advance (or of  maintaining its obligation to make any such Advance) or to reduce the amount of any sum received  or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or  otherwise), then the Borrower will pay to such Lender or such other Recipient, as the case may be,  such additional amount or amounts as will compensate such Lender or other Recipient, as the case  may be, for such additional costs incurred or reduction suffered.  (b) If any Lender determines that any Change in Law, regarding capital or  liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s  capital or on the capital of such Lender’s holding company, if any, as a consequence of this  Agreement or the Advances made by such Lender to a level below that which such Lender or such  Lender’s holding company could have achieved but for such Change in Law (taking into  consideration such Lender’s policies and the policies of such Lender’s holding company with  respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such  Lender such additional amount or amounts as will compensate such Lender or such Lender’s  holding company for any such reduction suffered.  (c) A certificate of a Lender setting forth the amount or amounts necessary to  compensate such Lender or its holding company, as the case may be, as specified in paragraph (a)  or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest  error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within  10 days after receipt thereof.  (d) Failure or delay on the part of any Lender to demand compensation pursuant  to this Section shall not constitute a waiver of such Lender’s right to demand such compensation;  provided that the Borrower shall not be required to compensate a Lender pursuant to this Section  for any increased costs or reductions incurred more than 90 days prior to the date that such Lender  notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and  of such Lender’s intention to claim compensation therefor; provided, further, that, if the Change  in Law giving rise to such increased costs or reductions is retroactive, then the 90-day period  referred to above shall be extended to include the period of retroactive effect thereof, provided that  such demand is made within 90 days after the implementation of such retroactive Change in Law.  SECTION 2.12  Illegality.  Notwithstanding any other provision of this Agreement, if any  Lender 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 Lender or its Term Benchmark Lending  Office to perform its obligations hereunder to make Term Benchmark Advances or to fund or  maintain Term Benchmark Advances hereunder, (i) the obligation of such Lender to make,  continue or convert Advances into Term Benchmark Advances shall be suspended (subject to the  following paragraph of this Section 2.12) until the Administrative Agent shall notify the Borrower  and the Lenders that the circumstances causing such suspension no longer exist and (ii) all Term  Benchmark Advances of such Lender then outstanding shall, on the last day of the then applicable  





 






  -34-  #94716785v22   Interest Period (or such earlier date as such Lender shall designate upon not less than five Business  Days’ prior written notice to the Administrative Agent), be automatically converted into Base Rate  Advances.  If the obligation of any Lender to make, continue or convert into Term Benchmark  Advances has been suspended pursuant to the preceding paragraph, then, unless and until the  Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing  such suspension no longer exist, (i) all Advances that would otherwise be made by such Lender as  Term Benchmark Advances shall instead be made as Base Rate Advances and (ii) to the extent  that Term Benchmark Advances of such Lender have been converted into Base Rate Advances  pursuant to the preceding paragraph or made instead as Base Rate Advances pursuant to the  preceding clause (i), all payments and prepayments of principal that would have otherwise been  applied to such Term Benchmark Advances of such Lender shall be applied instead to such Base  Rate Advances of such Lender.  SECTION 2.13  Payments and Computations.  (a) The Borrower shall make each payment hereunder not later than 10:00 A.M.  on the day when due in U.S. dollars to the Administrative Agent at its address referred to in Section  8.02 in same day funds without setoff, counterclaim or other deduction.  The Administrative Agent  will promptly thereafter cause to be distributed like funds relating to the payment of principal,  interest and upfront fees ratably (other than amounts payable pursuant to Section 2.02(b), 2.11,  2.14 or 8.04(b)) to the Lenders for the account of their respective Applicable Lending Offices, and  like funds relating to the payment of any other amount payable to any Lender to such Lender for  the account of its Applicable Lending Office, in each case to be applied in accordance with the  terms of this Agreement.  Upon its acceptance of an Assignment and Assumption and recording  of the information contained therein in the Register pursuant to Section 8.07(d), from the effective  date specified in such Assignment and Assumption, the Administrative Agent shall make all  payments hereunder in respect of the interest assigned thereby to the Lender assignee thereunder,  and the parties to such Assignment and Assumption shall make all appropriate adjustments in such  payments for periods prior to such effective date directly between themselves.  (b) The Borrower hereby authorizes each Lender, if and to the extent any  payment owed to such Lender by the Borrower is not made when due hereunder, to charge from  time to time against any of the Borrower’s accounts with such Lender any amount so due.  Each  Lender agrees to notify the Borrower promptly after any such set-off and application made by such  Lender, provided that the failure to give such notice shall not affect the validity of such set-off and  application.  (c) All computations of interest based on the Alternate 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  other computations of interest and of fees shall be made by the Administrative Agent on the basis  of a year of 360 days, in each case for the actual number of days (including the first day but  excluding the last day) occurring in the period for which such interest or fees are payable.  Each  determination by the Administrative Agent of an interest rate hereunder shall be conclusive and  binding for all purposes, absent manifest error.  





 






  -35-  #94716785v22   (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 any interest or fees, as the  case may be; provided that if such extension would cause payment of interest on or principal of a  Term Benchmark Advance 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 the  Borrower prior to the date on which any payment is due by the Borrower to the Lenders hereunder  that the Borrower will not make such payment in full, the Administrative Agent may assume that  the 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  Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent  that the Borrower shall not have so made such payment in full to the Administrative Agent, each  Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to  such Lender together with interest thereon, for each day from the date such amount is distributed  to such Lender until the date such Lender repays such amount to the Administrative Agent, at the  Federal Funds Rate.  (f) Notwithstanding anything to the contrary contained herein, any amount  payable by the Borrower hereunder that is not paid when due (whether at stated maturity, by  acceleration or otherwise) shall (to the fullest extent permitted by law) bear interest from the date  when due until paid in full at a rate per annum equal at all times to the Alternate Base Rate plus  the Applicable Margin in effect from time to time plus 2%, payable upon demand.  SECTION 2.14  Taxes.  (a) Payments Free of Taxes.  Any and all payments by or on account of any  obligation of the Borrower under this Agreement shall be made without deduction or withholding  for any Taxes, except as required by applicable law.  If any applicable law (as determined in the  good faith discretion of an applicable withholding agent) requires the deduction or withholding of  any Tax from any such payment by a withholding agent, then the applicable withholding agent  shall be entitled to make such deduction or withholding and shall timely pay the full amount  deducted or withheld to the relevant Governmental Authority in accordance with applicable law  and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased  as necessary so that after such deduction or withholding has been made (including such deductions  and withholdings applicable to additional sums payable under this Section 2.14) the applicable  Recipient receives an amount equal to the sum it would have received had no such deduction or  withholding been made.  (b) Payment of Other Taxes by the Borrower.  The Borrower shall timely pay  to the relevant Governmental Authority in accordance with applicable law, or at the option of the  Administrative Agent timely reimburse it for, Other Taxes.  (c) Evidence of Payments.  As soon as practicable after any payment of Taxes  by the Borrower to a Governmental Authority pursuant to this Section 2.14, the Borrower shall  deliver to the Administrative Agent the original or a certified copy of a receipt issued by such  





 






  -36-  #94716785v22   Governmental Authority evidencing such payment, a copy of the return reporting such payment or  other evidence of such payment reasonably satisfactory to the Administrative Agent.  (d) Indemnification by the Borrower.  The Borrower shall indemnify each  Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes  (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this  Section) payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether  or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate as to the amount of such payment or liability delivered to  the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative  Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.  (e) Indemnification by the Lenders. Each Lender shall severally indemnify the  Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes  attributable to such Lender (but only to the extent that the Borrower has not already indemnified  the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the  Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the  provisions of Section 8.07(e) relating to the maintenance of a Participant Register and (iii) any  Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the  Administrative Agent in connection with this Agreement, and any reasonable expenses arising  therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or  asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment  or liability delivered to any Lender by the Administrative Agent shall be conclusive absent  manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any  and all amounts at any time owing to such Lender under this Agreement or otherwise payable by  the Administrative Agent to the Lender from any other source against any amount due to the  Administrative Agent under this paragraph (e).  (f) Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under this Agreement shall deliver  to the Borrower and the Administrative Agent, at the time or times reasonably  requested by the Borrower or the Administrative Agent, such properly completed  and executed documentation reasonably requested by the Borrower or the  Administrative Agent as will permit such payments to be made without withholding  or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested  by the Borrower or the Administrative Agent, shall deliver such other  documentation prescribed by applicable law or reasonably requested by the  Borrower or the Administrative Agent as will enable the Borrower or the  Administrative Agent to determine whether or not such Lender is subject to backup  withholding or information reporting requirements.  Notwithstanding anything to  the contrary in the preceding two sentences, the completion, execution and  submission of such documentation (other than such documentation set forth in  Section 2.14(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the  Lender’s reasonable judgment such completion, execution or submission would  





 






  -37-  #94716785v22   subject such Lender to any material unreimbursed cost or expense or would  materially prejudice the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the  Borrower is a U.S. Person,  (A) any Lender that is a U.S. Person shall deliver to the Borrower  and the Administrative Agent on or prior to the date on which such Lender  becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent),  an executed IRS Form W-9 certifying that such Lender is exempt from U.S.  Federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to the Borrower and the Administrative Agent (in such  number of copies as shall be requested by the recipient) on or prior to the  date on which such Foreign Lender becomes a Lender under this Agreement  (and from time to time thereafter upon the reasonable request of the  Borrower or the Administrative Agent), whichever of the following is  applicable:  (1) in the case of a Foreign Lender claiming the benefits of an  income tax treaty to which the United States is a party (x) with respect to  payments of interest under this Agreement or any other agreement executed  in connection herewith, an executed IRS Form W-8BEN-E or IRS Form W- 8BEN establishing an exemption from, or reduction of, U.S. Federal  withholding Tax pursuant to the “interest” article of such tax treaty and (y)  with respect to any other applicable payments under this Agreement, IRS  Form W-8BEN-E or IRS Form W-8BEN establishing an exemption from,  or reduction of, U.S. Federal withholding Tax pursuant to the “business  profits” or “other income” article of such tax treaty;  (2) in the case of a Foreign Lender claiming that its extension of  credit will generate U.S. effectively connected income, an executed IRS  Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits of the  exemption for portfolio interest under Section 881(c) of the Code, (x) a  certificate substantially in the form of Exhibit E to the effect that such  Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A)  of the Code, a “10 percent shareholder” of the Borrower within the meaning  of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation”  described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance  Certificate”) and (y) an executed IRS Form W-8BEN-E or IRS Form W- 8BEN; or  





 






  -38-  #94716785v22   (4) to the extent a Foreign Lender is not the beneficial owner, an  executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS  Form W-8BEN-E, IRS Form W-8BEN, a U.S. Tax Compliance Certificate,  IRS Form W-9, and/or other certification documents from each beneficial  owner, as applicable; provided that if the Foreign Lender is a partnership  and one or more direct or indirect partners of such Foreign Lender are  claiming the portfolio interest exemption, such Foreign Lender may provide  a U.S. Tax Compliance Certificate on behalf of each such direct and indirect  partner;  (C) any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to the Borrower and the Administrative Agent (in such  number of copies as shall be requested by the recipient) on or prior to the  date on which such Foreign Lender becomes a Lender under this Agreement  (and from time to time thereafter upon the reasonable request of the  Borrower or the Administrative Agent), executed originals of any other  form prescribed by applicable law as a basis for claiming exemption from  or a reduction in U.S. Federal withholding Tax, duly completed, together  with such supplementary documentation as may be prescribed by applicable  law to permit the Borrower or the Administrative Agent to determine the  withholding or deduction required to be made; and  (D) if a payment made to a Lender under this Agreement would  be subject to U.S. Federal withholding Tax imposed by FATCA if such  Lender were to fail to comply with the applicable reporting requirements of  FATCA (including those contained in Section 1471(b) or 1472(b) of the  Code, as applicable), such Lender shall deliver to the Borrower and the  Administrative Agent at the time or times prescribed by law and at such  time or times reasonably requested by the Borrower or the Administrative  Agent such documentation prescribed by applicable law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional  documentation reasonably requested by the Borrower or the Administrative  Agent as may be necessary for the Borrower and the Administrative Agent  to comply with their obligations under FATCA and to determine that such  Lender has complied with such Lender’s obligations under FATCA or to  determine the amount to deduct and withhold from such payment.  Solely  for purposes of this clause (D), “FATCA” shall include any amendments  made to FATCA after the date of this Agreement.  Each Lender agrees that if any form or certification it previously delivered expires or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly  notify the Borrower and the Administrative Agent in writing of its legal inability to do so.  (g) Treatment of Certain Refunds.  If any party determines, in its sole discretion  exercised in good faith, that it has received a refund of any Taxes as to which it has been  indemnified pursuant to this Section 2.14 (including by the payment of additional amounts  pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund  





 






  -39-  #94716785v22   (but only to the extent of indemnity payments made under this Section 2.14 with respect to the  Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such  indemnified party and without interest (other than any interest paid by the relevant Governmental  Authority with respect to such refund).  Such indemnifying party, upon the request of such  indemnified party, shall repay to such indemnified party the amount paid over pursuant to this  paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental  Authority) in the event that such indemnified party is required to repay such refund to such  Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no  event will the indemnified party be required to pay any amount to an indemnifying party pursuant  to this paragraph (g) the payment of which would place the indemnified party in a less favorable  net after-Tax position than the indemnified party would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or otherwise  imposed and the indemnification payments or additional amounts with respect to such Tax had  never been paid.  This paragraph shall not be construed to require any indemnified party to make  available its Tax returns (or any other information relating to its Taxes that it deems confidential)  to the indemnifying party or any other Person.  (h) Survival.  Each party’s obligations under this Section 2.14 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all obligations under this Agreement.  (i) Defined Terms.  For purposes of this Section 2.14, the term “applicable  law” includes FATCA.  (j) Status.  For purposes of determining withholding Taxes imposed under  FATCA, from and after the Effective Date, the Borrower and the Administrative Agent shall treat  (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not  qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section  1.1471-2(b)(2)(i).  SECTION 2.15  Sharing of Payments, Etc.  If any Lender 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 to the Borrower (other than pursuant to Section 2.02(b), 2.11,  2.14, or 8.04(b)) in excess of its ratable share of payments on account of the Advances to the  Borrower, such Lender shall forthwith purchase from the other Lenders such participations in the  Advances as shall be necessary to cause such purchasing Lender to share the excess payment  ratably with each of them, provided that if all or any portion of such excess payment is thereafter  recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and  such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery  together with an amount equal to such Lender’s ratable share (according to the proportion of (i)  the amount of such Lender’s required repayment to (ii) the total amount so recovered from the  purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in  respect of the total amount so recovered.  The Borrower agrees that any Lender so purchasing a  participation from another Lender 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-off) with respect to such  





 






  -40-  #94716785v22   participation as fully as if such Lender were the direct creditor of the Borrower in the amount of  such participation.  SECTION 2.16 Defaulting Lenders. Notwithstanding any provision of this Agreement to  the contrary, if any Lender becomes a Defaulting Lender, then for so long as such Lender is a  Defaulting Lender, the Commitment Amount of such Defaulting Lender shall not be included in  determining whether all Lenders or the Majority Lenders have taken or may take any action  hereunder (including any consent to any amendment or waiver pursuant to Section 8.01); provided  that, any waiver, amendment or modification (i) requiring the consent of all Lenders or each  affected Lender, which affects such Defaulting Lender differently than other affected Lenders or  (ii) under Section 8.01(b), (c), (d) or (f) (except, in the case of Section 8.01(c) or (d), with respect  to fees as contemplated under this Section 2.19), shall in each case require the consent of such  Defaulting Lender.  ARTICLE III    CONDITIONS PRECEDENT  SECTION 3.01  Conditions Precedent to Effectiveness.  This Agreement (including the  Commitments of the Lenders and the obligations of the Borrower hereunder) shall become  effective if all of the following conditions precedent have been satisfied:  (a) the Administrative Agent shall have received (i) a counterpart of this  Agreement signed on behalf of each party hereto or (ii) written evidence (which may include  electronic transmission of a signed signature page of this Agreement) that each party hereto has  signed a counterpart of this Agreement and each of the following documents, each dated a date  reasonably satisfactory to the Administrative Agent and otherwise in form and substance  satisfactory to the Administrative Agent:  (i) Certified copies of resolutions of the Board of Directors or  equivalent managing body of the Borrower approving the transactions  contemplated by this Agreement and of all documents evidencing other necessary  organizational action of the Borrower with respect to this Agreement and the  documents contemplated hereby;  (ii) A certificate of the Secretary or an Assistant Secretary of Borrower  certifying (A) the names and true signatures of the officers of the Borrower  authorized to sign this Agreement and the other documents to be delivered  hereunder; (B) that attached thereto are true and correct copies of the organizational  documents of the Borrower, in each case in effect on such date; and (C) that  attached thereto are true and correct copies of all governmental and regulatory  authorizations and approvals required for the due execution, delivery and  performance by the Borrower of this Agreement and the documents contemplated  hereby;  





 






  -41-  #94716785v22   (iii) A certificate signed by either the chief financial officer, principal  accounting officer or treasurer of the Borrower confirming compliance with the  conditions set forth in paragraphs (f) and (g) below; and  (iv) A favorable opinion of Ballard Spahr LLP, counsel for the  Borrower, in form and substance reasonably acceptable to the Administrative  Agent; and  (b) the Administrative Agent shall have received evidence, satisfactory to the  Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit  Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the  Effective Date (including amounts then payable to the Arranger);  (c) upon the reasonable request of any Lender, the Borrower shall have  provided to such Lender the documentation and other information so requested in connection with  applicable “know your customer” and anti-money-laundering rules and regulations, including the  PATRIOT Act, in each case at least five days prior to the Effective Date;   (d) receipt by the Administrative Agent of the Beneficial Ownership  Certification in relation to the Borrower; and   (e) receipt by the Administrative Agent of a Notice of Borrowing in accordance  with the requirements hereof;  (f) the representations and warranties of the Borrower contained in Section  4.01 are true and correct on and as of the Effective Date, before and after giving effect to the Credit  Extension and, in the case of the making of Advances, the application of the proceeds therefrom,  as though made on and as of such date; and  (g) as of the Effective Date, no event has occurred and is continuing, or would  result from the Credit Extension on such date or, in the case of the making of Advances, from the  application of the proceeds therefrom, that constitutes an Event of Default or Unmatured Event of  Default.  Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower  and the Lenders as to the Effective Date.    ARTICLE IV    REPRESENTATIONS AND WARRANTIES  SECTION 4.01  Representations and Warranties of the Borrower.  The Borrower  represents and warrants as follows:  





 






  -42-  #94716785v22   (a) The Borrower is a limited liability company (or after a transaction  contemplated by Section 5.02(b)(iii), a corporation) duly organized, validly existing and in good  standing under the laws of the Commonwealth of Pennsylvania.  (b) The execution, delivery and performance by the Borrower of this  Agreement are within the Borrower’s organizational powers, have been duly authorized by all  necessary organizational action on the part of the Borrower, and do not and will not contravene (i)  the organizational documents of the Borrower, (ii) applicable law or (iii) any contractual or legal  restriction binding on or affecting the properties of the Borrower or any Subsidiary.  (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 the Borrower of this Agreement, except any order that has been duly obtained  and is (i) in full force and effect and (ii) sufficient for the purposes hereof.  (d) This Agreement is a legal, valid and binding obligation of the Borrower,  enforceable against the Borrower in accordance with its terms, except as the enforceability thereof  may be limited by equitable principles or bankruptcy, insolvency, reorganization, moratorium or  similar laws affecting the enforcement of creditors’ rights generally.  (e) The consolidated balance sheet of the Borrower and its Subsidiaries as of  December 31, 2020 and the related consolidated statements of operations and comprehensive  income, changes in shareholders’ equity and cash flows of the Borrower and its Subsidiaries for  the fiscal year then ended, certified by PricewaterhouseCoopers LLP, copies of which have been  furnished to each Lender, fairly present in all material respects the consolidated financial condition  of the Borrower and its Subsidiaries as of such dates and the consolidated results of the operations  of the Borrower and its Subsidiaries for the periods ended on such dates in accordance with GAAP;  and (ii) since December 31, 2020, there has been no Material Adverse Change.  (f) Except as disclosed in the Borrower’s Annual, Quarterly or Current  Reports, each as filed with the Securities and Exchange Commission and delivered to the Lenders  prior to the Effective Date, there is no pending or threatened action, investigation or proceeding  affecting the Borrower or any Subsidiary before any court, governmental agency or arbitrator that  may reasonably be anticipated to have a Material Adverse Effect.  There is no pending or  threatened action or proceeding against the Borrower or any Subsidiary that purports to affect the  legality, validity, binding effect or enforceability against the Borrower of this Agreement.  (g) No proceeds of any Advance have been or will be used directly or indirectly  in connection with the acquisition of in excess of 5% of any class of equity securities that is  registered pursuant to Section 12 of the Exchange Act or any transaction subject to the  requirements of Section 13 or 14 of the Exchange Act.  (h) The Borrower is not engaged principally, or as one of its important  activities, 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.  Not  





 






  -43-  #94716785v22   more than 25% of the value of the assets of the Borrower and its Subsidiaries is represented by  margin stock.  (i) The Borrower is not required to register as an “investment company” under  the Investment Company Act of 1940.  (j) During the twelve consecutive month period prior to the date of the  execution and delivery of this Agreement and prior to the date of any Credit Extension, no steps  have been taken by the Borrower or any member of the  Controlled Group or, to the knowledge of  the Borrower, by any other Person to terminate any Plan (excluding any termination arising out of  the institution by or against any ComEd Entity of any bankruptcy, insolvency or similar proceeding  so long as such termination would not constitute an Event of Default or Unmatured Event of  Default under Section 6.01(g)), and there has been no failure to satisfy the minimum funding  standard described in Section 412(a)(2) of the Code with respect to any Single Employer Plan that  would reasonably be expected to result in a lien pursuant to Section 430(k) of the Code.  To the  knowledge of the Borrower, no condition exists or event or transaction has occurred with respect  to any Plan, which would reasonably be expected to result in the incurrence by the Borrower or  any other member of the Controlled Group of any material liability (other than to make  contributions, pay annual PBGC premiums or pay out benefits in the ordinary course of business),  fine or penalty (excluding any condition, event or transaction arising out of the institution by or  against any ComEd Entity of any bankruptcy, insolvency or similar proceeding so long as such  condition, event or transaction does not constitute an Event of Default or Unmatured Event of  Default under Section 6.01(g)).  (k) The Borrower has implemented, and maintains in effect, policies and  procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective  directors, officers, employees and agents with all Anti-Corruption Laws and applicable Sanctions,  and the Borrower, its Subsidiaries and their respective officers and employees and to the  knowledge of the Borrower, its directors and agents, are in compliance with all Anti-Corruption  Laws and applicable Sanctions in all material respects.  None of (a) the Borrower, any Subsidiary  or any of their respective directors, officers or employees, or (b)  to the knowledge of the Borrower,  any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or  benefit from the credit facility established hereby or the transactions contemplated hereby, is a  Sanctioned Person. No Advance, use of proceeds or other transaction contemplated by this  Agreement will violate any Anti-Corruption Law or applicable Sanctions.  (l) The Borrower is not an Affected Financial Institution.  (m) As of the Effective Date, the information included in the Beneficial  Ownership Certification, if applicable, is true and correct in all respects.  ARTICLE V    COVENANTS OF THE BORROWER  SECTION 5.01  Affirmative Covenants.  The Borrower agrees that so long as any amount  payable by the Borrower hereunder remains unpaid, the Borrower will, and, in the case of Section  





 






  -44-  #94716785v22   5.01(a), will cause its Principal Subsidiaries to, unless the Majority Lenders shall otherwise  consent in writing:  (a) Keep Books; Existence; Maintenance of Properties; Compliance with Laws;  Insurance; Taxes.  (i) keep proper books of record and account, all in accordance with  generally accepted accounting principles in the United States, consistently applied;  (ii) subject to Section 5.02(b), preserve and keep in full force and effect  its existence;  (iii) maintain and preserve all of its properties (except such properties  the failure of which to maintain or preserve would not have, individually or in the  aggregate, a Material Adverse Effect) which are used or useful in the conduct of its  business in good working order and condition, ordinary wear and tear excepted;  (iv) comply in all material respects with the requirements of all  applicable laws, rules, regulations and orders (including those of any governmental  authority and including with respect to environmental matters) to the extent the  failure to so comply, individually or in the aggregate, would have a Material  Adverse Effect;  (v) maintain insurance with responsible and reputable insurance  companies or associations, or self-insure, as the case may be, in each case in such  amounts and covering such contingencies, casualties and risks as is customarily  carried by or self-insured against by companies engaged in similar businesses and  owning similar properties in the same general areas in which the Borrower and its  Principal Subsidiaries operate;  (vi) at any reasonable time and from time to time, pursuant to prior  notice delivered to the Borrower, permit any Lender, or any agent or representative  of any thereof, to examine and, at such Lender’s expense, make copies of, and  abstracts from the records and books of account of, and visit the properties of, the  Borrower and any Principal Subsidiary and to discuss the affairs, finances and  accounts of the Borrower and any Principal Subsidiary with any of their respective  officers; provided that any non-public information (which has been identified as  such by the Borrower or the applicable Principal Subsidiary) obtained by any  Lender or any of its agents or representatives pursuant to this clause (vi) shall be  treated confidentially by such Person; provided, further, that such Person may  disclose such information to (a) any other party to this Agreement, its examiners,  Affiliates, outside auditors, counsel or other professional advisors in connection  with this Agreement, (b) to any direct, indirect, actual or prospective counterparty  (and its advisor) to any swap, derivative or securitization transaction related to the  obligations under this Agreement, (c) to any credit insurance provider or (d) if  otherwise required to do so by law or regulatory process (it being understood that,  unless prevented from doing so by any applicable law or governmental authority,  





 






  -45-  #94716785v22   such Person shall use reasonable efforts to notify the Borrower of any demand or  request for any such information promptly upon receipt thereof so that the Borrower  may seek a protective order or take other appropriate action);  (vii) use the proceeds of the Advances for general limited liability  company or corporate purposes (including the making of acquisitions), but in no  event for any purpose that would be contrary to Section 4.01(g), 4.01(h) or 4.01(k);  and  (viii) pay, prior to delinquency, all of its federal income taxes and other  material taxes and governmental charges, except to the extent that (a) such taxes or  charges are being contested in good faith and by proper proceedings and against  which adequate reserves are being maintained or (b) failure to pay such taxes or  charges would not reasonably be expected to have a Material Adverse Effect.  (b) Reporting Requirements.  Furnish to the Lenders:  (i) as soon as possible, and in any event within five Business Days after  the occurrence of any Event of Default or Unmatured Event of Default with respect  to the Borrower continuing on the date of such statement, a statement of an  authorized officer of the Borrower setting forth details of such Event of Default or  Unmatured Event of Default and the action which the Borrower proposes to take  with respect thereto;  (ii) 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 the Borrower, a copy of the  Borrower’s Quarterly Report on Form 10-Q filed with the Securities and Exchange  Commission with respect to such quarter (or, if the Borrower is not required to file  a Quarterly Report on Form 10-Q, copies of an unaudited consolidated balance  sheet of the Borrower as of the end of such quarter and the related consolidated  statement of operations of the Borrower for the portion of the Borrower’s fiscal  year ending on the last day of such quarter, in each case prepared in accordance  with GAAP, subject to the absence of footnotes and to year-end adjustments),  together with a certificate of an authorized officer of the Borrower stating that no  Event of Default or Unmatured Event of Default has occurred and is continuing or,  if any such Event of Default or Unmatured Event of Default has occurred and is  continuing, a statement as to the nature thereof and the action which the Borrower  proposes to take with respect thereto;  (iii) as soon as available and in any event within 105 days after the end  of each fiscal year of the Borrower, a copy of the Borrower’s Annual Report on  Form 10-K filed with the Securities and Exchange Commission with respect to such  fiscal year (or, if the Borrower is not required to file an Annual Report on Form 10- K, the consolidated balance sheet of the Borrower and its subsidiaries as of the last  day of such fiscal year and the related consolidated statements of operations,  changes in shareholders’ equity (if applicable) and cash flows of the Borrower for  such fiscal year, certified by PricewaterhouseCoopers LLP or other certified public  





 






  -46-  #94716785v22   accountants of recognized national standing), together with a certificate of an  authorized officer of the Borrower stating that no Event of Default or Unmatured  Event of Default has occurred and is continuing or, if any such Event of Default or  Unmatured Event of Default has occurred and is continuing, a statement as to the  nature thereof and the action which the Borrower proposes to take with respect  thereto;  (iv) concurrently with the delivery of the quarterly and annual reports  referred to in Sections 5.01(b)(ii) and 5.01(b)(iii), a compliance certificate in  substantially the form set forth in Exhibit D, duly completed and signed by the  Chief Financial Officer, Treasurer or an Assistant Treasurer of the Borrower;  (v) except as otherwise provided in clause (ii) or (iii) above, promptly  after the sending or filing thereof, copies of all reports that the Borrower sends to  its security holders generally, and copies of all Reports on Form 10-K, 10-Q or 8- K, and registration statements and prospectuses that the Borrower or any Subsidiary  files with the Securities and Exchange Commission or any national securities  exchange (except to the extent that any such registration statement or prospectus  relates solely to the issuance of securities pursuant to employee purchase, benefit  or dividend reinvestment plans of the Borrower or a Subsidiary);  (vi) promptly upon becoming aware of the institution of any steps by the  Borrower or any other Person to terminate any Plan, or the failure to make a  required contribution to any Plan if such failure is sufficient to give rise to a lien  under section 430(k) of the Code, or the taking of any action with respect to a Plan  which could result in the requirement that the Borrower furnish a bond or other  security to the PBGC or such Plan, or the occurrence of any event with respect to  any Plan which could result in the incurrence by the Borrower or any other member  of the Controlled Group of any material liability, fine or penalty, notice thereof and  a statement as to the action the Borrower or such member of the Controlled Group  proposes to take with respect thereto;  (vii) promptly upon becoming aware thereof, notice of any change in the  Moody’s Rating, the Fitch Rating or the S&P Rating;   (viii) any change in the information provided by the Beneficial Ownership  Certification that would result in a change to the list of beneficial owners identified  in such certification; and  (ix) such other information respecting the condition, operations or  business, financial or otherwise, of the Borrower or any Subsidiary as any Lender,  through the Administrative Agent, may from time to time reasonably request  (including any information that any Lender reasonably requests in order to comply  with its obligations under any “know your customer” or anti-money laundering  laws or regulations, including the Patriot Act and the Beneficial Ownership  Regulation).  





 






  -47-  #94716785v22   The Borrower may provide information, documents and other materials that it is obligated to  furnish to the Administrative Agent pursuant to this Section 5.01(b) and all other notices, requests,  financial statements, financial and other reports, certificates and other information materials, but  excluding any communication that (i) relates to a request for a Credit Extension, (ii) relates to the  payment of any amount due under this Agreement prior to the scheduled date therefor, (iii)  provides notice of any Event of Default or Unmatured Event of Default or (iv) is required to be  delivered to satisfy any condition precedent to the effectiveness of this Agreement or any Credit  Extension hereunder (any non-excluded communication described above, a “Communication”),  electronically (including by posting such documents, or providing a link thereto, on Exelon’s  Internet website).  Any document readily available on-line through the “Electronic Data Gathering  Analysis and Retrieval” system (or any successor system thereof) maintained by the Securities and  Exchange Commission (or any succeeding Governmental Authority), shall be deemed to have been  furnished to the Administrative Agent for purposes of this Section 5.01(b) when the Borrower  sends to the Administrative Agent notice (which may be by electronic mail) that such documents  are so available.  Notwithstanding the foregoing, the Borrower agrees that, to the extent requested  by the Administrative Agent or any Lender, it will continue to provide “hard copies” of  Communications to the Administrative Agent or such Lender, as applicable.  The Borrower further agrees that the Administrative Agent may make Communications available  to the Lenders by posting such Communications on Electronic Systems or a substantially similar  electronic transmission system.  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”.  THE  ADMINISTRATIVE AGENT DOES NOT WARRANT THE ACCURACY OR  COMPLETENESS OF ANY COMMUNICATION OR THE ADEQUACY OF THE  PLATFORM AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN  ANY COMMUNICATION.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR  STATUTORY, INCLUDING 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 IN CONNECTION WITH ANY COMMUNICATION OR THE  PLATFORM.  IN NO EVENT SHALL THE ADMINISTRATIVE AGENT HAVE ANY  LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON FOR  DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE)  ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S  TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE  EXTENT SUCH DAMAGES ARE FOUND IN A FINAL NON-APPEALABLE JUDGMENT  BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH  PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.  WITHOUT LIMITING  THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL THE ADMINISTRATIVE  AGENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR  CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE PLATFORM OR THE  BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF  COMMUNICATIONS THROUGH THE INTERNET.  Each Lender agrees that notice to it (as provided in the next sentence) specifying that a  Communication has been posted to the Platform shall constitute effective delivery of such  





 






  -48-  #94716785v22   Communication to such Lender for purposes of this Agreement.  Each Lender agrees (i) to notify  the Administrative Agent from time to time of the e-mail address to which the foregoing notice  may be sent and (ii) that such notice may be sent to such e-mail address.  (c) Anti-Corruption Laws and Sanctions.  Maintain in effect and enforce  policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their  respective directors, officers, employees and agents with Anti-Corruption Laws and applicable  Sanctions and comply in all material respects with Anti-Corruption Laws and applicable Sanctions.  SECTION 5.02  Negative Covenants.  The Borrower agrees that so long as any amount  payable by the Borrower hereunder remains unpaid (except with respect to Section 5.02(a), which  shall be applicable only as of the date hereof and at any time any Advance is outstanding or is to  be made or issued, as applicable), the Borrower will not, without the written consent of the  Majority Lenders:  (a) Limitation on Liens.  Create, incur, assume or suffer to exist, or permit any Lien on  its property, revenues or assets, whether now owned or hereafter acquired, except as follows:  (i) Liens imposed by law, such as carriers’, warehousemen’s, landlords’  repairmen’s, materialmen’s and mechanics’ Liens and other similar Liens arising in the  ordinary course of business;  (ii) Liens on the capital stock of or any other equity interest in any Subsidiary   to secure Nonrecourse Indebtedness;  (iii) Liens for taxes, assessments or governmental charges, levies, or fines  (including such amounts arising under environmental law) on property of the Borrower if  the same shall not at the time be delinquent or thereafter can be paid without a material  penalty, or are being contested in good faith and by appropriate proceedings;  (iv) Liens upon or in any property acquired in the ordinary course of business to  secure the purchase price of such property or to secure any obligation incurred solely for  the purpose of financing the acquisition of such property;  (v) Liens existing on property at the time of the acquisition thereof (other than  any such Lien created in contemplation of such acquisition unless permitted by the  preceding clause (iv));  (vi) Liens granted in connection with any financing arrangement for the  purchase of nuclear fuel or the financing of pollution control facilities, limited to the fuel  or facilities so purchased or acquired;  (vii) Liens arising in connection with sales or transfers of, or financing secured  by, accounts receivable or related contracts, provided that any such sale, transfer or  financing shall be on arms’ length terms;  (viii) Liens securing Permitted Obligations and reimbursement obligations in  respect of letters of credit issued to support Permitted Obligations (for the avoidance of  





 






  -49-  #94716785v22   doubt, the Electric Reliability Council of Texas (ERCOT) program and any other similar  agreement or arrangement, including with any Independent System Operator or Regional  Transmission Organization, are permitted under this clause (viii));  (ix) Permitted Encumbrances;  (x) Liens arising in connection with sale and leaseback transactions entered into  by the Borrower, but only to the extent that the aggregate purchase price of all assets sold  by the Borrower during the term of this Agreement pursuant to such sale and leaseback  transactions does not exceed $1,000,000,000;  (xi) Liens arising out of pledges or deposits under worker’s compensation laws,  unemployment insurance, compensation arrangements, supplemental retirement plans  arising out of pledges or deposits under worker’s compensation laws, unemployment  insurance, compensation arrangements, supplemental retirement plans or other social  security or similar legislation;  (xii) Liens constituting attachment, judgment and other similar Liens arising in  connection with court proceedings to the extent not constituting an Event of Default under  Section 6.01(f);  (xiii) Liens created in the ordinary course of business to secure liability to  insurance carriers and Liens on insurance policies and the proceeds thereof (whether  accrued or not), rights or claims against an insurer or other similar asset securing insurance  premium financings;  (xiv) Liens in favor of customs and revenue authorities arising as a matter of law  to secure payment of customs duties in connection with the importation of goods in the  ordinary course of business;  (xv) Liens in the nature of rights of setoff, bankers’ liens, revocation, refund,  chargeback, counterclaim, netting of cash amounts or similar rights as to deposit accounts,  commodity accounts or securities accounts or other funds maintained with a credit or  depository institution;  (xvi) Liens consisting of pledges of industrial development, pollution control or  similar revenue bonds in connection with the remarketing of such bonds;  (xvii) Liens and similar customary cash collateralization obligations in respect of  letter of credit exposure or swingline loan exposure relating to defaulting lenders in the  Borrower’s senior unsecured credit facilities;  (xviii) Liens arising under leases or subleases, licenses or sublicenses granted to  others that do not materially interfere with the ordinary course of business of the Borrower;  (xix) Liens resulting from any restriction on any equity interest (or project  interest, interests in any energy facility (including undivided interests)) of a Person  providing for a breach, termination or default under any owners, participation, shared  





 






  -50-  #94716785v22   facility, joint venture, stockholder, membership, limited liability company or partnership  agreement between such Person and one or more other holders of equity interest (or project  interest, interests in any energy facility (including undivided interests)) of such Person, to  the extent a security interest or other Lien is created on any such interest as a result thereof;  (xx) Liens granted on cash or cash equivalents to defease or repay Indebtedness  of the Borrower no later than 60 days after the creation of such Lien;  (xxi) Liens created in connection with sales, transfers, leases, assignment or other  conveyances or dispositions of assets, including (A) Liens on assets or securities granted  or deemed to arise in connection with and as a result of the execution, delivery or  performance of contracts to purchase or sell such assets or securities, and (B) rights of first  refusal, options or other contractual rights or obligations to sell, assign or otherwise dispose  of any interest therein; and  (xxii) Liens, other than those described above in this Section 5.02(a), provided  that the aggregate amount of all Debt secured by Liens permitted by this clause (xxii) shall  not exceed in the aggregate at any one time outstanding $100,000,000.  (b) Mergers and Consolidations; Disposition of Assets.  Merge with or into or  consolidate with or into, or sell, assign, lease or otherwise dispose of (whether in one transaction  or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter  acquired) to any Person or permit any Principal Subsidiary to do so, except that (i)  any Principal  Subsidiary may merge with or into or consolidate with or transfer assets to any other Principal  Subsidiary, (ii)  any Principal Subsidiary may merge with or into or consolidate with or transfer  assets to the Borrower, (iii) the Borrower may merge or consolidate with or into a Subsidiary  thereof formed for the purpose of converting the Borrower into a corporation and (iv) the Borrower  or any Principal Subsidiary may merge with or into or consolidate with or transfer assets to any  other Person, provided that, in each case, (A) immediately before and after giving effect thereto,  no Event of Default or Unmatured Event of Default shall have occurred and be continuing (except  in the case where any Principal Subsidiary may merge with or into or consolidate with or transfer  assets to any other Principal Subsidiary), (B) in the case of any such merger, consolidation or  transfer of assets to which the Borrower is a party, either (x) the Borrower shall be the surviving  entity or transferee (as applicable) or (y) the surviving entity or transferee (as applicable), shall be  an Eligible Successor and shall have assumed all of the obligations of the Borrower under this  Agreement pursuant to a written instrument in form and substance satisfactory to the  Administrative Agent, and the Administrative Agent shall have received an opinion of counsel in  form and substance satisfactory to it as to the enforceability of such obligations assumed and (C)  subject to clause (B) above, in the case of any such merger, consolidation or transfer of assets to  which any Principal Subsidiary is a party, a Principal Subsidiary shall be the surviving entity or  transferee (as applicable).  (c) Interest Coverage Ratio.  Permit the Interest Coverage Ratio as of the last  day of any fiscal quarter to be less than 3.00 to 1.00.  (d) Continuation of Businesses.  Engage, or permit any Subsidiary to engage,  in any line of business which is material to the Borrower and its Subsidiaries, taken as a whole,  





 






  -51-  #94716785v22   other than businesses engaged in by the Borrower and its Subsidiaries as of the date hereof and  reasonable extensions thereof.  (e) Anti-Corruption Laws and Sanctions.  Request any Borrowing or Advance  and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective  directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Advance  (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving  of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B)  for the purpose of funding, financing or facilitating any activities, business or transaction of or  with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities, business  or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the  United States or in a European Union member state, or (C) in any manner that would result in the  violation of any Sanctions applicable to any party hereto.  (f) Most Favored Lender. Enter, or permit any Subsidiary to enter, any  amendment, waiver, consent, modification, refunding, refinancing or replacement of the Existing  Credit Facility, with terms the effect of which is to (i) include a covenant and/or event of default  which imposes a restriction, limitation or obligation in favor of another lender not imposed in favor  of the Lenders by this Agreement, or (ii) revise or alter any covenant and/or event of default  contained therein the effect of which is to impose a restriction, limitation or obligation in favor of  another lender not imposed in favor of the Lenders by this Agreement, unless the Borrower or such  Subsidiary, as the case may be, incorporates herein such additional covenant and/or event of  default. Within ten Business Days, the Borrower shall deliver to the Administrative Agent an  amendment to this Agreement incorporating such additional covenant and/or event of default.   Prior to the execution and delivery of such amendment by the Borrower, this Agreement shall be  deemed to contain each such additional covenant and/or event of default for the purposes of  determining the rights and obligations hereunder.    ARTICLE VI    EVENTS OF DEFAULT  SECTION 6.01  Events of Default.  If any of the following events shall occur and be  continuing (any such event an “Event of Default”):  (a) The Borrower shall fail to pay (i) any principal of any Advance when the  same becomes due and payable or (ii) any interest on any Advance or any other amount payable  by the Borrower hereunder within three Business Days after the same becomes due and payable;  or  (b) Any representation or warranty made by the Borrower herein or by the  Borrower (or any of its officers) pursuant to the terms of this Agreement shall prove to have been  incorrect or misleading in any material respect when made; or  (c) The Borrower shall fail to perform or observe (i) any term, covenant or  agreement contained in Section 5.01(a)(vii), Section 5.01(b)(i) or Section 5.02 or (ii) any other  term, covenant or agreement contained in this Agreement on its part to be performed or observed  





 






  -52-  #94716785v22   if the failure to perform or observe such other term, covenant or agreement shall remain  unremedied for 30 days after written notice thereof shall have been given to the Borrower by the  Administrative Agent (which notice shall be given by the Administrative Agent at the written  request of any Lender); or  (d) The Borrower or any Principal Subsidiary shall fail to pay any principal of  or premium or interest on any Debt that is outstanding in a principal amount in excess of  $100,000,000 in the aggregate (but excluding Debt hereunder and Nonrecourse Indebtedness)  when the same becomes due and payable (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 event  shall occur or condition shall exist under any agreement or instrument relating to any such Debt  and shall continue after the applicable grace period, if any, specified in such agreement or  instrument, if the effect of such event or condition 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, other than any acceleration of any Debt secured by equipment leases or fuel leases of the  Borrower or a Principal Subsidiary as a result of the occurrence of any event requiring a  prepayment (whether or not characterized as such) thereunder, which prepayment will not result  in a Material Adverse Change; or  (e) The Borrower or any Principal Subsidiary 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 the Borrower or any Principal Subsidiary seeking to adjudicate it as 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 debtors, or seeking the entry of an order for relief or the appointment of a receiver,  trustee, custodian or other similar official for it or for any substantial part of its property and, in  the case of any such proceeding instituted against it (but not instituted by it), either such proceeding  shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such  proceeding (including the entry of an order for relief against, or the appointment of a receiver,  trustee, custodian or other similar official for, it or for any substantial part of its property) shall  occur; or the Borrower or any Principal Subsidiary shall take any corporate or limited liability  company action to authorize or to consent to any of the actions set forth above in this Section  6.01(e); or  (f) One or more judgments or orders for the payment of money in an aggregate  amount exceeding $100,000,000 (excluding any such judgments or orders to the extent covered  by insurance, subject to any customary deductible, and under which the applicable insurance  carrier has not denied coverage) shall be rendered against the Borrower or any Principal Subsidiary  and either (i) enforcement proceedings shall have been commenced by any creditor upon such  judgment or order or (ii) 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  





 






  -53-  #94716785v22   (g) (i) Any Reportable Event that the Majority Lenders determine in good faith  is reasonably likely to result in the termination of any Single Employer Plan or in the appointment  by the appropriate United States District Court of a trustee to administer a Single Employer Plan  shall have occurred and be continuing 60 days after written notice to such effect shall have been  given to the Borrower by the Administrative Agent; (ii) any Single Employer Plan shall be  terminated; (iii) a Trustee shall be appointed by an appropriate United States District Court to  administer any Single Employer Plan; (iv) the PBGC shall institute proceedings to terminate any  Single Employer Plan or to appoint a trustee to administer any Single Employer Plan; or (v) the  Borrower or any other member of the Controlled Group withdraws from any Multiemployer Plan;  provided that on the date of any event described in clauses (i) through (v) above, the Unfunded  Liabilities of the applicable Plan exceed $100,000,000; and provided, further, that no event  described in this Section 6.01(g) that arises out of the institution by or against any ComEd Entity  of any bankruptcy, insolvency or similar proceeding shall constitute an Event of Default unless 15  days shall have elapsed after the Majority Lenders have reasonably determined, and notified the  Borrower in writing, that such event has had or is reasonably likely to have a Material Adverse  Effect (disregarding, solely for purposes of this Section 6.01(g), the proviso to clause (i) of the  definition of Material Adverse Effect); or  (h) Exelon shall fail to own, directly or indirectly, free and clear of all Liens,  100% of the equity interests of the Borrower (other than as a result of the Separation Transaction);  or  (i) A Change in Control shall occur;  then, and in any such event, the Administrative Agent shall at the request, or may with the consent,  of the Majority Lenders, by notice to the Borrower, declare the outstanding principal amount of  the Advances, all interest thereon and all other amounts payable under this Agreement by the  Borrower to be forthwith due and payable, whereupon the outstanding principal amount of the  Advances, all such interest and all such other 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 the Borrower; provided that in the event of an Event of Default under  Section 6.01(e), (A) the obligation of each Lender to make any Advance to the Borrower shall  automatically be terminated and (B) the outstanding principal amount of all Advances, all interest  thereon and all other amounts payable by the Borrower hereunder shall automatically and  immediately become due and payable, without presentment, demand, protest or any notice of any  kind, all of which are hereby expressly waived by the Borrower.  ARTICLE VII    THE ADMINISTRATIVE AGENT  SECTION 7.01  Authorization and Action.  Each Lender hereby appoints and authorizes  the Administrative Agent to take such action as administrative 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.  As to any matters not  expressly provided for by this Agreement (including enforcement or collection of the obligations  of the Borrower hereunder), the Administrative Agent shall not be required to exercise any  





 






  -54-  #94716785v22   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 Lenders,  and such instructions shall be binding upon all Lenders; provided that the Administrative Agent  shall not be required to take any action which exposes the Administrative Agent to personal  liability or which is contrary to this Agreement or applicable law.  The Administrative Agent  agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to  the terms of this Agreement.  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  respective own gross negligence or willful misconduct.  Without limiting the generality of the  foregoing: (i) the Administrative Agent may consult with legal counsel (including counsel for the  Borrower), 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; (ii) the Administrative Agent makes no warranty or representation  to any Lender and shall not be responsible to any Lender for any statements, warranties or  representations (whether written or oral) made in or in connection with this Agreement; (iii) the  Administrative Agent 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 the  Borrower or to inspect the property (including the books and records) of the Borrower; (iv) the  Administrative Agent shall not be responsible to any Lender for the due execution, legality,  validity, enforceability, genuineness, sufficiency or value of this Agreement or any other  instrument or document furnished pursuant hereto; and (v) the Administrative Agent shall not incur  any liability under or in respect of this Agreement by acting upon any notice, consent, certificate  or other instrument or writing (which may be by facsimile) believed by it to be genuine and signed  or sent by the proper party or parties.  SECTION 7.03  Administrative Agent and Affiliates.  With respect to its Commitment,  Advances and other rights and obligations hereunder in its capacity as a Lender, Barclays Bank  PLC shall have the same rights and powers under this Agreement as any other Lender and may  exercise the same as though it were not the Administrative Agent; and the term “Lender” or  “Lenders” shall include Barclays Bank PLC in its individual capacity.  Barclays Bank PLC 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, the Borrower, any Affiliate thereof and any Person who may  do business with or own securities of the Borrower or any such Affiliate, all as if it were not  Administrative Agent and without any duty to account therefor to the Lenders.  SECTION 7.04  Lender Credit Decision.  Each Lender acknowledges that it has,  independently and without reliance upon the Administrative Agent or any other Lender and based  on the financial statements referred to in Section 4.01(e) and such other documents and information  as it has deemed appropriate, made its own credit analysis and decision to enter into this  Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon  the Administrative Agent or any other Lender 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.  





 






  -55-  #94716785v22   SECTION 7.05  Indemnification.  The Lenders agree to indemnify the Administrative  Agent (to the extent not reimbursed by the Borrower), ratably according to their respective Pro  Rata Shares, 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 in any way relating  to or arising out of this Agreement or any action taken or omitted by the Administrative Agent  under this Agreement, provided that no Lender 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  limiting the foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon  demand for its Pro Rata Share of any out-of-pocket expenses (including reasonable 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 such expenses are reimbursable by the Borrower but for which the  Administrative Agent is not reimbursed by the Borrower.  SECTION 7.06  Successor Administrative Agent.  The Administrative Agent may resign  at any time by giving written notice thereof to the Lenders and the Borrower and may be removed  at any time with or without cause by the Majority Lenders.  Upon any such resignation or removal,  the Majority Lenders shall have the right to appoint a successor Administrative Agent.  If no  successor Administrative Agent shall have been so appointed by the Majority Lenders, and shall  have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving  of notice of resignation or the Majority Lenders’ removal of the retiring Administrative Agent,  then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor  Administrative Agent, which shall be a commercial bank described in clause (i) or (ii) of the  definition of “Eligible Assignee” having a combined capital and surplus of at least $500,000,000.   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, 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.   Notwithstanding the foregoing, if no Event of Default or Unmatured Event of Default shall have  occurred and be continuing, then no successor Administrative Agent shall be appointed under this  Section 7.06 without the prior written consent of the Borrower, which consent shall not be  unreasonably withheld or delayed.  SECTION 7.07  Arranger.  The title “Arranger” (in such capacity, a “Titled Person”) is  purely honorific, and no Person designated as a Titled Person shall have any duties or  responsibilities in such capacity and no Titled Person shall have or be deemed to have any fiduciary  relationship with any Lender or with the Borrower or any of its Affiliates.   SECTION 7.08  Acknowledgements of Lenders.   





 






  -56-  #94716785v22   (a) Each Lender represents and warrants that (i) this Agreement sets forth the  terms of a commercial lending facility, (ii) it is engaged in making, acquiring or holding  commercial loans  and in providing other facilities set forth herein as may be applicable to such  Lender in the ordinary course of business, and not for the purpose of purchasing, acquiring or  holding any other type of financial instrument (and each Lender agrees not to assert a claim in  contravention of the foregoing), (iii) it has, independently and without reliance upon the  Administrative Agent, the Arranger, or any other Lender, or any of the Related Parties of any of  the foregoing, and based on such documents and information as it has deemed appropriate, made  its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire  or hold Borrowings hereunder and (iv) it is sophisticated with respect to decisions to make, acquire  and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable  to such Lender, and either it, or the Person exercising discretion in making its decision to make,  acquire and/or hold such commercial loans or to provide such other facilities, is experienced in  making, acquiring or holding such commercial loans or providing such other facilities. Each  Lender also acknowledges that it will, independently and without reliance upon the Administrative  Agent, the Arranger or any other Lender, or any of the Related Parties of any of the foregoing, and  based on such documents and information (which may contain material, non-public information  within the meaning of the United States securities laws concerning the Borrower and its Affiliates)  as it shall from time to time deem appropriate, continue to make its own decisions in taking or not  taking action under or based upon this Agreement, or any related agreement or any document  furnished hereunder or thereunder.  (b) Each Lender, by delivering its signature page to this Agreement on the  Effective Date, or delivering its signature page to an Assignment and Assumption pursuant to  which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and  consented to and approved, this Agreement and each other document required to be delivered to,  or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective  Date.  (c)   (i) Each Lender hereby agrees that (x) if the Administrative Agent  notifies such Lender that the Administrative Agent has determined in its sole  discretion that any funds received by such Lender from the Administrative Agent  or any of its Affiliates (whether as a payment, prepayment or repayment of  principal, interest, fees or otherwise; individually and collectively, a “Payment”)  were erroneously transmitted to such Lender (whether or not known to such  Lender), and demands the return of such Payment (or a portion thereof), such  Lender shall promptly, but in no event later than one Business Day thereafter, return  to the Administrative Agent the amount of any such Payment (or portion thereof)  as to which such a demand was made in same day funds, together with interest  thereon in respect of each day from and including the date such Payment (or portion  thereof) was received by such Lender to the date such amount is repaid to the  Administrative Agent at the greater of the Federal Funds Rate and a rate determined  by the Administrative Agent in accordance with banking industry rules on interbank  compensation from time to time in effect, and (y) to the extent permitted by  applicable law, such Lender shall not assert, and hereby waives, as to the  





 






  -57-  #94716785v22   Administrative Agent, any claim, counterclaim, defense or right of set-off or  recoupment with respect to any demand, claim or counterclaim by the  Administrative Agent for the return of any Payments received, including without  limitation any defense based on "discharge for value" or any similar doctrine.  A  notice of the Administrative Agent to any Lender under this Section 7.08(c) shall  be conclusive, absent manifest error.  (ii) (ii) Each Lender hereby further agrees that if it receives a Payment  from the Administrative Agent or any of its Affiliates (x) that is in a different  amount than, or on a different date from, that specified in a notice of payment sent  by the Administrative Agent (or any of its Affiliates) with respect to such Payment  (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment  Notice, it shall be on notice, in each such case, that an error has been made with  respect to such Payment.  Each Lender agrees that, in each such case, or if it  otherwise becomes aware a Payment (or portion thereof) may have been sent in  error, such Lender shall promptly notify the Administrative Agent of such  occurrence and, upon demand from the Administrative Agent, it shall promptly, but  in no event later than one Business Day thereafter, return to the Administrative  Agent the amount of any such Payment (or portion thereof) as to which such a  demand was made in same day funds, together with interest thereon in respect of  each day from and including the date such Payment (or portion thereof) was  received by such Lender to the date such amount is repaid to the Administrative  Agent at the greater of the Federal Funds Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank  compensation from time to time in effect.  (iii) The Borrower and each other party to this Agreement hereby agree  that (x) in the event an erroneous Payment (or portion thereof) are not recovered  from any Lender that has received such Payment (or portion thereof) for any reason,  the Administrative Agent shall be subrogated to all the rights of such Lender with  respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay,  discharge or otherwise satisfy any obligations owed by the Borrower or any other  party to this Agreement.  (iv) Each party's obligations under this Section 7.08(c) shall survive the  resignation or replacement of the Administrative Agent or any transfer of rights or  obligations by, or the replacement of, a Lender, the termination of the  Commitments or the repayment, satisfaction or discharge of all obligations under  this Agreement.  SECTION 7.09  Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became  a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party  hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the  Administrative Agent, the Arranger and their respective Affiliates, and not, for the avoidance of  doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:   





 






  -58-  #94716785v22   (i) such Lender is not using “plan assets” (within the meaning of  Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to  such Lender’s entrance into, participation in, administration of and performance of  the Loans, the Commitments or this Agreement,   (ii) the transaction exemption set forth in one or more PTEs, such as  PTE 84-14 (a class exemption for certain transactions determined by independent  qualified professional asset managers), PTE 95-60 (a class exemption for certain  transactions involving insurance company general accounts), PTE 90-1 (a class  exemption for certain transactions involving insurance company pooled separate  accounts), PTE 91-38 (a class exemption for certain transactions involving bank  collective investment funds) or PTE 96-23 (a class exemption for certain  transactions determined by in-house asset managers), is applicable with respect to  such Lender’s entrance into, participation in, administration of and performance of  the Loans, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B)  such Qualified Professional Asset Manager made the investment decision on behalf  of such Lender to enter into, participate in, administer and perform the Loans, the  Commitments and this Agreement, (C) the entrance into, participation in,  administration of and performance of the Loans, the Commitments and this  Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of  PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of  subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the  Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed  in writing between the Administrative Agent, in its sole discretion, and such  Lender.   (b) In addition, unless either (1) sub-clause (i) in the immediately preceding  clause (a) is true with respect to a Lender or (2) a Lender has provided another representation,  warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a),  such Lender further (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date  such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the  Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit  of the Borrower, that none of the Administrative Agent, the Arranger or any of their respective  Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance  into, participation in, administration of and performance of the Loans, the Commitments and this  Agreement (including in connection with the reservation or exercise of any rights by the  Administrative Agent under this Agreement, any loan document or any documents related hereto  or thereto).  





 






  -59-  #94716785v22   ARTICLE VIII    MISCELLANEOUS  SECTION 8.01  Amendments, Etc.  No failure or delay by the Administrative Agent or  any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall  any single or partial exercise of any such right or power, or any abandonment or discontinuance  of steps to enforce such a right or power, preclude any other or further exercise thereof or the  exercise of any other right or power.  The rights and remedies of the Administrative Agent and the  Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would  otherwise have.  No amendment or waiver of any provision of this Agreement, nor consent to any  departure by the Borrower therefrom, shall in any event be effective unless the same shall be in  writing and signed by the Majority Lenders and, in the case of an amendment, the Borrower, and  then such waiver or consent shall be effective only in the specific instance and for the specific  purpose for which given; provided that no amendment, waiver or consent shall: (a) increase or  extend the Commitment of any Lender, without the written consent of such Lender, (b) reduce the  principal of, or rate of interest on, any Advance or any fees payable hereunder, without the written  consent of each Lender directly affected thereby, (c) postpone any date fixed for any payment of  principal of, or interest on, any Advance or any fees payable hereunder, without the written consent  of each Lender directly affected thereby, (d) change the percentage of the Commitments or of the  aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall be  required for the Lenders or any of them to take any action hereunder or the definition of “Majority  Lenders”, without the written consent of each Lender, (e) amend this Section 8.01, without the  written consent of each Lender or (f) waive or amend any provision regarding pro rata sharing or  otherwise relates to the distribution of payments among Lenders, without the written consent of  each Lender; provided, further, that no amendment, waiver or consent shall, unless in writing and  signed by the Administrative Agent, in addition to the Lenders required above to take such action,  affect the rights or duties of the Administrative Agent under this Agreement. Without limiting the  generality of the foregoing, the making of an Advance shall not be construed as a waiver of any  Event of Default, regardless of whether the Administrative Agent or any Lender may have had  notice or knowledge of such Event of Default at the time.  If the Administrative Agent and the  Borrower acting together identify any ambiguity, omission, mistake, typographical error or other  defect in any provision of this Agreement or any other document executed in connection herewith,  then the Administrative Agent and the Borrower shall be permitted to amend, modify or  supplement such provision to cure such ambiguity, omission, mistake, typographical error or other  defect, and such amendment shall become effective without any further action or consent of any  other party to this Agreement.  SECTION 8.02  Notices, Etc.  All notices and other communications provided for  hereunder shall be in writing (including facsimile transmission) and mailed, sent by facsimile or  delivered, if to the Borrower, at 10 S. Dearborn, 54th Floor, Chicago, IL 60603, Attention: Chief  Financial Officer, facsimile: 312-394-8867; if to any Lender, at its Domestic Lending Office  specified in its Administrative Questionnaire or in the Assignment and Assumption pursuant to  which it became a Lender; and if to the Administrative Agent, (a) for payments and notices  pursuant to Section 2.09 or 2.10, at its address at 400 Jefferson Park, Whippany, NY 07981,  Attention: Michael Xu, email: michael.xu@barclays.com or, as to each party, at such other address  as shall be designated by such party in a written notice to the other parties.  All such notices and  





 






  -60-  #94716785v22   communications shall be effective (a) if mailed, three Business Days after being deposited in the  U.S. mail, postage prepaid, (b) if sent by facsimile, when such facsimile is sent (except that if not  sent during normal business hours for the recipient, such facsimile shall be deemed to have been  sent at the opening of business on the next Business Day for the recipient), and (c) otherwise, when  delivered, except that notices and communications to the Administrative Agent pursuant to Article  II or VII shall not be effective until received by the Administrative Agent.  SECTION 8.03  No Waiver; Remedies.  No failure on the part of any Lender 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.  SECTION 8.04  Costs and Expenses; Indemnification.  (a) The Borrower agrees to pay on demand all costs and expenses incurred by  the Administrative Agent and the Arranger in connection with the preparation, execution, delivery,  administration, syndication, modification and amendment of this Agreement and the other  documents to be delivered hereunder, including the reasonable fees, internal charges and out-of- pocket expenses of counsel (including in-house counsel) for the Administrative Agent and the  Arranger with respect thereto and with respect to advising the Administrative Agent and the  Arranger as to their respective rights and responsibilities under this Agreement.  The Borrower  further agrees to pay on demand all costs and expenses, if any (including counsel fees and expenses  of outside counsel and of internal counsel), incurred by the Administrative Agent or any Lender  in connection with the collection and enforcement (whether through negotiations, legal  proceedings or otherwise) of the Borrower’s obligations under this Agreement and the other  documents to be delivered by the Borrower hereunder, including reasonable counsel fees and  expenses in connection with the enforcement of rights under this Section 8.04(a).  (b) In the event of any payment of principal of, or any conversion of, any Term  Benchmark Advance is made other than on the last day of the Interest Period for such Advance, as  a result of a payment or conversion pursuant to Section 2.09 or 2.12 or acceleration of the maturity  of the Advances pursuant to Section 6.01 or for any other reason, or the assignment of a Term  Benchmark Advance other than on the last day of the Interest Period for such Advance as a result  of a request by the Borrower pursuant to Section 8.07(g) or the failure to borrow any Term  Benchmark Advance on the date specified in any notice delivered pursuant hereto, the Borrower  shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay  to the Administrative Agent for the account of such Lender any amount required to compensate  such Lender for any additional loss, cost or expense which it may reasonably incur as a result of  such event, including any loss, cost or expense incurred by reason of the liquidation or  reemployment of deposits or other funds acquired by any Lender to fund or maintain such  Advance.  (c) The Borrower agrees to indemnify and hold each Lender and the  Administrative Agent and each of their respective Related Parties (each, an “Indemnified Person”)  harmless from and against any claim, damage, loss, liability, cost or expense (including reasonable  attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any  





 






  -61-  #94716785v22   proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding)  that any of them may pay or incur arising out of or relating to this Agreement or the transactions  contemplated hereby, or the use by the Borrower or any Subsidiary of the proceeds of any  Advance; provided that the Borrower shall not be liable for any portion of any such claim, damage,  loss, liability, cost or expense resulting from such Indemnified Person’s gross negligence or willful  misconduct as determined in a final non-appealable order of a court of competent jurisdiction.  The  Borrower’s obligations under this Section 8.04(c) shall survive the repayment of all amounts  owing by the Borrower to the Lenders and the Administrative Agent under this Agreement and the  termination of the Commitments and this Agreement.  If and to the extent that the obligations of  the Borrower under this Section 8.04(c) are unenforceable for any reason, the Borrower agrees to  make the maximum contribution to the payment and satisfaction thereof which is permissible  under applicable law. This Section 8.04(c) shall not apply with respect to Taxes other than any  Taxes that represent losses or damages arising from any non-Tax claim. In the case of an  investigation, litigation or proceeding to which the indemnity in this paragraph applies, such  indemnity shall be effective whether or not such investigation, litigation or proceeding is brought  by the Borrower, any of the Borrower’s equityholders or creditors, an Indemnified Person or any  other person or entity, whether or not an Indemnified Person is otherwise a party thereto.  SECTION 8.05  Right of Set-off.  Upon (i) the occurrence and during the continuance of  any Event of Default and (ii) the making of the request or the granting of the consent specified by  Section 6.01 to authorize the Administrative Agent to declare the Advances due and payable  pursuant to the provisions of Section 6.01, each Lender and each of its Affiliates 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 Lender or Affiliate to or for the credit or  the account of the Borrower against any and all of the obligations of the Borrower now or hereafter  existing under this Agreement, whether or not such Lender shall have made any demand under  this Agreement and although such obligations may be unmatured.  Each Lender agrees to notify  the Borrower promptly after any such set-off and application made by such Lender or Affiliate  thereof, provided that the failure to give such notice shall not affect the validity of such set-off and  application.  The rights of each Lender under this Section 8.05 are in addition to other rights and  remedies (including other rights of set-off) that such Lender may have.  SECTION 8.06  Binding Effect.  This Agreement shall be binding upon and inure to the  benefit of the Borrower, the Administrative Agent and each Lender and their respective successors  and assigns, provided that (except as permitted by Section 5.02(b)(iii)) the Borrower shall not have  the right to assign rights hereunder or any interest herein without the prior written consent of all  Lenders.  SECTION 8.07  Assignments and Participations.  (a) Each Lender may, with the prior written consent of the Borrower and the  Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if  demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section,  assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion  of its rights and obligations under this Agreement (including all or a portion of its Commitment  and the Advances owing to it); provided that (i) each such assignment shall be of a constant, and  





 






  -62-  #94716785v22   not a varying, percentage of all of the assigning Lender’s rights and obligations under this  Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each  such assignment (determined as of the date of the Assignment and Assumption with respect to  such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such  Lender’s Commitment Amount, and shall be an integral multiple of $1,000,000 or such Lender’s  entire Commitment Amount, (iii) each such assignment shall be to an Eligible Assignee, (iv) the  parties to each such assignment shall execute and deliver to the Administrative Agent, for its  acceptance and recording in the Register, an Assignment and Assumption, together with a  processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to  the Assignment and Assumption, and not by the Borrower (except in the case of a demand under  Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the  consent of the Borrower shall not be required after the occurrence and during the continuance of  any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such  assignment unless it shall object thereto by written notice to the Administrative Agent within five  (5) Business Days after having received notice thereof.  Upon such execution, delivery, acceptance  and recording, from and after the effective date specified in each Assignment and Assumption, (x)  the assignee thereunder shall be a party hereto and, to the extent that rights and obligations  hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights  and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent  that rights and obligations hereunder have been assigned by it pursuant to such Assignment and  Assumption, relinquish its rights and be released from its obligations under this Agreement and,  in the case of an Assignment and Assumption covering all or the remaining portion of an assigning  Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto  (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section  8.04(c)).  Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the  consent of the Borrower and the Administrative Agent shall not be required with respect to any  assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved  Fund, and (B) any Lender may at any time, without the consent of the Borrower or the  Administrative Agent, and without any requirement to have an Assignment and Assumption  executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank,  provided that no such assignment shall release the transferor Lender from any of its obligations  hereunder.  For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible  Institution” have the following meanings:  “Approved Fund” means any Person (other than a natural person) that is engaged in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the  ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender  Parent, (c) a holding company, investment vehicle or trust for, or owned and operated for the  primary benefit of, a natural person or relative(s) thereof, (d) the Borrower or any of its Affiliates  or (e) Lender, an Affiliate of a Lender or an Approved Fund that, in each case at the time of such  assignment, is a Sanctioned Person; provided that, such holding company, investment vehicle or  trust shall not constitute an Ineligible Institution if it (x) has not been established for the primary  





 






  -63-  #94716785v22   purpose of acquiring any Borrowings or Commitments, (y) is managed by a professional advisor,  who is not such natural person or a relative thereof, having significant experience in the business  of making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a  significant part of its activities consist of making or purchasing commercial loans and similar  extensions of credit in the ordinary course of its business.  (b) By executing and delivering an Assignment and Assumption, the Lender  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 and Assumption, such  assigning Lender 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  the execution, legality, validity, enforceability, genuineness, sufficiency or value of this  Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning  Lender makes no representation or warranty and assumes no responsibility with respect to the  financial condition of the Borrower or the performance or observance by the 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) and such other documents and  information as it has deemed appropriate to make its own credit analysis and decision to enter into  such Assignment and Assumption; (iv) such assignee will, independently and without reliance  upon the Administrative Agent, such assigning Lender or any other Lender 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 confirms that it is  an Eligible Assignee; (vi) 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 (vii) 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 Lender.  (c) The Administrative Agent shall maintain at its address referred to in  Section 8.02 a copy of each Assignment and Assumption delivered to and accepted by it and a  register for the recordation of the names and addresses of the Lenders and the Commitment  Amount of, and principal amount of the Advances owing to, each Lender from time to time (the  “Register”).  The entries in the Register shall be conclusive and binding for all purposes, absent  manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person  whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.   The Register shall be available for inspection by the Borrower or any Lender at any reasonable  time and from time to time upon reasonable prior notice.  (d) Upon its receipt of an Assignment and Assumption executed by an  assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative  Agent shall, if such Assignment and Assumption has been completed and is in substantially the  form of Exhibit A (including any necessary consents of the Administrative Agent and the  Borrower), (i) accept such Assignment and Assumption, (ii) record the information contained  therein in the Register and (iii) give prompt notice thereof to the Borrower.  





 






  -64-  #94716785v22   (e) Any Lender may, without the consent of the Borrower or the Administrative  Agent, sell participations to one or more banks or other entities other than an Ineligible Institution  (a “Participant”) in all or a portion of such Lender's rights and obligations under this Agreement  (including all or a portion of its Commitment and the Advances owing to it); provided that (A)  such Lender's obligations under this Agreement shall remain unchanged; (B) such Lender shall  remain solely responsible to the other parties hereto for the performance of such obligations; and  (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely  and directly with such Lender in connection with such Lender's rights and obligations under this  Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation  shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve  any amendment, modification or waiver of any provision of this Agreement; provided that such  agreement or instrument may provide that such Lender will not, without the consent of the  Participant, agree to any amendment, modification or waiver described in the first proviso to  Section 8.01 that affects such Participant.  Borrower agrees that each Participant shall be entitled  to the benefits of Sections 2.11, 2.14 and 8.04(b) (subject to the requirements and limitations  therein, including the requirements under Section 2.14(f) (it being understood that the  documentation required under Section 2.14(f) shall be delivered to the participating Lender)) to  the same extent as if it were a Lender and had acquired its interest by assignment pursuant to  paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the  provisions of Sections 2.15 and 8.07(g) as if it were an assignee under paragraph (b) of this Section;  and (B) shall not be entitled to receive any greater payment under Sections 2.11 or 2.14, with  respect to any participation, than its participating Lender would have been entitled to receive,  except to the extent such entitlement to receive a greater payment results from a Change in Law  that occurs after the Participant acquired the applicable participation. To the extent permitted by  law, each Participant also shall be entitled to the benefits of Section 8.05 as though it were a  Lender, provided such Participant agrees to be subject to Section 2.15 as though it were a  Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non- fiduciary agent of the Borrower, maintain a register on which it enters the name and address of  each Participant and the principal amounts (and stated interest) of each Participant's interest in the  Advances or other obligations under this Agreement (the “Participant Register”); provided that no  Lender shall have any obligation to disclose all or any portion of the Participant Register to any  Person (including the identity of any Participant or any information relating to a Participant's  interest in any Commitments, Advances or its other obligations hereunder) except to the extent  that such disclosure is necessary to establish that such Commitment, Advance, or other obligation  is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The  entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall  treat each person whose name is recorded in the Participant Register as the owner of such  participation for all purposes of this Agreement notwithstanding any notice to the contrary.  (f) [Reserved].  (g) If any Lender (i) shall make demand for payment under Section 2.11(a),  2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12  resulting in the suspension of certain obligations of the Lenders with respect to Term Benchmark  Advances, (iii) does not consent to an amendment or waiver that requires the consent of all Lenders  and has been approved by the Majority Lenders or (iv) is a Defaulting Lender, then (A) in the case  of clause (i), within 60 days after such demand (if, but only if, the payment demanded under  





 






  -65-  #94716785v22   Section 2.11(a), 2.11(b) or 2.14 has been made by the Borrower), (B) in the case of clause (ii),  within 60 days after such notice (if such suspension is still in effect), (C) in the case of clause (iii),  within 60 days after the date the Majority Lenders approve the applicable amendment or waiver  or (D) in the case of clause (iv), at any time so long as such Lender continues to be a Defaulting  Lender, as the case may be, the Borrower may, at its sole expense and effort, upon notice to such  Lender and the Administrative Agent, demand that such Lender assign in accordance with this  Section 8.07 to one or more Eligible Assignees designated by the Borrower and reasonably  acceptable to the Administrative Agent all (but not less than all) of such Lender’s rights and  obligations hereunder within the next succeeding 30 days; provided that such Lender shall have  received payment of an amount equal to the outstanding principal of its Advances, accrued interest  thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent  of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all  other amounts).  If any such Eligible Assignee designated by the Borrower shall fail to consummate  such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any  such Eligible Assignee for all of such Lender’s Commitment and Advances, then such Lender may  (but shall not be required to) assign such Commitment and Advances to any other Eligible  Assignee in accordance with this Section 8.07 during such period. No replacement of a Defaulting  Lender pursuant to this Section 8.07(g) shall be deemed to be a waiver of any right that the  Borrower, the Administrative Agent or any other Lender may have against such Defaulting Lender.   In the event that a Lender assigns any Term Benchmark Advances pursuant to this Section 8.07(g),  such assignment shall be deemed to be a prepayment by the Borrower of such Term Benchmark  Advances for purposes of Section 8.04(b).  (h) [Reserved].  (i) Notwithstanding anything to the contrary contained herein, any Lender (a  “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such  in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower,  the option to provide to the Borrower all or any part of any Advance that such Granting Bank  would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein  shall constitute a commitment by any SPC to make any Advance, (ii) if an 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.  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 (all liability for which shall remain with the Granting Bank).  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.  In addition, notwithstanding anything to the contrary contained in this Section 8.07,  any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the  Administrative Agent and without paying any processing fee therefor, assign all or a portion of its  interests in any Advance to the Granting Bank or to any financial institution (consented to by the  Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed)  





 






  -66-  #94716785v22   providing liquidity and/or credit support to or for the account of such SPC to support the funding  or maintenance of Advances and (ii) disclose on a confidential basis any non-public 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 8.07(i) may not be  amended in any manner which adversely affects a Granting Bank or an SPC without the written  consent of such Granting Bank or SPC.  (j) Any Lender may at any time pledge or assign a security interest in all or any  portion of its rights under this Agreement to secure obligations of such Lender, including any  pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge  or assignment shall release such Lender from any of its obligations hereunder or substitute any  such pledgee or assignee for such Lender as a party hereto.  SECTION 8.08  Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY,  AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW  YORK.  SECTION 8.09  Consent to Jurisdiction; Certain Waivers.  i)  THE BORROWER  HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF  THE COURTS OF THE STATE OF NEW YORK AND ANY UNITED STATES DISTRICT  COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING  ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE BORROWER  HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH  ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH  COURT AND IRREVOCABLY WAIVE ANY OBJECTION IT MAY NOW OR  HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR  PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN  INCONVENIENT FORUM.  NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE  ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST  THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.  ii) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO  HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY  LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT ANY  SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY  DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; PROVIDED  THAT NOTHING CONTAINED IN THIS SENTENCE SHALL LIMIT ANY OF THE  BORROWER’S INDEMNITY AND REIMBURSEMENT OBLIGATIONS TO ANY  INDEMNITEE TO THE EXTENT SUCH INDEMNITEE IS ENTITLED TO  INDEMNIFICATION WITH RESPECT TO THIRD PARTY CLAIMS.  SECTION 8.10  Waiver of Jury Trial.  EACH PARTY HERETO HEREBY WAIVES,  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT  MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR  INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,  TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT  





 






  -67-  #94716785v22   NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS  REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY  WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE  FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER  PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,  AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN  THIS SECTION.  SECTION 8.11  Execution in Counterparts; Integration; Electronic Signatures.   (a) 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.  This Agreement constitutes the entire agreement and understanding  among the parties hereto and supersedes all prior and contemporaneous agreements and  understandings, oral or written, relating to the subject matter hereof.  (b) Delivery of an executed counterpart of a signature page of (x) this  Agreement, and/or (y) any document, amendment, approval, consent, information, notice  (including, for the avoidance of doubt, any notice delivered pursuant to Section 8.02),  certificate, request, statement, disclosure or authorization related to this Agreement and/or  the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that  is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic  means that reproduces an image of an actual executed signature page shall be effective as  delivery of a manually executed counterpart of this Agreement, or such Ancillary  Document, as applicable.  The words “execution,” “signed,” “signature,” “delivery,” and  words of like import in or relating to this Agreement and/or any Ancillary Document shall  be deemed to include Electronic Signatures, deliveries or the keeping of records in any  electronic form (including deliveries by telecopy, emailed pdf. or any other electronic  means that reproduces an image of an actual executed signature page), each of which shall  be of the same legal effect, validity or enforceability as a manually executed signature,  physical delivery thereof or the use of a paper-based recordkeeping system, as the case may  be; provided that nothing herein shall require the Administrative Agent to accept Electronic  Signatures in any form or format without its prior written consent and pursuant to  procedures approved by it; provided, further, without limiting the foregoing, (c) to the  extent the Administrative Agent has agreed to accept any Electronic Signature, the  Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic  Signature purportedly given by or on behalf of the Borrower without further verification  thereof and without any obligation to review the appearance or form of any such Electronic  signature and (d) upon the request of the Administrative Agent or any Lender, any  Electronic Signature  shall be promptly followed by a manually executed counterpart.   Without limiting the generality of the foregoing, the Borrower hereby (a) agrees that, for  all purposes, including without limitation, in connection with any workout, restructuring,  enforcement of remedies, bankruptcy proceedings or litigation among the Administrative  Agent, the Lenders and the Borrower, Electronic Signatures transmitted by telecopy,  emailed pdf. or any other electronic means that reproduces an image of an actual executed  signature page and/or any electronic images of this Agreement and/or any Ancillary  





 






  -68-  #94716785v22   Document shall have the same legal effect, validity and enforceability as any paper  original, (b) the Administrative Agent and each of the Lenders may, at its option, create  one or more copies of this Agreement and/or any Ancillary Document in the form of an  imaged electronic record in any format, which shall be deemed created in the ordinary  course of such Person’s business, and destroy the original paper document (and all such  electronic records shall be considered an original for all purposes and shall have the same  legal effect, validity and enforceability as a paper record), (c) waives any argument,  defense or right to contest the legal effect, validity or enforceability of this Agreement  and/or any Ancillary Document based solely on the lack of paper original copies of this  Agreement and/or such Ancillary Document, respectively, including with respect to any  signature pages thereto and (d) waives any claim against any Lender for any liabilities  arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of  Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other  electronic means that reproduces an image of an actual executed signature page, including  any liabilities arising as a result of the failure of the Borrower to use any available security  measures in connection with the execution, delivery or transmission of any Electronic  Signature.  SECTION 8.12  USA PATRIOT ACT NOTIFICATION.  The following notification is  provided to the Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C.  Section 5318:  IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW  ACCOUNT.  To help the government fight the funding of terrorism and money laundering  activities, Federal law requires all financial institutions to obtain, verify, and record  information that identifies each person or entity that opens an account, including any  deposit account, treasury management account, loan, other extension of credit, or other  financial services product.  What this means for the Borrower: When the Borrower opens  an account, the Administrative Agent and the Lenders will ask for the Borrower’s name,  tax identification number and business address and other information that will allow the  Administrative Agent and the Lenders to identify the Borrower.  The Administrative Agent  and the Lenders may also ask to see the Borrower’s legal organizational documents or other  identifying documents.  SECTION 8.13  No Advisory or Fiduciary Responsibility.  In connection with all aspects  of the transactions contemplated hereby (including in connection with any amendment, waiver or  other modification hereof), the Borrower acknowledges and agrees, and acknowledges its  Affiliates’ understanding, that:  (i) (A) the arranging and other services regarding this Agreement  provided by the Administrative Agent, the Arranger and the Lenders are arm’s-length commercial  transactions between the Borrower and its Affiliates, on the one hand, and the Administrative  Agent, the Arranger and the Lenders on the other hand, (B) the Borrower has consulted its own  legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the  Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of  the transactions contemplated hereby; (ii) (A) the Administrative Agent, the Arranger and each  Lender is and has been acting solely as a principal and, except as expressly agreed in writing by  the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for  the Borrower or any of its Affiliates, or any other Person and (B) none of the Administrative Agent,  





 






  -69-  #94716785v22   the Arranger nor any Lender has any obligation to the Borrower or any of its Affiliates with respect  to the transactions contemplated hereby except those obligations expressly set forth herein; and  (iii) the Administrative Agent, the Arranger and the Lenders and their respective Affiliates may be  engaged in a broad range of transactions that involve interests that differ from those of the  Borrower and its Affiliates, and neither the Administrative Agent, the Arranger nor any Lender  has any obligation to disclose any of such interests to the Borrower or its Affiliates.  To the fullest  extent permitted by law, the Borrower hereby waives and releases any claims that it may have  against the Administrative Agent, the Arranger and the Lenders with respect to any breach or  alleged breach of agency or fiduciary duty in connection with any aspect of any transaction  contemplated hereby.  SECTION 8.14  [Reserved].  SECTION 8.15  Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary herein or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any  liability of any Affected Financial Institution arising under this Agreement, may be subject to the  Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and  consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the  applicable Resolution Authority to any such liabilities arising hereunder which may be payable to  it by any party hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if  applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected  Financial Institution, its parent  undertaking, or a bridge institution that may be issued to it or otherwise conferred  on it, and that such shares or other instruments of ownership will be accepted by it  in lieu of any rights with respect to any such liability under this Agreement or any  document executed in connection herewith; or  (iii) the variation of the terms of such liability in connection with the  exercise of the Write-Down and Conversion Powers of the applicable Resolution  Authority.  SECTION 8.16  Confidentiality.  Each of the Administrative Agent and the Lenders agrees  to maintain the confidentiality of the Information (as defined below), except that Information may  be disclosed (a) 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), (b) to the extent requested by any Governmental Authority  (including any self-regulatory authority, such as the National Association of Insurance  Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena  





 






  -70-  #94716785v22   or similar legal process, (d) to any other party to this Agreement, (e) 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, (f) subject to an agreement containing provisions  substantially the same as those of this Section, to (i) any assignee of or Participant in, or any  prospective assignee of or Participant in, any of its rights or obligations under this Agreement or  (ii)  any actual or prospective counterparty (or its advisors) to any swap or derivative transaction  relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the  extent such Information (i) becomes publicly available other than as a result of a breach of this  Section or (ii) becomes available to the Administrative Agent or any Lender on a non-confidential  basis from a source other than the Borrower.  For the purposes of this Section, “Information”  means all information received from the Borrower relating to the Borrower or its business, other  than any such information that is available to the Administrative Agent or any Lender on a non- confidential basis prior to disclosure by the Borrower and other than information pertaining to this  Agreement routinely provided by arrangers to data service providers, including league table  providers, that serve the lending industry; provided that, in the case of information received from  the 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 8.17  Material Non-Public Information.  iii) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS  DEFINED IN SECTION 8.16 FURNISHED TO IT PURSUANT TO THIS  AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION  CONCERNING THE BORROWER AND  ITS RELATED PARTIES OR THEIR  RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED  COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON- PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL  NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE  PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE  SECURITIES LAWS.  iv) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND  AMENDMENTS, FURNISHED BY THE BORROWER OR THE  ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF  ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL  INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC  INFORMATION ABOUT THE BORROWER AND ITS RELATED PARTIES OR  ITS SECURITIES.  ACCORDINGLY, EACH LENDER REPRESENTS TO THE  BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS  IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT  CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN  MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS  COMPLIANCE PROCEDURES AND APPLICABLE LAW.  





 






  -71-  #94716785v22   SECTION 8.18  Interest Rate Limitation.  Notwithstanding anything herein to the contrary,  if at any time the interest rate applicable to any Advance or Borrowing, together with all fees,  charges and other amounts which are treated as interest on such Advance or Borrowing under  applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum  Rate”) which may be contracted for, charged, taken, received or reserved by a Lender holding such  Advance or Borrowing in accordance with applicable law, the rate of interest payable in respect of  such Advance or Borrowing hereunder, together with all Charges payable in respect thereof, shall  be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have  been payable in respect of such Advance or Borrowing but were not payable as a result of the  operation of this Section shall be cumulated and the interest and Charges payable to such Lender  in respect of other Advances or Borrowings or periods shall be increased (but not above the  Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal  Funds Rate to the date of repayment, shall have been received by such Lender.  SECTION 8.19  Severability.  Any provision of this Agreement held to be invalid, illegal  or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of  such invalidity, illegality or unenforceability without affecting the validity, legality and  enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a  particular jurisdiction shall not invalidate such provision in any other jurisdiction.  SECTION 8.20  Headings.  Article and Section headings and the Table of Contents used  herein are for convenience of reference only, are not part of this Agreement and shall not affect  the construction of, or be taken into consideration in interpreting, this Agreement.  SECTION 8.21  Survival.  All covenants, agreements, representations and warranties made  by the Borrower herein and in the certificates or other instruments  delivered in connection with  or pursuant to this Agreement shall be considered to have been relied upon by the other parties  hereto and shall survive the execution and delivery of this Agreement and the making of any  Advance, regardless of any investigation made by any such other party or on its behalf and  notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge  of any Event of Default or Unmatured Event of Default or incorrect representation or warranty at  the time any credit is extended hereunder, and shall continue in full force and effect as long as the  principal of or any accrued interest on any Advance or any fee or any other amount payable under  this Agreement is outstanding and unpaid.  SECTION 8.22  Acknowledgement Regarding Any Supported QFCs.  To the extent that  this Agreement provides support, through a guarantee or otherwise, for any swap agreements or  any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each  such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the  resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act  (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in  respect of such Supported QFC and QFC Credit Support (with the provisions below applicable  notwithstanding that the this Agreement and any Supported QFC may in fact be stated to be  governed by the laws of the State of New York and/or of the United States or any other state of  the United States):  





 






  -72-  #94716785v22   In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such  Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or  under such Supported QFC and such QFC Credit Support, and any rights in property securing such  Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the  same extent as the transfer would be effective under the U.S. Special Resolution Regime if the  Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in  property) were governed by the laws of the United States or a state of the United States. In the  event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding  under a U.S. Special Resolution Regime, Default Rights under this Agreement that might  otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights  could be exercised under the U.S. Special Resolution Regime if the Supported QFC and this  Agreement were governed by the laws of the United States or a state of the United States. Without  limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with  respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect  to a Supported QFC or any QFC Credit Support.  [Signature Pages Follow]  





 






  [Signature Page to 364-Day Term Loan Credit Agreement]  IN WITNESS WHEREOF, Borrower, the Lenders and the Administrative Agent have  executed this Agreement as of the date first above written.  EXELON GENERATION COMPANY, LLC, as  Borrower        By:   Name:   Title:  





 






  [Signature Page to 364-Day Term Loan Credit Agreement]     BARCLAYS BANK PLC, as Administrative Agent  and Lender      By:   Name:  Title: