Exhibit 10.1


 


Execution Copy




 





 


 


CREDIT AGREEMENT


 


Dated as of October 15, 2010


 


Among


 


CONSTELLATION ENERGY GROUP, INC.,


as Borrower


 


THE LENDERS NAMED HEREIN


 


BANK OF AMERICA, N.A.,


as Administrative Agent, LC Bank and Swingline Lender


 




 





 


 


BANC OF AMERICA SECURITIES LLC


CITIGROUP GLOBAL MARKETS INC.


RBS SECURITIES INC.


BNP PARIBAS SECURITIES CORP.


and


THE BANK OF NOVA SCOTIA


Joint Lead Arrangers and Book Runners


 


 




	
  CITIBANK, N.A.

  and

  THE ROYAL BANK OF SCOTLAND PLC

  Co-Syndication Agents

  	
   

  	
  THE BANK OF NOVA SCOTIA

  and

  BNP PARIBAS

  Co-Documentation Agents

  






 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS; CONSTRUCTION

  	
  1

  
	
   

  	
   

  
	
  Section 1.01. Defined Terms.

  	
  1

  
	
  Section 1.02. Terms
  Generally.

  	
  20

  
	
  Section 1.03. Time.

  	
  21

  
	
  Section 1.04. Letter of
  Credit Amounts.

  	
  21

  
	
   

  	
   

  
	
  ARTICLE II THE CREDITS

  	
  21

  
	
   

  	
   

  
	
  Section 2.01. Extensions of
  Credit.

  	
  21

  
	
  Section 2.02. Advances.

  	
  22

  
	
  Section 2.03. Borrowing and
  Conversion Procedures; Swingline Advances.

  	
  23

  
	
  Section 2.04. Letters of
  Credit.

  	
  25

  
	
  Section 2.05. Fees

  	
  33

  
	
  Section 2.06. Repayment of
  Advances; Evidence of Indebtedness.

  	
  33

  
	
  Section 2.07. Interest.

  	
  34

  
	
  Section 2.08. Default
  Interest.

  	
  35

  
	
  Section 2.09. Alternate Rate
  of Interest.

  	
  35

  
	
  Section 2.10. Termination
  and Reduction of Commitments.

  	
  36

  
	
  Section 2.11. Increase of
  the Commitments.

  	
  36

  
	
  Section 2.12. Prepayment.

  	
  38

  
	
  Section 2.13. Reserve
  Requirements; Change in Circumstances.

  	
  38

  
	
  Section 2.14. Change in
  Legality.

  	
  40

  
	
  Section 2.15. Pro Rata
  Treatment.

  	
  40

  
	
  Section 2.16. Sharing of
  Setoffs.

  	
  41

  
	
  Section 2.17. Payments.

  	
  41

  
	
  Section 2.18. Taxes.

  	
  42

  
	
  Section 2.19. Assignment of
  Commitments Under Certain Circumstances.

  	
  45

  
	
   

  	
   

  
	
  ARTICLE III CONDITIONS PRECEDENT

  	
  45

  
	
   

  	
   

  
	
  Section 3.01. Conditions
  Precedent to Effectiveness.

  	
  45

  
	
  Section 3.02. Conditions
  Precedent to Each Extension of Credit.

  	
  47

  
	
  Section 3.03. Conditions to
  Issuance of All Bond Letters of Credit.

  	
  47

  
	
  Section 3.04. Reliance on
  Certificates.

  	
  49

  
	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND WARRANTIES

  	
  49

  
	
   

  	
   

  
	
  Section 4.01.
  Representations and Warranties of the Borrower.

  	
  49

  
	
   

  	
   

  
	
  ARTICLE V COVENANTS OF THE BORROWER

  	
  52

  
	
   

  	
   

  
	
  Section 5.01. Affirmative
  Covenants.

  	
  52

  
	
  Section 5.02. Negative
  Covenants

  	
  54

  
	
  Section 5.03. Reporting
  Requirements.

  	
  60

  
	
  Section 5.04. Specified
  Indebtedness to Capitalization.

  	
  62

  
	
   

  	
   

  
	
  ARTICLE VI EVENTS OF DEFAULT

  	
  63

  
	
   

  	
   

  
	
  Section 6.01. Events of Default.

  	
  63

  
	
  Section 6.02. Remedies.

  	
  65

  



 


i

















 


	
  ARTICLE VII THE ADMINISTRATIVE AGENT

  	
  66

  
	
   

  	
   

  
	
  Section 7.01. Appointment
  and Authority.

  	
  66

  
	
  Section 7.02. Rights as a
  Lender.

  	
  67

  
	
  Section 7.03. Exculpatory
  Provisions.

  	
  67

  
	
  Section 7.04. Reliance by
  Administrative Agent.

  	
  68

  
	
  Section 7.05. Delegation of
  Duties.

  	
  68

  
	
  Section 7.06. Resignation of
  Administrative Agent.

  	
  69

  
	
  Section 7.07. Non-Reliance
  on Administrative Agent and Other Lenders.

  	
  69

  
	
  Section 7.08. No Other Duties, Etc.

  	
  70

  
	
   

  	
   

  
	
  ARTICLE VIII MISCELLANEOUS

  	
  70

  
	
   

  	
   

  
	
  Section 8.01. Notices.

  	
  70

  
	
  Section 8.02. Survival of
  Agreement.

  	
  70

  
	
  Section 8.03. Binding
  Effect.

  	
  71

  
	
  Section 8.04. Successors and
  Assigns.

  	
  71

  
	
  Section 8.05. Expenses;
  Indemnity.

  	
  74

  
	
  Section 8.06. Right of Setoff.

  	
  76

  
	
  Section 8.07. Applicable
  Law.

  	
  77

  
	
  Section 8.08. Waivers;
  Amendment.

  	
  77

  
	
  Section 8.09. ENTIRE
  AGREEMENT.

  	
  78

  
	
  Section 8.10. Severability.

  	
  78

  
	
  Section 8.11.
  Counterparts/Telecopy.

  	
  79

  
	
  Section 8.12. Headings.

  	
  79

  
	
  Section 8.13. Jurisdiction;
  Venue; Waiver of Jury Trial.

  	
  79

  
	
  Section 8.14.
  Confidentiality; USA PATRIOT Act.

  	
  80

  
	
  Section 8.15. Defaulting
  Lenders.

  	
  81

  
	
  Section 8.16. No Advisory or
  Fiduciary Responsibility.

  	
  83

  
	
  Section 8.17. The Platform.

  	
  83

  
	
  Section 8.18. Electronic
  Execution of Assignments and Certain Other Documents.

  	
  84

  
	
  Section 8.19. Waiver of
  Notice of Termination of Existing Credit Agreement.

  	
  84

  



 


SCHEDULES
AND EXHIBITS


 


	
  Schedule I

  	
  —

  	
  Schedule
  of Lenders

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
  Form of
  Assignment and Assumption

  
	
  Exhibit B

  	
  —

  	
  Form of
  Borrowing Request

  
	
  Exhibit C

  	
  —

  	
  Form of
  Request for Issuance

  
	
  Exhibit D

  	
  —

  	
  Form of
  Letter of Credit Application (Bank of America, N.A.)

  
	
  Exhibit E

  	
  —

  	
  Form of
  Letter of Credit Application (The Royal Bank of Scotland plc)

  
	
  Exhibit F

  	
  —

  	
  Form of
  Letter of Credit Application (Citibank, N.A.)

  
	
  Exhibit G

  	
  —

  	
  Form of
  Letter of Credit Application (BNP Paribas)

  
	
  Exhibit H

  	
  —

  	
  Form of
  Letter of Credit Application (The Bank of Nova Scotia)

  
	
  Exhibit I

  	
  —

  	
  Form of
  Notice of Conversion

  
	
  Exhibit J-1

  	
  —

  	
  Form of
  Opinion of In-House Counsel to the Borrower

  
	
  Exhibit J-2

  	
  —

  	
  Form of
  Opinion of Special Counsel to the Borrower

  
	
  Exhibit K

  	
  —

  	
  Form of
  Compliance Certificate

  
	
  Exhibit L

  	
  —

  	
  Form of
  Liquidity Report Certificate

  



 


ii

















 


This
CREDIT AGREEMENT, dated as of October 15, 2010 (this “Agreement”),
is entered into among CONSTELLATION ENERGY GROUP, INC., a Maryland
corporation (the “Borrower”), the lenders
parties (together with their successors and assigns, the “Lenders”),
BANK OF AMERICA, N.A. (“Bank of America”),
as letter of credit issuing bank, swingline lender and administrative agent for
the Lenders (in such capacity, the “Administrative Agent”).


 


PRELIMINARY STATEMENT


 


WHEREAS,
the Borrower requested that the Lenders, the Swingline Lender and the LC Banks
agree, on the terms and conditions set forth herein, to provide the Borrower a
$2,500,000,000 three-year revolving credit and letter of credit facility to be
used for the issuance of letters of credit, backstopping commercial paper,
working capital and other general corporate purposes. The Lenders, the
Swingline Lender and the LC Banks have indicated their willingness to provide
such a facility on the terms and conditions of this Agreement.


 


NOW
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:


 


ARTICLE I


DEFINITIONS; CONSTRUCTION


 


Section 1.01.  Defined Terms.


 


As
used in this Agreement, terms not defined in the lead paragraph or preamble
shall have the meanings specified below:


 


“Administrative Agent” shall have the
meaning given such term in the preamble hereto.


 


“Advance” shall mean a Eurodollar
Advance, Swingline Advance or Base Rate Advance.


 


“Affiliate” shall mean, when used
with respect to a specified Person, another Person that directly or indirectly
controls or is controlled by or is under common control with the Person
specified.  For this purpose, “control”
of a Person means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through ownership of voting shares, by contract or otherwise.


 


“Agent Parties” shall have the
meaning specified in Section 8.17.


 


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


 


“Applicable Margin” shall mean, with
respect to Base Rate Advances and Eurodollar Advances, at all times during
which any Applicable Rating Level set forth below is in effect, the rate per annum set forth below next to such Applicable Rating
Level:


 

















 


	
  Applicable Rating

  Level

  	
   

  	
  Applicable Margin

  for Eurodollar

  Advances

  	
   

  	
  Applicable Margin

  for Base Rate

  Advances

  	
   

  
	
  1

  	
   

  	
  1.55

  	
  %

  	
  0.55

  	
  %

  
	
  2

  	
   

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  
	
  3

  	
   

  	
  1.90

  	
  %

  	
  0.90

  	
  %

  
	
  4

  	
   

  	
  2.05

  	
  %

  	
  1.05

  	
  %

  
	
  5

  	
   

  	
  2.40

  	
  %

  	
  1.40

  	
  %

  
	
  6

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  



 


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


 


“Applicable Rating Level” shall be
determined in accordance with the then-applicable Reference Ratings as follows:


 


	
  Reference Ratings

  	
   

  	
  Applicable

  Rating

  Level

  
	
  One
  of the following ratings shall be in effect:

  Reference
  Rating by either S&P or Fitch of  A- or higher
  or

  Reference
  Rating by Moody’s of A3 or higher

  	
   

  	
  1

  
	
  One
  of the following ratings shall be in effect:

  Reference
  Rating by either S&P or Fitch of  BBB+ or

  Reference
  Rating by Moody’s of Baa1

  	
   

  	
  2

  
	
  One
  of the following ratings shall be in effect:

  Reference
  Rating by either S&P or Fitch of  BBB or

  Reference
  Rating by Moody’s of Baa2

  	
   

  	
  3

  
	
  One
  of the following ratings shall be in effect:

  Reference
  Rating by either S&P or Fitch of  BBB- or

  Reference
  Rating by Moody’s of Baa3

  	
   

  	
  4

  
	
  One
  of the following ratings shall be in effect:

  Reference
  Rating by either S&P or Fitch of  BB+ or

  Reference
  Rating by Moody’s of Ba1

  	
   

  	
  5

  
	
  All
  of the following ratings shall be in effect:

  Reference
  Rating by both of S&P and Fitch lower than BB+ (or unrated) and

  Reference
  Rating by Moody’s lower than Ba1 (or unrated)

  	
   

  	
  6

  



 


In
the event that none of Applicable Rating Levels 1, 2, 3, 4 or 5 shall be
applicable, or no Reference Rating by any of S&P, Fitch and Moody’s shall
be in effect, then the Applicable Rating Level shall be Applicable Rating Level
6; provided, however,
if any of S&P, Fitch or Moody’s ceases to rate corporate debt obligations
generally, then the Reference Ratings will be determined pursuant to the
immediately following paragraph without reference to such rating 


 


2

















 


agency.  The Applicable Rating Level shall be
redetermined on the date of announcement of a change in any of these Reference
Ratings.


 


Notwithstanding
the above, (i) if at any time there is a split among Reference Ratings by
S&P, Fitch and Moody’s such that all three Reference Ratings fall in
different Applicable Rating Levels, the Applicable Rating Level shall be
determined by the Reference Rating that is neither the highest nor the lowest
of the three Reference Ratings, and (ii) if at any time there is a split
among Reference Ratings by S&P, Fitch and Moody’s such that two of such
Reference Ratings are in one Level (the “Majority Level”)
and the third rating is in a different Applicable Rating Level, the Applicable
Rating Level shall be at the Majority Level.


 


“Approved Fund” shall mean any
Fund that is administered or managed by (i) a Lender, (ii) an
Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Arrangers” shall mean Banc of
America Securities LLC, Citigroup Global Markets Inc., RBS Securities Inc., BNP
Paribas Securities Corp. and The Bank of Nova Scotia.


 


“Assignment and Assumption” shall
mean an assignment and assumption entered into by a Lender and an assignee in
the form of Exhibit A.


 


“Auto-Extension Letter of Credit”
shall have the meaning specified in Section 2.04(b).


 


“Auto-Reinstatement Letter of Credit”
shall have the meaning specified in Section 2.04(c).


 


“Bank of America” shall have the
meaning given such term in the preamble hereto.


 


“Base Rate” shall mean for any date a
fluctuating rate per annum equal to the highest of
(i) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1%, (ii) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its “prime
rate”, and (iii) the Eurodollar Rate plus 1%.  The “prime rate” is a rate set by Bank of America
based upon various factors including Bank of America’s costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.  Any change in such
prime rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.


 


“Base Rate Advance” shall mean an
Advance that bears interest at a rate determined by reference to the Base Rate
in accordance with the provisions of Article II.


 


“Base Rate Borrowing” shall mean a
Borrowing comprised of Base Rate Advances.


 


“BGE” shall mean Baltimore Gas and
Electric Company, a Subsidiary of Borrower.


 


“Board” shall mean the Board of
Governors of the Federal Reserve System of the United States.


 


3

















 


“Bond Letter of Credit” shall mean
any Letter of Credit issued to support certain obligations to pay the principal
of, interest on and/or purchase or redemption price of Bonds.


 


“Bonds” shall mean industrial revenue
bonds, pollution control revenue bonds (or similar obligations, however
designated) issued pursuant to an Indenture between the Trustee and the Issuer
named therein for which an LC Bank has issued or intends to issue a Bond Letter
of Credit.


 


“Borrower” shall mean Constellation
Energy Group, Inc., a Maryland corporation.


 


“Borrower Materials” shall have the
meaning specified in Section 5.03.


 


“Borrowing” shall mean a borrowing
consisting of (i) simultaneous Advances of the same Type and having the
same interest period made by each of the Lenders pursuant to Section 2.03
or (ii) a Swingline Advance.  All
Advances (other than Swingline Advances) of the same Type, having the same
Interest Period and made or Converted on the same day shall be deemed a single
Borrowing hereunder until repaid or next Converted.


 


“Borrowing Request” shall mean a
request made pursuant to Section 2.03 in the form of Exhibit B.


 


“Business Day” shall mean any day
(other than a day that is a Saturday, Sunday or legal holiday in the State of
New York or the State of Maryland) on which banks are open for business in New
York, New York and Baltimore, Maryland; provided, however,
that, when used in connection with a Eurodollar Advance, the term “Business Day”
shall also exclude any day that is not a London Banking Day.


 


“Capitalization” shall mean the sum
of (i) the aggregate of the capital stock, including preferred and
preference stock (but excluding treasury stock and capital stock subscribed and
unissued), and other equity accounts (including retained earnings, paid-in
capital and minority interest) of the Borrower and its Subsidiaries as the same
appears on its balance sheet prepared in accordance with GAAP as of the date of
determination, but including (without duplication and except as expressly
provided otherwise herein) Equity-Preferred Securities of the Borrower and its
Subsidiaries and excluding the effect on accumulated other comprehensive income
(loss) resulting from (A) Financial Accounting Statement No. 133
(Accounting for Derivative Instruments and Hedging Activities) and (B) any
pension and other post-retirement benefits liability adjustments recorded in
accordance with GAAP, and (ii) the amount of all Specified Indebtedness of
the Borrower and its Subsidiaries as of the same date.


 


“Cash Collateral Account”
shall have the meaning specified in Section 6.02(b).


 


“Cash Equivalents” shall mean
(i) marketable direct obligations issued by, or unconditionally guaranteed
by, the United States government or issued by any agency thereof and backed by
the full faith and credit of the United States of America, in each case
maturing within one year from the date of acquisition; (ii) certificates
of deposit, time deposits, eurodollar time deposits or overnight bank deposits
having maturities of six months or less from the date of acquisition issued by
any Lender or by any commercial bank organized under the laws of the United
States of America or any state thereof having combined capital and surplus of
not less 


 


4

















 


than
$500,000,000; (iii) commercial paper of an issuer rated at least A-2 by
S&P or P-2 by Moody’s, or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing within
six months from the date of acquisition; (iv) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of
clause (ii) of this definition, having a term of not more than 30
days with respect to securities issued or fully guaranteed or insured by the
United States government; (v) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody’s; (vi) securities with maturity
of six months or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the requirements
of clause (ii) of this definition; and (vii) shares of money
market mutual or similar funds that invest exclusively in assets satisfying the
requirements of clauses (i) through (vi) of this definition.


 


“Change in Control” shall mean the
occurrence of either of the following: 
(i) any entity, person (within the meaning of Section 14(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) either (A) acquires shares of common
stock of the Borrower in a transaction or series of transactions that results
in such entity, person or group becoming, directly or indirectly, the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of more
than 30% of the outstanding common stock of the Borrower, or (B) acquires,
by proxy or otherwise, the right to vote, for the election of directors, for
any merger, combination or consolidation of the Borrower, or for any other
matter or question, more than 30% of the then outstanding voting securities of
the Borrower (except where such acquisition is made by a person or persons
appointed by at least a majority of the board of directors of the Borrower to
act as proxy for any purpose); or (ii) the election or appointment to the
Borrower’s board of directors, within a twelve-month period, of persons
constituting more than 50% of the Borrower’s board of directors who were not
directors of the Borrower at the beginning of such twelve-month period, and
whose election or appointment was not approved by a majority of those persons
who were directors at the beginning of such period or whose appointment was
approved by persons so approved, where such newly elected or appointed
directors constitute more than 50% of the directors of the board of directors
of the Borrower.


 


“CHI” shall mean Constellation
Holdings, Inc., a Subsidiary of Borrower.


 


“Closing Date” shall have the meaning
specified in Section 3.01.


 


“CNEG” shall mean CNEGH Holdings,
LLC, a Subsidiary of Borrower.


 


“Code”  shall
mean the Internal Revenue Code of 1986, as amended from time to time and the
regulations promulgated and rulings issued thereunder.


 


“Commitment” shall mean, with respect
to each Lender, the commitment of such Lender (i) to make Advances under
this Agreement as set forth in Schedule I hereto, (ii) to refund or 


 


5

















 


purchase
participations in Swingline Advances pursuant to Section 2.03 and (iii) to
purchase participations in Letters of Credit pursuant to Section 2.04, in
each case, as such commitment may be permanently (A) terminated or reduced
from time to time pursuant to Section 2.10(a), (b) or (c), or (B) modified
from time to time pursuant to Section 8.04.


 


“Commitment Percentage”
shall mean, as to any Lender as of any date of determination, the percentage
describing such Lender’s pro rata share of the Commitments set forth in the
Register from time to time.


 


“Commodities Group” shall mean
Constellation Energy Commodities Group, Inc., a Subsidiary of Borrower.


 


“Constellation Nuclear” shall mean
Constellation Energy Nuclear Group, LLC, a Maryland limited liability company.


 


“Convert”, “Conversion”
and “Converted” each shall mean a
conversion of  Borrowings of one Type
into Borrowings of another Type, or the selection of a new, or the renewal of
the same, Interest Period for Eurodollar Borrowings pursuant to the terms
of this Agreement.


 


“Credit Documents” shall mean this
Agreement, any Note, any Borrowing Request, the Fee Letters and all other
related agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto (but for the avoidance of doubt, excluding any
Related Documents).


 


“Custodian” shall mean, for any
series of Bonds, any Person acting as bailee and agent for the Administrative
Agent (on behalf of the applicable LC Bank with respect to such Bonds) under
any Pledge Agreement or Indenture relating to such Bonds.


 


“Debtor Relief Law” shall mean the
Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.


 


“Defaulting Lender” shall mean,
subject to Section 8.15(b), any Lender that, as determined by the
Administrative Agent, (i) has failed to perform any of its funding
obligations hereunder, including in respect of its Advances or participations
in respect of Letters of Credit or Swingline Advances, within three Business
Days of the date required to be funded by it hereunder, unless in respect of
such Advances, such Lender notifies the Administrative Agent in writing that
such failure is the result of such Lender’s good faith determination that a
condition precedent to funding (specifically identified and including the particular
default, if any) has not been satisfied, (ii) has notified the Borrower or
the Administrative Agent that it does not intend to comply with its funding
obligations or has made a public statement to that effect with respect to its
funding obligations hereunder or generally under other agreements in which it
commits to extend credit, (iii) has failed, within three Business Days
after request by the Administrative Agent or an LC Bank, to confirm in a manner
satisfactory to the Administrative Agent or such LC Bank, as applicable, that
it will comply with its funding obligations, or (iv) has, or has a direct
or indirect parent company that has, (A) become the subject of a
proceeding under any 


 


6

















 


Debtor
Relief Law, (B) had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or a custodian appointed for it,
or (C) taken any action in furtherance of, or indicated its consent to,
approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any equity interest in that
Lender or any direct or indirect parent company thereof by a Governmental
Authority or the exercise of control over such Lender or any direct or indirect
parent company thereof by a Governmental Authority.


 


“Designated Lender” shall have the
meaning specified in Section 2.11(a).


 


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


 


“EDFI” shall mean Électricité de
France International, SA or any of its affiliates.


 


“EDFI Put Options” shall mean the put
options pursuant to which the Borrower or its Subsidiaries could sell to EDFI
assets having an aggregate value of up to $2,000,000,000, in accordance with
the terms described in the Master Put Option and Membership Interest Purchase
Agreement, dated as of December 17, 2008, by and among the Borrower, EDF
Development Inc., EDFI and Constellation Nuclear, as amended.


 


“Eligible Assignee” shall mean any of
the following entities: (i) a financial institution organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $1,000,000,000; and (ii) a financial institution organized under
the laws of any other country that is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country,
and having total assets in excess of $1,000,000,000, provided that
such financial institution is acting through a branch or agency located in the
United States.


 


“Equity-Preferred Securities” of any
Person shall mean (i) debt or preferred securities that are mandatorily
convertible or mandatorily exchangeable into common shares of such Person or
other securities of such Person that comply with clause (ii) of this
definition and (ii) any other securities, however denominated, including
but not limited to trust originated preferred securities, (A) issued by
such Person or any Subsidiary of such Person, (B) that are not subject to
mandatory redemption or the underlying securities, if any, of which are not
subject to mandatory redemption (other than solely for Equity-Preferred
Securities or solely at the discretion of the issuer) prior to the date that is
91 days after the Termination Date, except as a result of a change of control,
asset sale or other event so long as any rights of the holders thereof upon the
occurrence of a change of control, asset sale or such other event shall be
subject to the prior repayment in full of the Advances and all other
Obligations that are accrued and payable and the termination of all
Commitments, (C) that are perpetual or do not mature prior to the date
that is 91 days after the Termination Date, (D) the indebtedness issued in
connection with which, including any guaranty, is subordinate in right of
payment to the unsecured and unsubordinated indebtedness of the issuer of such
indebtedness or guaranty, and (E) the terms of which permit


 


7
















 


the
deferral of the payment of interest or distributions thereon until the date
that is 91 days after the Termination Date.


 


“ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended from time to time (or any
successor statute) and the regulations promulgated and rulings issued
thereunder.


 


“ERISA Affiliate” shall mean, with
respect to any Person, any trade or business (whether or not incorporated)
which together with such Person is a single employer within the meaning of Section 4001(b)(1) of
ERISA or Section 414 of the Code.


 


“ERISA Event” shall mean (i) (A) the
occurrence of a Reportable Event or (B) the satisfaction of the
requirements of paragraph (1) of Section 4043(b) of ERISA with
respect to the Borrower or an ERISA Affiliate of the Borrower that is a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Title IV Plan, and an event described in paragraph (9), (10), (11), (12) or
(13) of Section 4043(c) of ERISA of which the Borrower has actual
knowledge will occur with respect to such Title IV Plan within the
following thirty (30) days; (ii) the filing of an application for a
minimum funding waiver with respect to a Title IV Plan; (iii) the
provision by the administrator of any Title IV Plan of a notice of intent to
terminate such Title IV Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (iv) the cessation of operations
at a facility of the Borrower or any ERISA Affiliate of the Borrower in the
circumstances described in Section 4062(e) of ERISA; (v) the
withdrawal by the Borrower or any ERISA Affiliate of the Borrower from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (vi) the
withdrawal by the Borrower or any ERISA Affiliate of the Borrower from a
Multiemployer Plan that results in a liability to the Borrower or any ERISA
Affiliate of the Borrower of at least $25,000,000; (vii) the fulfillment
of the conditions for the imposition of a lien under Section 303(k) or
4068 of ERISA or Section 430(k) of the Code with respect to any Title
IV Plan; (viii) the adoption of an amendment to a Title IV Plan requiring
the provision of security to such Title IV Plan pursuant to Section 307
of ERISA, the provision of security pursuant to Section 206(g)(5)(A) of
ERISA or Section 436(f)(1) of the Code, or the violation of Section 206(g) of
ERISA or Section 436 of the Code with respect to a Single Employer Plan,
or Section 305 of ERISA or Section 432 of the Code with respect to a
Multiemployer Plan; (ix) the institution by the PBGC of proceedings to
terminate a Title IV Plan or the appointment of a trustee to administer a Title
IV Plan pursuant to Section 4042 of ERISA, or any other event or condition
that constitutes grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Title IV Plan; or (x) the
reorganization (as described in Section 4241 of ERISA), the insolvency (as
described in Section 4245 of ERISA) or the termination of a Multiemployer
Plan that results in a liability to the Borrower or any ERISA Affiliate of the
Borrower of at least $25,000,000.


 


“Eurocurrency Liabilities” shall have
the meaning specified in Regulation D of the Board, as in effect from time to
time.


 


“Eurodollar Advance” shall mean an
Advance that bears interest at the Eurodollar Rate in accordance with the
provisions of Article II.


 


8

















 


“Eurodollar Borrowing” shall mean a
Borrowing comprised of Eurodollar Advances.


 


“Eurodollar Lending Office” shall
mean, with respect to any Lender, the office of such Lender specified as its “Eurodollar
Lending Office” opposite its name on Schedule I hereto (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.


 


“Eurodollar Rate” shall mean:


 


(i) for
each Interest Period for each Eurodollar Advance made as part of the same
Borrowing, the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to (A) the
British Bankers Association’s London interbank offered rate for deposits in
dollars (“BBA LIBOR”), as published by
Reuters (or such other commercially available source providing quotations of
BBA LIBOR as may be designated by the Administrative Agent from time to time)
at approximately 11:00 A.M. (London time) two London Banking Days prior to
the first day of such Interest Period for dollar deposits with a term
equivalent to such Interest Period, or (B) if such rate is not available
at such time for any reason, the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
dollars for delivery on the first day of such interest period would be offered
by Bank of America’s London branch to major banks in the London interbank
Eurodollar market at approximately 11:00 A.M. (London time) two London
Banking Days prior to the first day of such Interest Period for a term
equivalent to such Interest Period.


 


(ii)                                  for any
interest calculation with respect to a Base Rate Advance on any date, the rate per annum equal to (A) BBA LIBOR, at approximately
11:00 A.M. (London time) determined two London Banking Days prior to such
date for dollar deposits being delivered in the London interbank market for a
term of one month commencing that day or (B) if such published rate is not
available at such time for any reason, the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Advance being made or maintained and with a
term equal to one month would be offered by Bank of America’s London branch to
major banks in the London interbank Eurodollar market at their request at the
date and time of determination.


 


“Eurodollar Reserve Percentage” of
any Lender for each Interest Period for each Eurodollar Advance shall mean the
reserve percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage shall
be so applicable) under Regulation D or other regulations issued from time to
time by the Board (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement, without benefit of or credit for proration,
exemptions or offsets) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period.


 


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


 


9

















 


“Existing Credit Agreement” shall
mean the $2,320,000,000 Second Amended and Restated Credit Agreement, dated as
of December 17, 2008, as amended, among the Borrower, Wachovia Bank,
National Association, as agent, and the other financial institutions parties
thereto.


 


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


 


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


 


	
  Applicable

  Rating

  Level

  	
   

  	
  Facility

  Fee

  	
   

  
	
  1

  	
   

  	
  0.20

  	
  %

  
	
  2

  	
   

  	
  0.25

  	
  %

  
	
  3

  	
   

  	
  0.35

  	
  %

  
	
  4

  	
   

  	
  0.45

  	
  %

  
	
  5

  	
   

  	
  0.60

  	
  %

  
	
  6

  	
   

  	
  0.75

  	
  %

  



 


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


 


“Federal Funds Effective Rate” shall
mean, for any day, the rate per annum
(rounded upwards to the next 1/100th of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day by
the Federal Reserve Bank of New York, or, if such rate is not so released for
any day which is a Business Day, the arithmetic average (rounded upwards to the
next 1/100th of 1%), as determined by the Administrative Agent, of the
quotations for the day of such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.


 


“Fee Letters” shall mean,
collectively, (i) the Fee Letter, dated September 14, 2010, between
the Borrower and Bank of America, (ii) the Fee Letter, dated September 14,
2010, among the Borrower, The Bank of Nova Scotia and BNP Paribas Securities
Corp. and (iii) the Fee Letter, dated September 14, 2010, among the
Borrower, Banc of America Securities LLC, Citigroup Global Markets Inc. and RBS
Securities Inc., each as amended, modified or supplemented from time to time.


 


“Fitch” shall mean Fitch Ratings, Inc.
or any successor thereto.


 


“Form 10-K” shall have the
meaning given such term in Section 4.01(m).


 


10

















 


“Fronting Commitment” shall mean,
with respect to each LC Bank, the commitment of such LC Bank to issue Letters
of Credit pursuant to Section 2.04, as such commitment may be modified
from time to time upon agreement between the Borrower and such LC Bank.  As of the date hereof, the Fronting
Commitment of each of Bank of America, Citibank, N.A., The Royal Bank of
Scotland plc, BNP Paribas and The Bank of Nova Scotia is $550,000,000.


 


“Fronting Exposure” shall mean, at
any time there is a Defaulting Lender, (i) with respect to an LC Bank,
such Defaulting Lender’s Commitment Percentage of the LC Outstandings other
than LC Outstandings as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or cash collateralized in
accordance with the terms hereof, and (ii) with respect to the Swingline Lender,
such Defaulting Lender’s Commitment Percentage of Swingline Advances other than
Swingline Advances as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or cash collateralized in
accordance with the terms hereof.


 


“Fund” shall mean any Person (other
than a natural person) that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.


 


“GAAP” shall mean generally accepted
accounting principles, applied on a consistent basis, except as specified in
any financial statements delivered pursuant to Section 5.03.


 


“Governmental Approval” shall mean
any authorization, consent, approval, license or exemption of, registration or
filing with, or report or notice to, any Governmental Authority.


 


“Governmental Authority” shall mean
the government of the United States or any other nation, or of 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).


 


“Guarantee Obligation” shall mean, as
to any Person (the “guaranteeing person”), any
obligation of (i) the guaranteeing person or (ii) another Person
(including, without limitation, any bank under any letter of credit), if to
induce the creation of such obligation of such other Person the guaranteeing
person has issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the “primary obligations”)
of any other third Person (the “primary obligor”)
in any manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent, (A) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (B) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (C) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (D) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term


 


11

















 


Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. 
The amount of any Guarantee Obligation of any guaranteeing person shall
be deemed to be the lower of (x) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (y) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person’s maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.  The amount of any Guarantee Obligation of the
Borrower or any of its Subsidiaries with respect to Indebtedness of Unistar or
any of its Subsidiaries shall be determined net of the amount of any
reimbursement obligations of EDF or any of its Affiliates and any other
shareholder of Unistar (each, an “Obligor”)
owing to the Borrower or such Subsidiary in respect of such Guarantee
Obligation but only (i) if and for so long as (A) the form of
agreement evidencing such reimbursement obligation of such Obligor is
reasonably acceptable to the Administrative Agent, (B) such Obligor is not
in default in its obligations under such agreement, and (C) at least two
of the following long-term, senior unsecured non-credit enhanced debt ratings
are in effect with respect to such Obligor: 
BBB- or higher by S&P, BBB- or higher by Fitch and Baa3 or higher by
Moody’s, and (ii) to the extent that the net liability of the Borrower or
any such Subsidiary for such Indebtedness does not exceed, in the aggregate,
the lesser of $800,000,000 and 50% of such Indebtedness.


 


“Hazardous Substance” shall mean any
waste, substance, or material identified as hazardous, dangerous or toxic by
any office, agency, department, commission, board, bureau, or instrumentality
of the United States or of the State or locality in which the same is located
having or exercising jurisdiction over such waste, substance or material.


 


“Hedge Agreements” shall mean any (i) interest
rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements, (ii) other
agreements or arrangements designed to manage interest rates or interest rate
risk, (iii) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates and (iv) agreements
(including each confirmation entered into pursuant to any master agreement)
providing for swaps, caps, collars, puts, calls, floors, futures, options,
spots, forwards, power purchase or sale agreements, fuel purchase or sale
agreements, emissions credit purchase or sales agreements, power transmission
agreements, fuel transportation agreements, fuel storage agreements, netting
agreements, commercial or trading agreements, each with respect to, or
involving the purchase, transmission, distribution, sale, lease or hedge of,
any energy, generation capacity or fuel, or any other energy related commodity
or service, price or price indices for any such commodities or services or any
other similar derivative agreements.


 


“Hostile Acquisition” shall mean any
Target Acquisition involving a tender offer or proxy contest that has not been
recommended or approved by the board of directors (or similar governing body)
of the person that is the subject of such Target Acquisition.  As used herein, “Target
Acquisition” shall mean any transaction, or any series of
related transactions, by which the Borrower and/or any of its Subsidiaries
directly or indirectly (i) acquires any ongoing business or all or
substantially all of the assets of any Person or division thereof, whether
through 


 


12

















 


purchase
of assets, merger or otherwise, (ii) acquires (in one transaction or as
the most recent transaction in a series of transactions) control of at least a
majority in ordinary voting power of the securities of a Person that has
ordinary voting power for the election of directors or (iii) otherwise
acquires control of a more that 50% ownership interest in any such Person.


 


“Indebtedness” shall mean, with
respect to any Person at any date, without duplication, (i) all
indebtedness of such Person for borrowed money; (ii) all obligations of
such Person, issued, undertaken or assumed as the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of such Person’s business) which purchase price is due more than one year from
the date of incurrence of the obligation in respect thereof or is evidenced by
a note or other instrument; (iii) all reimbursement obligations of such
Person with respect to surety bonds, letters of credit, banker’s acceptances
and similar instruments (in each case, whether or not matured, but excluding up
to $100,000,000 of such obligations to the extent fully collateralized with
cash or Cash Equivalents); (iv) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments including obligations
so evidenced incurred in connection with the acquisition of property, assets or
business; (v) all indebtedness created or arising under any conditional
sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property); (vi) Off-Balance Sheet Liabilities that exceed $25,000,000
in the aggregate; (vii) indebtedness incurred in connection with a Securitization
of the Receivables of such Person, (viii) withdrawal liability incurred
under ERISA to any Multiemployer Plan by such Person or any of its ERISA
Affiliates; and (ix) all indebtedness of others of the type referred to in
(i) through (viii) as to which such Person has a Guarantee
Obligation.


 


“Indenture” shall mean, for any
series of Bonds, the indenture pursuant to which such Bonds are issued and any
supplement thereto relating to such Bonds.


 


“Information” shall have the meaning
specified in Section 8.14(a).


 


“Interest Payment Date” shall mean,
with respect to any Advance, the last day of the Interest Period applicable
thereto and, in the case of a Eurodollar Advance with an Interest Period of
more than three months’ duration, each day that would have been an Interest
Payment Date for such Advance had successive Interest Periods of three months’
duration been applicable to any Advance and, in addition, the date of any
prepayment of each Advance or Conversion of any Advance to an Advance of a different
Type or having a new Interest Period.


 


“Interest Period” shall mean (i) as
to any Eurodollar Advance, the period commencing on the date of such Advance or
the date of the Conversion of any Advance into a Eurodollar Advance and ending
on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, or such other period as the Borrower and all the Lenders may
agree in any specific instance, and (ii) as to any Base Rate Advance, the
period commencing on the date of such Advance or the Conversion of any Advance
into a Base Rate Advance and ending on the earlier of (A) the Termination
Date and (B) the last day of each fiscal quarter; provided,
however, that (x) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of Eurodollar Advances only, 


 


13

















 


such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (y) no
Interest Period shall extend beyond the Termination Date.


 


“ISP” shall mean, with respect to any
Letter of Credit, the “International Standby Practices 1998” published by the
Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).


 


“Issuer” shall mean, for any series
of Bonds, the issuer of such Bonds under the applicable Indenture.


 


“Issuer Agreement” shall mean, for
any series of Bonds, the agreement between the applicable Issuer and the
Borrower pursuant to which (i) the proceeds of such Bonds are loaned by
such Issuer to the Borrower, together with any promissory note or other
instrument evidencing the Indebtedness of the Borrower under such agreement, or
(ii) the Borrower agrees to pay the purchase price of, or rent with
respect to, the facilities financed or refinanced with the proceeds of such
Bonds.


 


“LC Bank” shall mean,
as to any Letter of Credit, Bank of America, Citibank, N.A., The Royal Bank of
Scotland plc, BNP Paribas, The Bank of Nova Scotia or any other Lender that
agrees to issue a Letter of Credit pursuant to Section 2.04, as
applicable.


 


“LC Committed Amount”
shall mean the amount of the aggregate Commitments, as the same may be reduced
or increased from time to time pursuant to Section 2.10.


 


“LC Outstandings” shall mean, on any
date of determination, the sum of (i) the undrawn stated amounts of all
Letters of Credit that are outstanding on such date plus (ii) the
aggregate principal amount of all Unreimbursed LC Disbursements.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.04.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP (if applicable to such Letter of Credit), such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.


 


“Lender” shall have the meaning given
such term in the preamble hereto.


 


“Letter of Credit”
shall mean a standby or direct-pay letter of credit issued by an LC Bank
pursuant to Section 2.04, in each case, as such letter of credit may from
time to time be amended, modified or extended in accordance with the terms of
this Agreement.


 


“Letter of Credit Application” shall
mean, as to an LC Bank, an application and agreement for the issuance or
amendment of a Letter of Credit in the applicable form for such LC Bank
attached as Exhibit D, E, F, G or H (as applicable), or as otherwise from
time to time in use by such LC Bank. 
Notwithstanding anything in a Letter of Credit Application to the
contrary, in the event of any conflict between the terms of this Agreement and
the terms of any Letter of Credit Application, the terms of this Agreement
shall control.


 


14

















 


“Letter of Credit Fee” shall have the
meaning assigned to that term in Section 2.05(b).


 


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


 


“Liquidity Report” shall mean, at any
time, the general liquidity report or reports produced for management of the
Borrower that captures the major elements of liquidity management for the
Borrower and its Subsidiaries (excluding BGE and its Subsidiaries) at such time
for the period extending to at least the Termination Date, and which may
include items such as net available liquidity, cash, forecasted sources and
uses and the impact of stresses on these sources and uses over the period from
the date of this Agreement through the Termination Date.  The form and content of such reports may
change over time to reflect management’s current view of its key liquidity
reporting requirements that enable the Borrower to best manage its liquidity
adequacy but will in any event provide information having a scope and level of
detail similar to information provided at or around such time to S&P, Fitch
or Moody’s concerning the Borrower’s and its Subsidiaries’ (other than BGE and
its Subsidiaries) liquidity management.


 


“London Banking Day” shall mean any
day on which dealings in dollar deposits are conducted by and between banks in
the London interbank Eurodollar market.


 


“Majority Lenders” shall mean Lenders
having Commitments representing in excess of 50% of the aggregate Commitments
or, if the Commitments have been terminated, Lenders holding Outstanding
Credits representing in excess of 50% of the Outstanding Credits; provided that the Commitment of, and the portion of the
Outstanding Credits held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Majority Lenders.


 


“Margin Regulations” shall mean
Regulations T, U and X of the Board as from time to time in effect, and all
official rulings and interpretations thereunder or thereof.


 


“Margin Stock” shall have the meaning
given such term under Regulation U of the Board.


 


“Material Adverse Change” shall mean
any event, development or circumstance that has had a material adverse effect
on (i) the financial condition or financial results of operations of the
Borrower and its Subsidiaries taken as a whole on a consolidated basis or (ii) the
validity or enforceability of any of the Credit Documents or the rights and
remedies of the Administrative Agent and the Lenders hereunder and thereunder.


 


“Material Subsidiary” shall mean (i) each
of BGE, CHI, Constellation Nuclear, CNEG, NewEnergy, and Commodities Group and (ii) each
other Subsidiary of the Borrower that directly or indirectly holds an equity
interest in BGE, CHI, Constellation Nuclear, CNEG, NewEnergy or Commodities
Group.


 


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


 


“Multiemployer Plan” shall mean a
multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to
which the Borrower or any ERISA Affiliate of the Borrower (i) is making or



 


15

















 


accruing
an obligation to make contributions, or (ii) within any of the preceding
six plan years, made or accrued an obligation to make contributions.


 


“Multiple Employer Plan” shall mean a
single employer plan, as defined in Section 4001(a)(15) of
ERISA, that (i) is maintained for employees of the Borrower or any
ERISA Affiliate of the Borrower and for the employees of one or more other
Persons or (ii) was so maintained and in respect of which the
Borrower or any ERISA Affiliate of the Borrower would have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be terminated.


 


“NewEnergy” shall mean Constellation
NewEnergy, Inc., a Subsidiary of Borrower.


 


“non-Defaulting Lender” shall mean,
at the time of determination, a Lender that is not a Defaulting Lender.


 


“Non-Extension Notice Date” shall
have the meaning specified in Section 2.04(b).


 


“Non-U.S. Payee” shall have the
meaning specified in Section 2.18(f).


 


“Note” shall mean a promissory note
of the Borrower issued pursuant to Section 2.06(e) at the request of
a Lender, evidencing the Advances and in form satisfactory to the
Administrative Agent, as such promissory note may be amended, modified,
supplemented or replaced from time to time.


 


“Notice of Conversion” shall have the
meaning assigned to that term in Section 2.03(b).


 


“Obligations” shall mean, without
duplication, all Outstanding Credits and all other obligations of the Borrower
to the Lenders and the Administrative Agent, whenever arising, under the Credit
Documents.


 


“Off-Balance Sheet Liability” of a
Person shall mean any of the following obligations not appearing on such Person’s
balance sheet: (i) leveraged leases, sale and leasebacks and other similar
lease arrangements of such Person, (ii) any liability under any so called “synthetic
lease” transaction entered into by such Person, and (iii) any obligation
arising with respect to any other transaction, in each case in clauses (i), (ii) and
(iii), if and to the extent that such obligation is recognized in accordance
with GAAP as being the functional equivalent of borrowing but that does not
constitute a liability on the balance sheet of such Person.


 


“Official Statement” shall mean, for
any series of Bonds, the official statement, reoffering circular or similar
disclosure document (however designated) relating to such Bonds and the
applicable LC Bank with respect to such Bonds, as amended and supplemented from
time to time, and all documents incorporated therein (or in any such supplement
or amendment) by reference.


 


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


 


16

















 


“PBGC” shall mean the Pension Benefit
Guaranty Corporation or any entity succeeding to any or all of its functions
under ERISA.


 


“Permitted Collateral” shall mean
(i) marketable direct obligations issued by, or unconditionally guaranteed
by, the United States government or issued by any agency thereof and backed by
the full faith and credit of the United States of America, in each case
maturing within five years from the date of acquisition; (ii) certificates
of deposit, time deposits, eurodollar time deposits or overnight bank deposits
having maturities of five years or less from the date of acquisition issued by
any Lender or by any commercial bank having combined capital and surplus of not
less than $500,000,000; (iii) commercial paper and corporate debt
obligations of an issuer rated at least A-2 by S&P or P-2 by Moody’s, or
carrying an equivalent rating by a nationally recognized rating agency, if both
of the two named rating agencies cease publishing ratings of commercial paper
or corporate bond issuers generally, and maturing within five years from the
date of acquisition; (iv) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (ii) of this
definition, having a term of not more than five years with respect to
securities issued or fully guaranteed or insured by the United States
government; (v) securities with maturities of five years or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody’s; (vi) securities with maturity
of five years or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the requirements
of clause (ii) of this definition; (vii) shares of money market
mutual or similar funds that invest substantially all their assets in assets
satisfying the requirements of clauses (i) through (vi) of this
definition or assets otherwise consistent with the quality standards of cash
equivalents described herein; and (viii) asset-backed securities that (A) are
rated at least A-2 by S&P or P-2 by Moody’s, or carry an equivalent rating
by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of such securities generally and (B) have
a stated final maturity of not more than five years from the date of
acquisition.


 


“Permitted Securitization” shall mean
(i) the transfer of the rights of BGE under a qualified rate order to an
Affiliate, (ii) the issuance of rate stabilization bonds by an Affiliate
of BGE, (iii) the creation of Liens on rate stabilization property to
secure the payment of the rate stabilization bonds by an Affiliate of BGE, as
contemplated by Sections 7-520 et. seq. of the Public Utility Companies Article of
the Annotated Code of Maryland) or any successor provision of Maryland law and (iv) any
other Securitization by BGE.


 


“Person” shall mean any natural
person, corporation, limited liability company, business trust, joint venture,
joint stock company, trust, association, company, partnership or government, or
any agency or political subdivision thereof.


 


“Plan” shall mean any material “employee
benefit plan” (as defined in Section 3(3) of ERISA) maintained by the
Borrower or any ERISA Affiliate of the Borrower.


 


“Platform” shall have the meaning
specified in Section 5.03.


 


17
















 


“Pledge Agreement” shall mean, for
any series of Bonds, the pledge agreement or custodian agreement (or similar
agreement, however designated), among the Administrative Agent, the Borrower
and the applicable Custodian with respect to such Bonds, setting forth certain
terms relating to the pledge and/or ownership of any such Bonds pending the
remarketing thereof pursuant to the applicable Remarketing Agreement.  Without limiting the foregoing, any Indenture
that contains the terms described in the preceding sentence shall also be
considered to be a “Pledge Agreement”.


 


“Proposed Increased Commitment” shall
have the meaning specified in Section 2.11(a).


 


“Public Lender” shall have the
meaning specified in Section 5.03.


 


“Receivables” shall mean any accounts
receivable, payment intangibles, notes receivable, rights to receive future
payments and related rights of any Person (excluding dividends, distributions
and other payment rights in respect of equity interests), and any supporting
obligations and other financial assets related thereto (including all
collateral securing such accounts receivables or other assets, contracts and
contract rights, all guarantees with respect thereto, and all proceeds thereof)
that are transferred, or in respect of which security interests are granted in
one or more transactions that are customary for asset securitizations of such
Receivables.


 


“Reference Rating” by S&P, Fitch
or Moody’s shall mean, on any date of determination, the most recently
announced long-term, senior unsecured non-credit enhanced debt rating of the
Borrower issued by S&P, Fitch or Moody’s, respectively.


 


“Register” shall have the meaning
specified in Section 8.04(d).


 


“Related Documents” shall mean, for
any series of Bonds, such Bonds and the Indenture, the Issuer Agreement, any
Remarketing Agreement and any Pledge Agreement relating to such Bonds.


 


“Related Parties” shall mean, with
respect to any Person, such Person’s Affiliates and the partners, directors,
officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.


 


“Remarketing Agent” shall mean, for
any series of Bonds, any person acting in the capacity of remarketing agent for
such Bonds pursuant to a Remarketing Agreement relating to such Bonds.


 


“Remarketing Agreement” shall mean,
for any series of Bonds, any agreement or other arrangement pursuant to which
the applicable Remarketing Agent has agreed to act in such capacity with
respect to such Bonds tendered for purchase pursuant to the applicable
Indenture.


 


“Reportable Event” shall mean any
event described in Section 4043(c) of ERISA, other than an event
(excluding an event described in Section 4043(c)(1) relating to tax
disqualification) with respect to which the thirty (30) day notice requirement
of such section has been waived.


 


18

















 


“Request for Issuance”
shall mean a request made pursuant to Section 2.04(a) in the form of Exhibit C.


 


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


 


“Securitization” shall mean any sale,
assignment, conveyance, grant or contribution, or series of related sales,
assignments, conveyances, grants or contributions, by any Person of Receivables
(or purported sale, assignment, conveyance, grant or contribution) to a trust,
corporation or other entity, where the purchase of such Receivables is funded
or exchanged in whole or in part by the incurrence or issuance by the
purchaser, grantee or any successor entity of indebtedness or securities that
are to receive payments from, or that represent interests in, the cash flow
derived primarily from such Receivables.


 


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


 


“Specified Indebtedness” shall mean
all Indebtedness of the Borrower and its Subsidiaries, excluding, however, (i) Indebtedness
incurred in connection with a Permitted Securitization and (ii) Equity-Preferred
Securities of the Borrower and its Subsidiaries not to exceed 15% of
Capitalization of the Borrower and its Subsidiaries (calculated for purposes of
this definition without regard to any Equity-Preferred Securities of the
Borrower and its Subsidiaries).


 


“Subsidiary” shall mean, with respect
to any Person, any corporation or other entity of which more than 50% of
(i) the outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether
or not at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) or (ii) other equity interest comparable to that described in
the preceding clause (i) is at the time directly or indirectly owned by
such Person, by such Person and one or more other Subsidiaries, or by one or
more other Subsidiaries.


 


“Swingline Advance” shall mean any
swingline loan made by the Swingline Lender to the Borrower pursuant to Section 2.03,
and all such swingline loans collectively as the context requires.


 


“Swingline Commitment” shall mean the
lesser of (i) an aggregate principal amount of $50,000,000 and (ii) the
aggregate principal amount of the Unused Commitments.


 


“Swingline Lender” shall mean Bank of
America, in its capacity as Swingline Lender.


 


“Swingline Outstandings” shall mean,
at any time, the aggregate principal amount of all Swingline Advances
outstanding at such time.  The Swingline
Outstandings of any Lender at any time shall be its Commitment Percentage of
the total Swingline Outstandings at such time.


 


19

















 


“Termination Date” shall mean the earlier
to occur of (i) October 15, 2013, and (ii) the date of
termination or reduction in whole of the Commitments in accordance with this
Agreement.


 


“Title IV Plan” shall mean a Single
Employer Plan, Multiemployer Plan or Multiple Employer Plan.


 


“Trustee” shall mean, for any series
of Bonds, the person acting in the capacity of trustee for the holders of such
Bonds under the Indenture pursuant to which such Bonds were issued.


 


“Type”, when used in respect of any
Advance or Borrowing, shall refer to the Rate by reference to which interest on
such Advance or on the Advances comprising such Borrowing is determined. For
purposes hereof, “Rate” shall mean the Eurodollar Rate or the Base Rate.


 


“Unistar” shall mean UniStar Nuclear
Energy, LLC, a Delaware limited liability company.


 


“Unmatured Default” shall mean the
occurrence and continuance of an event that, with the giving of notice or lapse
of time, or both, would constitute an Event of Default (excluding any breach of
Section 5.01(i), or Section 5.02(f), (g), (h) or (i), or Section 5.03(a) (solely
with respect to notices relating to a breach of any of the foregoing specified
sections of this Agreement or relating to a breach of subsection (l) or (m) of
Section 6.01).


 


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


 


“Unused Commitment” shall mean, for
any period from the date hereof to the Termination Date, the amount by which
(i) the sum of the aggregate Commitments exceeds (ii) the daily
average sum for such period of the aggregate principal amount of Outstanding
Credits.


 


“U.S. Payee” shall have the meaning
specified in Section 2.18(f).


 


“wholly-owned Subsidiary” shall mean,
with respect to any Person, a Subsidiary of such Person all of the outstanding
equity interests of which (other than (i) director’s qualifying shares and
(ii) shares issued to other Persons to the extent required by applicable
law) are owned by such Person or by one or more wholly-owned Subsidiaries of
such Person.


 


“Withdrawal Liability” shall have the
meaning specified in Part 1 of Subtitle E of Title IV of ERISA.


 


Section 1.02.  Terms Generally.


 


The
definitions in Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. 
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and 


 


20

















 


“including”
shall be deemed to be followed by the phrase “without limitation”.  All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require.  References to any
document, instrument or agreement, including any Credit Document, shall be
deemed to include any amendment, restatement, modification, supplement or
replacement thereto entered into in accordance with the terms thereof and the
terms of the Credit Documents. 
References to any Person shall include such Person’s successors and
permitted assigns.  The words “hereof”, “herein”
and “hereunder” and words of similar import when used in any Credit Document
shall refer to such Credit Document as a whole and not to any particular
provision of such Credit Document. 
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided, however,
that if the Borrower notifies the Administrative Agent that the Borrower wishes
to amend any covenant in Article V or any related definition to eliminate
the effect of any change in GAAP occurring after the date hereof on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Majority Lenders wish to amend Article V or any related
definition for such purpose), then the Borrower’s compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Borrower and the
Majority Lenders.


 


Section 1.03.  Time.


 


All
references to time herein shall be references to Eastern Standard Time or
Eastern Daylight Time, as the case may be, unless specified otherwise.


 


Section 1.04.  Letter of Credit Amounts.


 


Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however,
that with respect to any Letter of Credit that, by its terms or the terms of
any Request for Issuance or Letter of Credit Application related thereto,
provides for one or more automatic increases in the stated amount thereof, the
amount of such Letter of Credit shall be deemed to be the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.


 


ARTICLE II

THE CREDITS


 


Section 2.01.  Extensions of Credit.


 


(a)                                  Subject to the
terms and conditions herein set forth, each Lender agrees, severally and not
jointly, to make Advances, at any time and from time to time until the
Termination Date, to the Borrower in an aggregate principal amount at any time
outstanding not to exceed such Lender’s Commitment minus an amount equal to
such Lender’s Commitment Percentage multiplied by the Outstanding Credits at
such time.


 


(b)                                 At no time
shall the Outstanding Credits exceed the aggregate Commitments.  The Borrower agrees to prepay Advances
(subject to payment of the breakage fee required 


 


21

















 


pursuant to Section 8.05(b)(ii)), satisfy
reimbursement obligations and/or deposit funds in the Cash Collateral Account
in respect of undrawn Letters of Credit to the extent required to ensure
compliance with this provision at all times.


 


(c)                                  No more than
ten Eurodollar Borrowings shall be outstanding at any one time.


 


(d)                                 Within the
foregoing limits, the Borrower may borrow, pay or prepay, subject to the
limitations set forth in Sections 2.12(a), and reborrow Advances hereunder, on
and after the date hereof and prior to the Termination Date, subject to the
terms, conditions and limitations set forth herein.


 


Section 2.02.  Advances.


 


(a)                                  Each Advance
(other than Swingline Advances, which shall be made by the Swingline Lender in
accordance with Section 2.03) shall be made as part of a Borrowing
consisting of Advances made by the Lenders ratably in accordance with their
respective Commitments; provided, however,
that the failure of any Lender to make any Advance shall not in itself relieve
any other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other
Lender to make any Advance required to be made by such other Lender).  The Advances (other than Swingline Advances)
comprising any Borrowing shall be in an aggregate principal amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 (or an aggregate
principal amount equal to the remaining balance of the available Commitments).


 


(b)                                 Each Borrowing
(other than with respect to Swingline Advances) shall be comprised entirely of
Eurodollar Advances or Base Rate Advances, as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Advance
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Advance; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such
Advance in accordance with the terms of this Agreement.  Subject to Section 2.01(c), Borrowings
of more than one Type may be outstanding at the same time.


 


(c)                                  Each Lender
shall make each Advance to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds to the Administrative Agent in
New York, New York, not later than 12:00 noon, and the Administrative Agent
shall, by 2:00 P.M., credit the amounts so received to the account or
accounts specified from time to time in one or more notices delivered by the
Borrower to the Administrative Agent or, if a Borrowing shall not occur on such
date because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Lenders.  Unless the Administrative Agent shall have
received notice from a Lender prior to the time of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender’s portion
of such Borrowing, the Administrative Agent may assume that such Lender has
made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with this subsection (c) 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 made such portion available to
the Administrative Agent, such Lender and the Borrower (without waiving any
claim against such Lender for such Lender’s 


 


22

















 


failure to make such portion available) 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 the Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Effective Rate; provided, however, that should both the Borrower and such
Lender repay the Administrative Agent in accordance with this sentence, the
Administrative Agent will forthwith return the amount in excess of the portion
due to it under this sentence to the Borrower. 
If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender’s Advance as
part of such Borrowing for purposes of this Agreement.


 


Section 2.03.  Borrowing and Conversion Procedures;
Swingline Advances.


 


(a)                                  In order to
request a Borrowing, the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Borrowing Request (a) in the case of
a Eurodollar Borrowing, not later than 10:00 A.M. three Business Days
before such Borrowing, and (b) in the case of a Base Rate Borrowing or a
Swingline Advance, not later than 10:00 A.M. on the Business Day of such
Borrowing.  Such notice shall be
irrevocable and shall in each case specify (i) whether the Borrowing then
being requested is to comprise Eurodollar Advances or Base Rate Advances or
will consist of a Swingline Advance; (ii) the date of such Borrowing
(which shall be a Business Day) and the amount thereof; and (iii) if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto, which shall not end after the Termination Date.  If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be a Base Rate
Borrowing.  If no Interest Period with
respect to any Eurodollar Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration.  Each Swingline Advance shall
be made and maintained as a Base Rate Advance at all times.


 


(b)                                 The Borrower
may on any Business Day, by delivering a notice of conversion (a “Notice of Conversion”) to the
Administrative Agent not later than 10:00 A.M. on the third Business Day
prior to the date of the proposed Conversion, and subject to the provisions of
Sections 2.09 and 2.14, Convert any Borrowing of one Type or for one Interest
Period into a Borrowing of another Type or for another Interest Period (other
than Swingline Advances); provided, however,
that any Conversion of any Eurodollar Borrowing shall be made on, and only on,
the last day of an Interest Period.  Each
such Notice of Conversion shall be in substantially the form of Exhibit I
hereto and shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Borrowings to be Converted, (iii) if
such Conversion will result in a Eurodollar Borrowing, the duration of the
Interest Period for such Eurodollar Borrowing, and (iv) the aggregate
amount of Borrowings proposed to be Converted. 
If the Borrower shall not have provided a Notice of Conversion with
respect to any Eurodollar Borrowing on or prior to 10:00 A.M. on the third
Business Day prior to the last day of the Interest Period applicable thereto,
in the case of a Conversion to or in respect of Eurodollar Advances, or if an
Event of Default shall have occurred and be continuing on the third Business
Day prior to the last day of the Interest Period with respect to any Eurodollar
Borrowing, the Administrative Agent will forthwith so notify the Borrower and
the Lenders and such Borrowing will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Borrowing.


 


23

















 


(c)                                  Notwithstanding
any other provision of this Agreement to the contrary, no Borrowing shall be
requested or Converted if the Interest Period with respect thereto would end
after the Termination Date.  The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.03 and of each Lender’s portion of the
requested Borrowing or Conversion.


 


(d)                                 Subject to the
terms and conditions of this Agreement, the Swingline Lender, in reliance upon
the agreements of the other Lenders set forth in this Section 2.03, may in
its sole discretion make Swingline Advances to the Borrower from time to time
from on or after the date hereof through, but not including, the Termination
Date; provided, that the aggregate principal
amount of all Swingline Outstandings (after giving effect to any amount
requested), shall not exceed the Swingline Commitment, and that the Outstanding
Credits of any Lender (after giving effect to any amount requested) shall not
exceed such Lender’s Commitment; and provided  further, that the Borrower shall not use the proceeds of any
Swingline Advance to refinance any outstanding Swingline Advance.  Each Swingline Advance shall be in an
aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000
(except that any such Swingline Advance may be in the aggregate amount of the
unused Swingline Commitment).  The
Borrower shall repay to the Swingline Lender the outstanding principal amount
of all Swingline Advances on the earlier of (i) 10 Business Days after the
date a Swingline Advance is made and (ii) the Termination Date.  Within the foregoing limits, the Borrower may
borrow, repay and reborrow Swingline Advances, in each case under this Section 2.03.


 


(e)                                  Swingline
Advances shall be refunded by the Lenders on demand by the Swingline
Lender.  Such refundings shall be made by
the Lenders in accordance with their respective Commitment Percentages and
shall thereafter be reflected as Advances of the Lenders on the books and
records of the Administrative Agent. 
Each Lender shall fund its Commitment Percentage of Advances required to
repay Swingline Advances outstanding upon demand by the Swingline Lender but in
no event later than 1:00 P.M. (Charlotte, North Carolina time) on the next
succeeding Business Day after such demand is made.  No Lender’s obligation to fund its Commitment
Percentage of a Swingline Advance shall be affected by any other Lender’s
failure to fund its Commitment Percentage of a Swingline Advance, nor shall any
Lender’s Commitment Percentage be increased as a result of any such failure of
any other Lender to fund its Commitment Percentage of a Swingline Advance.


 


(f)                                    The Borrower
shall pay to the Swingline Lender on demand, the outstanding principal amount
of all Swingline Advances to the extent amounts received from the Lenders are
not sufficient to repay in full the outstanding Swingline Advances requested or
required to be refunded.  In addition,
the Borrower hereby authorizes the Administrative Agent to charge any account
maintained by the Borrower with the Swingline Lender (up to the amount
available therein) in order to immediately pay the Swingline Lender the
outstanding principal amount of such Swingline Advances to the extent amounts
received from the Lenders are not sufficient to repay in full the outstanding
principal amount of the Swingline Advances requested or required to be
refunded.  If any portion of any such
amount paid to the Swingline Lender shall be recovered by or on behalf of the
Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the
amount so recovered shall be ratably shared among all the Lenders in accordance
with their respective Commitment Percentages (unless the amounts so recovered
by or on behalf of the Borrower pertain to a Swingline Advance extended after
the occurrence and 


 


24

















 


during the continuance of an Event of Default of
which the Administrative Agent has received notice in the manner required
pursuant to Section 5.03 and which such Event of Default has not been
waived in accordance with Section 8.08).


 


(g)                                 Each Lender
acknowledges and agrees that its obligation to refund Swingline Advances (other
than Swingline Advances extended after the occurrence and during the continuation
of an Event of Default of which the Administrative Agent has received notice in
the manner required pursuant to Section 5.03 and which such Event of
Default has not been waived in accordance with Section 8.08) in accordance
with the terms of this Section is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including, without limitation,
non-satisfaction of the conditions set forth in Article III.  Further, each Lender agrees and acknowledges
that if prior to the refunding of any outstanding Swingline Advance pursuant to
this Section, any event described in Section 6.01(e) or (f) shall
have occurred, each Lender will, on the date the applicable Advance would have
been made, purchase an undivided participating interest in such Swingline
Advance to be refunded in an amount equal to its Commitment Percentage of the
aggregate amount of such Swingline Advance. 
Each Lender will immediately transfer to the Swingline Lender, in
immediately available funds, the amount of its participation, and upon receipt
of such amount the Swingline Lender will deliver to such Lender a certificate
evidencing such participation dated the date of receipt of such funds and for
such amount.  Whenever, at any time after
the Swingline Lender has received from any Lender such Lender’s participating
interest in a Swingline Advance, the Swingline Lender receives any payment on
account thereof, the Swingline Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded).


 


Section 2.04.  Letters of Credit.


 


(a)                                  Upon the
written request of the Borrower and subject to the terms and conditions hereof,
an LC Bank, in reliance upon the agreements of the other Lenders set forth in
this Section 2.04, shall issue Letters of Credit hereunder for the account
of the Borrower or any of its Subsidiaries; provided
that the Borrower shall be the account party for the purposes of
this Agreement and shall have the reimbursement obligations with respect
thereto.  Each Letter of Credit shall be
issued in a form acceptable to the issuing LC Bank.  Each Letter of Credit shall be issued (or the
stated maturity thereof extended or terms thereof modified or amended) on not
less than two Business Days’ (or such shorter period as may be agreed to by the
Borrower and the applicable LC Bank) prior notice thereof by delivery of (x) a
Request for Issuance of a Letter of Credit and (y) a Letter of Credit
Application to such LC Bank (with a copy to the Administrative Agent, which
shall promptly forward copies thereof to the Lenders).  Each such Request for Issuance shall specify (i) the
date (which shall be a Business Day) of issuance of such Letter of Credit (or
the date of effectiveness of such extension, modification or amendment) and the
stated expiry date thereof (which shall be no later than the earliest to occur
of (x) one year after the date of issuance (or later, with the consent of
the applicable LC Bank, subject to the limitation in clause (y) below) and
(y) the fifth Business Day preceding the Termination Date; provided, that Auto-Extension Letters of Credit will be
permitted, subject to the limitation in clause (y) above and subsection (b) below),
(ii) the proposed stated amount of such Letter of Credit, (iii) the
name and address of the beneficiary of such Letter of Credit and (iv) a
statement of drawing conditions applicable to such Letter of Credit, and if
such request for issuance relates to an amendment or 


 


25

















 


modification of a Letter of Credit, it shall be
accompanied by the consent of the beneficiary of the Letter of Credit
thereto.  Each Request for Issuance of a
Letter of Credit shall be irrevocable unless modified or rescinded by the
Borrower not less than one Business Day prior to the proposed date of issuance
(or effectiveness) specified therein. 
Unless the applicable LC Bank has received written notice from any
Lender or the Administrative Agent, at least one Business Day prior to the
requested date of issuance or amendment specified in such Request for Issuance,
that one or more applicable conditions contained in Section 3.01 or 3.02
shall not then be satisfied, then, subject to the terms and conditions hereof,
the applicable LC Bank shall, not later than 12:00 noon on such requested date,
issue (or extend, amend or modify) such Letter of Credit and provide notice and
a copy thereof to the Borrower and to the Administrative Agent, in each case in
accordance with the LC Bank’s usual and customary business practices.  The Administrative Agent shall furnish (i) to
each Lender, a copy of such notice and (ii) to each Lender that may so
request, a copy of such Letter of Credit. 
The LC Bank shall provide to the Administrative Agent, on a monthly
basis, a list of the amounts and expiration dates of all undrawn Letters of
Credit, a copy of which list the Administrative Agent shall furnish to each
Lender that may so request.  No Letter of
Credit shall be amended or modified after issuance (i) other than in
accordance with its terms, which terms permit reductions by the beneficiary by
delivery of a certificate attached to such Letter of Credit, or (ii) without
the prior written consent of the Borrower, which consent may be sent by
telecopy.


 


(b)                                 If the Borrower
so requests in any Request for Issuance or Letter of Credit Application, the
applicable LC Bank shall issue a Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension Letter of
Credit”); provided that
any such Auto-Extension Letter of Credit must permit such LC Bank to prevent
any such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Non-Extension
Notice Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. 
Unless otherwise directed by such LC Bank, the Borrower shall not be
required to make a specific request to such LC Bank for any such
extension.  Once an Auto-Extension Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but
may not require) such LC Bank to permit the extension of such Letter of Credit
at any time to an expiry date not later than the day that is five Business Days
prior to the Termination Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day); provided, however, that such LC Bank shall not permit any such
extension if (A) such LC Bank has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of
the provisions of Section 2.04(a) or (d) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Extension Notice Date from the
Administrative Agent that an Event of Default has occurred and is continuing.


 


(c)                                  If the Borrower
so requests in any Request for Issuance or Letter of Credit Application, the
applicable LC Bank may, in its sole discretion, agree to issue a Letter of
Credit that permits the automatic reinstatement of all or a portion of the
stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”).  Unless otherwise directed by such LC Bank,
the Borrower shall not be required to make a specific request to such LC Bank
to permit such reinstatement.  Once an
Auto-Reinstatement Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) such LC Bank to 


 


26

















 


reinstate all or a portion of the stated amount
thereof in accordance with the provisions of such Letter of Credit; provided, however, that
such LC Bank shall not permit any such reinstatement if such LC Bank has
determined that it would not be permitted, or would have no obligation, at such
time to reinstate such Letter of Credit under the terms hereof (by reason of
the provisions of the first sentence of Section 2.04(d) or
otherwise).


 


(d)                                 No Letter of
Credit shall be requested, issued, extended or reinstated hereunder if, after
the issuance, extension or reinstatement thereof, (i) the LC Outstandings
would exceed the LC Committed Amount, (ii) the Outstanding Credits would
exceed the aggregate Commitments or (iii) the LC Outstandings with respect
to all Letters of Credit issued by any LC Bank would exceed the Fronting
Commitment of such LC Bank.  No LC Bank
shall be under any obligation to issue any Letter of Credit if (A) any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such LC Bank from issuing such Letter
of Credit, (B) any law applicable to such LC Bank or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such LC Bank shall prohibit, or request that
such LC Bank refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon such LC Bank with respect
to such Letter of Credit any restriction, reserve or capital requirement (for
which such LC Bank is not otherwise compensated hereunder) not in effect on the
date hereof, or shall impose upon such LC Bank any unreimbursed loss, cost or
expense that was not applicable on the date hereof and that such LC Bank in good
faith deems material to it, (C) the issuance of such Letter of Credit
would violate one or more policies of such LC Bank or (D) any Lender is at
that time a Defaulting Lender, unless the such LC Bank has entered into
arrangements, including the delivery of cash collateral, satisfactory to such
LC Bank (in its sole discretion) with the Borrower or such Lender to eliminate
such LC Bank’s actual or potential Fronting Exposure (after giving effect to Section 8.15(a)(iv))
with respect to the Defaulting Lender arising from either the Letter of Credit
then proposed to be issued or that Letter of Credit and all other LC
Outstandings as to which such LC Bank has actual or potential Fronting
Exposure, as it may elect in its sole discretion.


 


(e)                                  The Borrower
hereby agrees to pay to the Administrative Agent for the account of the
applicable LC Bank, no later than the second Business Day following demand made
by such LC Bank or the Administrative Agent, on and after the date on which
such LC Bank shall pay any amount under any Letter of Credit issued by it, a
sum equal to the amount so paid plus interest on such amount from the date so
paid by such LC Bank until repayment to such LC Bank in full at a fluctuating
interest rate per annum equal to
the Base Rate plus the Applicable
Margin for Base Rate Advances plus, if any amount paid by such LC Bank under a
Letter of Credit is not reimbursed by the Borrower within when due (whether
with the proceeds of Advances or otherwise), 2%.


 


(f)                                    If the Borrower
shall not have reimbursed the LC Bank for any Unreimbursed LC Disbursement by
10:00 A.M. on the second Business Day following demand for payment by an
LC Bank or the Administrative Agent pursuant to subsection (e) above,
then, unless the Borrower shall have notified the Administrative Agent
otherwise, the LC Bank shall promptly deliver notice of such failure to
reimburse to the Administrative Agent, and the Borrower shall be deemed to have
delivered to the Administrative Agent a Borrowing Request for a Borrowing to be
made on such date comprising Base Rate Advances in an aggregate principal
amount equal


 


27
















 


to the principal amount of such Unreimbursed LC
Disbursement.  The Administrative Agent
shall deliver prompt notice of such Borrowing Request to the Lenders, and each
Lender shall make the Advance to be made by it in connection with such
Borrowing in accordance with Section 2.02(c); provided,
however, the proceeds of such Advances shall be credited solely to
the account of the applicable LC Bank in order to reimburse such LC Bank for
such Unreimbursed LC Disbursement.  If
and to the extent that any Lender shall have funded its participation in such
Unreimbursed LC Disbursement pursuant to subsection (h) below prior to the
time that such Lender is required to fund its Advance under this subsection (f) pursuant
to a Borrowing made to reimburse such Unreimbursed LC Disbursement, then such
participation interest shall be deemed to be such Lender’s Advance made as part
of such Borrowing, and such Lender shall have no further obligation to fund an
Advance as part of such Borrowing. 
Notwithstanding anything to the contrary in this subsection (f), if the
conditions precedent to Extensions of Credit in Section 3.02 are not
satisfied on the date the Borrowing Request described above is deemed to be
given by the Borrower, then amounts funded by the Lenders under this subsection
(f) will not constitute Advances hereunder but will constitute
participations purchased by the Lenders in the applicable Unreimbursed LC
Disbursement pursuant to subsection (h) below.


 


(g)                                 Upon the
issuance of any Letter of Credit by an LC Bank, such LC Bank hereby sells and
transfers to each Lender, and each Lender hereby acquires from such LC Bank, an
undivided interest and participation to the extent of such Lender’s Commitment
Percentage in and to such Letter of Credit, including the obligations of such
LC Bank under and in respect thereof and the Borrower’s reimbursement and other
obligations in respect thereof, whether now existing or hereafter arising.


 


(h)                                 Each Lender,
upon issuance of a Letter of Credit, shall be deemed to have purchased without
recourse a risk participation from the applicable LC Bank in such Letter of
Credit and the rights and obligations arising thereunder, in each case in an
amount equal to its Commitment Percentage of the obligations under such Letter
of Credit, and shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to the applicable LC
Bank therefor and discharge when due, its Commitment Percentage of the
obligations arising under such Letter of Credit.  Without limiting the scope and nature of each
Lender’s participation in any Letter of Credit, if an LC Bank shall not have
been reimbursed in full for any payment made by such LC Bank under any Letter
of Credit on the date of such payment, such LC Bank shall promptly notify the
Administrative Agent and the Administrative Agent shall promptly notify each
Lender of such non-reimbursement and the amount thereof.  Upon receipt of such notice from the
Administrative Agent, each Lender shall pay to the Administrative Agent for the
account of such LC Bank an amount equal to such Lender’s Commitment Percentage
of such Unreimbursed LC Disbursement, plus interest on such amount at a rate per annum equal to the Federal Funds Effective Rate from the
date of such payment by such LC Bank to the date of payment to such LC Bank by
such Lender.  All such payments by each
Lender shall be made in United States dollars and in same day funds not later
than 3:00 P.M. on the later to occur of (A) the Business Day
immediately following the date of such payment by such LC Bank and (B) the
Business Day on which such Lender shall have received notice of such
non-reimbursement; provided, however,
that if such notice is received by such Lender later than 11:00 A.M. on
such Business Day, such payment shall be payable on the next Business Day.  Each Lender agrees that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  If a Lender shall have paid
to such LC 


 


28

















 


Bank its ratable portion of any Unreimbursed LC
Disbursement, together with all interest thereon required by the second
sentence of this subsection (h), such Lender shall be entitled to receive its
ratable share of all interest paid by the Borrower in respect of such
Unreimbursed LC Disbursement.  If such
Lender shall have made such payment to such LC Bank, but without all such
interest thereon required by the second sentence of this subsection (h), such
Lender shall be entitled to receive its ratable share of the interest paid by
the Borrower in respect of such Unreimbursed LC Disbursement only from the date
it shall have paid all interest required by the second sentence of this
subsection (h).


 


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


 


(j)                                     If any Lender
shall fail to make any payment to an LC Bank in accordance with subsection (f) or
(h) above, then, in addition to other rights and remedies that such LC
Bank may have, the Administrative Agent is hereby authorized, at the request of
such LC Bank, to withhold and to apply to the payment of such amounts owing by
such Lender to such LC Bank and any related interest, that portion of any
payment received by the Administrative Agent that would otherwise be payable to
such Lender.  In furtherance of the
foregoing, if any Lender shall fail to make any payment to an LC Bank in
accordance with subsection (f) or (h) above, and such failure shall
continue for five Business Days following written notice of such failure from
such LC Bank to such Lender, such LC Bank may acquire, or transfer to a third
party acceptable to the Borrower, such acceptance, not to be unreasonably
withheld, in exchange for the sum or sums due from such Lender, such Lender’s
interest in the related Unreimbursed LC Disbursement and all other rights of
such Lender hereunder in respect thereof, without, however, relieving such
Lender from any liability for damages, costs and expenses suffered by such LC
Bank as a result of such failure, and prior to such transfer, such LC Bank
shall be deemed, for purposes of Section 2.16 and Article VI hereof,
to be a Lender hereunder owed an Advance in an amount equal to the outstanding
principal amount due and payable by such Lender to the Administrative Agent for
the account of such LC Bank pursuant to subsection (f) or (h) above.  The purchaser of any such interest shall be
deemed to have acquired an interest senior to the interest of such Lender and
shall be entitled to receive all subsequent payments that such LC Bank or the
Administrative Agent would otherwise have made hereunder to such Lender in
respect of such interest.


 


(k)                                  The payment
obligations of the Borrower under Section 2.04(e) in respect of any
payment under any Letter of Credit shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:


 


29

















 


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


 


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


 


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


 


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


 


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


 


(vi)                              any failure to
issue a Letter of Credit (or any amendment thereto) in accordance with the
specifications set forth by the Borrower pursuant to Section 2.04(a), provided that  the Borrower may cause such a Letter of Credit (or such
amendment) to be replaced or rescinded if (A) it provides written notice
to the applicable LC Bank (which shall promptly forward copies to the
Administrative Agent for distribution to the Lenders) of any discrepancy from
such specifications within three Business Days after the Borrower shall have
received a copy of such Letter of Credit (or such amendment), (B) such
discrepancy is material and consequential, and (C) the beneficiary of such
Letter of Credit consents in writing to such replacement or revocation;


 


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


 


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


 


(l)                                     Without
limiting any other provision of this Section 2.04, for purposes of this Section 2.04
each LC Bank and any of its respective correspondents:


 


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


 


(ii)                                  shall not be
responsible for errors, omissions, interruptions or delays in transmission or
delivery of any message, advice or document in connection with a Letter of
Credit, whether transmitted by courier or facsimile, or for errors in
interpretation of technical terms or in translation (and such LC Bank and its
correspondents may transmit Letter of Credit 


 


30

















 


terms without translating them), other than those
errors resulting from gross negligence or willful misconduct of such LC Bank or
such correspondent, as the case may be, as determined by a final judgment of a
court of competent jurisdiction;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(x)                                   may pay amounts
owed to any paying or negotiating bank (designated or permitted by the terms of
any Letter of Credit) claiming that it rightfully honored, under the laws 


 


31

















 


or practices of the place where it is located, any
sight draft, certificate or other document presented under any Letter of
Credit.


 


None
of the circumstances described in this Section 2.04(l) shall subject
such LC Bank or any of its correspondents to any liability to the Borrower.


 


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


 


(n)                                 The Borrower
acknowledges that the rights and obligations of the applicable LC Bank under
any Letter of Credit are independent of the existence, performance or
nonperformance of any contract or arrangement underlying such Letter of Credit.  The applicable LC Bank may, without incurring
any liability to the Borrower or impairing its entitlement to reimbursement
under this Agreement, honor any Letter of Credit despite notice from the
Borrower of, and without any duty to inquire into, any defense to payment or
any adverse claims or other rights against the beneficiary of the Letter of
Credit or any other person.  The
applicable LC Bank shall have no duty to request or require the presentation of
any document, including any default certificate, not required to be presented under
the terms and conditions of any Letter of Credit.  The applicable LC Bank shall have no duty to
seek any waiver of discrepancies from the Borrower, nor any duty to grant any
waiver of discrepancies that the Borrower approves or requests.  The applicable LC Bank shall have no duty to
extend the expiration date or term of any Letter of Credit or, except as
provided under Section 2.04(k)(vi), to issue a replacement letter of
credit on or before the expiration date of such Letter of Credit or the end of
such term.  The 


 


32

















 


applicable LC Bank shall not be liable to the
Borrower under this Section 2.04(n) for any action or inaction by it,
unless such action or inaction results from such LC Bank’s gross negligence or
willful misconduct, as determined by a final judgment of a court of competent
jurisdiction.


 


(o)                                 Unless
otherwise expressly agreed by the applicable LC Bank and the Borrower when a
Letter of Credit is issued, the rules of the ISP shall apply to each
Letter of Credit, provided that, if the Borrower
wishes to opt out of Rule 3.14 of the ISP for a Letter of Credit, the
Borrower must so request in the Request for Issuance and Letter of Credit
Application for such Letter of Credit, and provided further
that, if the applicable LC Bank is not so instructed, then Rule 3.14 of
the ISP shall be deemed to apply to such Letter of Credit, and such Letter of
Credit shall be deemed outstanding as indicated in the last sentence of the
definition of “LC Outstandings”.


 


Section 2.05.  Fees


 


(a)                                  Facility
Fee.  In consideration of the
Commitments being made available by the Lenders, the Borrower agrees to pay to
the Administrative Agent, for the pro rata benefit of the Lenders, a facility
fee equal to the Facility Fee Rate in effect from time to time multiplied by
the aggregate amount of the Commitments from time to time (regardless of
usage), payable in arrears on the last day of each March, June, September and
December during the term of such Lender’s Commitment and on the
Termination Date.


 


(b)                                 Letter
of Credit Fee.  The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a letter of credit fee (the “Letter of Credit Fee”), at a rate per annum equal to the Applicable Margin with respect to Eurodollar
Advances on the daily average amount of each such Lender’s Commitment
Percentage multiplied by the LC Outstandings, from the date hereof until the
later to occur of the Termination Date and the date on which no Letters of
Credit in which such Lender is obligated to participate are outstanding,
payable in arrears on the last day of each March, June, September and December during
the term of such Lender’s Commitment, and on such later date.


 


(c)                                  Additional
Fees.  The
Borrower shall pay to the Administrative Agent, for its own account, and to the
Arrangers, for their own respective accounts, such other fees as are required
to be paid to it under the Fee Letters. 
The Borrower shall pay to each LC Bank, for its own account, such other
fees relating to the issuance of Letters of Credit as have been or may from
time to time be agreed between them.


 


(d)                                 Nonrefundable;
Basis for Calculation.  Once
paid, none of the facility fees, the Letter of Credit Fees or other fees
provided for in this Section 2.05 shall be refundable under any
circumstances.  All fees shall be
computed on the basis of the actual number of days elapsed over a year of 360
days.


 


Section 2.06.  Repayment of Advances; Evidence of
Indebtedness.


 


(a)                                  The outstanding
principal balance of each Advance, together with accrued and unpaid interest
thereon shall be due and payable on the Termination Date.


 


33

















 


(b)                                 Each Lender
shall maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness to such Lender resulting from each Advance made by such Lender
from time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time under this Agreement.


 


(c)                                  The
Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Advance made hereunder, the Type of each Advance made and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender’s share
thereof.


 


(d)                                 The entries
made in the accounts maintained pursuant to subsections (b) and (c) of
this Section 2.06 shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations therein
recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Advances and interest thereon in accordance with their terms.


 


(e)                                  Any Lender may
request that its Advances be evidenced by a Note.  In such event, the Borrower shall prepare,
execute and deliver to such Lender a Note payable to the order of such
Lender.  Thereafter, the Advances
evidenced by such Note and interest thereon shall at all times (including after
any assignment pursuant to Section 8.04) be represented by one or more
Notes payable to the order of the payee named therein or any assignee pursuant
to Section 8.04, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that such
Advances once again be evidenced as described in subsections (a) and (b) above.


 


Section 2.07.  Interest.


 


(a)                                  Subject to the
provisions of subsection (d) below and Sections 2.08, 2.09 and 2.14, the
Advances comprising each Eurodollar Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 360 days), at a
rate per annum equal to the Eurodollar Rate
for the Interest Period in effect for such Borrowing plus the Applicable
Margin.


 


(b)                                 Subject to the
provisions of Sections 2.08, the Advances comprising each Swingline Advance
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365/366 days) at a rate per annum equal
to the Base Rate plus the Applicable Margin for Base Rate Advances.


 


(c)                                  Subject to the
provisions of Section 2.08, the Advances comprising each Base Rate
Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365/366 days) at a rate per annum
equal to the Base Rate plus the Applicable Margin.


 


(d)                                 Interest on
each Advance shall be payable in arrears on each Interest Payment Date
applicable to such Advance except as otherwise provided in this Agreement.


 


34

















 


(e)                                  The Borrower
shall pay to the Administrative Agent for the account of each Lender any costs
actually incurred by such Lender in connection with making or maintaining
Extensions of Credit hereunder that are attributable to such Lender’s
compliance with regulations of the Board requiring the maintenance of reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities.  Such costs shall be paid to
the Administrative Agent for the account of such Lender in the form of additional
interest on the unpaid principal amount of each Eurodollar Advance of such
Lender, from the date such Advance is made until such principal amount is paid
in full, at an interest rate per annum equal
at all times to the remainder obtained by subtracting (i) the Eurodollar
Rate for the Interest Period for such Advance from (ii) the rate obtained
by dividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Reserve Percentage of such Lender for
such Interest Period, payable on each Interest Payment Date for such
Advance.  Such additional interest shall
be determined by such Lender and notified to the Borrower through the
Administrative Agent at least two Business Days prior to the relevant Interest
Payment Date, provided, that failure to so
notify the Borrower shall not constitute a waiver of such Lender’s right to
request and receive additional interest under this subsection (d).  A certificate as to the amount of such
additional interest, submitted to the Borrower and the Administrative Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.  Each Lender claiming any
additional interest payable pursuant to this subsection shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Borrower or to
change the jurisdiction of its Applicable Lending Office if the making of such
a filing or change would avoid the need for or reduce the amount of any such additional
interest that may thereafter be due and payable and would not, in the good
faith determination of such Lender, be otherwise disadvantageous to such
Lender.


 


Section 2.08.  Default Interest.


 


Except
as otherwise provided in Section 2.04(e), if and for so long as an Event
of Default shall have occurred and be continuing, each Advance outstanding
hereunder shall bear interest at the rate otherwise applicable to such Advance plus 2%.  Without
limiting the foregoing, if the Borrower shall default in the payment of any
amount becoming due hereunder (other than the principal amount of any Advance),
whether by scheduled maturity, notice of prepayment, acceleration or otherwise,
the Borrower shall on demand from time to time from the Administrative Agent
pay interest, to the extent permitted by law, on such defaulted amount up to
(but not including) the date of actual payment (after as well as before
judgment) at a rate per annum
(computed as provided in Section 2.07(c)) equal to the Base Rate plus the
Applicable Margin for Base Rate Advances plus 2%.


 


Section 2.09.  Alternate Rate of Interest.


 


In
the event, and on each occasion, that on the day two Business Days prior to the
commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined (i) that dollar deposits in the
principal amounts of the Eurodollar Advances comprising such Borrowing are not
generally available in the London interbank market or (ii) that reasonable
means do not exist for ascertaining the Eurodollar Rate, the Administrative
Agent shall, as soon as practicable thereafter, give telecopy notice of such
determination to the Borrower and the Lenders. 
In the event of any such determination under clause (i) or (ii) above,



 


35

















 


until
the Administrative Agent shall have advised the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (x) any
request by the Borrower for a Eurodollar Borrowing pursuant to Section 2.03
shall be deemed to be a request for a Base Rate Borrowing and (y) each
Eurodollar Advance then outstanding will automatically, on the last day of the
then applicable Interest Period therefor, Convert into a Base Rate
Advance.  In the event the Majority Lenders
notify the Administrative Agent that the rates at which dollar deposits are
being offered will not adequately and fairly reflect the cost to such Lenders
of making or maintaining Eurodollar Advances during any Interest Period, the
Administrative Agent shall notify the Borrower of such notice and until the
Majority Lenders shall have advised the Administrative Agent that the
circumstances giving rise to such notice no longer exist, (A) any request
by the Borrower for a Eurodollar Borrowing shall be deemed a request for a Base
Rate Borrowing and (B) each Eurodollar Advance then outstanding will
automatically, on the last day of the then applicable Interest Period therefor,
Convert into a Base Rate Advance.  Each
determination by the Administrative Agent hereunder shall be made in good faith
and shall be conclusive absent manifest error; provided
that the Administrative Agent shall, upon request, provide to the Borrower a
certificate setting forth in reasonable detail the basis for such
determination.


 


Section 2.10.  Termination and Reduction of Commitments.


 


(a)                                  The Commitments
shall automatically terminate on the Termination Date.


 


(b)                                 Upon at least
three Business Days’ prior irrevocable written notice to the Administrative
Agent, the Borrower may at any time in whole permanently terminate, or from
time to time in part permanently reduce, the Commitments; provided,
however, that (i) each partial reduction of the Commitments
shall be in an integral multiple of $1,000,000 and in a minimum principal
amount of $5,000,000, (ii) no such termination or reduction shall be made
that would reduce the aggregate Commitments to an amount (A) less than the
Outstanding Credits on the date of such termination or reduction (after giving
effect to Section 2.12(b)) or (B) less than $25,000,000, unless the
result of such termination or reduction referred to in this clause (B) is
to reduce the aggregate Commitments to $0 and (iii) the definition of “LC
Committed Amount” set forth in Section 1.01 shall be deemed amended to
reflect an LC Committed Amount equal to the aggregate Commitments following
such reduction.  The Administrative Agent
shall advise the Lenders of any notice given pursuant to this Section 2.10(b) and
of each Lender’s portion of any such termination or reduction of the aggregate
Commitments.


 


(c)                                  Each reduction
in the Commitments hereunder shall be made ratably among the Lenders in
accordance with their respective Commitments. 
Once terminated, a Commitment may not be reinstated.  The Borrower shall pay to the Administrative
Agent for the account of the Lenders, on the date of each termination or
reduction of the Commitments, the fees payable on the Commitments under Section 2.05
so terminated or reduced accrued through the date of such termination or
reduction.


 


Section 2.11.  Increase of the Commitments.


 


(a)                                  The Borrower
may, from time to time, provided that no Default or Event of Default has
occurred and is continuing, request by notice to the Administrative Agent, to 


 


36

















 


increase the Commitments in minimum increments of
$10,000,000, up to a maximum aggregate amount (for all Commitments) of
$500,000,000, by designating one or more Eligible Assignees (each a “Designated Lender”) that agree to
accept all or a portion of such additional Commitments (the “Proposed Increased Commitment”), provided, that (i) such notice shall be delivered in
writing to the Administrative Agent not earlier than 60 days prior to, nor
later than 30 days prior to the proposed effective date of such Commitment
increase; (ii) each Designated Lender shall be reasonably acceptable to
the Administrative Agent, the Swingline Lender and each LC Bank to the extent
required for assignments under Section 8.04(b); (iii) allocations of
the Proposed Increased Commitment among Designated Lenders shall be determined
by the Administrative Agent and the Borrower and (iv) the aggregate of all
Proposed Increased Commitments shall not exceed the amount of the requested
Commitment increase.


 


(b)                                 The
Administrative Agent shall promptly notify the Designated Lenders of the
proposed Commitment increase.  Each
Designated Lender shall notify the Administrative Agent by the date specified
by the Administrative Agent (which date shall be a Business Day) that either (A) such
Designated Lender declines to accept its additional Commitments or (B) such
Designated Lender consents to accept its additional Commitments.  Any Designated Lender not responding on or
prior to the date specified by the Administrative Agent shall be deemed not to
have consented to accept its additional Commitments. The Administrative Agent
shall, after receiving the notifications from all of the Designated Lenders or
following the date specified in the notice to such Designated Lenders,
whichever is earlier, notify the Borrower and the Lenders of the results
thereof and the effective date of any additional Commitments.  The Borrower shall deliver a certificate
signed by a duly authorized officer of the Borrower to the Administrative
Agent, dated as of the effective date of such additional Commitments, stating
that all conditions precedent to an Extension of Credit set forth in Section 3.02
are true and correct on and as of such effective date.


 


(c)                                  Promptly
following the effective date of any Commitment increase pursuant to this Section 2.11,
(i) the Administrative Agent shall distribute an amended Schedule I to
this Agreement (which shall thereafter be incorporated into this Agreement) to
reflect any changes in Lenders, the Commitments and each Lender’s Commitment
Percentage as of such effective date and (ii) the Borrower shall prepay
the outstanding Borrowings (if any) in full, and shall simultaneously make new
Borrowings hereunder in an amount equal to such prepayment, so that, after
giving effect thereto, the Borrowings are held ratably by the Lenders in
accordance with their respective Commitments (after giving effect to such
Commitment increase).  Prepayments made
under this clause (c) shall be subject to the reimbursement requirements
of Section 8.05(b), but shall not be subject to the notice requirements of
Section 2.14.


 


(d)                                 Notwithstanding
any provision contained herein to the contrary, from and after the date of any
Commitment increase and the making of any Advances on such date pursuant to
clause (c)(ii) above, all calculations and payments of fees and of
interest on the Advances shall take into account the actual Commitment of each
Lender and the principal amount outstanding of each Advance made by such Lender
during the relevant period of time.


 


37






 












 


Section 2.12.  Prepayment.


 


(a)                                  The Borrower
shall have the right at any time and from time to time to prepay any Borrowing,
in whole or in part, upon giving telecopy notice (or telephone notice promptly
confirmed by telecopy) to the Administrative Agent:  (i) before 10:00 A.M. three
Business Days prior to prepayment, in the case of Eurodollar Advances, and (ii) before
10:00 A.M. one Business Day prior to prepayment, in the case of Base Rate
Advances; provided, however, that each partial
prepayment shall be in an amount that is an integral multiple of $1,000,000 and
not less than $5,000,000.


 


(b)                                 If at any time (i) the
aggregate Outstanding Credits exceed the aggregate Commitments or (ii) the
aggregate LC Outstandings exceed the LC Committed Amount, the Borrower shall
pay or prepay so much of the Borrowings and/or deposit funds in the Cash
Collateral Account in respect of undrawn Letters of Credit outstanding on such
date, as applicable, as shall be necessary in order that the Outstanding
Credits will not exceed the Commitments and the LC Outstandings will not exceed
the LC Committed Amount.


 


(c)                                  Each notice of
prepayment shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing (or portion thereof) by the amount
stated therein on the date stated therein. 
All prepayments under this Section 2.12 shall be subject to Section 8.05(b) but
otherwise without premium or penalty. 
All prepayments under this Section 2.12 shall be accompanied by
accrued interest on the principal amount being prepaid to the date of payment.


 


Section 2.13.  Reserve Requirements; Change in
Circumstances.


 


(a)                                  Notwithstanding
any other provision herein, if after the date of this Agreement the enactment
of any new law or regulation, or any change in applicable existing law or
regulation, or in the interpretation or administration of the foregoing by any
Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law), including, without
limitation, all requests, rules, guidelines or directives in connection with
the Dodd-Frank Wall Street Reform and Consumer Protection Act regardless of the
date enacted, adopted or issued, shall change the basis of taxation of payments
to any Lender hereunder (except for changes in respect of taxes on the overall
net income of such Lender or its lending office imposed by the jurisdiction in
which such Lender’s principal executive office or lending office is located),
or shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits
with or for the account of or credit extended by any Lender, or shall result in
the imposition on any Lender or the London interbank market of any other
condition affecting this Agreement, such Lender’s Commitment or any Extension
of Credit made by such Lender, and the result of any of the foregoing shall be
to increase the cost to such Lender of making or maintaining any Extension of
Credit or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or otherwise) by an amount deemed in
good faith by such Lender to be material, then the Borrower shall, upon receipt
of the notice and certificate provided for in Section 2.13(c), promptly
pay to such Lender such additional amount or amounts as will compensate such
Lender for such additional costs incurred or reduction suffered.


 


38

















 


(b)                                 If any Lender
shall have determined that the adoption after the date hereof of any law, rule,
regulation or guideline promulgated by the Bank for International Settlements,
the Basel Committee on Banking Regulations and Supervisory Practices (or any
successor or similar authority) or the United States financial regulatory
authorities or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Lender’s holding company with any request
or directive regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency, has 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, such
Lender’s Commitment or the Extensions of Credit made by such Lender pursuant
hereto to a level below that which such Lender or such Lender’s holding company
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy) by an amount deemed in good faith by
such Lender to be material, then from time to time such additional amount or
amounts as will compensate such Lender for any such reduction suffered will be
paid by the Borrower to such Lender.  For
the avoidance of doubt, this Section 2.13(b) shall apply to all
requests, rules, guidelines or directives concerning capital adequacy issued in
connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act
and all requests, rules, guidelines or directives concerning capital adequacy.


 


(c)                                  A certificate
of each Lender setting forth such amount or amounts as shall be necessary to
compensate such Lender or its holding company as specified in subsection (a) or
(b) above, as the case may be, and containing an explanation in reasonable
detail of the manner in which such amount or amounts shall have been
determined, shall be delivered to the Borrower and shall be conclusive absent
manifest error.  The Borrower shall pay
each Lender the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same. 
Each Lender shall give prompt notice to the Borrower of any event of
which it has knowledge, occurring after the date hereof, that it has determined
will require compensation by the Borrower pursuant to this Section 2.13.  If any such law, rule, regulation, guideline
or other change or condition described in this Section 2.13 shall later be
held by a court of competent jurisdiction to be invalid or inapplicable to the
Borrower or such Lender, such Lender shall promptly refund to the Borrower any
amounts previously paid by the Borrower to such Lender pursuant to this Section 2.13.


 


(d)                                 Failure on the
part of any Lender to demand compensation for any increased costs or reduction
in amounts received or receivable or reduction in return on capital with
respect to any period shall not constitute a waiver of such Lender’s right to
demand compensation with respect to such period or any other period; provided that  such Lender
shall not be entitled to demand compensation hereunder if such demand is made
more than 90 days following the later of such Lender’s incurrence or sufferance
thereof and such Lender’s actual knowledge of the event giving rise to such
Lender’s rights under this Section.  The
protection of this Section shall be available to each Lender regardless of
any possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition that shall have occurred or
been imposed.


 


39

















 


(e)                                  Each Lender
agrees that it will designate a different lending office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the reasonable judgment of such Lender, be disadvantageous to such
Lender.


 


Section 2.14.  Change in Legality.


 


(a)                                  Notwithstanding
any other provision herein, if the introduction of, or any change in, any law
or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Advance or to give
effect to its obligations as contemplated hereby with respect to any Eurodollar
Advance, then, by written notice to the Borrower and to the Administrative
Agent, such Lender may:


 


(i)                                     declare that
Eurodollar Advances will not thereafter be made by such Lender hereunder,
whereupon any request for a Eurodollar Borrowing shall, as to such Lender only,
be deemed a request for a Base Rate Advance unless such declaration shall be
subsequently withdrawn (any Lender delivering such a declaration hereby
agreeing to withdraw such declaration promptly upon determining that such event
of illegality no longer exists); and


 


(ii)                                  require that
all outstanding Eurodollar Advances made by it be Converted to Base Rate
Advances, in which event all such Eurodollar Advances shall be automatically
Converted to Base Rate Advances as of the effective date of such notice as
provided in subsection (b) below.


 


Prior
to any Lender giving notice to the Borrower under this Section 2.14, such
Lender shall use reasonable efforts to change the jurisdiction of its
Applicable Lending Office, if such change would avoid such event of illegality
and would not, in the sole reasonable determination of such Lender, be
otherwise disadvantageous to such Lender. 
In the event any Lender shall exercise its rights under (i) or (ii) above,
all payments and prepayments of principal that would otherwise have been
applied to repay the Eurodollar Advances that would have been made by such
Lender or the Converted Eurodollar Advances of such Lender shall instead be
applied to repay the Base Rate Advances made by such Lender in lieu of, or
resulting from the Conversion of, such Eurodollar Advances.


 


(b)                                 For purposes of
this Section 2.14, a notice by any Lender shall be effective as to each
Eurodollar Advance, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar Advance; in all other cases such notice shall be
effective on the date of receipt.


 


Section 2.15.  Pro Rata Treatment.


 


Except
as required under Section 2.07(e), 2.13, 2.14, 2.18 or 8.15, each
Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Advances, each payment of facility fees and Letter
of Credit Fees, each reduction of the Commitments and each Conversion of any
Advance by the Borrower shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall
have expired or been terminated, in accordance with the respective Outstanding
Credits of the Lenders); provided further,
that the provisions of this Section shall not be construed to apply to any
payment made by or on behalf of the Borrower pursuant to and in accordance with
the express terms of this Agreement (including the application of funds arising
from the existence of 


 


40

















 


a
Defaulting Lender).  For purposes of
determining the available or used Commitments at any time, the LC Outstandings
shall be deemed to have utilized the Commitments of the Lenders pro rata in
accordance with their respective Commitments. 
Each Lender agrees that in computing such Lender’s portion of any Borrowing
to be made hereunder, the Administrative Agent may, in its discretion, round
each Lender’s percentage of such Borrowing to the next higher or lower whole
dollar amount.  Notwithstanding the
foregoing, in connection with an extension of the Termination Date described in
the last proviso in the first sentence of Section 8.08(b), this Agreement
may provide for an increase in or otherwise different fees, margins and other
amounts payable to the extending Lenders relative to the amounts payable to
Lenders that do not consent to the extension.


 


Section 2.16.  Sharing of Setoffs.


 


Each
Lender agrees that if it shall, through the exercise of a right of banker’s
lien, setoff or counterclaim, or pursuant to a secured claim under Section 506
of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, obtain payment (voluntary or involuntary) in respect of any
Extension of Credit, in any case as a result of which the unpaid principal
portion of its Extensions of Credit shall be proportionately less than the
unpaid principal portion of the Extensions of Credit of any other Lender, it shall
be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Extensions of Credit of such other Lender, so that the
aggregate unpaid principal amount of the Extensions of Credit and
participations in the Extensions of Credit held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Extensions of
Credit then outstanding as the principal amount of its Extensions of Credit
prior to such exercise of banker’s lien, setoff or counterclaim or other event
was to the principal amount of all Extensions of Credit outstanding prior to
such exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that, (i) if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.16 and
the payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest and (ii) the
provisions of this Section shall not be construed to apply to (x) any
payment made by or on behalf of the Borrower pursuant to and in accordance with
the express terms of this Agreement (including the application of funds arising
from the existence of a Defaulting Lender), (y) the application of cash
collateral provided for in Section 6.02, or (z) any payment obtained
by a Lender as consideration for the assignment of or sale of a participation
in any of its Commitment, including pursuant to Section 2.19.  The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in an
Extension of Credit deemed to have been so purchased may exercise any and all
rights of banker’s lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower to such Lender by reason thereof as fully as if
such Lender had made an Extension of Credit in the amount of such
participation.


 


Section 2.17.  Payments.


 


(a)                                  The Borrower
shall make each payment (including principal of or interest on any Borrowing,
any fees, any reimbursements in respect of Letters of Credit that have been
paid by 


 


41

















 


any
Lender or other amounts) hereunder without setoff, counterclaim, defense,
recoupment or other deduction from an account in the United States not later
than 12:00 noon on the date when due in dollars to the Administrative Agent at
its offices specified in Section 8.01, in immediately available funds.


 


(b)                                 Whenever any
payment (including principal of or interest on any Borrowing, any fees, any
reimbursements in respect of Letters of Credit that have been paid by any
Lender or other amounts) hereunder shall become due, or otherwise would occur,
on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or fees, if applicable.


 


Section 2.18.  Taxes.


 


(a)                                  Any and all
payments of principal and interest on any Outstanding Credit, or of any fees or
indemnity or expense reimbursements by the Borrower hereunder (“Borrower Payments”) shall be made,
in accordance with Section 2.17, free and clear of and without deduction
for any and all current or future United States Federal, state and local taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect to such Borrower Payments, but only to the extent reasonably
attributable to such Borrower Payments, excluding (i) income
taxes imposed on the net income of the Administrative Agent or any Lender, (ii) franchise
taxes imposed on the Administrative Agent or any Lender, in each case by the jurisdiction
under the laws of which the Administrative Agent or such Lender is organized or
doing business through offices or branches located therein, or any political
subdivision thereof and (iii) any branch profit tax imposed by the United
States or any similar tax imposed by an other jurisdiction in which such
Administrative Agent or Lender is located (all such nonexcluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities, collectively or
individually, “Taxes”).  If the Borrower shall be required to deduct
any Taxes from or in respect of any sum payable hereunder to the Administrative
Agent or any Lender, (i) the sum payable shall be increased by the amount
(an “additional amount”) necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.18),
the Administrative Agent or such Lender (as the case may be) shall receive an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


(b)                                 In addition,
the Borrower shall pay to the relevant Governmental Authority in accordance
with applicable law any current or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies that arise from any
payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the Fee Letters (such taxes being “Other Taxes”).


 


(c)                                  The Borrower
shall indemnify the Administrative Agent and each Lender (as the case may be)
for the full amount of Taxes and Other Taxes with respect to Borrower Payments
paid by such person, and any liability (including penalties, interest and
expenses (including reasonable attorney’s fees and expenses)) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted by the relevant United States 


 


42

















 


Governmental Authority.  A certificate setting forth and containing an
explanation in reasonable detail of the manner in which such amount shall have
been determined and the amount of such payment or liability prepared by a
Lender or the Administrative Agent on their behalf, absent manifest error,
shall be final, conclusive and binding for all purposes.  Such indemnification shall be made within 30
days after the date the Administrative Agent or the Lender, as the case may be,
makes written demand therefor; provided that
the Borrower shall not be required to compensate a Lender pursuant to this
subsection (c) for any amount of Taxes or Other Taxes incurred or assessed
more than 180 days prior to the date on which such Lender or Administrative
Agent first notifies the Borrower, as provided in this subsection (c), of such
amounts payable.  If any Taxes or Other
Taxes for which the Administrative Agent or any Lender has received indemnification
from the Borrower hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to the Administrative Agent
or such Lender, the Administrative Agent or such Lender, as the case may be,
shall promptly forward to the Borrower any such refunded amount.


 


(d)                                 As soon as
practicable, but in any event within 30 days, after the date of any payment of
Taxes or Other Taxes by the Borrower to the relevant United States Governmental
Authority, the Borrower will deliver to the Administrative Agent, at its
address referred to in Section 8.01, the original or a certified copy of a
receipt issued by such United States Governmental Authority evidencing payment
thereof.


 


(e)                                  Without
prejudice to the survival of any other agreement contained herein, the
agreements and obligations contained in this Section 2.18 shall survive
the payment in full of the principal of and interest on all Extensions of
Credit made hereunder.


 


(f)                                    Each of the
Administrative Agent and each Lender that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a “Non-U.S. Payee”) shall
deliver to the Borrower and the Administrative Agent two copies of either
United States Internal Revenue Service Form W-8BEN, Form W-8IMY or Form W-8ECI,
or applicable successor forms, properly completed and duly executed by such
Non-U.S. Payee claiming complete exemption from, or reduced rate of, United
States Federal withholding tax on payments by the Borrower under this
Agreement.  Such forms shall be delivered
by each Non-U.S. Payee on or before the date it becomes a party to this
Agreement (or, in the case of any Lender that becomes a party to this Agreement
pursuant to an Assignment and Assumption (a “Transferee”),
on or prior to the effective date of such Assignment and Assumption) and on or
before the date, if any, such Non-U.S. Payee changes its Applicable Lending
Office by designating a different lending office (a “New
Lending Office”).  In
addition, each Non-U.S. Payee shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Payee.  Notwithstanding any other
provision of this Section 2.18(f), a Non-U.S. Payee shall not be required
to deliver any form pursuant to this Section 2.18(f) that such
Non-U.S. Payee is not legally able to deliver. 
Each Lender or Administrative Agent that is organized under the laws of
the United States, any State thereof or the District of Columbia (a “U.S. Payee”) shall on or prior to
the date it becomes a party to this Agreement (or, in the case of any Lender
that becomes a party to this Agreement pursuant to an Assignment and
Assumption, on or prior to the effective date of such Assignment and
Assumption), and from time to time thereafter as requested in writing by the
Borrower, shall provide each of the Administrative Agent and the Borrower with
two original Internal Revenue 


 


43

















 


Service Form W-9s, or any successor or other
form prescribed by the United States Internal Revenue Service, in each case
properly completed and duly executed, certifying that such Lender or
Administrative Agent is exempt from or not subject to United Stated backup
withholding tax.


 


(g)                                 The Borrower
shall not be required to indemnify any Non-U.S. Payee, or to pay any additional
amounts to any Non-U.S. Payee, in respect of United States Federal, state or
local withholding tax pursuant to subsection (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United
States Federal, state or local withholding tax existed on the date such
Non-U.S. Payee became a party to this Agreement (or, in the case of a
Transferee, on the effective date of the Assignment and Assumption pursuant to
which such Transferee becomes a Lender) or, with respect to payments to a New
Lending Office, the date such Non-U.S. Payee designated such New Lending Office
with respect to an Extension of Credit; provided, however,
that this clause (i) shall not apply to any Lender that becomes a Lender
or New Lending Office that becomes a New Lending Office as a result of an
assignment or designation made at the request of the Borrower; and provided further, however, that this clause (i) shall
not apply to the extent the indemnity payment or additional amounts any Lender,
the Administrative Agent or any Lender through a New Lending Office would be
entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the person making the assignment
or transfer to such Lender, the Administrative Agent or such Lender making the
designation of such New Lending Office would have been entitled to receive in
the absence of such assignment, transfer or designation or (ii) the
obligation to pay such additional amounts or such indemnity payments would not
have arisen but for a failure by such Non-U.S. Payee to comply with the
provisions of subsection (f) above or (h) below.


 


(h)                                 Any of the
Administrative Agent or any Lender claiming any indemnity payment or additional
amounts payable pursuant to this Section 2.18 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document reasonably requested in writing by the Borrower or to change the
jurisdiction of its Applicable Lending Office if the making of such a filing or
change would avoid the need for or reduce the amount of any such indemnity
payment or additional amounts that may thereafter accrue and would not, in the
good faith determination of the Administrative Agent or such Lender (as the
case may be), be otherwise disadvantageous to such person.  Subject always to Section 2.18(i), any
of the Administrative Agent or any Lender claiming any indemnity payment or
additional amount payable pursuant to this Section 2.18 shall, upon
request of the Borrower, use reasonable efforts (consistent with legal and
regulatory restrictions) to obtain a refund of any Tax or Other Tax giving rise
to such indemnity payment or additional amount payable and shall pay any refund
(after deduction of any Tax or Other Tax paid or payable by the Administrative
Agent or such Lender as a result of such refund), not exceeding the increased
amount paid by the Borrower pursuant to this Section 2.18, to the
Borrower, provided, however, that (i) the
Administrative Agent or Lender, as the case may be, shall not be obligated to
disclose to the Borrower any information regarding its tax affairs or
computations and (ii) nothing in this Section 2.18(h) shall
interfere with the right of the Administrative Agent or such Lender to arrange
its tax affairs as it deems appropriate.


 


(i)                                     Nothing
contained in this Section 2.18 shall require the Administrative Agent or
any Lender to make available to the Borrower any of its tax returns (or any
other information) that it deems to be confidential or proprietary.


 


44

















 


Section 2.19.  Assignment of Commitments Under Certain
Circumstances.


 


In
the event that any Lender shall have delivered a notice or certificate pursuant
to Section 2.13 or 2.14, or the Borrower shall be required to make
additional payments to any Lender under Section 2.09 or 2.18, or any
Lender shall be a Defaulting Lender, or any Lender shall not consent to an
amendment that requires the consent of such Lender and to which the Majority
Lenders have consented, the Borrower shall have the right, at its own expense,
upon notice to such Lender, to require such Lender to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in Section 8.04) all such Lender’s interests, rights and obligations under
this Agreement and the other Credit Documents including without limitation in
all interests in outstanding Letters of Credit, to another Eligible Assignee
identified by the Borrower and approved by the Administrative Agent, the
Swingline Lender and each LC Bank to the extent required for assignments under Section 8.04(b),
which financial institution shall assume such obligations of such Lender for
consideration equal to the outstanding principal amount of such Lender’s
Advances, and if satisfactory arrangements are made for the payment to such
Lender of interest and fees accrued hereunder to the date of such transfer and
all other amounts payable hereunder to such Lender on or prior to the date of
such transfer, including, without limitation, amounts payable under Section 8.05(b);
provided that (i) no such
assignment shall conflict with any law, rule or regulation or order of any
Governmental Authority, (ii) the assignee or the Borrower, as the case may
be, shall pay to the assignor in immediately available funds on or prior to the
date of such assignment the principal of and interest accrued to the date of
payment on the Extensions of Credit made by such assignor hereunder and all
other amounts accrued for its account or owed to it hereunder and (iii), if the
assignee is not a Lender prior to such assignment, the Borrower shall have paid
to the Administrative Agent an administrative fee of $3,500 on or prior to the
date of such assignment.


 


ARTICLE III


CONDITIONS PRECEDENT


 


Section 3.01.  Conditions Precedent to Effectiveness.


 


The
obligation of each Lender to make its initial Advance, the obligation of the LC
Banks to issue the initial Letter of Credit and the obligation of the Swingline
Lender to make it initial Swingline Advance shall not become effective unless
on and as of the date hereof (the “Closing Date”)
each of the following conditions shall have been satisfied, and all documents
required to be delivered below shall be in form and substance satisfactory to
the Administrative Agent and each Lender:


 


(a)                                  The
Administrative Agent shall have received on or before the Closing Date the
following, each dated the Closing Date (except for the certificate of good
standing and the financial statements described below):


 


(i)                                     Counterparts of
this Agreement, duly executed by each Borrower, the LC Banks, the Lenders and
the Administrative Agent;


 


(ii)                                  Any Notes
requested pursuant to Section 2.06(e) at least two Business Days
prior to the Closing Date, each duly executed by the Borrower;


 


45

















 


(iii)                               Certified
copies of the articles or certificate of incorporation and bylaws of the
Borrower, together with all amendments and modifications thereto as of the date
of delivery and a certificate of good standing for the Borrower issued by the
Secretary of State of the state of its incorporation;


 


(iv)                              Certified
copies (A) of the resolutions of the Board of Directors of the Borrower
granting authority to the Borrower’s officers to execute this Agreement and (B) of
all documents evidencing other necessary corporate action and Governmental
Approvals with respect to the execution, delivery and performance by the
Borrower of this Agreement;


 


(v)                                 A certificate
of the Secretary or an Assistant Secretary of the Borrower certifying the names
and true signatures of the officers of the Borrower authorized to sign this
Agreement and the other documents to be delivered by the Borrower thereunder
(together with a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate in this clause).


 


(vi)                              A certificate
of the Chief Financial Officer or Treasurer of the Borrower, substantially in
the form of Exhibit L hereto, attached to which shall be a Liquidity
Report prepared no more than 45 days prior to the Closing Date;


 


(vii)                           Opinions of
counsel for the Borrower, substantially in the forms of Exhibits J-1 and J-2
hereto; and


 


(viii)                        Copies of the
financial statements referred to in Sections 5.03(b)(i) and 5.03(c)(i) for
the most recent fiscal periods prior to the Closing Date.


 


(b)                                 The Borrower
shall have paid all fees and expenses due and payable under the Fee Letters and
this Agreement.


 


(c)                                  (i) The
representations and warranties contained in Article IV below shall be true
and correct on and as of the Closing Date, and (ii) no event shall have
occurred and be continuing, or would result from the execution and delivery of
this Agreement or any other Credit Document, that constitutes an Event of
Default or that would constitute an Unmatured Default; and the Borrower shall
have delivered to the Administrative Agent a certificate of an authorized
officer of the Borrower, certifying as to the foregoing.


 


(d)                                 The
Administrative Agent shall have received evidence satisfactory to it of the
termination of the commitments under the Existing Credit Agreement and the
satisfaction of all obligations of the Borrower thereunder (other than any such
obligations that, by their terms, survive the termination of such agreement).


 


Without
limiting the generality of the provisions of the last paragraph of Section 7.03,
for purposes of determining compliance with the conditions specified in this Section 3.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be 


 


46

















 


consented
to or approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.


 


Section 3.02.  Conditions Precedent to Each Extension of
Credit.


 


The
obligation of each Lender to make Advances to be made by it (including the
initial Advance to be made by it), the obligation of each LC Bank to issue
Letters of Credit (including the initial Letter of Credit to be issued by it)
or to amend any such Letter of Credit so as to increase the stated amount
thereof and the obligation of the Swingline Lender to make any Swingline
Advance shall be subject to the further conditions precedent that on the date of
such Extension of Credit, the following statements shall be true (and each of
the giving of the applicable notice or request by the Borrower with respect to
such Extension of Credit and the acceptance of such Extension of Credit shall
constitute a representation and warranty by the Borrower that, on the date of
such Extension of Credit, such statements are true):


 


(a)                                  The
representations and warranties contained in Section 4.01 (other than those
set forth in the last sentence of subsection (f) and in subsection (m) thereof)
are correct on and as of the date of such Extension of Credit, before and after
giving effect to such Extension of Credit and to the application of the
proceeds therefrom, as though made on and as of such date; and


 


(b)                                 No event has
occurred and is continuing or would result from such Extension of Credit, or
from the application of the proceeds therefrom, that constitutes an Event of
Default or, except in the case of a Borrowing that would not increase the
aggregate principal amount of Outstanding Credits, an Unmatured Default.


 


Section 3.03.  Conditions to Issuance of All Bond Letters of
Credit.


 


The
obligation of an LC Bank to issue any Bond Letter of Credit in connection with
any series of Bonds shall be subject to the satisfaction of the conditions
precedent set forth in Section 3.02 and each of the further conditions
precedent set forth below.


 


(a)                                  Documents.  On or prior to the date of such issuance, the
Administrative Agent shall have received the following, in form and substance
reasonably satisfactory to the Administrative Agent and the applicable LC Bank
with respect to such Bonds:


 


(i)                                     counterparts of
any Pledge Agreement relating to such Bonds, duly executed by the Borrower, the
Administrative Agent and the applicable Custodian;


 


(ii)                                  certified
copies of the applicable Related Documents (which, in the case of the
applicable Bonds, may be a specimen of such Bonds), other than any Pledge
Agreement delivered pursuant to clause (i) above;


 


(iii)                               certified
copies of the resolutions of the Board of Directors of the Borrower providing
for the basis for authorization of the Related Documents to which the Borrower
is a party in connection with such Bond Letter of Credit, and of all documents
evidencing other necessary corporate action and Governmental Approvals, if any,
with respect to such Related Documents;


 


47
















 


(iv)                              if such Bond
Letter of Credit is to be issued on or about the date of issuance of the
applicable Bonds, a certificate of the Secretary or Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign any Related Document to which the Borrower is a
party in connection with such Bond Letter of Credit and any other document to
be delivered on behalf of the Borrower in connection with the issuance of such
Bond Letter of Credit (together with a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate in this clause);


 


(v)                                 a copy of the
Official Statement relating to the Bonds to be supported by such Bond Letter of
Credit;


 


(vi)                              if a Pledge
Agreement is being delivered pursuant to clause (i) above, a certificate
of an authorized officer of the applicable Custodian certifying the names and
true signatures of the officers of such Custodian authorized to sign the applicable
Pledge Agreement;


 


(vii)                           a certificate
of an authorized officer of the applicable Trustee certifying the names and
true signatures of the officers of such Trustee authorized to make drawings
under such Bond Letter of Credit;


 


(viii)                        Favorable opinions
of counsel to the Borrower and the applicable Issuer, in each case, with
respect to the Related Documents to which each such Person is a party and such
other matters as the Administrative Agent and the applicable LC Bank may
reasonably request, or if such opinions were given with respect to such Related
Documents prior to the date of issuance of such Bond Letter of Credit, reliance
letters from counsel to the Borrower and the applicable Issuer permitting the
applicable LC Bank to rely on such opinions;


 


(ix)                                a reliance
letter from bond counsel relating to the Bonds to be supported by such Bond
Letter of Credit permitting the Lenders to rely on the approving opinion of
bond counsel with respect to such Bonds;


 


(x)                                   such other
documents, certificates, opinions, approvals and filings with respect to the
applicable Related Documents as the Administrative Agent or the applicable LC
Bank may reasonably request in writing.


 


(b)                                 Further
Representations and Warranties.  On the date of such issuance, the following
statements shall be true and correct, and the Administrative Agent shall have
received on or before such date for the account of the Bank a certificate
signed by a duly authorized officer of the Borrower, dated such date, stating
that the following representations and warranties are true and correct in all
material respects on and as of such date, as though made on and as of such
date:


 


(i)                                     The execution,
delivery and performance by the Borrower of each Related Document to which the
Borrower is a party in connection with such Bond Letter of Credit, and the
consummation of the transactions contemplated thereby, are within the Borrower’s
corporate powers, have been duly authorized by all necessary corporate 


 


48

















 


action, and do not contravene (i) the Borrower’s
charter or by-laws or (ii) any law or any material contractual restriction
binding on or affecting the Borrower or its Subsidiaries.


 


(ii)                                  Each Related
Document to which the Borrower is a party in connection with such Bond Letter
of Credit has been duly executed and delivered by the Borrower, and constitutes
the legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except to the extent that enforcement
may be limited by bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors’ rights generally and by general principles of equity.


 


(iii)                               No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority is required for the due execution, delivery or
performance by the Borrower of any Related Document to which the Borrower is a
party in connection with such Bond Letter of Credit, except for such
Governmental Approvals that will have been obtained and will be in full force
and effect on or prior to the date of execution and delivery of such Related
Documents.


 


(iv)                              No default has
occurred and is continuing, or would result from the execution, delivery or
performance by the Borrower of this Agreement, under the Bonds related to such
Bond Letter of Credit or the other Related Documents to which the Borrower is a
party in connection with such Bond Letter of Credit.


 


Section 3.04.  Reliance on Certificates.


 


The
Lenders, the LC Banks, the Swingline Lender and the Administrative Agent shall
be entitled to rely conclusively upon the certificates delivered from time to
time by officers of Borrower as to the names, incumbency, authority and
signatures of the respective Persons named therein until such time as the
Administrative Agent may receive a replacement certificate, in form acceptable
thereto, from an officer of the Borrower identified to the Administrative Agent
as having authority to deliver such certificate, setting forth the names and true
signatures of the officers and other representatives of the Borrower thereafter
authorized to act on behalf of the Borrower.


 


ARTICLE IV


REPRESENTATIONS AND WARRANTIES


 


Section 4.01.  Representations and Warranties of the
Borrower.


 


The
Borrower represents and warrants as follows:


 


(a)                                  The Borrower (i) is
a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Maryland (ii) is duly qualified and in good
standing as a foreign corporation authorized to do business in every
jurisdiction where the failure to so qualify results in a Material Adverse
Change and (iii) has the requisite corporate power and authority to own
its properties and to carry on its business as now conducted and as proposed to
be conducted.


 


49

















 


(b)                                 The execution,
delivery and performance by the Borrower of this Agreement and the other Credit
Documents to which it is a party are within the Borrower’s corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower’s charter or by-laws or (ii) any law or
any material contractual restriction binding on or affecting the Borrower or
its Subsidiaries, and do not result in or require the creation of any Lien upon
or with respect to any of the Borrower’s properties (other than Liens required
under Section 6.02(b)).


 


(c)                                  The Borrower (i) possesses
good and marketable title to all of its properties and assets, and (ii) owns
or possesses all licenses and permits necessary for the operation by it of its
business as currently conducted, except, in each of clauses (i) and (ii),
to the extent that the failure to do so would not have a Material Adverse
Effect.


 


(d)                                 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 or performance by the Borrower of this Agreement and the
other Credit Documents to which it is a party.


 


(e)                                  This Agreement
and the other Credit Documents to which it is a party have been duly executed
and delivered by the Borrower and are the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with their
respective terms, except to the extent that enforcement may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally and by general principles of equity.


 


(f)                                    The (i) audited
consolidated balance sheet of the Borrower and its Subsidiaries as at December 31,
2009, and the related audited consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the fiscal year then ended (copies of
which have been furnished to the Administrative Agent), (ii) unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as of June 30, 2010 and
the related unaudited consolidated statements of income and cash flows for the
six months then ended (copies of which have been furnished to the
Administrative Agent) and (iii) each of the financial statements delivered
by the Borrower pursuant to Section 5.03(b) and Section 5.03(c) hereof
fairly present in all material respects in accordance with GAAP (subject, in
the case of such unaudited financial statements, to year-end adjustments and
the absence of footnotes) the financial condition of Borrower and its
Subsidiaries as at such dates and the results of the operations of Borrower and
its Subsidiaries for the periods ended on such dates.  Since December 31, 2009, there has been
no Material Adverse Change.


 


(g)                                 The Borrower is
not engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of buying or carrying Margin Stock, and no
proceeds of any Extension of Credit will be used to buy or carry any Margin
Stock or to extend credit to others for the purpose of buying or carrying any
Margin Stock.  After the making of each
Extension of Credit, Margin Stock will constitute less than 25 percent of the
assets of the Borrower and its Subsidiaries on a consolidated basis.


 


50

















 


(h)                                 The Borrower is
not in violation of, and no condition exists that with notice or lapse of time
or both would constitute a violation by the Borrower of, the Margin Regulations
with respect to any Extension of Credit hereunder.


 


(i)                                     The Borrower
has filed or caused to be filed all material Federal, state and local tax
returns that to its knowledge are required to be filed by it, and has paid or
caused to be paid all material taxes shown to be due and payable on such
returns or on any assessments received by it to the extent required to be paid
pursuant to Section 5.01(a).


 


(j)                                     The Borrower is
in compliance with all laws (including ERISA and environmental laws), rules,
regulations and orders of any Governmental Authority applicable to it, except
to the extent that the Borrower’s failure to so comply does not result in a
Material Adverse Change.


 


(k)                                  Except as does
not result in a Material Adverse Change, the Borrower and each ERISA Affiliate
of the Borrower (i) have not incurred any liability to the PBGC (other
than for the payment of current premiums that are not past due) with respect to
any Title IV Plan, (ii) have not incurred any Withdrawal Liability, and
(iii) have not been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been terminated within the
meaning of Title IV of ERISA.


 


(l)                                     Except as does
not result in a Material Adverse Change, no ERISA Event has occurred.


 


(m)                               Except as
disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2009 (the “Form 10-K”)
and its Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
2010, and all Periodic Reports on Form 8-K filed with the Securities and
Exchange Commission prior to the date hereof, copies of each of which have been
delivered to the Administrative Agent, there is no pending or, to the Borrower’s
knowledge, threatened action or proceeding affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator, which
materially adversely affects the financial condition of the Borrower and its
Subsidiaries taken as a whole, or the enforceability against the Borrower of
this Agreement and the other Credit Documents to which it is a party.


 


(n)                                 The Borrower is
not an “investment company” or a company “controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as amended.


 


(o)                                 The proceeds of
the Extensions of Credit hereunder will be used in accordance with Section 5.01(h).


 


(p)                                 The Borrower
has no secured Indebtedness, except to the extent permitted under Section 5.02(a).


 


(q)                                 The Borrower is
not in default in any respect under any contract, lease, loan agreement,
indenture, mortgage, security agreement or other agreement or obligation to
which it is a party or by which any of its properties is bound, which default
results in a Material Adverse Change.  No
Unmatured Default or Event of Default presently exists and is continuing.


 


51

















 


(r)                                    The financial
statements, documents, certificates and other written statements (other than
any forecasts and projections and Liquidity Reports) relating to the Borrower
and its Subsidiaries furnished to the Lenders by or on behalf of the Borrower
in connection with the transactions contemplated hereby, together with the
information contained in the Borrower’s most recent Form 10-K and in the
Borrower’s reports filed with the Securities and Exchange Commission (or any
succeeding Governmental Authority) subsequent to the filing of its most recent Form 10-K,
taken as a whole and as modified or otherwise supplemented by information so
provided, does not contain any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein, taken as a whole, not misleading at the time made in light of the
circumstances when made.  All forecasts
and projections and Liquidity Reports, if any, that have been or will be
prepared by the Borrower and made available to the Administrative Agent or any
Lender in connection with this Agreement have been or will be prepared in good
faith based upon assumptions believed by the Borrower to be reasonable at the
time made in light of the circumstances when made (it being understood that
such projections are subject to significant uncertainties and contingencies,
many of which are beyond the Borrower’s control, and that no assurance can be
given that the projections will be realized).


 


(s)                                  Since the date
hereof there has been no change to the charter or by-laws of the Borrower that
materially adversely affects the rights of the Lenders.


 


ARTICLE V


COVENANTS OF THE BORROWER


 


Section 5.01.  Affirmative Covenants.


 


The
Borrower covenants that it will, and, other than in subsections (f) and (h) below,
will cause each Material Subsidiary to, so long as any amount owing hereunder
shall remain unpaid or any Lender shall have any Commitment hereunder, unless
the Majority Lenders shall otherwise consent in writing:


 


(a)                                  Payment
of Taxes, Etc.  Pay
and discharge all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits, or upon any properties belonging to it,
prior to the date on which penalties attach thereto, and all lawful claims
that, if unpaid, might become a Lien upon any of its properties not permitted
by Section 5.02(a) except where the failure to do so would not result
in a Material Adverse Change; provided it
shall not be required to pay any such tax, assessment, charge, levy or claim
that is being contested in good faith and by proper proceedings.


 


(b)                                 Performance
and Compliance with Other Agreements.  Perform and comply with each of the material
provisions of each material indenture, credit agreement, contract or other
agreement by which it is bound, non-performance or non-compliance with which
results in a Material Adverse Change, except material contracts or other
agreements being contested in good faith.


 


(c)                                  Preservation
of Corporate Existence, Conduct of Business, Etc.  Preserve and maintain its corporate existence
in the jurisdiction of its incorporation, and qualify and remain 


 


52

















 


qualified as a foreign corporation in good standing
in each jurisdiction in which such qualification is necessary or desirable in
view of its business and operations or the ownership of its properties, except
where the failure to be so qualified does not result in a Material Adverse
Change; provided that the Borrower and any
Material Subsidiary may consummate any merger, consolidation or asset sale
permitted hereunder.


 


(d)                                 Compliance
with Laws, Business and Properties.  Comply with the requirements of all applicable
laws (including ERISA and environmental laws), rules, regulations and orders of
any Governmental Authority, non-compliance with which results in a Material
Adverse Change, except laws, rules, regulations and orders being contested in
good faith.  Other than as mandatorily
required by law or to the extent that failure to do so would not result in a
Material Adverse Effect, at all times maintain and preserve all property
material to the conduct of its business and keep such property in good repair,
working order and condition (ordinary wear and tear and casualty and
condemnation excepted) and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times.


 


(e)                                  Maintenance
of Insurance.  Maintain
insurance in effect at all times in such amounts and covering such risks as are
usually carried by companies of a similar size, engaged in similar businesses
and owning similar properties in the same general geographical area in which
the Borrower or such Material Subsidiary operates, either with responsible and
reputable insurance companies or associations, or, in whole or in part, by establishing
reserves of one or more insurance funds, either alone or with other
corporations or associations.


 


(f)                                    Maintenance
of Licenses, Permits and Registrations.  Other than as mandatorily required by law or
to the extent that failure to do so would not result in a Material Adverse
Effect, maintain, and cause each of its Subsidiaries to maintain, in effect at
all times all material licenses and permits from, and registrations with, any
Governmental Authority or any other Person necessary for the operation by the
Borrower and its Subsidiaries of their business.


 


(g)                                 Books
and Records; Inspection Rights.  Keep proper books of record and account in
which entries shall be made of all financial transactions and assets and
business of the Borrower and the Material Subsidiaries in accordance with
GAAP.  At any reasonable time and from
time to time, permit the Administrative Agent or any Lender or any agents or
representatives thereof to examine and take down in writing any information
contained in the records and books of account of, and visit the properties of,
the Borrower or any Material Subsidiary and to discuss the affairs, finances
and accounts of the Borrower or any Material Subsidiary with any of their
respective officers.


 


(h)                                 Use
of Proceeds.  Use the
proceeds of Extensions of Credit for (i) the issuance of Letters of
Credit, (ii) working capital purposes, including capital expenditures, for
the Borrower and its Subsidiaries, specifically excluding use of such proceeds
for any Hostile Acquisition, and (iii) as credit support for the Borrower’s
commercial paper and (iv) for general corporate purposes.


 


53

















 


(i)                                     Control
of Purchased Bonds.  So
long as any Bond Letter of Credit issued for the account of the Borrower shall
remain outstanding, cause each Bond purchased with the proceeds of such Bond
Letter of Credit to be subject to the Lien of an applicable Pledge Agreement or
otherwise registered in the name of the applicable LC Bank, the Administrative
Agent or any nominee of such LC Bank or of the Administrative Agent pending the
remarketing of such Bonds pursuant to the applicable Remarketing Agreement and
the other applicable Related Documents; provided that such LC Bank and the
Administrative Agent agree that in the event such Bonds are remarketed, such
Bonds or certificates of indebtedness shall be released and delivered to the
Trustee.


 


Section 5.02.  Negative Covenants


 


The
Borrower covenants that it will not, nor will it permit (x) any Subsidiary
of the Borrower other than BGE and its Subsidiaries (in the case of Sections
5.02(a) and (c)) or (y) any Material Subsidiary (in the case of
Sections 5.02(b), (d) and (e)), to, so long as any amount owing hereunder
shall remain unpaid or any Lender shall have any Commitment hereunder, without
the prior written consent of the Majority Lenders:


 


(a)                                  Liens, Etc.  Create, incur, assume or suffer to exist any
mortgage, deed of trust, pledge, lien, security interest or other charge or
encumbrance, or any other similar type of preferential arrangement in the
nature of a security interest, upon or with respect to (i) any equity
interest in any Material Subsidiary or (ii) any of the properties or
rights of the Borrower or any Subsidiary of the Borrower (other than BGE and its
Subsidiaries; it being agreed that Constellation Nuclear and its Subsidiaries
are deemed Subsidiaries of the Borrower for purposes of this subsection (a)),
whether now owned or hereafter acquired, or collaterally assign any right to
receive income, services or property (any of the foregoing being referred to
herein as a “Lien”), except that the
foregoing restrictions shall not apply to Liens:


 


(i)                                     for taxes,
assessments or governmental charges, levies or fines (including such amounts
arising under environmental law) on property of the Borrower or any Material
Subsidiary 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;


 


(ii)                                  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;


 


(iii)                               arising out of
pledges or deposits under worker’s compensation laws, unemployment insurance,
compensation arrangements, supplemental retirement plans not otherwise
permitted under clause (xxi) below or other social security or similar
legislation;


 


(iv)                              to secure
obligations with respect to any (i) Hedge Agreement or other contract or agreement
for the purchase, transmission, transportation, distribution, sale, lease,
storage or hedge of any energy-related commodity or service (whether any such
contract provides for physical delivery), option (whether cash or financial)),
bid, tender, contract (other than contracts for the repayment of borrowed
money), lease, trading contract, surety or appeal bond, performance bond or
similar bond or other similar obligation made in the ordinary course of 


 


54

















 


business, and (ii) reimbursement obligation in
respect of letters of credit issued to support the obligations described in the
foregoing clause (i), in the case of each of clause (i) and clause (ii),
secured by Liens on assets constituting (x) deposits or balances of cash
and cash equivalents (including those in any margin account), (y) Permitted
Collateral and (z) revenues, receivables, payments, general intangibles
and rights under or related to any such contract or agreement described in
clause (i) in favor of any counterparty under any such contract or
agreement, any trading counterparty, brokerage, clearing house, utility,
systems operator, transmission provider, energy market administrator and
similar entity (for the avoidance of doubt, the ERCOT program and any other
similar agreement or arrangement, including with any Independent System
Operator, are permitted under this clause (iv));


 


(v)                                 to secure any
obligation incurred solely for the purpose of acquiring or financing the
acquisition of equipment by the Borrower or any Material Subsidiary in the
ordinary course of business (with equipment acquired in the ordinary course of
business to include, without limitation, items such as computer equipment,
vehicles, office equipment and communications equipment for the use of the
Borrower and its Subsidiaries, and to exclude, without limitation, items such
as turbines, power plants, interconnection facilities and transmission
facilities) , and extensions of such Liens; provided, that
no such Lien shall exceed the fair market value of the equipment acquired (as
determined at the time of purchase) or extend to or cover any property other
than the equipment being acquired;


 


(vi)                              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(g);


 


(vii)                           constituting
easements, exceptions, restrictions, reservations, zoning restrictions and
other similar encumbrances, including for the purposes of roads, sewers,
pipelines, transmission lines, distribution lines, transportation lines or
removal of minerals or timber or for other like purposes or for the joint or
common ownership and/or use of 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 the aggregate do not materially
adversely affect the Borrower’s or any Material Subsidiary’s use of its
properties;


 


(viii)                        created by any
Subsidiary of the Borrower in favor of the Borrower or any wholly-owned
Subsidiary of the Borrower;


 


(ix)                                on any assets
and revenues of a Person existing at the time such Person is merged into or
consolidated with the Borrower or any of its Subsidiaries or becomes a
Subsidiary of the Borrower or any of its Subsidiaries, and which Lien is not
created in contemplation of such event;


 


(x)                                   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;


 


(xi)                                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;


 


55

















 


(xii)                             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;


 


(xiii)                          on assets
securing other obligations of the Borrower and its Subsidiaries (including
project finance debt and acquisition debt) if such obligations, calculated on a
quarterly basis, are not greater than 17% of consolidated assets of the
Borrower and its Subsidiaries (excluding BGE and its Subsidiaries), as
reflected on the then-most-recent quarterly balance sheet of the Borrower, as
adjusted to give pro forma effect to any acquisitions of assets since the date
of such balance sheet, and provided that,
such obligations of Constellation Nuclear and its Subsidiaries will be included
in such 17% basket only to the extent of the Borrower’s proportional interest
in Constellation Nuclear and its Subsidiaries, and provided
further, that the obligations in respect of any Securitization by
any Person will be included in such 17% basket in an amount equal to the
principal amount of the Indebtedness incurred in connection with such
Securitization;


 


(xiv)                         consisting of
pledges of Bonds arising out of any Pledge Agreement and similar pledges of
other industrial development, pollution control or similar revenue bonds in
connection with the remarketing of such bonds;


 


(xv)                            created under Section 6.02(b) on
the Cash Collateral Account and similar cash collateralization obligations
relating to defaulting lenders and remedies upon default;


 


(xvi)                         to the extent
constituting Liens, created in connection with sales, transfers, leases,
assignments or other conveyances or dispositions of assets permitted under Section 5.02(c),
including (x) 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 if such purchase or
sale is otherwise permitted hereunder, and (y) rights of first refusal, options or other contractual rights or
obligations to sell, assign or otherwise dispose of any interest therein, which
rights arise in connection with a sale, transfer or other disposition of assets
permitted hereunder;


 


(xvii)                      to the extent
constituting 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 and its Material Subsidiaries;


 


(xviii)                   to the extent
constituting 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 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, if a security interest or other Lien is created on any such interest as
a result thereof;


 


(xix)                           granted on any
equity interest in Unistar, provided that Unistar is primarily engaged at such
time in financing, developing, owning, and operating new nuclear projects in
the United States and Canada;


 


56

















 


(xx)                              granted on cash
or cash equivalents to defease or repay Indebtedness of the Borrower or any of
its Subsidiaries no later than 60 days after the creation of such Lien;


 


(xxi)                           permitted under
Section 5.02(d)(v);


 


(xxii)                        existing on any
asset prior to the acquisition thereof by the Borrower or any of its
Subsidiaries and not created in contemplation of such acquisition; or


 


(xxiii)                     to the extent
constituting Liens, (A) any right reserved to or vested in any
municipality or other governmental or public authority (1) by the terms of
any right, power, franchise, grant, license or permit granted or issued to the
Borrower or its Subsidiaries or (2) to purchase or recapture or to
designate a purchaser of any property of the Borrower or its Subsidiaries; (B) rights
reserved to or vested in any municipality or other governmental or public
authority to control or regulate any property of the Borrower or its
Subsidiaries 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 or its Subsidiaries;  and (C) Liens
securing obligations or duties of the Borrower or its Subsidiaries to any
municipality or other governmental or public authority that arise out of any
franchise, grant, license or permit and that affect any property of the
Borrower or its Subsidiaries.


 


(b)                                 Mergers, Etc. Merge or
consolidate with any Person, unless:


 


(i)                                     in the case of
any such merger or consolidation involving the Borrower, the surviving or
resulting entity is (A) the Borrower or (B) with the written consent
of all of the Lenders, a Subsidiary of the Borrower; provided that
such Subsidiary of the Borrower expressly assumes in writing all of the
obligations of the Borrower under this Agreement and the other documents
executed and delivered in connection therewith and executes and delivers such
other documents, instruments, certificates and opinions as the Administrative
Agent may reasonably request;


 


(ii)                                  in the case of
any such merger or consolidation involving a Material Subsidiary, the surviving
or resulting entity is a wholly-owned Subsidiary of the Borrower; and


 


(iii)                               immediately
after giving effect thereto no Event of Default or Unmatured Default shall have
occurred and be continuing.


 


(c)                                  Sale
of Assets, Etc. Sell, transfer, lease (other than operating
leases), assign (other than a collateral assignment) or otherwise convey or
dispose of (x) any equity interest in any Material Subsidiary (other than
to the Borrower or to any other wholly-owned Subsidiary or as required by law),
or (y) any other assets of the Borrower or any Subsidiary of the Borrower
(other than BGE and its Subsidiaries; it being agreed that Constellation
Nuclear and its Subsidiaries are deemed Subsidiaries of the Borrower for
purposes of this subsection (c)), whether now owned or hereafter acquired, in
any single or series of transactions, whether or not related, except, in the
case of the assets described in clause (y):


 


(i)                                     the sale or
other disposition of electricity, capacity, natural gas and other commodities
and related and ancillary services, and assets, and any other inventory or
contracts


 


57
















 


related to the foregoing, and the sale or other
disposition of fuel or emission credits and any other assets in the ordinary
course of business;


 


(ii)                                  the sale or
other disposition of obsolete, damaged, surplus or worn out property and other
assets (including inventory) in the ordinary course of business;


 


(iii)                               the sale of any
investment in any security with a maturity of less than one year;


 


(iv)                              the abandonment
or disposition of patents, trademarks or other intellectual property that are,
in the Borrower’s reasonable judgment, no longer economically practicable to
maintain or useful in the conduct of the business of the seller;


 


(v)                                 the sale or
disposition of any asset if such proceeds are redeployed in the business of the
Borrower or its Subsidiaries within 12 months from the date of such sale or
disposition, as the case may be;


 


(vi)                              any transfers
or dispositions of assets to the Borrower or any wholly-owned Subsidiary of the
Borrower (other than BGE); or


 


(vii)                           any disposition
of a leasehold interest (in the capacity of lessee) in any real or personal
property in the ordinary course of business;


 


(viii)                        any license or
sublicense of intellectual property that does not interfere with the business
of the Borrower or any Material Subsidiary;


 


(ix)                                sales or other
dispositions of assets the value of which, individually, or in the aggregate,
does not exceed 15% of the consolidated assets of the Borrower and its
Subsidiaries (excluding BGE and its Subsidiaries), net of assumed liabilities
associated with the assets so sold or disposed of, as reflected on the
then-most-recent quarterly balance sheet of the Borrower, as adjusted to give
pro forma effect to any acquisitions of assets since the date of such balance
sheet, where the value of the assets being sold or disposed of is the book
value of such assets, provided, that
any sale or other disposition of assets of Constellation Nuclear or any of its
Subsidiaries will be included in the 15% basket only to the extent of the
Borrower’s proportional interest in Constellation Nuclear and its Subsidiaries;


 


(x)                                   any disposition
of equity interests in Unistar, provided that Unistar is primarily engaged at
such time in financing, developing, owning, and operating new nuclear projects
in the United States and Canada;


 


(xi)                                any sale or
other disposition of assets pursuant to the EDFI Put Options;


 


(xii)                             sales or
dispositions of minority equity interests in any Person not exceeding
$10,000,000 in the aggregate in any 12-month period;


 


(xiii)                          any sale or
disposition of assets subject to taking or eminent domain or similar
proceeding;


 


58

















 


(xiv)                         the sale or
discount of accounts receivable arising in the ordinary course of business in
connection with the compromise, write down or collection thereof;


 


(xv)                            transactions
permitted under Section 5.02(b);


 


(xvi)                         the unwinding
of any hedging contracts or terminations of leases, subleases, licenses,
sublicenses and other contracts pursuant to their terms;


 


(xvii)                      Sales of
Receivables pursuant to Securitizations not otherwise prohibited hereunder;


 


(d)                                 Plans.


 


(i)                                     Engage in any “prohibited
transaction,” as such term is defined in Section 4975 of the Code or Section 406
of ERISA (other than transactions that are exempt by ERISA, its regulations or
its administrative exemptions), with respect to any Plan that results in a
Material Adverse Change;


 


(ii)                                  Incur or permit
any ERISA Affiliate of the Borrower to fail to satisfy the minimum funding
standard (within the meaning of Section 412 of the Code) for a Title IV
Plan that results in a Material Adverse Change;


 


(iii)                               Terminate, or
permit any ERISA Affiliate of the Borrower to terminate, any Title IV Plan, or
permit the occurrence of any event or condition that would cause a termination
by the PBGC of any Title IV Plan that results in a Material Adverse Change;


 


(iv)                              Withdraw or
effect a partial withdrawal from or permit any ERISA Affiliate of the Borrower
to withdraw or effect a partial withdrawal from, a Multiemployer Plan that
results in a Material Adverse Change;


 


(v)                                 Permit any lien
upon the property or rights to property of the Borrower or any ERISA Affiliate
of the Borrower under Section 303(k) or 4068 of ERISA or Section 430
of the Code that results in a Material Adverse Change; or


 


(vi)                              Incur any
liability under ERISA, the Code or other applicable law in respect of any Plan
maintained for the benefit of employees or former employees of the Borrower or
an ERISA Affiliate of the Borrower (other than liability to pay benefits,
contributions, premiums or expenses when due in the ordinary course of the
operation of such Plan) that results in a Material Adverse Change.


 


(e)                                  Nature
of Business.  Alter the
character of its business from that of being predominantly in the energy
business.


 


(f)                                    Amendments
to Indenture.  So long as
any Bond Letter of Credit shall remain outstanding, amend, modify, terminate or
grant, or the permit the amendment, modification, termination or grant of, any
waiver under (or consent to, or permit or suffer to occur any action or
omission which results in, or is equivalent to, an amendment, modification, or
grant of a waiver under) any provisions of the applicable Indenture that would
directly affect the rights or 


 


59

















 


obligations of the applicable LC Bank under the
applicable Related Documents without the prior written consent of such LC Bank,
not to be unreasonably withheld.


 


(g)                                 Official
Statement.  So long as
any Bond Letter of Credit shall remain outstanding, refer to the applicable LC
Bank in the Official Statement with respect to the applicable Bonds or make any
changes in reference to such LC Bank in any revision, amendment or supplement
without the prior consent of such LC Bank, or revise, amend or supplement such
Official Statement without providing a copy of such revision, amendment or
supplement, as the case may be, to such LC Bank.


 


(h)                                 Use
of Proceeds of Bond Letter of Credit.  So long as any Bond Letter of Credit shall
remain outstanding, permit any proceeds of such Bond Letter of Credit to be
used for any purpose other than the payment of the principal of, interest on,
redemption price of and purchase price of the applicable Bonds.


 


(i)                                     Assignment
of Related Documents or Lease or Sale of Facilities.  So long as any Bond Letter of Credit shall
remain outstanding, assign or delegate all or any portion of the rights, duties
and obligations and the Borrower under the Related Documents.


 


Section 5.03.  Reporting Requirements.


 


The
Borrower covenants that it will, so long as any amount owing hereunder shall
remain unpaid or any Lender shall have any Commitment hereunder, unless the
Majority Lenders shall otherwise consent in writing, furnish to the
Administrative Agent:


 


(a)                                  as soon as
possible and in any event within three Business Days after the occurrence of
each Event of Default and each Unmatured Default continuing on the date of such
statement, the statement of the chief financial officer or treasurer and
assistant secretary of the Borrower setting forth details of such Event of
Default or Unmatured Default and the action that the Borrower proposes to take
with respect thereto;


 


(b)                                 as soon as
practicable and in any event within 60 days after the end of each quarterly
period in each fiscal year, (i) other than for the last quarterly period,
a statement of income and statement of retained earnings and a statement of
changes in financial position of the Borrower and its consolidated Subsidiaries
for such period and (if different) for the period from the beginning of the current
fiscal year to the end of such quarterly period, and a balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarterly
period, setting forth in each case in comparative form figures for the
corresponding periods in the preceding fiscal year with respect to said
statements and as at the end of such periods with respect to said balance
sheet, all in reasonable detail and certified by a financial officer of the
Borrower as having been prepared in accordance with generally accepted
accounting principles consistently applied, except as stated in such
certification, subject to changes resulting from year-end adjustments; provided that the Borrower may satisfy its obligation under
this subsection (b)(i) by delivering a copy of its report on Form 10-Q
for the applicable quarter; (ii) other than for the last quarterly period,
a certificate of the chief financial officer or treasurer of the Borrower, in
the form of Exhibit K, setting forth compliance with the financial
covenant in Section 5.04 hereof and stating that such officer has no
knowledge that an Event of Default or Unmatured Default 


 


60

















 


has occurred and is continuing or a statement as to
the nature thereof and the action that the Borrower proposes to take with
respect thereto; and (iii) a certificate of the Chief Financial Officer or
Treasurer of the Borrower, in the form of Exhibit L, attached to which
shall be a Liquidity Report prepared no more than 60 days prior to the date of
delivery of such certificate;


 


(c)                                  as soon as
practicable and in any event within 120 days after the end of each fiscal year,
(i) a statement of income and statement of earnings reinvested and a
statement of changes in financial position of the Borrower and its consolidated
Subsidiaries for each year, and a balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year, setting forth in each
case in comparative form corresponding figures from the preceding annual audit,
all in reasonable detail and reported on to the Borrower by independent public
accountants of recognized standing selected by the Borrower whose report shall
not reflect any scope limitation imposed by the Borrower and who shall have
authorized the Borrower to deliver such report thereof; provided that  the Borrower may satisfy its obligation under this
subsection (c) by delivering a copy of its Form 10-K for the
applicable year and (ii) a certificate of the Chief Financial Officer or
Treasurer of the Borrower, in the form of Exhibit K, setting forth
compliance with the financial covenant in Section 5.04 hereof and stating
that said officer has no knowledge that an Event of Default or an Unmatured
Default has occurred and is continuing or, if an Event of Default or an
Unmatured Default applicable to the Borrower has occurred and is continuing, a
statement as to the nature thereof and the action that the Borrower proposes to
take with respect thereto;


 


(d)                                 as soon as
possible and in any event within three Business Days of the occurrence of a
Material Adverse Change, the statement of the chief financial officer or
treasurer of the Borrower setting forth the details of such change, the
anticipated effects thereof and the action that the Borrower proposes to take
with respect thereto;


 


(e)                                  promptly and in
any event within ten Business Days after the occurrence of an ERISA Event that
would reasonably be expected to result in liability of at least $25,000,000, a
written statement of the action, if any, that the Borrower or an ERISA
Affiliate has taken and proposes to take with respect thereto;


 


(f)                                    promptly and in
any event within ten Business Days after receipt thereof by the Borrower or any
ERISA Affiliate of the Borrower, copies of each notice from the PBGC stating
its intention to terminate any Title IV Plan or to have a trustee appointed to
administer any such Title IV Plan;


 


(g)                                 promptly and in
any event within ten Business Days after receipt thereof by the Borrower or any
ERISA Affiliate of the Borrower from the sponsor of a Multiemployer Plan,
copies of each notice concerning (i) the imposition of Withdrawal
Liability by any such Multiemployer Plan; provided that
such Withdrawal Liability is at least $25,000,000, (ii) the reorganization
or termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan; provided that
the amount of any resulting liability to the Borrower or any ERISA Affiliate of
the Borrower is at least $25,000,000, or (iii) the amount of liability
incurred, or that may be incurred, by the Borrower or any ERISA Affiliate of
the Borrower in connection with any event described in clause (i) or (ii);
provided that the amount of such
liability is at least $25,000,000;


 


61

















 


(h)                                 promptly upon
request of the Lenders, copies of each Schedule B (actuarial information) to
the annual report (form 5500 Series) with respect to each Title IV Plan
maintained by the Borrower or any of its ERISA Affiliates that have been filed
with the U.S. Department of Labor; and


 


(i)                                     such other
information respecting the business and the financial condition of the Borrower
as any Lender may through the Administrative Agent from time to time reasonably
request.


 


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 5.03 when the Borrower sends to the
Administrative Agent notice (which may be by electronic mail) that such
documents are so available.  Documents
required to be delivered pursuant to Section 5.03 may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents, or provides a
link thereto on the Borrower’s website at www.constellation.com, and sends the
Administrative Agent notice (which may be by electronic mail) of any such
posting, or (ii) on which such documents are (or are deemed to be)
delivered to the Administrative Agent.


 


The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arrangers will make available to the Lenders and the LC Banks materials and/or
information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of
the Lenders (each, a “Public Lender”)
may have personnel who do not wish to receive material non-public information
with respect to the Borrower or its Affiliates, or the respective securities of
any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Arrangers, the LC Banks and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however, that
to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 8.14); (y) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Side Information;” and (z) the Administrative
Agent and the Arrangers shall be entitled to treat any Borrower Materials that
are not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Side Information.”


 


Section 5.04.  Specified Indebtedness to Capitalization.


 


The
ratio of (i) Specified Indebtedness to (ii) Capitalization as of the
last day of each fiscal quarter of the Borrower shall be less than or equal to
..65 to 1.0.


 


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ARTICLE VI

EVENTS OF DEFAULT


 


Section 6.01.  Events of Default.


 


Any
of the following events shall constitute an Event of Default (“Event of Default”) if it occurs and
is continuing:


 


(a)                                  The Borrower
shall fail to make (i) any payment of principal of any Advance when due or
any payment of its reimbursement obligations under any Letter of Credit when
due, or (ii) any payment of interest thereon or any fees or other amounts
payable under this Agreement within 10 Business Days after such interest, fees
or other amounts shall have become due; or


 


(b)                                 Any
representation or warranty or written statement made by the Borrower (or any of
its officers) in any Credit Document or in any schedule, certificate or other
document delivered pursuant to or in connection with any Credit Document shall
prove to have been incorrect in any material respect when made (other than any
representation or warranty or written statement made pursuant to Section 3.03);
or


 


(c)                                  The Borrower
shall (A) fail to perform or observe the covenants set forth in Section 5.01,
5.02 or 5.03; provided that (x) in the
case of covenants set forth in Sections 5.01(g) and (h) (with the
exception of the use of proceeds for any Hostile Acquisition) and Sections 5.03(b) through
(i) such failure shall remain unremedied for 10 days after written notice
thereof given by the Administrative Agent or any Lender to the Borrower and (y) in
the case of covenants set forth in Sections 5.01(a), (b), (d), (e), (f) and
(i) and Sections 5.02(f), (g), (h) and (i) such failure shall
remain unremedied for 30 days after written notice thereof given by the
Administrative Agent or any Lender to the Borrower or (B) the Borrower
shall fail to perform or observe any other term, covenant or agreement
contained herein on its part to be performed or observed and any such failure
shall remain unremedied for 30 days after written notice thereof given by the
Administrative Agent or any Lender to the Borrower (and, in all cases set forth
herein, if such notice was given by a Lender, to the Administrative Agent); or


 


(d)                                 One or more
Hedge Agreements of the Borrower or any Material Subsidiary shall be terminated
by a counterparty thereunder as a result of a default on the part of, or other
event with respect to, the Borrower or such Material Subsidiary (whether
described as a default or an early termination event, or in any other manner)
resulting in payment obligations (whether described as termination payments or
close-out amounts, or in any other manner) on the part of the Borrower or such
Material Subsidiary exceeding $150,000,000 in the aggregate, and such amount
shall not be paid when due (after any applicable grace period) (unless the
subject of a good faith dispute); or


 


(e)                                  (i) The
Borrower or any of its Material Subsidiaries shall fail to pay any principal,
premium or interest on any Indebtedness having an outstanding principal amount
in excess of $75,000,000 in the aggregate for the Borrower and its Material
Subsidiaries, when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or 


 


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instrument relating to such Indebtedness, or (ii) the
Borrower or any of its Material Subsidiaries shall fail to perform or observe
any term, covenant or agreement on its part to be observed under any agreement
or instrument relating to any such Indebtedness, when required to be performed
or observed, and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument, if the effect of such failure
to perform or observe is to accelerate, or to permit the acceleration of, the
maturity of such Indebtedness; or any such Indebtedness shall be declared to be
due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment or pursuant to any notice of optional redemption with
respect thereto), prior to the stated maturity thereof; or


 


(f)                                    The Borrower or
any of its Material Subsidiaries 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
shall institute any proceeding or voluntary case seeking to adjudicate it a
bankrupt or insolvent or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
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 or the Borrower or any of its Material
Subsidiaries shall take any corporate action to authorize any of the actions
described in this subsection (f); or


 


(g)                                 Any proceeding
shall be instituted against the Borrower or any of its Material Subsidiaries
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 such proceeding shall
remain undismissed or unstayed for a period of 120 days; or


 


(h)                                 A final
judgment or order for the payment of money of at least $75,000,000 shall be
rendered against the Borrower or any of its Material Subsidiaries and such
judgment or order shall continue unsatisfied and in effect for a period of 30
consecutive days (excluding therefrom any period during which enforcement of
such judgment or order shall be stayed, whether by pendency of appeal, posting
of adequate security or otherwise); or


 


(i)                                     Any ERISA Event
shall have occurred with respect to a Title IV Plan that results in a Material
Adverse Change, and, 30 days after notice thereof shall have been given by the
Borrower to the Administrative Agent or any Lender, such ERISA Event shall
still exist; or


 


(j)                                     This Agreement
or any other Credit Document shall fail to be in full force and effect (except
in accordance with the terms thereof) or the Borrower shall so assert; or


 


(k)                                  A Change in
Control shall have occurred; or


 


(l)                                     any
representation or warranty or written statement made by the Borrower (or any of
its officers) in connection with any Related Document pursuant to Section 3.03
shall prove to have been incorrect in any material respect when made; or


 


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(m)                               an “Event of
Default” under and as defined in any Indenture executed and delivered in
connection with any Bond Letter of Credit shall have occurred and be
continuing.


 


Section 6.02.  Remedies.


 


(a)                                  If any Event of
Default shall occur and be continuing, then, and in any such event, (i) the
Administrative Agent (A) shall at the request, or may with the consent, of
the Majority Lenders, by notice to the Borrower, declare the obligation of each
Lender to make Advances, the Swingline Lender to make Swingline Advances and
the LC Banks to issue Letters of Credit to be terminated, whereupon the same
shall immediately terminate; and/or (B) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable by the Borrower
under this Agreement to be forthwith due and payable, whereupon the Advances,
all such interest and all such amounts shall become and be immediately due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; (ii) any LC Bank
may issue a notice to the Borrower for and in accordance with each outstanding
Letter of Credit providing that such LC Bank’s obligations under each such
Letter of Credit shall terminate on the fifth Business Day following the
delivery of such notice; (iii) the Administrative Agent, for the account
of the applicable LC Bank, may, by notice to the Borrower, give notice of the
occurrence of an Event of Default to the Trustee for each series of Bonds
supported by a Bond Letter of Credit and instruct such Trustee either to
accelerate such Bonds, thereby causing such Bond Letter of Credit to expire
thereafter, per the terms of such Bond Letter of Credit, or to effect a
mandatory tender of such Bonds and (iv) the Administrative Agent, for the
account of the applicable LC Bank, may exercise any other rights or remedies it
may have under the Related Documents executed and delivered in connection with
any Bond Letter of Credit. 
Notwithstanding anything in this Section 6.02 to the contrary, an
Event of Default under any of (x) subsection (l) or (m) of Section 6.01,
or (y) subsection (c) of Section 6.01 resulting from a breach of
Section 5.01(i) or Section 5.02(f), (g), (h), or (i) or Section 5.03(a) (solely
with respect to notices relating to a breach of any of the foregoing specified
sections of this Agreement) shall not constitute an Event of Default for any
purpose of this Agreement except for the purpose of exercising the remedies
described in clauses (iii) and (iv) of this Section 6.02(a) and
shall not give the Administrative Agent the right to exercise any other remedy
described in this Section 6.02(a), unless the facts and circumstances
underlying such Event of Default give rise to another Event of Default
otherwise described in Section 6.01. 
If any Event of Default described in subsection (f) or (g) of Section 6.01
with respect to the Borrower shall occur and be continuing, then (A) the
obligation of each Lender to make Advances, the obligation of the Swingline
Lender to make Swingline Advances and the obligation of the LC Banks to issue
Letters of Credit shall automatically immediately terminate and (B) the
Advances, all interest thereon and all other amounts payable by the Borrower
under this Agreement shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.


 


(b)                                 Cash Collateral Account.  Notwithstanding anything to the contrary
contained herein, no notice given or declaration made by the Administrative
Agent pursuant to this Section 6.02 shall affect the obligation of the LC
Banks to make any payment under any Letter of Credit in accordance with the
terms of such Letter of Credit; provided,
however, that (i) upon the occurrence and during the continuance
of any Event of Default, the Administrative Agent shall at 


 


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the
request, or may with the consent, of the Majority Lenders, upon notice to the
Borrower, require the Borrower to deposit with the Administrative Agent an
amount in the cash collateral account (the “Cash Collateral Account”) described
below equal to the aggregate maximum amount available to be drawn under all
Letters of Credit outstanding at such time and (ii) at any time that there
shall exist a Defaulting Lender, promptly upon (and in any case within 2
Business Days after) the request of the Administrative Agent, any LC Bank or
the Swingline Lender, the Borrower shall deposit with the Administrative Agent
an amount in the Cash Collateral Account equal to an amount sufficient to cover
all Fronting Exposure (after giving effect to Section 8.15(a)(iv) and
any cash collateral provided by the Defaulting Lender).  Such Cash Collateral Account shall at all
times be free and clear of all rights or claims of third parties.  The Cash Collateral Account shall be
maintained with the Administrative Agent in the name of, and under the sole
dominion and control of, the Administrative Agent, and amounts deposited in the
Cash Collateral Account shall bear interest at a rate equal to the rate
generally offered by Bank of America for deposits equal to the amount deposited
by the Borrower in the Cash Collateral Account, for a term to be determined by
the Administrative Agent in its sole discretion.  The Borrower hereby grants to the
Administrative Agent for the benefit of the Lenders and the LC Banks a Lien on,
and hereby assigns to the Administrative Agent for the benefit of the Lenders
and the LC Banks all of its right, title and interest in, the Cash Collateral
Account and all funds from time to time on deposit therein to secure its
reimbursement obligations in respect of Letters of Credit.  If any drawings then outstanding or
thereafter made are not reimbursed in full immediately upon demand or, in the
case of subsequent drawings, upon being made, then, in any such event, the
Administrative Agent may, and, upon the Borrower’s request, shall, apply the
amounts then on deposit in the Cash Collateral Account, in such priority as the
Administrative Agent shall elect, toward the payment in full of any or all of
the Borrower’s obligations hereunder as and when such obligations shall become
due and payable.  Upon payment in full,
after the termination of the Letters of Credit, of all such obligations, the
Administrative Agent will repay and reassign to the Borrower any cash then on
deposit in the Cash Collateral Account and the Lien of the Administrative Agent
on the Cash Collateral Account and the funds therein shall automatically
terminate.  Any cash deposited in the
Cash Collateral Account provided to reduce Fronting Exposure or other cash
collateralization obligations in relation to a Defaulting Lender shall be
released promptly following (i) the elimination of the applicable Fronting
Exposure or such other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender, in the
appropriate portion of such deposited cash, or (ii) the Administrative
Agent’s good faith determination that there exists excess cash collateral, in
the amount of such excess; provided, however, (x) that cash collateral furnished by or on
behalf of the Borrower shall not be released during the continuance of an Event
of Default, and (y) the Person providing cash collateral and each relevant
LC Bank or Swingline Lender, as applicable, may agree that cash collateral
shall not be released but instead held to support future anticipated Fronting
Exposure or such other obligations.


 


ARTICLE VII

THE ADMINISTRATIVE AGENT


 


Section 7.01.  Appointment and Authority.


 


Each
Lender and LC Bank hereby irrevocably appoints Bank of America to act on its
behalf as the Administrative Agent hereunder and under the other Credit
Documents and 


 


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authorizes
the Administrative Agent to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto.  Except as expressly set forth
in Section 7.06, the provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the LC Banks, and the
Borrower shall not have rights as a third party beneficiary of any of such
provisions.


 


Section 7.02.  Rights as a Lender.


 


The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder in
its individual capacity.  Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or any Subsidiary or other Affiliate thereof as
if such Person were not the Administrative Agent hereunder and without any duty
to account therefor to the Lenders.


 


Section 7.03.  Exculpatory Provisions.


 


The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Credit Documents.  Without limiting the generality of the
foregoing, the Administrative Agent:


 


(a)                                  shall not be
subject to any fiduciary or other implied duties, regardless of whether an
Unmatured Default has occurred and is continuing;


 


(b)                                 shall not have
any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the
other Credit Documents that the Administrative Agent is required to exercise as
directed in writing by the Majority Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Credit
Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Credit Document or applicable law; and


 


(c)                                  shall not,
except as expressly set forth herein and in the other Credit Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Majority Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 8.08 and 6.02) or (ii) in the
absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be


 


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deemed
not to have knowledge of any Unmatured Default unless and until notice
describing such Unmatured Default is given to the Administrative Agent by the
Borrower, a Lender or an LC Bank.


 


The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with this Agreement or any other Credit Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Unmatured Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Credit Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article III or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


Section 7.04.  Reliance by Administrative Agent.


 


The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet
or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper
Person.  The Administrative Agent also
may rely upon any statement made to it orally or by telephone and believed by
it to have been made by the proper Person, and shall not incur any liability
for relying thereon.  In determining
compliance with any condition hereunder to the making of an Advance, or the
issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or an LC Bank, the Administrative Agent may presume
that such condition is satisfactory to such Lender or LC Bank unless the Administrative
Agent shall have received notice to the contrary from such Lender or LC Bank
prior to the making of such Advance or the issuance of such Letter of
Credit.  The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


Section 7.05.  Delegation of Duties.


 


The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Credit Document by or through
any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates.  The
exculpatory provisions of this Article shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.


 


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Section 7.06.  Resignation of Administrative Agent.


 


(a)                                  The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the LC Banks and the Borrower. 
Upon receipt of any such notice of resignation, the Majority Lenders
shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States that is
acceptable to the Borrower as long as no Event of Default has occurred and is
continuing.  If no such successor shall
have been so appointed by the Majority Lenders (and accepted by the Borrower)
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the LC Banks, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Credit Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and each LC Bank directly, until
such time as the Majority Lenders appoint a successor Administrative Agent as
provided for above in this Section.  Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of
its duties and obligations hereunder or under the other Credit Documents (if
not already discharged therefrom as provided above in this Section).  After the retiring Administrative Agent’s
resignation hereunder and under the other Credit Documents, the provisions of
this Article and Section 8.05 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.


 


(b)                                 Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as the Swingline
Lender.  Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (i) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the Swingline Lender, and (ii) the Swingline
Lender shall be discharged from all of its duties and obligations hereunder or
under the other Credit Documents.


 


Section 7.07.  Non-Reliance on Administrative Agent and
Other Lenders.


 


Each
Lender and LC Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.  Each of the Lenders and LC Banks also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking 


 


69

















 


action
under or based upon this Agreement, any other Credit Document or any related
agreement or any document furnished hereunder or thereunder.


 


Section 7.08.  No Other Duties, Etc.


 


Anything
herein to the contrary notwithstanding, (i) none of the Joint Lead
Arrangers and Book Runners, Co-Syndication Agents or Co-Documentation Agents
listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Credit Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
an LC Bank hereunder, and (ii) none of the Joint Lead Arrangers and Book
Runners, Co-Syndication Agents or Co-Documentation Agents listed on the cover page hereof
shall have or be deemed to have any fiduciary duty to any Lender.


 


ARTICLE VIII

MISCELLANEOUS


 


Section 8.01.  Notices.


 


Notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed or sent by telecopy, as
follows:


 


(a)                                  if to the
Borrower, Constellation Energy Group, 750 E. Pratt Street, Baltimore, Maryland
21202, Attention:  Reese Feuerman, Vice
President, Finance and Treasurer, Fax: 410-470-5680;


 


(b)                                 if to the
Administrative Agent or Bank of America, as LC Bank, to Bank of America, N.A.,
Mail Code: TX1-492-14-11, Bank of America Plaza, 901 Main Street, Dallas, Texas
75202-3714, Attention: Mary H. Porter, Fax: 214-290-9674; and


 


(c)                                  if to an
initial Lender, to it at its Domestic Lending Office specified opposite its
name on Schedule I hereto, and if to any other Lender, to it at its Domestic
Lending Office specified in the Lender Assignment and Assumption pursuant to
which it became a Lender.


 


All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt if delivered by hand or overnight courier service or sent by
telecopy or electronic/soft medium to such party and received during the normal
business hours of such party as provided in this Section or in accordance
with the latest unrevoked direction from such party given in accordance with
this Section.  If such notices and
communications are received after the normal business hours of such party,
receipt shall be deemed to have been given upon the opening of the recipient’s
next Business Day.


 


Section 8.02.  Survival of Agreement.


 


All
covenants, agreements, representations and warranties made by the Borrower in
this Agreement and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Lenders and shall survive the making by the
Lenders and the LC Bank of all Extensions of Credit regardless 


 


70

















 


of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Outstanding Credit or any fee or any other amount payable under this
Agreement is outstanding and unpaid or the Commitments have not been
terminated.


 


Section 8.03.  Binding Effect.


 


This
Agreement shall become effective when it shall have been executed by the
Borrower and the Administrative Agent and when the Administrative Agent shall
have been notified by each Lender and LC Bank listed on the signature pages hereto
that such Lender or LC Bank, as applicable, has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent, each Lender, the Swingline Bank and each LC Bank and
their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without
the prior written consent of all of the Lenders, except as a consequence of a
transaction expressly permitted under Section 5.02(b).


 


Section 8.04.  Successors and Assigns.


 


(a)                                  Whenever in
this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of any party that are
contained in this Agreement shall bind and inure to the benefit of its
successors and assigns.


 


(b)                                 Each Lender may
assign to one or more Eligible Assignees (each of which is not a Defaulting
Lender) all or a portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Commitment and the Extensions of
Credit at the time owing to it under such Commitment); provided,
however, that (i) the consent of the Borrower, the
Administrative Agent, the Swingline Lender and each LC Bank (in each case, such
consent not to be unreasonably withheld or delayed and, in the case of the
Borrower, 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 Business Days after having received notice of such proposed
assignment) shall be required unless such assignment is pursuant to Section 8.04(h),
(ii) the consent of the LC Bank (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters
of Credit (whether or not then outstanding), (iii) the consent of the
Borrower is not required for any assignment by a Lender to its Affiliate, (iv) the
consent of the Borrower is not required upon the occurrence and during the
continuation of an Event of Default, (v) the amount of the Commitment of
the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of such Trade Date) shall be in a minimum amount of the lesser
of the amount of such Lender’s then remaining Commitment and $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, unless otherwise agreed by
the Borrower and Administrative Agent (which agreement shall not be
unreasonably withheld), provided, however
that in the case of an assignment (A) of the entire remaining amount of
the Lender’s Commitment and the Outstanding Credits at the time owing to it or (B) to
a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned, (vi) each such 


 


71

















 


assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender’s rights and obligations under
this Agreement, (vii) no such assignment shall be made to the Borrower,
any of the Borrower’s Affiliates or Subsidiaries or to a natural person, and (viii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, and the assignor or assignee under each
such assignment shall pay to the Administrative Agent an administrative fee of
$3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such
administrative fee in the case of any assignment.  The assignee, if it is not a Lender, shall
deliver to the Administrative Agent an administrative questionnaire in a form
approved by the Administrative Agent.  In
connection with any assignment of rights and obligations of any Defaulting
Lender hereunder, no such assignment shall be effective unless and until, in
addition to the other conditions thereto set forth herein, the assignee shall
acquire (and fund as appropriate) its full pro rata share of all Advances and
funded participations in Letters of Credit and Swingline Advances in accordance
with its Commitment Percentage, the amounts of which the Administrative Agent
shall notify such assignee.  Upon
acceptance and recording pursuant to Section 8.04(e), from and after the
effective date specified in each Assignment and Assumption, which effective
date shall be at least five Business Days after the execution thereof unless
otherwise agreed by the Administrative Agent (the Borrower to be given
reasonable notice of any shorter period), (A) the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, 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 to this Agreement (but shall continue to be entitled to the benefits of
Sections 2.13 and 8.05 afforded to such Lender prior to its assignment as well
as to any fees accrued for its account hereunder and not yet paid)). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with provision (b)(viii) of this Section shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (f) of
this Section.


 


(c)                                  By executing
and delivering an Assignment and Assumption, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: 
(i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim, (ii) except as set forth in (i) above, 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 thereto or the financial
condition of the Borrower or the performance or observance by the Borrower of
any obligations under this Agreement or any other instrument or document
furnished pursuant thereto; (iii) such assignor and such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Assumption; (iv) such assignee confirms that it has
received copies of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.03 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; (v) such
assignee will 


 


72

















 


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; (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 thereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.


 


(d)                                 The
Administrative Agent shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and the
principal amount of Outstanding Credits owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”).  In addition, the Administrative Agent shall
maintain on the Register information regarding the designation, and revocation
of designation, of any Lender as a Defaulting Lender.  The entries in the Register shall be
conclusive in the absence of manifest error and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by each party hereto, at any reasonable time and from time to time
upon reasonable prior notice.


 


(e)                                  Upon its
receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the processing and recordation fee referred to in
subsection (b) above and, if required, the written consent of the
Borrower, the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Assumption and (ii) record the
information contained therein in the Register.


 


(f)                                    Each Lender may
without the consent of the Borrower or the Administrative Agent sell
participations to one or more banks or entities (other than the Borrower, the
Borrower’s Affiliates, the Borrower’s Subsidiaries, a Defaulting Lender or any
natural person) in all or a portion of its rights and/or obligations under this
Agreement (including all or a portion of its Commitment and the Outstanding
Credits owing to it); provided, however,
that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties to
this Agreement for the performance of such obligations, (iii) each
participating bank or other entity shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.13 and 8.05 and of the tax
provision contained in Section 2.18 to the same extent as if it were the
selling Lender (and limited to the amount that could have been claimed by the
selling Lender had it continued to hold the interest of such participating bank
or other entity, unless the sale of the participation is made with the Borrower’s
prior written consent), except that all claims made pursuant to such Sections
shall be made through such selling Lender, (iv) if a participant would be
a Non-U.S. Payee if it were a Lender, such participant shall not be entitled to
the benefits of Section 2.18 unless the Borrower is notified of the
participation sold to such participant and such participant agrees, for the
benefit of the Borrower, to comply with Section 2.18(f) as though it
were a Lender, and (v) the Borrower, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such selling
Lender in connection with such Lender’s rights and obligations under this Agreement,



 


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and such Lender shall retain the sole right to
enforce the obligations of the Borrower under this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement (other
than amendments, modifications or waivers (x) decreasing any fees payable
hereunder or the amount of principal of, or the rate at which interest is
payable on, the Outstanding Credits, (y) extending any principal payment
date or date fixed for the payment of interest on the Outstanding Credits or (z) extending
the Commitments).  Such participations
shall not create any “security” (as the word “security” is defined under the
Securities Act of 1933, as amended) of the Borrower.


 


(g)                                 Any Lender or
participant may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section, disclose to the assignee
or participant or proposed assignee or participant any information relating to
the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, each such
assignee or participant or proposed assignee or participant shall execute an
agreement whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of any such information.


 


(h)                                 Any Lender may
at any time pledge all or any portion of its rights under this Agreement to a
Federal Reserve Bank; provided that
no such pledge shall release any Lender from its obligations hereunder or
substitute any such Bank for such Lender as a party hereto.  In order to facilitate such an assignment to
a Federal Reserve Bank, the Borrower shall, at the request of the assigning
Lender, duly execute and deliver to the assigning Lender a promissory note or
notes evidencing the Advances made to the Borrower by the assigning Lender
hereunder.


 


Section 8.05.  Expenses; Indemnity.


 


(a)                                  The Borrower
agrees to pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent, including, without limitation, the reasonable fees,
charges and disbursements of one outside counsel for the Administrative Agent
and its Affiliates (and, to the extent necessary, one additional local counsel
in any relevant jurisdiction), in connection with entering into this Agreement
and the other Credit Documents and in connection with any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions hereby contemplated are consummated), and all reasonable out-of-pocket
expenses, including, without limitation, the reasonable fees, charges and
disbursements of counsel, incurred by the Administrative Agent, the Swingline
Lender, any LC Bank or any Lender in connection with the enforcement or
protection of their rights in connection with the Credit Documents or in
connection with the Extensions of Credit made hereunder.


 


(b)                                 The Borrower
agrees to indemnify each Lender against any actual loss, calculated in
accordance with the next sentence that such Lender may incur as a consequence
of (i) any failure by the Borrower to borrow or to Convert any Eurodollar
Advance hereunder (including as a result of the Borrower’s failure to fulfill
any of the applicable conditions set forth in Article III) after
irrevocable notice of such borrowing or Conversion has been given pursuant to Section 2.03,
(ii) any payment or prepayment of a Eurodollar Advance by the Borrower
made or deemed made on a date other than the last day of the Interest Period,
if any, applicable thereto, including as a result of an Event of Default, (iii) any
default in payment or prepayment of the principal amount of any Eurodollar
Advance or interest accrued thereon, as and when due and payable (at 


 


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the due date thereof, whether by scheduled maturity
or otherwise), or (iv) any assignment of a Eurodollar Advance made at the
request of the Borrower pursuant to Section 2.19 on a date other than the
last day of the Interest Period applicable thereto, including, in each such
case, any loss or reasonable expense incurred or to be incurred by such Lender
in liquidating or employing deposits from third parties, or with respect to
commitments made or obligations undertaken with third parties, to effect or
maintain any Advance hereunder or any part thereof as a Eurodollar
Advance.  Such loss shall include an
amount equal to the excess, if any, as reasonably determined by such Lender, of
(i) its cost of obtaining the funds for the Advance being paid, prepaid,
not borrowed or Converted or assigned (assumed to be the Eurodollar Rate
applicable thereto) for the period from the date of such payment, prepayment,
failure to borrow or Convert or assignment to the last day of the Interest
Period for such Extension of Credit (or, in the case of a failure to borrow or
Convert the Interest Period for such Extension of Credit that would have
commenced on the date of such failure) over (ii) the amount of interest at
the Eurodollar Rate for the relevant remaining interest period (as reasonably
determined by such Lender) that would be realized by such Lender in
re-employing the funds so paid, prepaid, not borrowed or Converted or assigned
for such period or Interest Period, as the case may be, but excluding any
anticipated profit.


 


(c)                                  The Borrower
agrees to indemnify the Administrative Agent, the Swingline Lender, the LC
Banks, each Lender, each of their Affiliates (including, in the case of Bank of
America, Banc of America Securities LLC) and the directors, officers,
employees, advisors, attorneys-in-fact and agents of the foregoing (each such
person being called an “Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all actual losses,
claims, damages, liabilities and related reasonable out-of-pocket costs and
expenses, including reasonable counsel fees and expenses, incurred by any
Indemnitee arising out of (i) the consummation of the transactions
contemplated by this Agreement, (ii) the use of the proceeds of the
Extensions of Credit, (iii) any documentary taxes, assessments or charges
made by any Governmental Authority by reason of the execution and delivery of
this Agreement, (iv) the utilization, storage, disposal, treatment,
generation, transportation, release or ownership of any Hazardous Substance
(A) at, upon, or under any property of the Borrower or any of its
Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates
at any time and in any place, or (v) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee
is a party thereto, including any of the foregoing arising from the negligence,
whether sole or concurrent, on the part of any Indemnitee; provided that  such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a final judgment of a court of competent
jurisdiction to have resulted from the gross negligence, bad faith or willful
misconduct of such Indemnitee; provided, further,
that the Borrower agrees that it will not, nor will it permit any Subsidiary
to, without the prior written consent of each Indemnitee named in such
settlement as set forth below (such consent not to be unreasonably withheld),
settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification could be sought under the indemnification provisions of this Section 8.05(c) (whether
or not any Indemnitee is an actual or potential party to such claim, action,
suit or proceeding), if such settlement, compromise or consent includes any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Indemnitee or involves any payment of money or other value by any
Indemnitee or any injunctive relief or factual findings or stipulations binding
on any Indemnitee.


 


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(d)                                 The provisions
of this Section shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the termination of the Commitments, the
repayment of any of the Outstanding Credits, the invalidity or unenforceability
of any term or provision of this Agreement or any investigation made by or on
behalf of the Administrative Agent or any Lender.  All amounts due under this Section shall
be payable on written demand therefor.


 


(e)                                  Ten Business
Days prior to the date on which any amount or amounts due under this Section are
payable in accordance with a demand from a Lender or the Administrative Agent
for such amount or amounts, such Lender or the Administrative Agent will cause
to be delivered to the Borrower a certificate, which shall be conclusive absent
manifest error, setting forth any amount or amounts that such person is
entitled to receive pursuant to subsection (b) of this Section and
containing an explanation in reasonable detail of the manner in which such
amount or amounts shall have been determined.


 


(f)                                    To the extent
permitted by applicable law, none of the parties hereto shall assert, and each
hereby waives, any claim against any Indemnitee or any other party hereto, on
any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to actual or direct damages) arising out of, in connection with or
as a result of, this Agreement or any other Credit Document, the transactions
contemplated herein or therein, any Extension of Credit or the use of proceeds
thereof.


 


Section 8.06.  Right of Setoff.


 


If
(i) an Event of Default shall have occurred and be continuing and (ii) the
request shall have been made or the consent granted by the Majority Lenders as
specified by Section 6.02 to authorize the Administrative Agent to declare
the Extensions of Credit of the Borrower due and payable pursuant to the
provisions of Section 6.02, each Lender 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
to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower under this Agreement, irrespective of whether or
not such Lender shall have made any demand under this Agreement, and although
such obligations may be unmatured; provided, that
in the event that any Defaulting Lender shall exercise any such right of
setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions
of Section 8.15 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Administrative Agent and the Lenders, and (y) the Defaulting Lender
shall provide promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender as to which it
exercised such right of setoff.  The
rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.


 


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Section 8.07.  Applicable Law.


 


THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.


 


Section 8.08.  Waivers; Amendment.


 


(a)                                  No failure or
delay of the Administrative Agent or any Lender in exercising any power or right
under this Agreement 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 under this Agreement are cumulative and are not exclusive
of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement
or consent to any departure therefrom shall in any event be effective unless
the same shall be permitted by subsection (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given.  No notice or demand on
the Borrower or any Subsidiary in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances.


 


(b)                                 No provision of
this Agreement may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the
Majority Lenders (but only when notice thereof is delivered to the
Administrative Agent in accordance with Section 8.01) or the
Administrative Agent with the consent or at the direction of the Majority
Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Outstanding Credit, or waive or excuse any such payment or
any part thereof, or decrease the rate of interest on any Outstanding Credit
(other than pursuant to an amendment to or waiver of Section 2.08),
without the prior written consent of each Lender affected thereby, (ii) increase
the Commitment of any Lender, decrease the fees owing to any Lender (except
pursuant to Section 8.15) or postpone the payment of any fee owing to any
Lender without the prior written consent of such Lender, (iii) amend,
waive or modify the provisions of Section 2.15, Section 2.16 or Section 8.04(h),
the provisions of this Section or the definition of the “Majority Lenders”,
without the prior written consent of each Lender, (iv) release or permit
the transfer of the obligations of the Borrower hereunder without the prior
written consent of each Lender, except as permitted by Section 5.02(b) or
(v) change the definition of LC Committed Amount without the prior written
consent of the applicable LC Bank (which consent shall not be unreasonably withheld);
provided further, however,
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the LC Bank hereunder without the prior
written consent of the Administrative Agent or the LC Bank, as the case may be,
provided, further
that this Agreement may be amended and restated without the consent of any
Lender, any LC Bank, or the Administrative Agent if, upon giving effect to such
amendment and restatement, such Lender, LC Bank or the Administrative Agent, as
the case may be, shall no longer be a party to this Agreement (as so amended
and restated) or have any Commitment or other obligation hereunder and shall
have been paid in full all amounts payable hereunder to such Lender, such LC
Bank or the Administrative Agent, as the case may be; provided,
further, that (i) the Termination
Date with respect to any Lender’s


 


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Commitment may be extended with only the consent of
the Lenders agreeing to such extension with respect to such Lender’s
Commitment, and (ii) any amendment to this Agreement to effectuate such
extension, including the creation of separate tranches of Commitments with
extended Termination Dates with different pricing and other terms, may be made
with the consent of the Majority Lenders. 
Each Lender shall be bound by any waiver, amendment or modification
authorized by this Section and any consent by any Lender pursuant to this Section shall
bind any assignee of its rights and interests hereunder.


 


(c)           Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its
terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (x) the Commitment of any Defaulting Lender may not
be increased or extended without the consent of such Lender and (y) any
waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender that by its terms affects any Defaulting Lender more adversely
than other affected Lenders shall require the consent of such Defaulting
Lender.


 


Section 8.09.  ENTIRE AGREEMENT.


 


THIS
AGREEMENT (INCLUDING THE SCHEDULES AND EXHIBITS HERETO), THE NOTES, THE LETTERS
OF CREDIT AND THE FEE LETTER (COLLECTIVELY, THE “AGREEMENT
DOCUMENTS”) REPRESENT THE ENTIRE CONTRACT AMONG THE PARTIES
RELATIVE TO THE SUBJECT MATTER HEREOF AND THEREOF.  ANY PREVIOUS AGREEMENT, WHETHER WRITTEN OR
ORAL, AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF OR THEREOF IS
SUPERSEDED BY THE AGREEMENT DOCUMENTS. 
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.  NOTHING IN THIS AGREEMENT OR THE FEE LETTERS,
EXPRESSED OR IMPLIED, IS INTENDED TO CONFER UPON ANY PARTY OTHER THAN THE
PARTIES HERETO AND THERETO ANY RIGHTS, REMEDIES, OBLIGATIONS OR LIABILITIES
UNDER OR BY REASON OF THE AGREEMENT DOCUMENTS.


 


Section 8.10.  Severability.


 


In
the event any one or more of the provisions contained in this Agreement should
be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. 
The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.  Without
limiting the foregoing provisions of this Section 8.10, if and to the
extent that the enforceability of any provisions in this Agreement relating to
Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, any LC Bank or the Swingline Lender, as
applicable, then such provisions shall be deemed to be in effect only to the
extent not so limited.


 


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Section 8.11.  Counterparts/Telecopy.


 


This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but one contract, and shall become effective as provided in Section 8.03.  Delivery of executed counterparts by telecopy
shall be effective as an original and shall constitute a representation that an
original shall be delivered.


 


Section 8.12.  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 are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.


 


Section 8.13.  Jurisdiction; Venue; Waiver of Jury Trial.


 


(a)           The Borrower, the Administrative Agent, each LC Bank, the
Swingline Lender and each Lender hereby irrevocably and unconditionally submits
to the nonexclusive jurisdiction of any Federal court, to the extent permitted
by law, of the United States of America sitting in the borough of Manhattan in
New York City or, if such Federal court is not available due to lack of
jurisdiction, any New York State court sitting in the borough of Manhattan in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such Federal Court, to the extent permitted by law, or in such
New York State court.  The Borrower, the
Administrative Agent, each LC Bank, the Swingline Lender and each Lender each
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Subject to the foregoing and to subsection (b) below, nothing in
this Agreement shall affect any right that any party thereto may otherwise have
to bring any action or proceeding relating to this Agreement against any other
party thereto in the courts of any jurisdiction.


 


(b)           The Borrower, the Administrative Agent, each LC Bank, the
Swingline Lender and each Lender each hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or thereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
New York State or Federal court.  The
Borrower, the Administrative Agent, each LC Bank, the Swingline Lender and each
Lender each hereby irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(c)           THE BORROWER, THE ADMINISTRATIVE AGENT, THE SWINGLINE
LENDER, EACH LENDER AND EACH LC BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT, OR 


 


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ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE BORROWER.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE ADMINISTRATIVE AGENT, THE LENDERS, THE LC BANKS AND THE BORROWER ENTERING
INTO THIS AGREEMENT.


 


Section 8.14.  Confidentiality; USA PATRIOT Act.


 


(a)           The Administrative Agent, each LC Bank, the Swingline
Lender and each Lender shall hold in confidence all non-public, confidential or
proprietary information, memoranda, or extracts (collectively, “Information”) furnished to the
Administrative Agent, such LC Bank, the Swingline Lender and such Lender
(directly or through the Administrative Agent) by the Borrower under this
Agreement or in connection with the negotiation thereof; provided that
the Administrative Agent, such LC Bank, the Swingline Lender and such Lender
may disclose any such Information (i) (A) to its directors, officers,
employees, agents, auditors, attorneys, consultants and advisors and, (B) to
the extent necessary for the administration of this Agreement, to its Affiliates
and the directors, officers and employees of its Affiliates, (ii) to any
regulatory or supervisory authority having authority to examine the
Administrative Agent, such LC Bank, the Swingline Lender, such Lender or such
Lender’s Affiliates, (iii) as required by any legal or governmental
process or otherwise by law (with such Lender providing details, to the extent
permitted by law, to the Borrower of the Information disclosed pursuant to this
clause (iii)), (iv) to any Person to which the Administrative Agent, such
LC Bank, the Swingline Lender or such Lender sells or proposes to sell an
assignment or a participation in its Outstanding Credits hereunder, if such
other Person agrees for the benefit of the Borrower to comply with the
provisions of this Section and (v) to the extent that such
Information shall be publicly available or shall have become known to the
Administrative Agent, such LC Bank, the Swingline Lender or such Lender
independently of any disclosure by the Borrower under this Agreement or in connection
with the negotiation thereof.  The
Administrative Agent, any LC Bank, the Swingline Lender and any Lender
disclosing Information pursuant to clause (i) or (iv) of this Section 8.14
will take reasonable steps to ensure that the persons receiving such
Information pursuant to such Sections will hold the same in confidence in
accordance with this Section 8.14. 
To the extent possible, the Administrative Agent, any LC Bank, the
Swingline Lender and any Lender disclosing Information pursuant to clause (ii) or
(iii) of this Section 8.14 will take reasonable steps to ensure that
the persons receiving such Information pursuant to such Sections will hold the
same in confidence in accordance with this Section 8.14.


 


(b)           Notwithstanding the foregoing, any Lender may disclose the
provisions of this Agreement and the amounts, maturities and interest rates of
its Outstanding Credits to any purchaser or potential purchaser of such Lender’s
interest in any Outstanding Credits. 
Notwithstanding anything to the contrary in this Agreement, each party
hereto shall not be limited from disclosing the US tax treatment or US tax
structure of the transactions contemplated by this Agreement.  Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower that,
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.  The Borrower shall, promptly following a
request by the Administrative Agent or any Lender 


 


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(made through the Administrative Agent), provide all
documentation and other information that the Administrative Agent or such
Lender (made through the Administrative Agent) reasonably requests in order to
comply with its ongoing obligations under applicable “know your customer” and
anti-money laundering rules and regulations, including the Act.


 


Section 8.15.  Defaulting Lenders.


 


(a)           Adjustments.  Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then,
until such time as that Lender is no longer a Defaulting Lender, to the extent
permitted by applicable law:


 


(i)            Waivers and Amendments.  That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement
shall be restricted as set forth in Section 8.08(c).


 


(ii)           Reallocation of Payments.  Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI
or otherwise, and including any amounts made available to the Administrative
Agent by that Defaulting Lender pursuant to Section 8.06), shall be
applied at such time or times as may be determined by the Administrative Agent
as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts
owing by that Defaulting Lender to the LC Banks or Swingline Lender hereunder; third, if so determined by the Administrative Agent or
requested by the LC Banks or Swingline Lender, to be held in the Cash
Collateral Account, in accordance with the procedures set forth in Section 6.02,
for future funding obligations of that Defaulting Lender of any participation
in any Swingline Advance or Letter of Credit; fourth,
as the Borrower may request (so long as no Default or Event of Default exists),
to the funding of any Advance in respect of which that Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined
by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held in the Cash
Collateral Account, and released in order to satisfy obligations of that
Defaulting Lender to fund Advances under this Agreement; sixth,
to the payment of any amounts owing to the Lenders, the LC Banks or Swingline
Lender as a result of any judgment of a court of competent jurisdiction
obtained by any Lender, any LC Bank or Swingline Lender against that Defaulting
Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Borrower as
a result of any judgment of a court of competent jurisdiction obtained by the
Borrower against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; and eighth,
to that Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Advance or Unreimbursed LC
Disbursement in respect of which that Defaulting Lender has not fully funded
its appropriate share and (y) such Advance or Unreimbursed LC Disbursement
was made at a time when the conditions set forth in Section 3.02 were
satisfied or waived, such payment shall be applied solely to pay the Advances
of, and Unreimbursed LC Disbursements owed to, all 


 


81

















 


non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Advances of, or Unreimbursed LC
Disbursements owed to, that Defaulting Lender. 
Any payments, prepayments or other amounts paid or payable to a
Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post cash collateral pursuant to this Section 8.15(a)(ii) shall
be deemed paid to and redirected by that Defaulting Lender, and each Lender
irrevocably consents hereto.


 


(iii)          Certain Fees.  That Defaulting Lender shall not be entitled
to receive any Facility Fee in respect of such Defaulting Lender’s Commitments
not utilized by Advances or any Letter of Credit Fee pursuant to Section 2.05
for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender).


 


(iv)          Reallocation of Applicable
Percentages to Reduce Fronting Exposure.  During any period in which there is a
Defaulting Lender, for purposes of computing the amount of the obligation of
each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit or Swingline Advances pursuant to Sections 2.03 and 2.04, the
Commitment Percentage of each non-Defaulting Lender shall be computed without
giving effect to the Commitment of that Defaulting Lender; provided,
that, (i) each such reallocation shall be given effect only if, at the
date the applicable Lender becomes a Defaulting Lender, no Unmatured Default or
Event of Default exists; and (ii) the aggregate obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters
of Credit and Swingline Advances shall not exceed the positive difference, if
any, of (1) the Commitment of that non-Defaulting Lender minus (2) the sum of the Outstanding Credits, Swingline
Outstandings and LC Outstandings of that Lender.


 


(b)           Defaulting
Lender Cure.  If the
Borrower, the Administrative Agent, the Swingline Lender and the LC Banks agree
in writing in their sole discretion that a Defaulting Lender should no longer
be deemed to be a Defaulting Lender, the Administrative Agent will so notify
the parties hereto, whereupon as of the effective date specified in such notice
and subject to any conditions set forth therein (which may include arrangements
with respect to any cash collateral), that Lender will, to the extent
applicable, purchase that portion of outstanding Advances of the other Lenders
or take such other actions as the Administrative Agent may determine to be
necessary to cause the Advances and funded and unfunded participations in
Letters of Credit and Swingline Advances to be held on a pro rata basis by the
Lenders in accordance with their Commitment Percentages (without giving effect
to Section 8.15(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be
made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having
been a Defaulting Lender.


 


82

















 


Section 8.16.  No Advisory or Fiduciary Responsibility.


 


In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Credit Document), the Borrower
acknowledges and agrees that: (i) (A) the arranging and other
services regarding this Agreement provided by the Administrative Agent, the
Arrangers and the Lenders are arm’s-length commercial transactions between the
Borrower and its Affiliates, on
the one hand, and the Administrative Agent, the Arrangers 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 and by the other
Credit Documents; (ii) (A) the Administrative Agent,  each
Arranger and each Lender each 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) neither the Administrative Agent
nor any Arranger or 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 in the other Credit Documents; and (iii) the
Administrative Agent, the Arrangers 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 nor
any Arranger or 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 Arrangers
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 8.17.  The Platform.


 


THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY
OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS.  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 ANY
AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or
any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender, any LC
Bank or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of the
Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a final judgment of a court of
competent jurisdiction to have resulted from the gross negligence, bad faith or
willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any
liability to the Borrower, any Lender, any LC Bank or any other Person for


 


83

















 


indirect,
special, incidental, consequential or punitive damages (as opposed to direct or
actual damages).


 


Section 8.18.  Electronic Execution of Assignments and
Certain Other Documents.


 


The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption or in any amendment or other modification hereof
(including waivers and consents) shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.


 


Section 8.19.  Waiver of Notice of Termination of Existing
Credit Agreement.


 


Each
of the Lenders party hereto that is party to the Existing Credit Agreement, in
its capacity as a “Lender” under the Existing Credit Agreement, hereby waives
as of the date hereof the notice requirement under Section 2.10(b) of
the Existing Credit Agreement for three Business Days’ prior notification of
termination of the commitments thereunder.


 


[Signatures to Follow]


 


84
















 


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


 


 


	
   

  	
  CONSTELLATION ENERGY
  GROUP, INC.,

  
	
   

  	
  as
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Reese K. Feuerman

  
	
   

  	
   

  	
  Name:  Reese K. Feuerman

  
	
   

  	
   

  	
  Title:  Vice President, Finance and Treasurer

  



 


Signature Page to Constellation Energy Group, Inc.


Credit Agreement


 


S-1

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as
  Administrative Agent and Swingline Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Patrick Martin

  
	
   

  	
   

  	
  Name:  Patrick Martin

  
	
   

  	
   

  	
  Title:  Senior Vice President

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-2

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Patrick Martin

  
	
   

  	
   

  	
  Name:  Patrick Martin

  
	
   

  	
   

  	
  Title:  Senior Vice President

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-3

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND
  PLC, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Emily Freedman

  
	
   

  	
   

  	
  Name:  Emily Freedman

  
	
   

  	
   

  	
  Title:  Vice President

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-4

















 


	
   

  	
  CITIBANK, N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Maureen Maroney

  
	
   

  	
   

  	
  Name:  Maureen Maroney

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-5
















 


	
   

  	
  BNP
  PARIBAS, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Nicole Mitchell

  
	
   

  	
   

  	
  Name:
  Nicole Mitchell

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Christopher Sked

  
	
   

  	
   

  	
  Name:
  Christopher Sked

  
	
   

  	
   

  	
  Title:
  Director

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-6

















 


	
   

  	
  THE
  BANK OF NOVA SCOTIA, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Thane Rattew

  
	
   

  	
   

  	
  Name:
  Thane Rattew

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-7

















 


	
   

  	
  CREDIT
  SUISSE AG, CAYMAN ISLANDS BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Bill O’Daly

  
	
   

  	
   

  	
  Name:
  Bill O’Daly

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Christopher Reo Day

  
	
   

  	
   

  	
  Name:
  Christopher Reo Day

  
	
   

  	
   

  	
  Title:
  Associate

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-8

















 


	
   

  	
  UBS
  LOAN FINANCE LLC, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Irja R. Otsa

  
	
   

  	
   

  	
  Name:
  Irja R. Otsa

  
	
   

  	
   

  	
  Title:
  Associate Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Mary E. Evans

  
	
   

  	
   

  	
  Name:
  Mary E. Evans

  
	
   

  	
   

  	
  Title:
  Associate Director

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-9

















 


	
   

  	
  MORGAN
  STANLEY BANK, N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Sherrese Clarke

  
	
   

  	
   

  	
  Name:
  Sherrese Clarke

  
	
   

  	
   

  	
  Title:
  Authorized Signatory

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-10
















 


	
   

  	
  MORGAN
  STANLEY SENIOR FUNDING, INC., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Sherrese Clarke

  
	
   

  	
   

  	
  Name:
  Sherrese Clarke

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-11

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Juan J. Javellana

  
	
   

  	
   

  	
  Name:
  Juan J. Javellana

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-12

















 


	
   

  	
  DEUTSCHE
  BANK AG NEW YORK BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Philippe Sandmeier

  
	
   

  	
   

  	
  Name:
  Philippe Sandmeier

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Douglas Weir

  
	
   

  	
   

  	
  Name:
  Douglas Weir

  
	
   

  	
   

  	
  Title:
  Director

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-13

















 


	
   

  	
  Goldman
  Sachs Bank USA, as Lender

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Mark Walton

  
	
   

  	
   

  	
  Name:
  Mark Walton

  
	
   

  	
   

  	
  Title:
  Authorized Signatory

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-14

















 


	
   

  	
  CREDIT
  AGRICOLE CORPORATE AND INVESTMENT BANK, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Dixon Schultz

  
	
   

  	
   

  	
  Name:
  Dixon Schultz

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Sharada Manne

  
	
   

  	
   

  	
  Name:
  Sharada Manne

  
	
   

  	
   

  	
  Title:
  Director

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-15
















 


	
   

  	
  UNION
  BANK, N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Bryan P. Read

  
	
   

  	
   

  	
  Name:
  Bryan P. Read

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-16

















 


	
   

  	
  THE
  BANK OF TOKYO-MITSUBISHI UFJ, LTD., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Chi-Cheng Chen

  
	
   

  	
   

  	
  Name:
  Chi-Cheng Chen

  
	
   

  	
   

  	
  Title:
  Authorized Signatory

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-17

















 


	
   

  	
  MANUFACTURERS
  AND TRADERS TRUST COMPANY, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  John Henry Lewin III

  
	
   

  	
   

  	
  Name:
  John Henry Lewin III

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-18

















 


	
   

  	
  SUMITOMO
  MITSUI BANKING CORP., NEW YORK, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Masakazu Hasegawa

  
	
   

  	
   

  	
  Name:
  Masakazu Hasegawa

  
	
   

  	
   

  	
  Title:
  General Manager

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-19

















 


	
   

  	
  CIBC
  Inc., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Michael Gewirtz

  
	
   

  	
   

  	
  Name:
  Michael Gewirtz

  
	
   

  	
   

  	
  Title:
  Executive Director

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-20
















 


	
   

  	
  NOMURA
  INTERNATIONAL PLC., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Julia Pearce

  
	
   

  	
   

  	
  Name:
  Julia Pearce

  
	
   

  	
   

  	
  Title:
  ED

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-21

















 


	
   

  	
  PNC
  BANK N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  John E. Hehir

  
	
   

  	
   

  	
  Name:
  John E. Hehir

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-22

















 


	
   

  	
  FIRST
  COMMERCIAL BANK, NEW YORK BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Jenn-Hwa Wang

  
	
   

  	
   

  	
  Name:
  Jenn-Hwa Wang

  
	
   

  	
   

  	
  Title:
  V.P. & General Manager

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-23

















 


	
   

  	
  STATE
  BANK OF INDIA, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  C Sreenivasulu Setty

  
	
   

  	
   

  	
  Name:
  C Sreenivasulu Setty

  
	
   

  	
   

  	
  Title:
  V.P. & Head (Syndications)

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-24

















 


	
   

  	
  MALAYAN
  BANKING BERHAD, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Fauzi Zulkifh

  
	
   

  	
   

  	
  Name:
  Fauzi Zulkifh

  
	
   

  	
   

  	
  Title:
  General Manager

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-25

















 


	
   

  	
  CHANG
  HWA COMMERCIAL BANK LTD., NEW YORK BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Eric Y.S. Tsai

  
	
   

  	
   

  	
  Name:
  Eric Y.S. Tsai

  
	
   

  	
   

  	
  Title:
  Vice President & General Manager

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-26

















 


	
   

  	
  PT.
  BANK NEGARA INDONESIA (PERSERO) TBK, NEW YORK AGENCY, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Jerry Phillips

  
	
   

  	
   

  	
  Name:
  Jerry Phillips

  
	
   

  	
   

  	
  Title:
  Credit Manager

  



 


Signature Page to
Constellation Energy Group, Inc.


Credit Agreement


 


S-27
















 


SCHEDULE I


 


LENDERS AND COMMITMENTS


Constellation Energy Group, Inc.


Credit Agreement


 


	
  Name of Lender

  	
   

  	
  Commitment

  	
   

  	
  Domestic Lending Office

  	
   

  	
  Eurodollar

  Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank
  of America, N.A.

  	
   

  	
  $

  	
  175,000,000

  	
   

  	
  901
  Main Street

  TX1-492-14-12

  Dallas, TX 75202-3714

  Attn: Jackie Archuleta

  Tel: 214-209-2135

  Fax: 214-290-8372

  Email: Jacqueline.archuleta@bankofamerica.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  175,000,000

  	
   

  	
  600
  Washington Boulevard

  Stamford, CT 06901

  Attn: Tyler McCarthy

  Tel: 203-897-1341

  Email: tyler.mccarthy@rbs.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank,
  N.A.

  	
   

  	
  $

  	
  175,000,000

  	
   

  	
  339
  Park Avenue 16th Floor 5

  New York, NY 10043

  Attn: Citi Loan Operations

  Tel: 302-894-6052

  Fax: 212-994-0847

  Email: GLOrigination@citi.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BNP
  Paribas

  	
   

  	
  $

  	
  175,000,000

  	
   

  	
  787
  Seventh Avenue

  New York, NY 10019

  Attn: Denis O’Meara

  Tel: 212-471-8108

  Fax: 212-841-2203

  Email: denis.omeara@americas.bnpparibas.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  Bank of Nova Scotia

  	
   

  	
  $

  	
  175,000,000

  	
   

  	
  1
  Liberty Plaza, 23-26 Floors

  165 Broadway Plaza

  New York, NY 10006

  Attn: Brian Cerreta

  Tel: 212-225-5281

  Fax: 212-225-5180

  Email: brian_cerreta@scotiacapital.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Credit
  Suisse AG, Cayman

  	
   

  	
  $

  	
  155,000,000

  	
   

  	
  Eleven
  Madison Avenue

  	
   

  	
  Same
  as

  



 

















 


	
  Islands
  Branch

  	
   

  	
   

  	
   

  	
   

  	
  New
  York, NY 10010

  Attn: Christopher Day

  Tel: 212-325-2841

  Fax: 212-322-1800

  Email: christopher.day@credit-suisse.com

  	
   

  	
  Domestic
  Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UBS
  Loan Finance LLC

  	
   

  	
  $

  	
  155,000,000

  	
   

  	
  677
  Washington Boulevard

  Stamford, CT 06901

  Attn: Ray Ciraco

  Tel: 203-719-3571

  Fax: 203-719-3888

  Email: Ray.Ciraco@ubs.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Morgan
  Stanley Bank, N.A.

  	
   

  	
  $

  	
  125,000,000

  	
   

  	
  Morgan
  Stanley Loan Servicing

  1300 Thames Street Wharf, 4th Floor

  Baltimore, MD 21231

  Tel: 443-627-4355

  Fax: 718-223-2140

  Email: msloanservicing@morganstanley.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Morgan
  Stanley Senior Funding, Inc.

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  Morgan
  Stanley Loan Servicing

  1300 Thames Street Wharf, 4th Floor

  Baltimore, MD 21231

  Tel: 443-627-4355

  Fax: 718-223-2140

  Email: msloanservicing@morganstanley.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JPMorgan
  Chase Bank, N.A.

  	
   

  	
  $

  	
  137,500,000

  	
   

  	
  JPMorgan
  Chase Bank, N.A.

  JPM-Delaware Loan Services

  500 Stanton Christiana Road, Ops 2/3

  Newark, DE 19713

  Attn: Michael J Deforge

  Tel: 212-270-1656

  Fax: 212-270-3089

  Email: Michael.j.deforge@jpmorgan.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Bank AG New York Branch

  	
   

  	
  $

  	
  137,500,000

  	
   

  	
  60
  Wall Street

  New York, NY 10005

  Attn: LeAnne Chen

  Tel: 212-250-6665

  Fax: 212-553-2477

  Email: leanne.chen@db.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Goldman
  Sachs Bank USA

  	
   

  	
  $

  	
  155,000,000

  	
   

  	
  200
  West Street

  New York, NY 10282

  Attn: Lauren Day

  Tel: 212-934-3921

  Email: gsd.link@gs.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Credit
  Agricole Corporate 

  	
   

  	
  $

  	
  137,500,000

  	
   

  	
  1301
  Avenue of the Americas

  	
   

  	
  Same
  as 

  



 


I-2

















 


	
  and
  Investment Bank

  	
   

  	
   

  	
   

  	
   

  	
  New
  York, NY 10019

  Attn: Gener David

  Tel: 212-261-7741

  Fax: 917-849-5440

  Email: gener.david@ca-cib.com

  	
   

  	
  Domestic
  Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Union
  Bank, N.A.

  	
   

  	
  $

  	
  70,000,000

  	
   

  	
  Energy
  Capital Services

  445 S. Figueroa Street, 15th Floor

  Los Angeles, CA 90071

  Attn: Alex Wernberg

  Tel: 213-236-5016

  Fax: 213-236-4096

  Email: alex.wernberg@unionbank.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  Bank of Tokyo-Mitsubishi UFJ, Ltd.

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  1251
  Avenue of the Americas

  New York, NY 10020

  Attn: Chi-Cheng Chen

  Tel: 212-782-5573

  Fax: 212-782-6440

  Email: chchen@us.mufg.jp

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Manufacturers
  and Traders Trust Company

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
  M&T
  Center

  One Fountain Plaza

  Buffalo, NY 14203

  Attn: John Henry Lewin

  Tel: 410-244-4815

  Fax: 410-244-4022

  Email: jlewin@mtb.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sumitomo
  Mitsui Banking Corp., New York

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
  277
  Park Avenue

  New York, NY 10172

  Attn: Patrick McGoldrick

  Tel: 212-224-4228

  Email: patrick_mcgoldrick@smbcgroup.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CIBC
  Inc.

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  425
  Lexington Avenue, 4th Floor

  New York, NY 10017

  Attn: Robert W. Casey, Jr.

  Tel: 212-885-4309

  Fax: 212-856-3612

  Email: Robert.Casey@cibc.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nomura
  International Plc.

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  2
  World Financial Center, 21st Floor

  New York, NY 10281

  Attn: Charu Patel

  Tel: 212-667-1324

  Fax: 646-587-1328

  Email: charutipatel@nomura.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PNC
  Bank N.A.

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
  6750
  Miller Road

  	
   

  	
  Same
  as 

  



 


I-3

















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
  Breaksville,
  Ohio 44141

  Attn: John Heir

  Tel: 410-237-4573

  Fax: 410-237-5700

  Email: john.hehir@pnc.com

  	
   

  	
  Domestic
  Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  First
  Commercial Bank, New York Branch

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  750
  Third Avenue, 34th Floor

  New York, NY 10017

  Attn: Tammy Chou

  Tel: 212-599-6868 (#126)

  Fax: 212-599-6133

  Email: fcbloan@aol.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  State
  Bank of India

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  460
  Park Avenue

  New York, NY 10022

  Attn: Kumar Anand

  Tel: 212-521-3209

  Fax: 212-521-3389

  Email: mgrsyndications1@statebank.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Malayan
  Banking Berhad

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  400
  Park Avenue, 9th Floor

  New York, NY 10022

  Attn: Nor Almar Wallace

  Tel: 212-303-1319

  Fax: 212-308-0109

  Email: awallace@maybankusa.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Chang
  Hwa Commercial Bank Ltd., New York Branch

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  685
  Third Avenue, 29th Floor

  New York, NY 10017

  Attn: Laura Chen

  Tel: 212-651-9770 (x24)

  Fax: 212-651-9785

  Email: laura.chen@chbnyc.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PT.
  Bank Negara Indonesia (persero) Tbk, New York Agency

  	
   

  	
  $

  	
  7,500,000

  	
   

  	
  One
  Exchange Plaza

  55 Broadway, 5th Floor

  New York, NY 10006

  Attn: Jerry Phillips

  Tel: 212-943-4750 (x301)

  Fax: 212-344-5723

  Email: j.phillips@bankbniny.com

  	
   

  	
  Same
  as Domestic Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AGGREGATE
  COMMITMENTS:

  	
   

  	
  $

  	
  2,500,000,000

  	
   

  	
   

  	
   

  	
   

  



 


I-4
















 


EXHIBIT A


Form of Assignment and Assumption


 


FORM OF ASSIGNMENT AND ASSUMPTION


 


This
Assignment and Assumption (the “Assignment and Assumption”)
is dated as of the Effective Date set forth below and is entered into by and
between the Assignor identified in item 1 below (the “Assignor”)
and [the][each](1) Assignee identified in item 2 below ([the][each, an] “Assignee”).  [It is understood and agreed that the rights
and obligations of the Assignees hereunder are several and not joint.](2) 
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by [the][each] Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.


 


For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to
[the Assignee][the respective Assignees], and [the][each] Assignee hereby
irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below (i) all of the Assignor’s rights and obligations in its capacity as
a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto (collectively, the “Credit
Documents”) to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including
without limitation any letters of credit or swingline loans included in such
facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (i) above
(the rights and obligations sold and assigned by the Assignor to [the][any]
Assignee pursuant to clauses (i) and (ii) above being referred to
herein collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.


 


1.                                       Assignor:


 






(1) 
For bracketed language here and elsewhere in this form relating to the
Assignee(s), if the assignment is to a single Assignee, choose the first
bracketed language.  If the assignment is
to multiple Assignees, choose the second bracketed language.


(2) 
Include bracketed language if there are multiple Assignees.


 

















 


	
  2.

  	
  Assignee[s]:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [for
  each Assignee, indicate [Affiliate][Approved Fund] of [identify
  Lender]

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower:

  	
  Constellation
  Energy Group, Inc.

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative
  Agent:

  	
  Bank
  of America, N.A., as the administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Credit
  Agreement:

  	
  The
  $2,500,000,000 Credit Agreement dated as of October 15, 2010 among
  Constellation Energy Group, Inc., as the Borrower, the Lenders parties
  thereto and Bank of America, N.A., as Administrative Agent

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned
  Interest[s]:

  	
   

  



 


	
  Assignor

  	
   

  	
  Assignee[s](3)

  	
   

  	
  Aggregate Amount of

  Commitment/Advances

  for all Lenders(4)

  	
   

  	
  Amount of

  Commitment/Advances

  Assigned(8)

  	
   

  	
  Percentage Assigned of

  Commitment/Advances(5)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


[7.                                   Trade
Date:                                  ](6)


 


Effective
Date:  
                          
      , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The
terms set forth in this Assignment and Assumption are hereby agreed to:


 


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE[S](7)

  
	
   

  	
  [NAME OF ASSIGNEE]

  



 






(3) 
List each Assignee, as appropriate.


(4) 
Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.


(5) 
Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances
of all Lenders thereunder.


(6) 
To be completed if the Assignor and the Assignee(s) intend that the
minimum assignment amount is to be determined as of the Trade Date.


(7) 
Add additional signature blocks as needed.


 


2

















 


	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  



 


3

















 


	
  [Consented
  to and](8) Accepted:

  	
   

  
	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A., as

  	
   

  
	
  Administrative
  Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented
  to:](9)

  	
   

  
	
   

  	
   

  
	
  [NAME
  OF RELEVANT PARTY]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  



 






(8) 
To be added only if the consent of the Administrative Agent is required by the
terms of the Credit Agreement.


(9) 
To be added only if the consent of the Borrower and/or other parties (e.g.
Swingline Lender, LC Bank) is required by the terms of the Credit Agreement.


 


4

















 


ANNEX 1


 


$2,500,000,000 Credit Agreement dated as of October 15,
2010 among Constellation Energy Group, Inc., as the Borrower, the Lenders
parties thereto and Bank of America, N.A., as Administrative Agent


 


STANDARD TERMS AND
CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION


 


1.                                       Representations
and Warranties.


 


1.1.                              Assignor[s].  The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Credit Document or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Credit Document.


 


1.2.                              Assignee[s].  [The][Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all the requirements to be an assignee
under Section 8.04(b) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 8.04(b) of the
Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of [the][the relevant] Assigned Interest, shall have the obligations
of a Lender thereunder, (iv) it is sophisticated with respect to decisions
to acquire assets of the type represented by the Assigned Interest and either
it, or the person exercising discretion in making its decision to acquire the
Assigned Interest, is experienced in acquiring assets of such type, (v) it
has received a copy of the Credit Agreement, and has received or has been
accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 5.03(b) and (c) thereof,
as applicable, and such other documents and information as it deems appropriate
to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and 


 

















 


decision
to enter into this Assignment and Assumption and to purchase [the][such]
Assigned Interest and (vii) if it is a Non-U.S. Payee, attached to the
Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor 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 the Credit Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Documents
are required to be performed by it as a Lender; (c) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto and (d) attaches
any U.S. Internal Revenue Service forms required under Section 2.17 of the
Credit Agreement.


 


2.                                       Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of [the][each] Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to [the][the relevant] Assignee for amounts which have accrued from and
after the Effective Date.


 


3.                                       General
Provisions.  This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by fax
shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption.  This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.


 


2
















 


EXHIBIT B


Form of Borrowing Request


 


Bank
of America, N.A., as administrative


agent
for the lenders parties to the Credit


Agreement
referred to below


Mail
Code: TX1-492-14-11


Bank
of America Plaza


901
Main Street


Dallas,
Texas 75202-3714


Fax:
214-290-9674


 


Attention:
Mary H. Porter


 


Reference
is hereby made to the Credit Agreement, dated as of October 15, 2010 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CONSTELLATION ENERGY GROUP, INC., a Maryland corporation
(the “Borrower”), the lenders
parties thereto (together with their successors and assigns, the “Lenders”), and BANK OF
AMERICA, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), as
Swingline Lender and as LC Bank.  Terms
defined in the Credit Agreement and not otherwise defined herein are used
herein with the meanings so defined.


 


The
Borrower hereby gives notice to the Administrative Agent that Borrowings under
the Credit Agreement, and of the type and amount set forth below, are requested
to be made on the date indicated below to the Borrower:


 


	
  Type of Borrowings

  	
   

  	
  Interest

  Period

  	
   

  	
  Aggregate

  Amount

  	
   

  	
  Date of Borrowings

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base
  Rate Borrowing

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  	
   

  
	
  Swingline
  Advance

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  	
   

  
	
  Eurodollar
  Borrowing

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


The
Borrower hereby requests that the proceeds of the Borrowings described in this
Borrowing Request be made available to the Borrower as follows:


 


[insert
transmittal instructions].


 

















 


The
Borrower hereby (i) certifies that all conditions contained in the Credit
Agreement to the making of any Borrowing requested have been met or satisfied
in full and (ii) acknowledges that the delivery of this Borrowing Request
shall constitute a representation and warranty by the Borrower that, on the
date of the proposed Borrowing, the statements contained in Section 3.02
of the Credit Agreement are true and correct.


 


	
   

  	
  CONSTELLATION
  ENERGY GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  DATE:

  	
   

  	
   

  
				



 


B-2

















 


EXHIBIT C


Form of Request for Issuance


 


[APPLICABLE
LC BANK]


[ADDRESS
OF LC BANK]


 


Attention:  Attention: 
[                        ]


 


cc:         Bank of America, N.A., as administrative


agent
for the lenders parties to the Credit 


Agreement
referred to below


Mail
Code: TX1-492-14-11


Bank
of America Plaza


901
Main Street


Dallas,
Texas 75202-3714


Fax:
214-290-9674


 


Attention:
Mary H. Porter


 


[Date]


 


Ladies
and Gentlemen:


 


The
undersigned, Constellation Energy Group, Inc. (the “Borrower”),
refers to the Credit Agreement, dated as of October 15, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”), among CONSTELLATION ENERGY GROUP, INC.,
a Maryland corporation (the “Borrower”),
the lenders parties thereto (together with their successors and assigns, the “Lenders”), and BANK OF
AMERICA, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), as
Swingline Lender and as LC Bank, and hereby gives you notice, pursuant to
Section 2.04 of the Credit Agreement, that the Borrower hereby requests
the issuance of a Letter of Credit (the “Requested Letter of Credit”)
in accordance with the following terms:


 


(i)                                     the requested date of
[issuance] [modification] [amendment] of the Requested Letter of Credit (which
is a Business Day) is
                          ;


 


(ii)                                  the expiration date of the
Requested Letter of Credit requested hereby is
                      ;(1)


 






(1)                                  Date may not be later than
the fifth Business Day preceding the Termination Date.


 

















 


(iii)                               the proposed stated amount
of the Requested Letter of Credit is
                              ;


 


(iv)                              the beneficiary of the
Requested Letter of Credit is:  [insert
name and address of beneficiary]; [and]


 


(v)                                 the conditions under which a
drawing may be made under the Requested Letter of Credit are as follows:
                                      [.][;and]


 


[(vi)                          the Borrower hereby requests
that ISP 3.14 not apply to the Requested Letter of Credit.](2)


 


Attached
hereto as Exhibit A is a consent to this requested [amendment]
[modification] executed by the beneficiary of the Letter of Credit.(3)


 


[Upon
the [issuance] [amendment] of the Letter of Credit by the LC Bank in response
to this request, the Borrower shall be deemed to have represented and warranted
that the applicable conditions to an issuance of a Letter of Credit that are
specified in Section 3.02 of the Credit Agreement have been satisfied.](4)


 


	
   

  	
  CONSTELLATION ENERGY GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 






(2)                                  Delete if not applicable.


(3)                                  Include this paragraph only
if request is for modification or amendment of the Letter of Credit.


(4)                                  Include this paragraph only
if request is for issuance or amendment to increase stated amount of a Letter
of Credit.


 


C-2

















 


EXHIBIT D


Form of Letter of Credit Application (Bank of America, N.A.)


 


Please see attached.


 

















 


EXHIBIT E


Form of Letter of Credit Application (The Royal Bank of Scotland
plc)


 


Please see attached.


 

















 


EXHIBIT F


Form of Letter of Credit Application (Citibank, N.A.)


 


Please see attached.


 

















 


EXHIBIT G


Form of Letter of Credit Application (BNP Paribas)


 


Please see attached.


 

















 


EXHIBIT H


Form of Letter of Credit Application (The Bank of Nova Scotia)


 


Please see attached.


 
















 


EXHIBIT I


Form of Notice of Conversion


 


Bank
of America, N.A., as administrative 


agent
for the lenders parties to the Credit 


Agreement
referred to below


Mail
Code: TX1-492-14-11


Bank
of America Plaza


901
Main Street


Dallas,
Texas 75202-3714


Fax:
214-290-9674


 


Attention:
Mary H. Porter


 


[Date]


 


Ladies
and Gentlemen:


 


The
undersigned, Constellation Energy Group, Inc., refers to the Credit
Agreement, dated as of October 15, 2010 (as amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”),
among CONSTELLATION ENERGY GROUP, INC.,
a Maryland corporation (the “Borrower”),
the lenders parties thereto (together with their successors and assigns, the “Lenders”), and BANK OF
AMERICA, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), as
Swingline Lender and as LC Bank, and hereby gives you notice, irrevocably,
pursuant to Section 2.03 of the Credit Agreement, that the undersigned
hereby requests a Conversion under the Credit Agreement, and in that connection
sets forth below the information relating to such Conversion (the “Proposed Conversion”) as required by
Section 2.03 of the Credit Agreement:


 


1.                                       The Business
Day of the Proposed Conversion is
                    ,
200  .


 


2.                                       The Type of Advances
comprising the Proposed Conversion is [Base Rate Advances] [Eurodollar
Advances].


 


3.                                       The aggregate
amount of the Proposed Conversion is
$                    .


 


4.                                       The Type of
Advances to which such Advances are proposed to be Converted is [Base Rate
Advances] [Eurodollar Advances].


 

















 


(i)                                     The Interest Period for each
Advance made as part of the Proposed Conversion is
       month(s).(1)


 


The
undersigned hereby represents and warrants that on the date hereof, and on the
date of the Proposed Conversion, the Borrower’s request for the Proposed
Conversion is, and will be, made in compliance with Section 2.03 of the
Credit Agreement.


 


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  CONSTELLATION
  ENERGY GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 






(1)          Delete for Base Rate Advances


 


I-2

















 


EXHIBIT J-1


Form of Opinion of In-House Counsel to the Borrower


 


[TO BE PROVIDED]


 

















 


EXHIBIT J-2


Form of Opinion of Special Counsel to the Borrower


 


[TO BE PROVIDED]


 

















 


EXHIBIT K


Form of Compliance Certificate


 


COMPLIANCE CERTIFICATE


 


This
Compliance Certificate is delivered to you pursuant to
Section 5.03[(b)][(c)] of the Credit Agreement, dated as of October 15,
2010 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CONSTELLATION ENERGY GROUP, INC., a Maryland
corporation (the “Borrower”), the lenders
parties thereto (together with their successors and assigns, the “Lenders”), and BANK OF
AMERICA, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), as
Swingline Lender and as LC Bank.  Terms
defined in the Credit Agreement and not otherwise defined herein are used
herein with the meanings so defined.  The
undersigned certifies in [his][her] capacity as an officer of the Borrower
holding the office specified in item 1 below:


 


1.                                       I am the duly
elected, qualified and acting [Chief Financial Officer] [Treasurer] of the
Borrower.


 


2.                                       I have reviewed
and am familiar with the contents of this Certificate.


 


3.                                       Attached hereto
as Attachment 1 (the “Financial Statements”)
are the financial statements required to be delivered under
Section 5.03[(b)][(c)] which I certify as having been prepared in
accordance with generally accepted accounting principles consistently applied
[except as set forth below] and subject to changes resulting from year end
adjustments.  As of the date of this
Certificate I have no knowledge of the existence, of any condition or event
which constitutes an Unmatured Default or an Event of Default that has occurred
and is continuing[, except as set forth below].


 


4.                                       Attached hereto
as Attachment 2 are the computations showing compliance with the
covenant set forth in Section 5.04 of the Credit Agreement.


 


IN
WITNESS WHEREOF, I execute this Certificate this
           day of
        , 20    .


 


 


	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  [Chief Financial Officer][Treasurer]

  



 

















 


Attachment 1

to Exhibit K


 


[Set forth Financial
Statements]


 

















 


Attachment 2

to Exhibit K


 


The
information described herein is as of
            ,
20  , and pertains to the period from
                  ,
20   to
                  ,
20  .


 


[Set forth Covenant Calculation]


 

















 


EXHIBIT L


Form of Liquidity Report Certificate


 


LIQUIDITY REPORT CERTIFICATE


 


                    
    , 20  


 


THIS
LIQUIDITY REPORT CERTIFICATE (this “Certificate”)
is delivered to you pursuant to Section [3.01(a)(vi)][5.03(b)] of the
Credit Agreement, dated as of October 15, 2010 (the “Credit Agreement”),
among CONSTELLATION ENERGY GROUP, INC.,
a Maryland corporation (the “Borrower”), the lenders parties thereto (together with
their successors and assigns, the “Lenders”) and BANK OF AMERICA, N.A., as administrative agent for the Lenders
(in such capacity, the  “Administrative Agent”).  Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings so defined.


 


The
undersigned hereby certifies, in [his][her] capacity as an officer of the
Borrower holding the office set forth below [his][her] name below, to the
Administrative Agent, the Swingline Lender, each LC Bank and each Lender that:


 


1.                                       Attached hereto
as Annex I is a Liquidity Report of the Borrower for the period through
                  (1).


 


2.                                       The Liquidity
Report attached hereto was prepared in good faith based upon assumptions
believed by the Borrower and its management to be reasonable at the time made
in light of the circumstances when made (it being understood that such
forecasts and projections are subject to significant uncertainties and
contingencies, many of which are beyond the Borrower’s control, and that no
assurance can be given that the projections will be realized).


 


 


	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  [Chief Financial Officer][Treasurer]

  



 






(1)                                  Insert date no earlier than
the Termination Date.