exc-20211231x10kxexh1038






Execution Version          $1,150,000,000  364-DAY TERM LOAN CREDIT AGREEMENT  dated as of  January 24, 2022  among  EXELON CORPORATION  the Lenders Party Hereto  and  BARCLAYS BANK PLC,  as Administrative Agent and Sole Lead Arranger and Bookrunner      





 






    TABLE OF CONTENTS  Page  ARTICLE 1 DEFINITIONS _______________________________________________________ 1  Section 1.01. Defined Terms ........................................................................................................ 1  Section 1.02. Classification of Loans and Borrowings .............................................................. 25  Section 1.03. Terms Generally ................................................................................................... 25  Section 1.04. Accounting Terms; GAAP ................................................................................... 26  Section 1.05. Interest Rates; Benchmark Notification ............................................................... 26  Section 1.06. [Reserved] ............................................................................................................ 27  Section 1.07. Divisions ............................................................................................................... 27  ARTICLE 2 THE CREDITS ______________________________________________________ 27  Section 2.01. Commitments ....................................................................................................... 27  Section 2.02. Loans and Borrowings.......................................................................................... 27  Section 2.03. Requests for Borrowings ...................................................................................... 27  Section 2.04. [Reserved] ............................................................................................................ 28  Section 2.05. [Reserved] ............................................................................................................ 28  Section 2.06. [Reserved] ............................................................................................................ 28  Section 2.07. Funding of Borrowings ........................................................................................ 28  Section 2.08. Interest Elections .................................................................................................. 29  Section 2.09. Termination of Commitments .............................................................................. 30  Section 2.10. Repayment of Loans; Evidence of Indebtedness .................................................. 30  Section 2.11. Prepayment of Loans ............................................................................................ 30  Section 2.12. Fees....................................................................................................................... 31  Section 2.13. Interest .................................................................................................................. 31  Section 2.14. Alternate Rate of Interest ..................................................................................... 32  Section 2.15. Increased Costs ..................................................................................................... 34  Section 2.16. Break Funding Payments...................................................................................... 35  Section 2.17. Withholding of Taxes; Gross-Up ......................................................................... 36  Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs ............................. 39  Section 2.19. Mitigation Obligations; Replacement of Lenders ................................................ 40  Section 2.20. Defaulting Lenders ............................................................................................... 41  ARTICLE 3 REPRESENTATIONS AND WARRANTIES __________________________________ 42  Section 3.01. Organization; Powers ........................................................................................... 42  Section 3.02. Authorization; Enforceability ............................................................................... 42  Section 3.03. Governmental Approvals; No Conflicts ............................................................... 42  Section 3.04. Financial Condition; No Material Adverse Effect ................................................ 42  Section 3.05. Reserved ............................................................................................................... 43  Section 3.06. Litigation and Environmental Matters.................................................................. 43  Section 3.07. Compliance with Laws and Agreements .............................................................. 43  Section 3.08. Investment Company Status ................................................................................. 44  Section 3.09. Taxes .................................................................................................................... 44  Section 3.10. ERISA .................................................................................................................. 44  Section 3.11. Beneficial Ownership ........................................................................................... 44  Section 3.12. Reserved ............................................................................................................... 44  





 






  ii  #95368685v14  Section 3.13. Anti-Corruption Laws and Sanctions ................................................................... 44  Section 3.14. Affected Financial Institutions ............................................................................. 44  Section 3.15. Reserved ............................................................................................................... 44  Section 3.16. Margin Regulations .............................................................................................. 44  Section 3.17. Reserved ............................................................................................................... 44  Section 3.18. Exchange Act ....................................................................................................... 44  ARTICLE 4 CONDITIONS _______________________________________________________ 45  Section 4.01. Effective Date ....................................................................................................... 45  ARTICLE 5 AFFIRMATIVE COVENANTS ___________________________________________ 46  Section 5.01. Financial Statements; Ratings Change and Other Information ............................ 46  Section 5.02. Notices of Material Events ................................................................................... 48  Section 5.03. Existence; Conduct of Business ........................................................................... 48  Section 5.04. Payment of Obligations ........................................................................................ 48  Section 5.05. Maintenance of Properties; Insurance .................................................................. 48  Section 5.06. Books and Records; Inspection Rights ................................................................. 48  Section 5.07. Compliance with Laws ......................................................................................... 49  Section 5.08. Use of Proceeds .................................................................................................... 49  Section 5.09. Accuracy of Information ...................................................................................... 49  ARTICLE 6 NEGATIVE COVENANTS ______________________________________________ 50  Section 6.01. Liens ..................................................................................................................... 50  Section 6.02. Fundamental Changes; Mergers and Consolidations; Disposition of Assets ....... 51  Section 6.03. Continuation of Businesses .................................................................................. 52  Section 6.04. Restrictive Agreements ........................................................................................ 52  Section 6.05. Consolidated Capitalization Ratio ........................................................................ 52  ARTICLE 7 EVENTS OF DEFAULT ________________________________________________ 53  Section 7.01. Events of Default .................................................................................................. 53  Section 7.02. Remedies Upon an Event of Default .................................................................... 54  Section 7.03. Application of Payments ...................................................................................... 55  ARTICLE 8 THE ADMINISTRATIVE AGENT _________________________________________ 56  Section 8.01. Authorization and Action ..................................................................................... 56  Section 8.02. Administrative Agent’s Reliance, Limitation of Liability, Etc ............................ 58  Section 8.03. Posting of Communications ................................................................................. 59  Section 8.04. The Administrative Agent Individually ............................................................... 60  Section 8.05. Successor Administrative Agent .......................................................................... 60  Section 8.06. Acknowledgements of Lenders ............................................................................ 61  Section 8.07. [Reserved] ............................................................................................................ 63  Section 8.08. [Reserved] ............................................................................................................ 63  Section 8.09. Certain ERISA Matters ........................................................................................ 63  





 






  iii  #95368685v14  ARTICLE 9 MISCELLANEOUS ___________________________________________________ 64  Section 9.01. Notices .................................................................................................................. 64  Section 9.02. Waivers; Amendments ......................................................................................... 65  Section 9.03. Expenses; Limitation of Liability; Indemnity, Etc ............................................... 66  Section 9.04. Successors and Assigns ........................................................................................ 67  Section 9.05. Survival ................................................................................................................ 71  Section 9.06. Counterparts; Integration; Effectiveness; Electronic Execution .......................... 71  Section 9.07. Severability ........................................................................................................... 72  Section 9.08. Right of Setoff ...................................................................................................... 72  Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process .............................. 73  Section 9.10. WAIVER OF JURY TRIAL ................................................................................ 73  Section 9.11. Headings ............................................................................................................... 74  Section 9.12. Confidentiality ...................................................................................................... 74  Section 9.13. Material Non-Public Information ......................................................................... 74  Section 9.14. Interest Rate Limitation ........................................................................................ 75  Section 9.15. No Fiduciary Duty, etc ......................................................................................... 75  Section 9.16. USA PATRIOT Act ............................................................................................. 76  Section 9.17. Acknowledgement and Consent to Bail-In of Affected Financial  Institutions ............................................................................................................ 76  Section 9.18. Acknowledgement Regarding Any Supported QFCs ........................................... 76  Section 9.19. Judgment Currency............................................................................................... 77  Section 9.20. Payments Set Aside .............................................................................................. 77    SCHEDULES:  Schedule 2.01 – Commitments  Schedule 3.06 – Disclosed Matters  Schedule 6.04 – Existing Restrictions  EXHIBITS:  Exhibit A – Form of Assignment and Assumption  Exhibit B – Form of Borrowing Request  Exhibit C – Form of Interest Election Request  Exhibit D – Form of Opinion of Borrower’s Counsel  Exhibit E – Form of Compliance Certificate  Exhibit F-1 – U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S.  Federal Income Tax Purposes)  Exhibit F-2 – U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal  Income Tax Purposes)  Exhibit F-3 – U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S.  Federal Income Tax Purposes)  Exhibit F-4 – U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S.  Federal Income Tax Purposes)  Exhibit G – Form of Prepayment Notice    





 






    364-DAY TERM LOAN CREDIT AGREEMENT dated as of January 24, 2022 (this  “Agreement”), among Borrower (as defined herein), the Lenders party hereto, and BARCLAYS  BANK PLC, as Administrative Agent.  The parties hereto agree as follows:  ARTICLE 1  DEFINITIONS  Section 1.01. Defined Terms.  As used in this Agreement, the following terms have the  meanings specified below:  “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or  the Loans comprising such Borrowing, bear interest at a rate determined by reference to the  Alternate Base Rate.    “Adjusted Daily Simple SOFR Rate” means an interest rate per annum equal to (a) the  Daily Simple SOFR Rate, plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR Rate  as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor  for the purposes of this Agreement.  “Adjusted Term SOFR Rate” means, for any Interest Period, an interest rate per annum  equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the  Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed  to be equal to the Floor for the purposes of this Agreement.  “Administrative Agent” means Barclays Bank PLC (or any of its designated branch offices  or affiliates), in its capacity as administrative agent for the Lenders hereunder.  “Administrative Questionnaire” means an Administrative Questionnaire in a form  supplied by the Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.  “Affiliate” means, with respect to a specified Person, another Person that directly, or  indirectly through one or more intermediaries, Controls or is Controlled by or is under common  Control with the Person specified.  “Agent-Related Person” has the meaning assigned to it in Section 9.03(d).  “Agreement” has the meaning specified in introductory paragraph hereof.  “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the  Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus  0.50% and (c) the sum of 1.0% plus the Adjusted Term SOFR Rate for an Interest Period of one  month on such day (or if such day is not a Business Day, on the immediately preceding Business  Day).  Any change in the Alternate Base Rate due to a change in the Prime Rate,  the Federal Funds  Effective Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective  date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term  SOFR Rate, respectively.  If the Alternate Base Rate is being used as an alternate rate of interest  pursuant to Section 2.14(b), then the Alternate Base Rate shall be the greater of clauses (a) and (b)  





 






  2  #95368685v14  above and shall be determined without reference to clause (c) above. For the avoidance of doubt,  if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1.00%, such  rate shall be deemed to be 1.00% for purposes of this Agreement.  “Ancillary Document” has the meaning assigned to it in Section 9.06(b).  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to  bribery or corruption.  “Applicable Party” has the meaning assigned to it in Section 8.03(c).  “Applicable Percentage” means, with respect to any Lender, the percentage of the total  Loans represented by such Lender’s Loans; provided that, in the case of Section 2.20 when a  Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the total Loans  (disregarding any Defaulting Lender’s Loans) represented by such Lender’s Loans.   “Applicable Rate” means, for any day, (i) prior to July 24, 2022, (x) 0.65% with respect to  Term Benchmark Loans or RFR Loans and (y) 0.00% with respect to ABR Loans and (ii) on or  after July 24, 2022, (x) 0.875% with respect to Term Benchmark Loans or RFR Loans and (y)  0.00% with respect to ABR Loans.  “Approved Electronic Platform” has the meaning assigned to it in Section 8.03(a).  “Approved Fund” has the meaning assigned to it in Section 9.04(b).  “Arranger” means Barclays Bank PLC, in its capacity as sole lead arranger and  bookrunner.  “Assignment and Assumption” means an assignment and assumption entered into by a  Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),  and accepted by the Administrative Agent, in the form of Exhibit A or any other form (including  electronic records generated by the use of an electronic platform) approved by the Administrative  Agent.  “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or  payment period for interest calculated with reference to such Benchmark (or component thereof),  as applicable, that is or may be used for determining the length of an Interest Period for any term  rate or otherwise, for determining any frequency of making payments of interest calculated  pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor  for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause  (e) of Section 2.14.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law, regulation rule or requirement for such EEA Member Country from  time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the  





 






  3  #95368685v14  United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time)  and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of  unsound or failing banks, investment firms or other financial institutions or their affiliates (other  than through liquidation, administration or other insolvency proceedings).  “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as  now and hereafter in effect, or any successor statute.  “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject  of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver,  conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person  charged with the reorganization or liquidation of its business appointed for it, or, in the good faith  determination of the Administrative Agent, has taken any action in furtherance of, or indicating its  consent to, approval of, or acquiescence in, any such proceeding or appointment or has had any  order for relief in such proceeding entered in respect thereof; provided that a Bankruptcy Event  shall not result solely by virtue of any ownership interest, or the acquisition of any ownership  interest, in such Person by a Governmental Authority or instrumentality thereof, unless such  ownership interest results in or provides such Person with immunity from the jurisdiction of courts  within the United States or from the enforcement of judgments or writs of attachment on its assets  or permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate,  disavow or disaffirm any contracts or agreements made by such Person.  “Benchmark” means, initially, with respect to any (i) RFR Loan, the Daily Simple SOFR  Rate or (ii) Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition  Event, and the related Benchmark Replacement Date have occurred with respect to the Daily  Simple SOFR Rate or Term SOFR Rate, as applicable, or the then-current Benchmark, then  “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark  Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.14.   “Benchmark Replacement” means, for any Available Tenor, the first alternative set forth  in the order below that can be determined by the Administrative Agent for the applicable  Benchmark Replacement Date:  (1) the Adjusted Daily Simple SOFR Rate;  (2) the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrower as the replacement for the then-current Benchmark  for the applicable Corresponding Tenor giving due consideration to (i) any selection or  recommendation of a replacement benchmark rate or the mechanism for determining such  a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market  convention for determining a benchmark rate as a replacement for the then-current  Benchmark for dollar-denominated syndicated credit facilities at such time in the United  States and (b) the related Benchmark Replacement Adjustment;  If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be  less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes  of this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the  then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest  Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread  





 






  4  #95368685v14  adjustment, or method for calculating or determining such spread adjustment, (which may be a  positive or negative value or zero) that has been selected by the Administrative Agent and the  Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or  recommendation of a spread adjustment, or method for calculating or determining such spread  adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark  Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date  and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment,  or method for calculating or determining such spread adjustment, for the replacement of such  Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated  syndicated credit facilities at such time.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement and/or any Term Benchmark Loan, any technical, administrative or operational  changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business  Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest  Period,” timing and frequency of determining rates and making payments of interest, timing of  borrowing requests or prepayment, conversion or continuation notices, length of lookback periods,  the applicability of breakage provisions, and other technical, administrative or operational matters)  that the Administrative Agent decides may be appropriate to reflect the adoption and  implementation of such Benchmark and to permit the administration thereof by the Administrative  Agent in a manner substantially consistent with market practice (or, if the Administrative Agent  decides that adoption of any portion of such market practice is not administratively feasible or if  the Administrative Agent determines that no market practice for the administration of such  Benchmark exists, in such other manner of administration as the Administrative Agent decides is  reasonably necessary in connection with the administration of this Agreement and the other Loan  Documents).  “Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to  occur of the following events with respect to such then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition  Event,” the later of (a) the date of the public statement or publication of information  referenced therein and (b) the date on which the administrator of such Benchmark (or the  published component used in the calculation thereof) permanently or indefinitely ceases to  provide all Available Tenors of such Benchmark (or such component thereof); or  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,”  the first date on which such Benchmark (or the published component used in the calculation  thereof) has been determined and announced by the regulatory supervisor for the  administrator of such Benchmark (or such component thereof) to be no longer  representative; provided, that such non-representativeness will be determined by reference  to the most recent statement or publication referenced in such clause (3) and even if any  Available Tenor of such Benchmark (or such component thereof) continues to be provided  on such date.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date  occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the  Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for  such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred  in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable  





 






  5  #95368685v14  event or events set forth therein with respect to all then-current Available Tenors of such  Benchmark (or the published component used in the calculation thereof).  “Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of  one or more of the following events with respect to such then-current Benchmark:  (1) a public statement or publication of information by or on behalf of the  administrator of such Benchmark (or the published component used in the calculation  thereof) announcing that such administrator has ceased or will cease to provide all  Available Tenors of such Benchmark (or such component thereof), permanently or  indefinitely, provided that, at the time of such statement or publication, there is no  successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof);  (2) a public statement or publication of information by the regulatory supervisor  for the administrator of such Benchmark (or the published component used in the  calculation thereof), the Federal Reserve Board, the NYFRB, the Term SOFR  Administrator, an insolvency official with jurisdiction over the administrator for such  Benchmark (or such component), a resolution authority with jurisdiction over the  administrator for such Benchmark (or such component) or a court or an entity with similar  insolvency or resolution authority over the administrator for such Benchmark (or such  component), in each case, which states that the administrator of such Benchmark (or such  component) has ceased or will cease to provide all Available Tenors of such Benchmark  (or such component thereof) permanently or indefinitely; provided that, at the time of such  statement or publication, there is no successor administrator that will continue to provide  any Available Tenor of such Benchmark (or such component thereof); or  (3) a public statement or publication of information by the regulatory supervisor  for the administrator of such Benchmark (or the published component used in the  calculation thereof) announcing that all Available Tenors of such Benchmark (or such  component thereof) are no longer, or as of a specified future date will no longer be,  representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have  occurred with respect to any Benchmark if a public statement or publication of information set forth  above has occurred with respect to each then-current Available Tenor of such Benchmark (or the  published component used in the calculation thereof).  “Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if  any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2)  of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then- current Benchmark for all purposes hereunder and under any Loan Document in accordance with  Section 2.14 and (y) ending at the time that a Benchmark Replacement has replaced such then- current Benchmark for all purposes hereunder and under any Loan Document in accordance with  Section 2.14.  “Beneficial Ownership Certification” means a certification regarding beneficial  ownership or control as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  





 






  6  #95368685v14  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of  ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to  which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of  the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the  Code) the assets of any such “employee benefit plan” or “plan”.  “BGE” shall mean Baltimore Gas and Electric Company.  “BGE Entity” shall mean RF Holdco, BGE and any of their Subsidiaries.  “BHC Act Affiliate” of a party means an ‘affiliate’ (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Borrower” means Exelon.  “Borrowing” means Loans of the same Type, made, converted or continued on the same  date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.  “Borrowing Request” means a request by the Borrower for a Borrowing in accordance  with Section 2.03, which shall be substantially in the form of Exhibit B or any other form approved  by the Administrative Agent.  “Business Day” means, any day (other than a Saturday or a Sunday) on which banks are  open for business in New York City or Chicago, Illinois; provided that, in relation to RFR Loans  and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR  Loan, or any other dealings of such RFR Loan, any such day that is only an U.S. Government  Securities Business Day.  “Capital Lease Obligations” of any Person means the obligations of such Person to pay  rent or other amounts under any lease of (or other arrangement conveying the right to use) real or  personal property, or a combination thereof, which obligations are required to be classified and  accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP,  and the amount of such obligations shall be the capitalized amount thereof determined in  accordance with GAAP.  “Change in Control” means the acquisition of ownership, directly or indirectly  beneficially or of record, by any Person or group (within the meaning of the Securities Exchange  Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) of Equity Interests  representing more than 50% of the aggregate ordinary voting power represented by the issued and  outstanding Equity Interests of the Borrower.  “Change in Law” means the occurrence after the date of this Agreement of (a) the adoption  of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation  or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by  any lending office of such Lender or by such Lender’s holding company, if any) with any request,  guideline or directive (whether or not having the force of law) of any Governmental Authority  made or issued after the date of this Agreement; provided that, notwithstanding anything herein to  the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,  rules, guidelines or directives thereunder or issued in connection therewith or in the implementation  thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for  





 






  7  #95368685v14  International Settlements, the Basel Committee on Banking Supervision (or any successor or  similar authority) or the United States or foreign regulatory authorities, in each case pursuant to  Basel III, shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted,  adopted, issued or implemented.  “Charges” has the meaning assigned to it in Section 9.14.  “Code” means the Internal Revenue Code of 1986, as amended.  “ComEd” means Commonwealth Edison Company, an Illinois corporation, or any  successor thereof.  “ComEd Entity” means ComEd and each of its Subsidiaries.  “Commitment” means, with respect to each Lender, the  amount set forth on Schedule 2.01  opposite such Lender’s name. The initial aggregate amount of the Lenders’ Commitments is  $1,150,000,000.  “Commodity Trading Obligations” means the obligations of the Borrower under (i) any  commodity swap agreement, commodity future agreement, commodity option agreement,  commodity cap agreement, commodity floor agreement, commodity collar agreement, commodity  hedge agreement, commodity forward contract or derivative transaction and any put, call or other  agreement, arrangement or transaction, including natural gas, power, electric energy, emissions  forward contracts, renewable energy credits, or any combination of any such arrangements,  agreements and/or transactions, employed in the ordinary course of the Borrower’s business, or (ii)  any commodity swap agreement, commodity future agreement, commodity option agreement,  commodity cap agreement, commodity floor agreement, commodity collar agreement, commodity  hedge agreement, commodity forward contract or derivative transaction and any put, call or other  agreement or arrangement, or combination thereof (including an agreement or arrangement to  hedge foreign exchange risks) in respect of commodities entered into by the Borrower pursuant to  asset optimization and risk management policies and procedures adopted pursuant to authority  delegated by the Board of Directors of the Borrower.  The term “commodities” shall include electric  energy and/or capacity, transmission rights, coal, petroleum, natural gas liquids, natural gas, fuel  transportation rights, emissions allowances, weather derivatives and related products and by- products and ancillary services.  “Communications” has the meaning assigned to it in Section 8.03(c).  “Connection Income Taxes” means Other Connection Taxes that are imposed on or  measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.  “Consolidated Capitalization Ratio” means, as of any date of determination, the ratio of  (a) Consolidated Total Indebtedness as of the last day of the applicable Test Period to (b) the sum  of Consolidated Total Indebtedness plus Consolidated Stockholders’ Equity as of the last day for  such Test Period.  “Consolidated Stockholders’ Equity” means, as of any date of determination, the total  stockholders’ equity of the Borrower on a consolidated basis, determined in accordance with  GAAP.  





 






  8  #95368685v14  “Consolidated Total Indebtedness” means, as of any date of determination, the total  amount of all Indebtedness of the Borrower and its Subsidiaries determined on a consolidated basis  in accordance with GAAP. For the avoidance of doubt, Consolidated Total Indebtedness shall not  include Nonrecourse Indebtedness.    “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the ability to exercise voting  power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative  thereto.  “Controlled Group” means each person (as defined in Section 3(9) of ERISA) that,  together with the Borrower, would be deemed to be a “single employer” within the meaning of  Section 414(b) or 414(c) of the Code.  “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either  a tenor (including overnight) or an interest payment period having approximately the same length  (disregarding business day adjustment) as such Available Tenor.  “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance  with, 12 C.F.R. § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in accordance  with, 12 C.F.R. § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in accordance  with, 12 C.F.R. § 382.2(b).  “Covered Party” has the meaning assigned to it in Section 9.18.  “Credit Party” means the Administrative Agent or any other Lender.  “Daily Simple SOFR Rate” means, for any day (a “SOFR Rate Day”), a rate per annum  equal to SOFR for the day (such day “i”) that is five U.S. Government Securities Business Days  prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate  Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S.  Government Securities Business Day immediately preceding such SOFR Rate Day, in each case,  as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website.  If  by 5:00 pm (New York City time) on the second (2nd) U.S. Government Securities Business Day  immediately following any day “i”, the SOFR in respect of such day “i” has not been published on  the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily  Simple SOFR Rate has not occurred, then the SOFR for such day “i” will be the SOFR as published  in respect of the first preceding U.S. Government Securities Business Day for which such SOFR  was published on the SOFR Administrator’s Website; provided that any SOFR determined pursuant  to this sentence shall be utilized for purposes of calculation of the Daily Simple SOFR Rate for no  more than three (3) consecutive SOFR Rate Days.  Any change in the Daily Simple SOFR Rate  due to a change in SOFR shall be effective from and including the effective date of such change in  SOFR without notice to the Borrower.  





 






  9  #95368685v14  “Debt Issuance” means the incurrence of Indebtedness by the Borrower or any of its  Subsidiaries (other than any Regulated Subsidiary) (excluding (i) intercompany debt among the  Borrower and any Affiliate, (ii) credit extensions under the Existing Credit Agreement as in effect  as of the date hereof (including the renewal, replacement or refinancing thereof; provided that the  aggregate commitments thereunder do not exceed $900,000,000), (iii) up to $1,150,000,000 to  refinance or replace the Borrower’s 3.497% Junior Subordinated Notes due June 1, 2022 and up to  $1,350,000,000 for any other purpose, (iv) any additional term loan facilities entered into by the  Borrower on or about the date hereof to fund a portion of the $1,750,000,000 cash capital  contribution to Constellation Energy Corporation in connection with the Spin Transaction, (v)  commercial paper issuances, (vi) ordinary course letter of credit facilities, overdraft protection and  short term working capital facilities, ordinary course foreign credit facilities (including the renewal,  replacement or refinancing thereof), capital leases, hedging and cash management, and (vii)  purchase money and equipment financings and similar obligations).  “Default” means any event or condition which constitutes an Event of Default or which  upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.  “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means any Lender that (a) has failed, within two Business Days of  the date required to be funded or paid, to (i) fund any portion of its Loans, or (ii) pay over to any  Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i)  above, 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, (b) has notified the  Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does  not intend or expect to comply with any of its funding obligations under this Agreement (unless  such writing or public statement indicates that such position is based on such Lender’s good faith  determination that a condition precedent (specifically identified and including the particular  default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other  agreements in which it commits to extend credit, (c) has failed, within three Business Days after  request by a Credit Party, acting in good faith, to provide a certification in writing from an  authorized officer of such Lender that it will comply with its obligations (and is financially able to  meet such obligations as of the date of certification) to fund prospective Loans under this  Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause  (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it  and the Administrative Agent, or (d) has become the subject of (A) a Bankruptcy Event or  (B) a Bail-In Action.  “Disclosed Matters” means the actions, suits and proceedings and the environmental  matters disclosed in Schedule 3.06.  “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in  one transaction or in a series of transactions and whether effected pursuant to a division or  otherwise) of any property by any Person (including any sale and leaseback transaction and any  issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment,  transfer or other disposal, with or without recourse, of any notes or accounts receivable or any  rights and claims associated therewith.  “Dollars”, “dollars” or “$” refers to lawful money of the United States of America.  





 






  10  #95368685v14  “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country which is subject to the supervision of an EEA Resolution  Authority, (b) any entity established in an EEA Member Country which is a parent of an institution  described in clause (a) of this definition, or (c) any financial institution established in an EEA  Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this  definition and is subject to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person  entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.  “Effective Date” means the date on which the conditions specified in Section 4.01 are  satisfied (or waived in accordance with Section 9.02).  “Electronic Signature” means an electronic sound, symbol, or process attached to, or  associated with, a contract or other record and adopted by a Person with the intent to sign,  authenticate or accept such contract or record.  “Eligible Successor” means a Person that (i) is a corporation, limited liability company or  business trust duly incorporated or organized, validly existing and in good standing under the laws  of one of the states of the United States or the District of Columbia, (ii) as a result of a contemplated  acquisition, consolidation or merger, will succeed to all or substantially all of the consolidated  business and assets of the Borrower, as applicable, (iii) upon giving effect to such contemplated  acquisition, consolidation or merger, will have all or substantially all of its consolidated business  and assets conducted and located in the United States and (iv) in the case of the Borrower, is  acceptable to the Required Lenders as a credit matter.  “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,  decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into  by any Governmental Authority, relating in any way to (i) the environment, (ii) preservation or  reclamation of natural resources, (iii) the management, release or threatened release of any  Hazardous Material or (iv) health and safety matters.  “Environmental Liability” means any liability, contingent or otherwise (including any  liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the  Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any  Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal  of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened  release of any Hazardous Materials into the environment or (e) any contract, agreement or other  consensual arrangement pursuant to which liability is assumed or imposed with respect to any of  the foregoing.  “Equity Interests” means shares of capital stock, partnership interests, membership  interests in a limited liability company, beneficial interests in a trust or other equity ownership  interests in a Person, and any warrants, options or other rights entitling the holder thereof to  purchase or acquire any such equity interest, but excluding any debt securities convertible into any  of the foregoing.  





 






  11  #95368685v14  “Equity Issuance” means the issuance of any Equity Interests by the Borrower or any of  its Subsidiaries (other than any Regulated Subsidiary) (excluding (i) issuances pursuant to  employee stock plans and retirement plans or issued as compensation to officers and/or non- employee directors or other benefit or employee incentive arrangements and (ii) issuances of  directors’ qualifying shares and/or other nominal amounts required to be held by persons other than  the Borrower or its Subsidiaries under applicable law); provided that, for purposes of this definition,  the Spin Transaction shall not constitute an Equity Issuance.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from  time to time, and the rules and regulations promulgated thereunder.  “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together  with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or  Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of  the Code, is treated as a single employer under Section 414 of the Code.  “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or  the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day  notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in  Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant  to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the  minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of  its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any  Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator  of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to  administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any  liability with respect to the withdrawal or partial withdrawal of the Borrower or any of its ERISA  Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA  Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA  Affiliate of any notice, concerning the imposition upon the Borrower or any of its ERISA Affiliates  of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,  insolvent or in reorganization, within the meaning of Title IV of ERISA.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor Person), as in effect from time to time.  “Event of Default” has the meaning assigned to such term in Section 7.01.  “Excluded Project Subsidiary” shall mean, at any time, any Subsidiary that is an obligor  (or, in the case of a Subsidiary of an Excluded Project Subsidiary that is such an obligor and is in  a business that is related to the business of such Excluded Project Subsidiary that is such an obligor,  is otherwise bound, or its property is subject to one or more covenants and other terms of any  Nonrecourse Indebtedness outstanding at such time, regardless of whether such Subsidiary is a  party to the agreement evidencing the Non-Recourse Indebtedness) with respect to any Non- Recourse Indebtedness outstanding at such time.   “Excluded Subsidiary” shall mean (a) an Excluded Project Subsidiary, (b) any captive  insurance Subsidiary, (c) any not-for-profit Subsidiary or (d) any special purpose vehicle, including  any Securitization Vehicle.  





 






  12  #95368685v14  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a  Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed  on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,  in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having  its principal office or, in the case of any Lender, its applicable lending office located in, the  jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other  Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts  payable to or for the account of such Lender with respect to an applicable interest in a Loan or  Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest  in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under  Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent  that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such  Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or  Commitment or to such Lender immediately before it changed its lending office, (c) Taxes  attributable to such Recipient’s failure to comply with Section 2.17(f) and (d) any withholding  Taxes imposed under FATCA.  “Exelon” means Exelon Corporation, a Pennsylvania corporation, or any Eligible  Successor thereof.  “Existing Credit Agreement” means that certain Credit Agreement, dated as of March 23,  2011, as amended, restated or otherwise modified from time to time prior to the date hereof, by and  among the Borrower, the lenders party thereto and JPMorgan Chase Bank, N.A. as administrative  agent.   “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with), any current or future regulations or official interpretations thereof, any  agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory  legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or  convention among Governmental Authorities and implementing such Sections of the Code.  “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB  based on such day’s federal funds transactions by depositary institutions, as determined in such  manner as  shall be set forth on the NYFRB’s Website  from time to time, and published on the  next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if  the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be deemed  to be 0% for the purposes of this Agreement.  “Federal Reserve Board” means the Board of Governors of the Federal Reserve System  of the United States of America.  “Financial Officer” means the chief financial officer, principal accounting officer,  treasurer or controller of the Borrower.  “Fitch” means Fitch Ratings Inc.   “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as  of the execution of this Agreement, the modification, amendment or renewal of this Agreement or  otherwise) with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR Rate,  





 






  13  #95368685v14  as applicable. For the avoidance of doubt the initial Floor for each of Adjusted Term SOFR Rate  or the Adjusted Daily Simple SOFR Rate shall be 0%.  “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S.  Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under  the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  “GAAP” means generally accepted accounting principles in the United States of America.  “Governmental Authority” means the government of the United States of America, any  other nation or any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  government.  “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or  otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any  Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,  whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to  purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or  other obligation or to purchase (or to advance or supply funds for the purchase of) any security for  the payment thereof, (b) to purchase or lease property, securities or services for the purpose of  assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain  working capital, equity capital or any other financial statement condition or liquidity of the primary  obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as  an account party in respect of any letter of credit or letter of guaranty issued to support such  Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for  collection or deposit in the ordinary course of business.  “Hazardous Materials”  means all explosive or radioactive substances or wastes and all  hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum  distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,  infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to  any Environmental Law.  “Hedging Obligations” mean, with respect to any Person, the obligations of such Person  under any interest rate or currency swap agreement, interest rate or currency future agreement,  interest rate collar agreement, interest rate or currency hedge agreement, and any put, call or other  agreement or arrangement designed to protect such Person against fluctuations in interest rates or  currency exchange rates.  “Indebtedness” of any Person means, without duplication, (a) all obligations of such  Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations  of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of  such Person upon which interest charges are customarily paid, (d) all obligations of such Person  under conditional sale or other title retention agreements relating to property acquired by such  Person, (e) all obligations of such Person in respect of the deferred purchase price of property or  services (excluding current accounts payable incurred in the ordinary course of business), (f) all  Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing  right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such  Person, whether or not the Indebtedness secured thereby has been assumed and (g) all Guarantees  





 






  14  #95368685v14  by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all  obligations, contingent or otherwise, of such Person as an account party in respect of letters of  credit and letters of guaranty.  The Indebtedness of any Person shall include the Indebtedness of  any other entity (including any partnership in which such Person is a general partner) to the extent  such Person is liable therefor as a result of such Person’s ownership interest in or other relationship  with such entity, except to the extent the terms of such Indebtedness provide that such Person is  not liable therefor.    “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of the Borrower under any Loan  Document and (b) to the extent not otherwise described in (a) hereof, Other Taxes.  “Indemnitee” has the meaning assigned to it in Section 9.03(c).  “Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the  Borrower that is not guaranteed by any other Person or subject to any other credit enhancement,  provided, that if the Borrower does not have any outstanding debt securities of the type described,  an appropriate fallback will be determined by Administrative Agent in consultation with Borrower  “Ineligible Institution” has the meaning assigned to it in Section 9.04(b).  “Information” has the meaning assigned to it in Section 9.12.  “Interest Election Request” means a request by the Borrower to convert or continue a  Borrowing in accordance with Section 2.08, which shall be substantially in the form of Exhibit C  or any other form approved by the Administrative Agent.  “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each  March, June, September and December and the Maturity Date, (b) with respect to any RFR Loan,  (1) each date that is on the numerically corresponding day in each calendar month that is one month  after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such  month, then the last day of such month) and (2) the Maturity Date and (c) with respect to any Term  Benchmark Loan, the last day of each Interest Period applicable to the Borrowing of which such  Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest Period of more  than three months’ duration, each day prior to the last day of such Interest Period that occurs at  intervals of three months’ duration after the first day of such Interest Period, and the Maturity Date.  “Interest Period” means with respect to any Term Benchmark Borrowing, the period  commencing on the date of such Borrowing and ending on the numerically corresponding day in  the calendar month that is one, three or six months thereafter (in each case, subject to the availability  for the Benchmark applicable to the relevant Loan or Commitment), as the Borrower may elect;  provided, that (i) 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 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, (ii) any Interest Period that commences on the last Business Day of a  calendar month (or on a day for which there is no numerically corresponding day in the last calendar  month of such Interest Period) shall end on the last Business Day of the last calendar month of such  Interest Period and (iii) no tenor that has been removed from this definition pursuant to Section  2.14(e) shall be available for specification in such Borrowing Request or Interest Election Request.   For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing  





 






  15  #95368685v14  is made and thereafter shall be the effective date of the most recent conversion or continuation of  such Borrowing.  “IRS” means the United States Internal Revenue Service.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International  Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented  from time to time, or any successor definitional booklet for interest rate derivatives published from  time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.  “Lender Parent” means, with respect to any Lender, any Person as to which such Lender  is, directly or indirectly, a subsidiary.  “Lender-Related Person” has the meaning assigned to it in Section 9.03(b).  “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have  become a party hereto pursuant to an Assignment and Assumption or otherwise, other than any  such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or  otherwise.   “Liabilities” means any losses, claims (including intraparty claims), demands, damages or  liabilities of any kind.  “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,  hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a  vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement  (or any financing lease having substantially the same economic effect as any of the foregoing)  relating to such asset and (c) in the case of securities, any purchase option, call or similar right of  a third party with respect to such securities.  “LLC” means any Person that is a limited liability company under the laws of its  jurisdiction of formation.  “Loan Documents” means this Agreement, including schedules and exhibits hereto, and  any agreements entered into in connection herewith by the Borrower or any Loan Party with or in  favor of the Administrative Agent and/or the Lenders, including any amendments, modifications  or supplements thereto or waivers thereof, legal opinions issued in connection with the other Loan  Documents, and any other documents prepared in connection with the other Loan Documents, if  any.  “Loan Parties” means the Borrower.  “Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.  “Margin Stock” means margin stock within the meaning of Regulations T, U and X, as  applicable.  “Material Adverse Effect” means a material adverse effect on (a) the business, assets,  operations, prospects or condition, financial or otherwise, of the Borrower and the Subsidiaries  taken as a whole, (b) the ability of the Borrower to perform any of its Obligations or (c) the rights  of or benefits available to the Lenders under this Agreement or any other Loan Document.  





 






  16  #95368685v14  “Maturity Date” means, with respect to any Lender, January 23, 2023; provided, however,  if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.  “Maximum Rate” has the meaning assigned to it in Section 9.14.  “Moody’s” means Moody’s Investors Service, Inc.   “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of  ERISA.  “Net Cash Proceeds” means:  (i) with respect to any Debt Issuance, the excess, if any, of (A) cash received by the  Borrower and its Subsidiaries (other than Regulated Subsidiaries) in connection with such  incurrence, issuance, offering or placement over (B) the sum of (I) payments made to retire any  Indebtedness that is required to be repaid in connection with such issuance, offering or placement  (other than the Loans) and (II) the underwriting discounts and commissions and other fees and  expenses incurred by the Borrower and its Subsidiaries (other than Regulated Subsidiaries) in  connection with such incurrence, issuance, offering or placement; and  (ii) with respect to any Equity Issuance, the excess of (A) the cash received by the  Borrower and its Subsidiaries (other than Regulated Subsidiaries) in connection with such issuance  over (B) the underwriting discounts and commissions and other fees and expenses incurred by the  Borrower and its Subsidiaries (other than Regulated Subsidiaries) in connection with such issuance.  “Nonrecourse Indebtedness” means any Indebtedness that finances the acquisition,  development, ownership or operation of an asset in respect of which the Person to which such  Indebtedness is owed has no recourse whatsoever to the Borrower or any of its Affiliates other than:  (i) recourse to the named obligor with respect to such Indebtedness (the “Debtor”) for  amounts limited to the cash flow or net cash flow (other than historic cash flow) from the asset;  (ii) recourse to the Debtor for the purpose only of enabling amounts to be claimed in  respect of such Indebtedness in an enforcement of any security interest or lien given by the Debtor  over the asset or the income, cash flow or other proceeds deriving from the asset (or given by any  shareholder or the like in the Debtor over its shares or like interest in the capital of the Debtor) to  secure the Indebtedness, but only if the extent of the recourse to the Debtor is limited solely to the  amount of any recoveries made on any such enforcement; and  (iii) recourse to the Debtor generally or indirectly to any Affiliate of the Debtor, under  any form of assurance, undertaking or support, which recourse is limited to a claim for damages  (other than liquidated damages and damages required to be calculated in a specified way) for a  breach of an obligation (other than a payment obligation or an obligation to comply or to procure  compliance by another with any financial ratios or other tests of financial condition) by the Person  against which such recourse is available.  “NYFRB” means the Federal Reserve Bank of New York.  “NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or  any successor source.  





 






  17  #95368685v14  “Obligations” means all advances to, and debts, liabilities, obligations, covenants and  duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan,  whether direct or indirect (including those acquired by assumption), absolute or contingent, due or  to become due, now existing or hereafter arising and including interest and fees that accrue after  the commencement by or against the Borrower or any Affiliate thereof of any proceeding under  any debtor relief laws naming such Person as the debtor in such proceeding, regardless of whether  such interest and fees are allowed or allowable claims in such proceeding.  Without limiting the  foregoing, the Obligations include (a) the obligation to pay principal, interest, charges, expenses,  fees, indemnities and other amounts payable by the Borrower under any Loan Document and (b) the  obligation of the Borrower to reimburse any amount in respect of any of the foregoing that the  Administrative Agent or any Lender, in each case in its sole discretion, may elect to pay or advance  on behalf of the Borrower.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result  of a present or former connection between such Recipient and the jurisdiction imposing such Tax  (other than connections arising from such Recipient having executed, delivered, become a party to,  performed its obligations under, received payments under, received or perfected a security interest  under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or  assigned an interest in any Loan or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 2.19).  “Participant” has the meaning assigned to such term in Section 9.04(c).  “Participant Register” has the meaning assigned to such term in Section 9.04(c).  “Patriot Act” has the meaning assigned to it in Section 9.16.  “Payment” has the meaning assigned to it in Section 8.06(c).  “Payment Notice” has the meaning assigned to it in Section 8.06(c).  “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in  ERISA and any successor entity performing similar functions.  “PECO” means PECO Energy Company, a Pennsylvania corporation, or any successor  thereof.  “Pepco” means Pepco Holdings LLC, a Delaware limited liability company, or any  successor thereof.  “Pepco Entity” shall mean Pepco, PH Holdco and any of their Subsidiaries.  “Permitted Encumbrances” means:  (a) Liens imposed by law for Taxes that are not yet due or are being contested  in compliance with Section 5.04;  





 






  18  #95368685v14  (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and  other like Liens imposed by law, arising in the ordinary course of business and securing  obligations that are not overdue by more than 30 days or are being contested in compliance  with Section 5.04;  (c) pledges and deposits made in the ordinary course of business in  compliance with workers’ compensation, unemployment insurance and other social  security laws or regulations;  (d) deposits to secure the performance of bids, trade contracts, leases,  statutory obligations, surety and appeal bonds, performance bonds and other obligations of  a like nature, in each case in the ordinary course of business;  (e) judgment liens in respect of judgments that do not constitute an Event of  Default under Section 7.01(f);  (f) easements, zoning restrictions, rights-of-way and similar encumbrances  on real property imposed by law or arising in the ordinary course of business that do not  secure any monetary obligations and do not materially detract from the value of the affected  property or interfere with the ordinary conduct of business of the Borrower or any  Subsidiary;  (g) leases, licenses, subleases or sublicenses granted to third parties in the  ordinary course of business and not interfering in any material respect with the ordinary  conduct of business of the Borrower or any Subsidiary;  (h) Liens in favor of a banking or other financial institution arising as a matter  of law or in the ordinary course of business under customary general terms and conditions  encumbering deposits or other funds maintained with a financial institution (including the  right of set-off) and that are within the general parameters customary in the banking  industry or arising pursuant to such banking institution’s general terms and conditions;  (i) Liens on specific items of inventory or other goods (other than fixed or  capital assets) and proceeds thereof of any Person securing such Person’s obligations in  respect of bankers’ acceptances or letters of credit issued or created for the account of such  Person to facilitate the purchase, shipment or storage of such inventory or other goods in  the ordinary course of business;  (j) Liens in favor of customs and revenue authorities arising as a matter of  law to secure payment of customs duties in connection with the importation of goods in  the ordinary course of business so long as such Liens only cover the related goods; and  (k) Liens encumbering reasonable customary initial deposits and margin  deposits and similar Liens attaching to commodity trading accounts or other brokerage  accounts incurred in the ordinary course of business and not for speculative purposes;  provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.   “Person” means any natural person, corporation, limited liability company, trust, joint  venture, association, company, partnership, Governmental Authority or other entity.  





 






  19  #95368685v14  “Permitted Obligations” mean (1) Hedging Obligations of the Borrower or any Subsidiary  arising in the ordinary course of business and in accordance with the applicable Person’s  established risk management policies that are designed to protect such Person against, among other  things, fluctuations in interest rates or currency exchange rates and which in the case of agreements  relating to interest rates shall have a notional amount no greater than the payments due with respect  to the applicable obligations being hedged and (2) Commodity Trading Obligations.  “PH Holdco” shall mean PH HoldCo LLC, a Delaware limited liability company.  “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)  subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,  and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,  would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of  ERISA.  “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section  3(42) of ERISA, as amended from time to time.  “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the  “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per  annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release  H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer  quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any  similar release by the Federal Reserve Board (as determined by the Administrative Agent).   “Principal Subsidiary” means each Subsidiary, other than PECO and its Subsidiaries, any  BGE Entity, any ComEd Entity and any Pepco Entity, (i) the consolidated assets of which, as of  the date of any determination thereof, are at least equal to 10% of the consolidated assets of the  Borrower or (ii) the consolidated earnings before taxes of which are at least equal to 10% of the  consolidated earnings before taxes of the Borrower for the most recently completed fiscal year.  “Proceeding” means any claim, litigation, investigation, action, suit, arbitration or  administrative, judicial or regulatory action or proceeding in any jurisdiction.  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.  “Public-Sider” means a Lender whose representatives may trade in securities of the  Borrower or its Controlling person or any of its Subsidiaries while in possession of the financial  statements provided by the Borrower under the terms of this Agreement.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” has the meaning assigned to it in Section 9.18.  “Rating Agency” means each of S&P, Moody’s and Fitch.  “Recipient” means (a) the Administrative Agent and (b) any Lender, as applicable.  





 






  20  #95368685v14  “Reference Time” with respect to any setting of the then-current Benchmark means (1) if  such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business  Days preceding the date of such setting, (2) if the RFR for such Benchmark is Daily Simple SOFR  Rate, then four Business Days prior to such setting or (3) if such Benchmark is none of the Term  SOFR Rate or Daily Simple SOFR Rate, the time determined by the Administrative Agent in its  reasonable discretion.  “Register” has the meaning assigned to such term in Section 9.04(b).  “Regulated Subsidiary” means the following subsidiaries of the Company: BGE, ComEd,  PECO and the Pepco Entities.  “Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time  to time and all official rulings and interpretations thereunder or thereof.  “Regulation T” means Regulation T of the Federal Reserve Board, as in effect from time  to time and all official rulings and interpretations thereunder or thereof.  “Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time  to time and all official rulings and interpretations thereunder or thereof.  “Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time  to time and all official rulings and interpretations thereunder or thereof.  “Related Parties” means, with respect to any specified Person, such Person’s Affiliates  and the respective directors, officers, employees, agents and advisors of such Person and such  Person’s Affiliates.  “Relevant Governmental Body” means, the Federal Reserve Board and/or the NYFRB, the  Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the  Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.  “Relevant Rate” means (i) with respect to any Term Benchmark Borrowing, the Adjusted  Term SOFR Rate or (ii) with respect to any RFR Borrowing, the Adjusted Daily Simple SOFR  Rate, as applicable.  “Reportable Event” means a reportable event as defined in Section 4043 of ERISA and  regulations issued under such Section with respect to a Single Employer Plan, excluding such  events as to which the requirement of Section 4043(a) of ERISA that the PBGC be notified within  30 days after the occurrence of such event is waived under PBGC Regulation Section 4043,  provided that a failure to meet the minimum funding standard of Section 412 of the Code and  Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waivers  in accordance with either Section 4043(a) of ERISA or Section 412(c) of the Code.  “Required Lenders” means, subject to Section 2.20, Lenders having Loans representing  greater than 50% of the aggregate amount of the Loans at such time.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  





 






  21  #95368685v14  “Responsible Officer” means the president, Financial Officer or other executive officer of  the Borrower.  “RF Holdco” shall mean RF HoldCo LLC, a Delaware limited liability company.  “RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such  Borrowing.  “RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily Simple  SOFR Rate.  “S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services  LLC business.  “Sanctioned Country” means, at any time, a country, region or territory which is itself, or  whose government is, the subject or target of any Sanctions (at the time of this Agreement, Crimea,  Cuba, Iran, North Korea and Syria).  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list  of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department  of the Treasury, the U.S. Department of State, the United Nations Security Council, the European  Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other  relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned  Country, (c) any Person owned or controlled by any such Person or Persons described in the  foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions.  “Sanctions” means all economic or financial sanctions or trade embargoes or restrictive  measures imposed, administered or enforced from time to time by (a) the U.S. government,  including those administered by the Office of Foreign Assets Control of the U.S. Department of  the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the  European Union, any European Union member state, Her Majesty’s Treasury of the United  Kingdom or other relevant sanctions authority.  “SEC” means the Securities and Exchange Commission of the United State of America.  “Securitization” shall mean any transaction or series of transactions entered into by the  Borrower or any Subsidiary pursuant to which the Borrower or such Subsidiary, as the case may  be, sells, conveys, assigns, grants an interest in or otherwise transfers, from time to time, to one or  more Securitization Vehicles the Securitization Assets (and/or grants a security interest in such  Securitization Assets transferred or purported to be transferred to such Securitization Vehicle), and  which Securitization Vehicle finances the acquisition of such Securitization Assets (i) with  proceeds from the issuance of Third Party Securities, (ii) with the issuance to the Borrower or such  Subsidiary of Sellers’ Retained Interests or an increase in such Sellers’ Retained Interests, or  (iii) with proceeds from the sale or collection of Securitization Assets.  “Securitization Assets” shall mean any accounts receivable originated or expected to be  originated by (and owed to) the Borrower or any Subsidiary (in each case whether now existing or  arising or acquired in the future) and any ancillary assets (including contract rights) which are of  the type customarily conveyed with, or in respect of which security interests are customarily  granted in connection with, such accounts receivable in a securitization transaction and which are  sold, transferred or otherwise conveyed by the Borrower or a Subsidiary to a Securitization Vehicle.  





 






  22  #95368685v14  “Securitization Vehicle” shall mean a Person that is a direct wholly owned Subsidiary of  the Borrower or of any Subsidiary (a) formed for the purpose of effecting a Securitization, (b) to  which the Borrower and/or any Subsidiary transfers Securitization Assets and (c) which, in  connection therewith, issues Third Party Securities; provided that (i) such Securitization Vehicle  shall engage in no business other than the purchase of Securitization Assets pursuant to the  Securitization, the issuance of Third Party Securities or other funding of such Securitization and  any activities reasonably related thereto.  “Sellers’ Retained Interests” means the debt and/or Equity Interests (including any  intercompany notes) held by the Borrower or any Subsidiary in a Securitization Vehicle to which  Securitization Assets have been transferred in a Securitization, including any such debt or equity  received as consideration for, or as a portion of, the purchase price for the Securitization Assets  transferred, and any other instrument through which the Borrower or any Subsidiary has rights to  or receives distributions in respect of any residual or excess interest in the Securitization Assets.  “Single Employer Plan” means a Plan other than a Multiemployer Plan maintained by the  Borrower or any other member of the Controlled Group for employees of the Borrower or any other  member of the Controlled Group.  “SOFR” means, with respect to any U.S. Government Securities Business Day, a rate per  annum equal to the secured overnight financing rate for such U.S. Government Securities Business  Day published by the SOFR Administrator on the website of the SOFR Administrator, currently at  http://www.newyorkfed.org (or any successor source for the secured overnight financing rate  identified as such by the SOFR Administrator from time to time) on the immediately succeeding  U.S. Government Securities Business Day.  “SOFR Administrator” means the NYFRB (or a successor administrator of the secured  overnight financing rate).  “SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR  Rate”.  “Spin Transaction” means (i) the transfer of the membership interests of the Exelon  Generation Company by Exelon to SpinCo and (ii) the pro rata distribution of the capital stock of  SpinCo to the holders of Exelon’s common stock, at which point SpinCo will become a separate,  independent publicly traded company.  “SpinCo” means the new company established by Exelon in connection with the Spin  Transaction and that as of the effective date of the Spin Transaction, will own, directly, 100% of  the issued and outstanding membership interests of Exelon Generation Company (or its successor  in interest, as applicable).  “subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation,  limited liability company, partnership, association or other entity the accounts of which would be  consolidated with those of the parent in the parent’s consolidated financial statements if such  financial statements were prepared in accordance with GAAP as of such date, as well as any other  corporation, limited liability company, partnership, association or other entity (a) of which  securities or other ownership interests representing more than 50% of the equity or more than 50%  of the ordinary voting power or, in the case of a partnership, more than 50% of the general  partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date,  otherwise Controlled by the parent and/or one or more subsidiaries of the parent.  





 






  23  #95368685v14  “Subsidiary” means any subsidiary of the Borrower.  “Supported QFC” has the meaning assigned to it in Section 9.18.  “Swap Agreement” means any agreement with respect to any swap, forward, future or  derivative transaction or option or similar agreement involving, or settled by reference to, one or  more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial  or pricing indices or measures of economic, financial or pricing risk or value or any similar  transaction or any combination of these transactions; provided that no phantom stock or similar  plan providing for payments only on account of services provided by current or former directors,  officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), value added taxes, or any other goods and services, use or sales  taxes, assessments, fees or other charges imposed by any Governmental Authority, including any  interest, additions to tax or penalties applicable thereto.  “Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether  such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by  reference to the Adjusted Term SOFR Rate.  “Term SOFR Administrator” means the CME Group Benchmark Administration Limited  (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the  Administrative Agent in its reasonable discretion).  “Term SOFR Rate” means,   (a) for any calculation with respect to a Term Benchmark Loan, the Term  SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such  day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities  Business Days prior to the first day of such Interest Period, as such rate is published by the Term  SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any  Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor  has not been published by the Term SOFR Administrator and a Benchmark Replacement Date  with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the  Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the  first preceding U.S. Government Securities Business Day for which such Term SOFR Reference  Rate for such tenor was published by the Term SOFR Administrator so long as such first  preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government  Securities Business Days prior to such Periodic Term SOFR Determination Day, and  (b) for any calculation with respect to an ABR Loan on any day, the Term  SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR  Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such  day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of  5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFR  Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator  and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not  occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by  the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day  for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR  





 






  24  #95368685v14  Administrator so long as such first preceding U.S. Government Securities Business Day is not  more than three (3) U.S. Government Securities Business Days prior to such ABR SOFR  Determination Day.   “Term SOFR Reference Rate”  means the rate per annum determined by the  Administrative Agent as the forward-looking term rate based on SOFR.   “Test Period” means, for any date of determination under this Agreement, the four (4)  consecutive fiscal quarters of the Borrower most recently ended as of such date of determination  for which financial statements have been delivered pursuant to Section 5.01(b).  “Third Party Securities” shall mean, with respect to any Securitization, notes, bonds or  other debt instruments, beneficial interests in a trust, undivided ownership interests in receivables  or other securities issued for cash consideration by the relevant Securitization Vehicle to banks,  financing conduits, investors or other financing sources (other than the Borrower or any Subsidiary,  except in respect of the Sellers’ Retained Interest) the proceeds of which are used to finance, in  whole or in part, the purchase by such Securitization Vehicle of Securitization Assets in a  Securitization. The amount of any Third Party Securities shall be deemed to equal the aggregate  principal, stated or invested amount of such Third Party Securities which are outstanding at such  time.  “Transactions” means the execution, delivery and performance by the Borrower of this  Agreement, the borrowing of Loans hereunder and the use of the proceeds thereof.  “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of  interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to  the Adjusted Term SOFR Rate, the Alternate Base Rate or the Adjusted Daily Simple SOFR Rate.  “UK Financial Institutions” means any BRRD Undertaking (as such term is defined under  the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended  from time to time) promulgated by the United Kingdom Financial Conduct Authority, which  includes certain credit institutions and investment firms, and certain affiliates of such credit  institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unfunded Liabilities” means, (i) in the case of any Single Employer Plan, the amount (if  any) by which the present value of all vested nonforfeitable benefits under such Plan exceeds the  fair market value of all Plan assets allocable to such benefits, all determined as of the then most  recent evaluation date for such Plan, and (ii) in the case of any Multiemployer Plan, the withdrawal  liability that would be incurred by the Controlled Group if all members of the Controlled Group  completely withdrew from such Multiemployer Plan.  “U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii)  a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association  





 






  25  #95368685v14  recommends that the fixed income departments of its members be closed for the entire day for  purposes of trading in United States government securities.  “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)  of the Code.  “U.S. Special Resolution Regime” has the meaning assigned to it in Section 9.18.  “U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section  2.17(f)(ii)(B)(3).  “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete  or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle  E of Title IV of ERISA.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and  conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to  the United Kingdom,  any powers of the applicable Resolution Authority  under the Bail-In  Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial  Institution  or any contract or instrument under which that liability arises, to convert all or part of  that liability into shares, securities or obligations of that person or any other person, to provide that  any such contract or instrument is to have effect as if a right had been exercised under it or to  suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation  that are related to or ancillary to any of those powers.  Section 1.02. Classification of Loans and Borrowings.  For purposes of this Agreement,  Loans may be classified and referred to by Type (e.g., a “Term Benchmark Loan” or an “RFR Loan”).   Borrowings also may be classified and referred to by Type (e.g., a “Term Benchmark Borrowing”  or an “RFR Borrowing”).  Section 1.03. Terms Generally.  The definitions of terms herein shall apply equally to  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 “including” shall be deemed to be followed by the phrase “without limitation”.  The  word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the  context requires otherwise (a) any definition of or reference to any agreement, instrument or other  document herein shall be construed as referring to such agreement, instrument or other document as  from time to time amended, supplemented or otherwise modified (subject to any restrictions on such  amendments, supplements or modifications set forth herein), (b) any reference herein to any Person  shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof”  and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its  entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections,  Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and  Schedules to, this Agreement, (e) any reference to any law, rule or regulation herein shall, unless  otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented  from time to time and (f) the words “asset” and “property” shall be construed to have the same  meaning and effect and to refer to any and all tangible and intangible assets and properties, including  cash, securities, accounts and contract rights.  





 






  26  #95368685v14  Section 1.04. Accounting Terms; GAAP.  (a) 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 that, if the Borrower notifies the Administrative Agent that  the Borrower requests an amendment to any provision hereof to eliminate the effect of any change  occurring after the date hereof in GAAP or in the application thereof on the operation of such  provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request  an amendment to any provision hereof for such purpose), regardless of whether any such notice is  given before or after such change in GAAP or in the application thereof, then such provision shall  be interpreted on the basis of GAAP as in effect and applied immediately before such change shall  have become effective until such notice shall have been withdrawn or such provision amended in  accordance herewith.  Notwithstanding any other provision contained herein, all terms of an  accounting or financial nature used herein shall be construed, and all computations of amounts and  ratios referred to herein shall be made, without giving effect to (i) any election under Financial  Accounting Standards Board Accounting Standards Codification 825 (or any other Financial  Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities  of the Borrower or any Subsidiary at “fair value”, as defined therein and (ii) any treatment of  Indebtedness under Accounting Standards Codification 470-20 or 2015-03 (or any other Accounting  Standards Codification or Financial Accounting Standard having a similar result or effect) to value  any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness  shall at all times be valued at the full stated principal amount thereof.  (b) Notwithstanding anything to the contrary contained in Section 1.04(a) or in the  definition of “Capital Lease Obligations,” any change in accounting for leases pursuant to GAAP  resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update  No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any  lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar  arrangement) would not have been required to be so treated under GAAP as in effect on December  31, 2015, such lease shall not be considered a capital lease, and all calculations and deliverables under  this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance  therewith.  Section 1.05. Interest Rates; Benchmark Notification.  The interest rate on a Loan  denominated in dollars may be derived from an interest rate benchmark that may be discontinued or  is, or may in the future become, the subject of regulatory reform.  Upon the occurrence of a  Benchmark Transition Event, Section 2.14(b) provides a mechanism for determining an alternative  rate of interest.  The Administrative Agent does not warrant or accept any responsibility for, and  shall not have any liability with respect to, the administration, submission, performance or any other  matter related to any interest rate used in this Agreement, or with respect to any alternative or  successor rate thereto, or replacement rate thereof, including without limitation, whether the  composition or characteristics of any such alternative, successor or replacement reference rate will  be similar to, or produce the same value or economic equivalence of, the existing interest rate being  replaced or have the same volume or liquidity as did any existing interest rate prior to its  discontinuance or unavailability.  The Administrative Agent and its affiliates and/or other related  entities may engage in transactions that affect the calculation of any  interest rate used in this  Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement)  and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower.  The  Administrative Agent may select information sources or services in its reasonable discretion to  ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the  definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability  to the Borrower, any Lender or any other person or entity for damages of any kind, including direct  or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether  





 






  27  #95368685v14  in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any  such rate (or component thereof) provided by any such information source or service.  Section 1.06. [Reserved].    Section 1.07. Divisions.  For all purposes under the Loan Documents, in connection with  any division or plan of division under Delaware law (or any comparable event under a different  jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,  right, obligation or liability of a different Person, then it shall be deemed to have been transferred  from the original Person to the subsequent Person, and (b) if any new Person comes into existence,  such new Person shall be deemed to have been organized and acquired on the first date of its  existence by the holders of its Equity Interests at such time.  ARTICLE 2  THE CREDITS  Section 2.01. Commitments.  Subject to the terms and conditions set forth herein, each  Lender agrees to make Loans in Dollars to the Borrower on the Effective Date, in a principal amount  not to exceed such Lender’s Commitment. Amounts prepaid or repaid in respect of such Loans may  not be reborrowed.  Section 2.02. Loans and Borrowings.  (a)  Each Loan shall be made as part of a  Borrowing consisting of Loans made by the Lenders ratably in accordance with their respective  Commitments.  The failure of any Lender to make any Loan required to be made by it shall not  relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders  are several and no Lender shall be responsible for any other Lender’s failure to make Loans as  required.  (b) Subject to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans  or Term Benchmark Loans, as the Borrower may request in accordance herewith.  Each Lender at its  option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to  make such Loan; provided that any exercise of such option shall not affect the obligation of the  Borrower to repay such Loan in accordance with the terms of this Agreement.  (c) At the commencement of each Interest Period for any Term Benchmark Borrowing,  such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not  less than $10,000,000.  At the time that each ABR Borrowing and/or RFR Borrowing is made, such  Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than  $5,000,000.  Borrowings of more than one Type may be outstanding at the same time; provided that  there shall not at any time be more than a total of five Term Benchmark Borrowings or RFR  Borrowings outstanding.  (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be  entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested  with respect thereto would end after the Maturity Date.  Section 2.03. Requests for Borrowings.  To request the Borrowing on the Effective Date,  the Borrower shall notify the Administrative Agent of such request by submitting a Borrowing  Request (a) in the case of a Term Benchmark Borrowing, not later than 12:00 noon, New York City  time, two Business Days before the date of the proposed Borrowing or (b) in the case of an  ABR Borrowing, not later than 12:00 noon, New York City time, on the date of the proposed  





 






  28  #95368685v14  Borrowing.  Each such Borrowing Request shall be irrevocable and shall be signed by a Responsible  Officer of the Borrower.  Each such Borrowing Request shall specify the following information in  compliance with Section 2.02:  (i) the aggregate amount of the requested Borrowing;  (ii) the date of such Borrowing, which shall be a Business Day;  (iii) whether such Borrowing is to be an ABR Borrowing or a Term  Benchmark Borrowing;  (iv) in the case of a Term Benchmark Borrowing, the initial Interest Period to  be applicable thereto, which shall be a period contemplated by the definition of the term  “Interest Period”; and  (v) the location and number of the Borrower’s account to which funds are to  be disbursed, which shall comply with the requirements of Section 2.07.  If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an  ABR Borrowing.  If no Interest Period is specified with respect to any requested Term  Benchmark Borrowing, then the Borrower shall be deemed to have selected an Interest Period of  one month’s duration.  Promptly following receipt of a Borrowing Request in accordance with  this Section, the Administrative Agent shall advise each Lender of the details thereof and of the  amount of such Lender’s Loan to be made as part of the requested Borrowing.  Section 2.04. [Reserved].  Section 2.05. [Reserved].    Section 2.06. [Reserved].  Section 2.07. Funding of Borrowings.  (a) Each Lender shall make each Loan to be  made by it hereunder on the proposed date thereof solely by wire transfer of immediately available  funds, by 12:00 noon, New York City time, to the account of the Administrative Agent most recently  designated by it for such purpose by notice to the Lenders.  The Administrative Agent will make  such Loans available to the Borrower by promptly crediting the funds so received in the aforesaid  account of the Administrative Agent to an account of the Borrower maintained with the  Administrative Agent in New York City and designated by the Borrower in the applicable  Borrowing Request.  (b) Unless the Administrative Agent shall have received notice from a Lender prior to  the proposed date of any Borrowing that such Lender will not make available to the Administrative  Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such  Lender has made such share available on such date in accordance with paragraph (a) of this  Section and may, in reliance upon such assumption, make available to the Borrower a corresponding  amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available  to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to  the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for  each day from and including the date such amount is made available to the Borrower to but excluding  the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the  Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with  





 






  29  #95368685v14  banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate  applicable to ABR Loans.  If such Lender pays such amount to the Administrative Agent, then such  amount shall constitute such Lender’s Loan included in such Borrowing.  Section 2.08. Interest Elections.  (a)  Each Borrowing initially shall be of the Type  specified in the applicable Borrowing Request and, in the case of a Term Benchmark Borrowing,  shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the  Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing  and, in the case of a Term Benchmark Borrowing, may elect Interest Periods therefor, all as provided  in this Section.  The Borrower may elect different options with respect to different portions of the  affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders  holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall  be considered a separate Borrowing.    (b) To make an election pursuant to this Section, the Borrower shall notify the  Administrative Agent of such election by the time that a Borrowing Request would be required under  Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election  to be made on the effective date of such election.  Each such Interest Election Request shall be  irrevocable and shall be signed by a Responsible Officer of the Borrower.  (c) Each Interest Election Request shall specify the following information in  compliance with Section 2.02:  (i) the Borrowing to which such Interest Election Request applies and, if  different options are being elected with respect to different portions thereof, the portions  thereof to be allocated to each resulting Borrowing (in which case the information to be  specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting  Borrowing);  (ii) the effective date of the election made pursuant to such Interest Election  Request, which shall be a Business Day;  (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Term  Benchmark Borrowing or an RFR Borrowing; and  (iv) if the resulting Borrowing is a Term Benchmark Borrowing, the Interest  Period to be applicable thereto after giving effect to such election, which shall be a period  contemplated by the definition of the term “Interest Period”.  If any such Interest Election Request requests a Term Benchmark Borrowing but does not specify  an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one  month’s duration.  (d) Promptly following receipt of an Interest Election Request, the Administrative  Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting  Borrowing.  (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a  Term Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless  such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall  be deemed to have an Interest Period that is one month.  Notwithstanding any contrary provision  hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the  





 






  30  #95368685v14  request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is  continuing (i) no outstanding Borrowing may be converted to or continued as a Term Benchmark  Borrowing and (ii)  unless repaid, (A) each Term Benchmark Borrowing and (B) each RFR  Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.  Section 2.09. Termination of Commitments.  The Commitments shall terminate in full  on the Effective Date after the proceeds of the Loans have been made available to the Borrower.  Section 2.10. Repayment of Loans; Evidence of Indebtedness.  (a) The Borrower hereby  unconditionally promises to pay to the Administrative Agent for the account of each Lender the then  unpaid principal amount of each Loan on the Maturity Date.  (b) Each Lender shall maintain in accordance with its usual practice an account or  accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made  by such Lender, including the amounts of principal and interest payable and paid to such Lender from  time to time hereunder.  (c) The Administrative Agent shall maintain accounts in which it shall record (i) the  amount of each Loan made hereunder, the Type thereof 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 for the account of the Lenders and each Lender’s share thereof.  (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this  Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein;  provided 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 obligation of the Borrower to repay the Loans in  accordance with the terms of this Agreement.  (e) Any Lender may request that Loans made by it be evidenced by a promissory note.   In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note  payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns)  and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such  promissory note and interest thereon shall at all times (including after assignment pursuant to Section  9.04) be represented by one or more promissory notes in such form.  Section 2.11. Prepayment of Loans.  (a) The Borrower shall have the right at any time  and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in  accordance with paragraph (b) of this Section.  (b) The Borrower shall notify the Administrative Agent by telephone (confirmed by  telecopy or electronic mail) of any prepayment hereunder (i) in the case of prepayment of (1) a Term  Benchmark Borrowing, not later than 12:00 noon, New York City time, three Business Days before  the date of prepayment or (2) an RFR Borrowing, not later than 12:00 noon, New York City time,  five Business Days before the date of prepayment, or (ii) in the case of prepayment of an ABR  Borrowing, not later than 12:00 noon, New York City time, one Business Day before the date of  prepayment.  Each such notice shall be in the form of Exhibit G and be irrevocable and shall specify  the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;  provided that a notice of prepayment delivered by the Borrower may state that such notice is  conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked  by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if  





 






  31  #95368685v14  such condition is not satisfied. Promptly following receipt of any such notice relating to a Borrowing,  the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of  any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing  of the same Type as provided in Section 2.02.  Each prepayment of a Borrowing shall be applied  ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by  accrued interest to the extent required by Section 2.13 and any break funding payments required by  Section 2.16.  (c) In the event that the Borrower or any of its Subsidiaries (other than any Regulated  Subsidiary) actually receives any Net Cash Proceeds arising from any Equity Issuance or Debt  Issuance, then the Borrower or such Subsidiary shall prepay the Advances in an amount equal to 100%  of such Net Cash Proceeds not later than five Business Days following the receipt by the Borrower or  such Subsidiary of such Net Cash Proceeds.  The Borrower shall promptly (and not later than the date  of receipt thereof) notify the Administrative Agent of the receipt by the Borrower or such Subsidiary  of such Net Cash Proceeds from any Equity Issuance or Debt Issuance, and such notice shall be  accompanied by a reasonably detailed calculation of the Net Cash Proceeds.  Each prepayment of  Loans shall be applied ratably and shall be accompanied by accrued interest and fees on the amount  prepaid to the date fixed for prepayment, plus, in the case of any Term Benchmark Loan, any amounts  due to the Lenders under Section 2.16.  Section 2.12. Fees.  The Borrower agrees to pay to the Administrative Agent, for its own  account, fees payable in the amounts and at the times separately agreed upon between the Borrower  and the Administrative Agent. All fees payable hereunder shall be paid on the dates due, in dollars  in immediately available funds, to the Administrative Agent.  Fees paid shall not be refundable under  any circumstances.  Section 2.13. Interest.  (a)  The Loans comprising each ABR Borrowing shall bear  interest at the Alternate Base Rate plus the Applicable Rate.  (b) The Loans comprising each Term Benchmark Borrowing shall bear interest in at the  Adjusted Term SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable  Rate.  (c) Each RFR Loan shall bear interest at a rate per annum equal to the Adjusted Daily  Simple SOFR Rate plus the Applicable Rate.  (d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee  or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,  upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before  judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the  rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or  (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in  paragraph (a) of this Section.  (e) Accrued interest on each Loan shall be payable in arrears on each Interest Payment  Date for such Loan; provided that (i) interest accrued pursuant to paragraph (d) of this Section shall  be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest  on the principal amount repaid or prepaid shall be payable on the date of such repayment or  prepayment and (iii) in the event of any conversion of any Term Benchmark Loan prior to the end of  the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective  date of such conversion.  





 






  32  #95368685v14  (f) Interest computed by reference to the Term SOFR Rate or Daily Simple SOFR Rate  hereunder shall be computed on the basis of a year of 360 days.  Interest computed by reference to  the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be  computed on the basis of a year of 365 days (or 366 days in a leap year).  In each case interest shall  be payable for the actual number of days elapsed (including the first day but excluding the last day).   All interest hereunder on any Loan shall be computed on a daily basis based upon the outstanding  principal amount of such Loan as of the applicable date of determination.  The applicable Alternate  Base Rate, Adjusted Term SOFR Rate, Term SOFR Rate, Adjusted Daily Simple SOFR Rate or Daily  Simple SOFR Rate shall be determined by the Administrative Agent, and such determination shall be  conclusive absent manifest error.  Section 2.14. Alternate Rate of Interest.  (a) Subject to clauses (b), (c), (d), (e) and (f) of  this Section 2.14, if:  (i) the Administrative Agent determines (which determination shall be  conclusive absent manifest error) (A) prior to the commencement of any Interest Period  for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for  ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate (including because the  Term SOFR Reference Rate is not available or published on a current basis), for such  Interest Period or (B) at any time, that adequate and reasonable means do not exist for  ascertaining the applicable Adjusted Daily Simple SOFR Rate, Daily Simple SOFR Rate;  or  (ii) the Administrative Agent is advised by the Required Lenders that (A) prior  to the commencement of any Interest Period for a Term Benchmark Borrowing, the  Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect  the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)  included in such Borrowing for such Interest Period or (B) at any time, Adjusted Daily  Simple SOFR Rate will not adequately and fairly reflect the cost to such Lenders (or Lender)  of making or maintaining their Loans (or its Loan) included in such Borrowing;  then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by  telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the  Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to  such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a  new Interest Election Request in accordance with the terms of Section 2.08 or a new Borrowing  Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that  requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term  Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Borrowing  shall instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable,  for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR Rate is not also the subject  of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR  Rate  also is the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that  requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for  an ABR Borrowing; provided that if the circumstances giving rise to such notice affect only one  Type of Borrowings, then all other Types of Borrowings shall be permitted.  Furthermore, if any  Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the  notice from the Administrative Agent referred to in this Section 2.14(a) with respect to a Relevant  Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative  Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no  longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest  





 






  33  #95368685v14  Election Request in accordance with the terms of Section 2.08 or a new Borrowing Request in  accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of  the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not  a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR  Borrowing so long as the Adjusted Daily Simple SOFR Rate is not also the subject of Section  2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR Rate also is the  subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from  such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.  (b) Notwithstanding anything to the contrary herein or in any other Loan Document, if  a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to  the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark  Replacement is determined in accordance with clause (1) of the definition of “Benchmark  Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace  such Benchmark for all purposes hereunder and under any Loan Document in respect of such  Benchmark setting and subsequent Benchmark settings without any amendment to, or further action  or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark  Replacement is determined in accordance with clause (2) of the definition of “Benchmark  Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace  such Benchmark for all purposes hereunder and under any Loan Document in respect of any  Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after  the date notice of such Benchmark Replacement is provided to the Lenders without any amendment  to, or further action or consent of any other party to, this Agreement or any other Loan Document so  long as the Administrative Agent has not received, by such time, written notice of objection to such  Benchmark Replacement from Lenders comprising the Required Lenders.   (c) Notwithstanding anything to the contrary herein or in any other Loan Document, the  Administrative Agent will have the right to make Benchmark Replacement Conforming Changes  from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document,  any amendments implementing such Benchmark Replacement Conforming Changes will become  effective without any further action or consent of any other party to this Agreement or any other Loan  Document.  (d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i)  any occurrence of a Benchmark Transition Event, (ii)  the implementation of any Benchmark  Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the  removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the  commencement or conclusion of any Benchmark Unavailability Period.  Any determination, decision  or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of  Lenders) pursuant to this Section 2.14, including any determination with respect to a tenor, rate or  adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision  to take or refrain from taking any action or any selection, will be conclusive and binding absent  manifest error and may be made in its or their sole discretion and without consent from any other  party to this Agreement or any other Loan Document, except, in each case, as expressly required  pursuant to this Section 2.14.  (e) Notwithstanding anything to the contrary herein or in any other Loan Document, at  any time (including in connection with the implementation of a Benchmark Replacement), (i) if the  then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for  such Benchmark is not displayed on a screen or other information service that publishes such rate  from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the  





 






  34  #95368685v14  regulatory supervisor for the administrator of such Benchmark has provided a public statement or  publication of information announcing that any tenor for such Benchmark is or will be no longer  representative, then the Administrative Agent may modify the definition of “Interest Period” for any  Benchmark settings at or after such time to remove such unavailable or non-representative tenor and  (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a  screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not,  or is no longer, subject to an announcement that it is or will no longer be representative for a  Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the  definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such  previously removed tenor.  (f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark  Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing or  RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted  or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be  deemed to have converted any request for a Term Benchmark Borrowing into a request for a  Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR  Rate is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted  Daily Simple SOFR Rate is the subject of a Benchmark Transition Event.  During any Benchmark  Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available  Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such  Benchmark, as applicable, will not be used in any determination of ABR.  Furthermore, if any Term  Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of notice of the  commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to  such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is  implemented pursuant to this Section 2.14, (1) any Term Benchmark Loan shall on the last day of the  Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a  Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR  Borrowing so long as the Adjusted Daily Simple SOFR Rate is not the subject of a Benchmark  Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR Rate is the subject of a  Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be  converted by the Administrative Agent to, and shall constitute an ABR Loan.  Section 2.15. Increased Costs.  (a) If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit, liquidity  or similar requirement (including any compulsory loan requirement, insurance charge or  other assessment) against assets of, deposits with or for the account of, or credit extended  by, any Lender (except any such reserve requirement reflected in the Adjusted Term SOFR  Rate);  (ii) impose on any Lender or the applicable offshore interbank market any  other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made  by such Lender; or  (iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)  Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C)  Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or  other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;  





 






  35  #95368685v14  and the result of any of the foregoing shall be to increase the cost to such Lender or such other  Recipient of making, continuing, converting or maintaining any Loan (or of maintaining its  obligation to make any such Loan) or to reduce the amount of any sum received or receivable by  such Lender or such other Recipient hereunder (whether of principal, interest or otherwise), then  the Borrower will pay to such Lender or such other Recipient, as the case may be, such additional  amount or amounts as will compensate such Lender or such other Recipient, as the case may be,  for such additional costs incurred or reduction suffered.  (b) If any Lender determines that any Change in Law regarding capital or liquidity  requirements has or would have the effect of reducing the rate of return on such Lender’s capital or  on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the  Loans made by such Lender to a level below that which such Lender or such Lender’s holding  company could have achieved but for such Change in Law (taking into consideration such Lender’s  policies and the policies of such Lender’s holding company with respect to capital adequacy and  liquidity), then from time to time the Borrower will pay to such Lender such additional amount or  amounts as will compensate such Lender or such Lender’s holding company for any such reduction  suffered.  (c) A certificate of a Lender setting forth the amount or amounts necessary to  compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or  (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.   The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days  after receipt thereof.  (d) Failure or delay on the part of any Lender to demand compensation pursuant to this  Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided  that the Borrower shall not be required to compensate a Lender pursuant to this Section for any  increased costs or reductions incurred more than 270 days prior to the date that such Lender notifies  the Borrower of the Change in Law giving rise to such increased costs or reductions and of such  Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving  rise to such increased costs or reductions is retroactive, then the 270-day period referred to above  shall be extended to include the period of retroactive effect thereof.  Section 2.16. Break Funding Payments.  (a) With respect to Loans that are not RFR  Loans, in the event of (i) the payment of any principal of any Term Benchmark Loan other than on  the last day of an Interest Period applicable thereto (including as a result of an Event of Default or  an optional or mandatory prepayment of Loans), (ii) the conversion of any Term Benchmark Loan  other than on the last day of the Interest Period applicable thereto, (iii) the failure to borrow, convert,  continue or prepay any Term Benchmark Loan on the date specified in any notice delivered pursuant  hereto (regardless of whether such notice may be revoked under Section 2.11(b) and is revoked in  accordance therewith) or (iv) the assignment of any Term Benchmark Loan other than on the last  day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to  Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost  and expense attributable to such event.  A certificate of any Lender setting forth any amount or  amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the  Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the  amount shown as due on any such certificate within 10 days after receipt thereof.      (b) With respect to RFR Loans, in the event of (i) the payment of any principal of any  RFR Loan other than on the Interest Payment Date applicable thereto (including as a result of an  Event of Default or an optional or mandatory prepayment of Loans), (ii) the failure to borrow or  





 






  36  #95368685v14  prepay any RFR Loan on the date specified in any notice delivered pursuant hereto (regardless of  whether such notice may be revoked under Section 2.11(b) and is revoked in accordance therewith)  or (iii) the assignment of any RFR Loan other than on the Interest Payment Date applicable thereto as  a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower  shall compensate each Lender for the loss, cost and expense attributable to such event.  A certificate  of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to  this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The  Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after  receipt thereof.  Section 2.17. Withholding of Taxes; Gross-Up.  (a) Payments Free of Taxes.  Any and all payments by or on account of any obligation  of the Borrower under any Loan Document shall be made without deduction or withholding for any  Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith  discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from  any such payment by a withholding agent, then the applicable withholding agent shall be entitled to  make such deduction or withholding and shall timely pay the full amount deducted or withheld to the  relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified  Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction  or withholding has been made (including such deductions and withholdings applicable to additional  sums payable under this Section) the applicable Recipient receives an amount equal to the sum it  would have received had no such deduction or withholding been made.  (b) Payment of Other Taxes by the Borrower.  The Borrower shall timely pay to the  relevant Governmental Authority in accordance with applicable law, or at the option of the  Administrative Agent timely reimburse it for, Other Taxes.  (c) Evidence of Payments.  As soon as practicable after any payment of Taxes by the  Borrower to a Governmental Authority pursuant to this Section, the Borrower shall deliver to the  Administrative Agent the original or a certified copy of a receipt issued by such Governmental  Authority evidencing such payment, a copy of the return reporting such payment or other evidence of  such payment reasonably satisfactory to the Administrative Agent.  (d) Indemnification by the Borrower.  The Borrower shall indemnify each Recipient,  within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including  Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section)  payable or paid by such Recipient or required to be withheld or deducted from a payment to such  Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such  Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental  Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a  Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf  or on behalf of a Lender, shall be conclusive absent manifest error.  (e) Indemnification by the Lenders.  Each Lender shall severally indemnify the  Administrative Agent, within 10 days after demand therefor, for (i)  any Indemnified Taxes  attributable to such Lender (but only to the extent that the Borrower has not already indemnified the  Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower  to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section  9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable  to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with  





 






  37  #95368685v14  any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether  or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental  Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the  Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the  Administrative Agent to setoff and apply any and all amounts at any time owing to such Lender under  any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other  source against any amount due to the Administrative Agent under this paragraph (e).  (f) Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction  of withholding Tax with respect to payments made under any Loan Document shall deliver to the  Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower  or the Administrative Agent, such properly completed and executed documentation reasonably  requested by the Borrower or the Administrative Agent as will permit such payments to be made  without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably  requested by the Borrower or the Administrative Agent, shall deliver such other documentation  prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as  will enable the Borrower or the Administrative Agent to determine whether or not such Lender is  subject to backup withholding or information reporting requirements.  Notwithstanding anything to  the contrary in the preceding two sentences, the completion, execution and submission of such  documentation (other than such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D)  below) shall not be required if in the Lender’s reasonable judgment such completion, execution or  submission would subject such Lender to any material unreimbursed cost or expense or would  materially prejudice the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the  Borrower is a U.S. Person,  (A) any Lender that is a U.S. Person shall deliver to the Borrower  and the Administrative Agent on or prior to the date on which such Lender  becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent),  an executed copy of IRS Form W-9 certifying that such Lender is exempt  from U.S. federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number  of copies as shall be requested by the recipient) on or prior to the date on  which such Foreign Lender becomes a Lender under this Agreement (and  from time to time thereafter upon the reasonable request of the Borrower  or the Administrative Agent), whichever of the following is applicable:  (1) in the case of a Foreign Lender claiming the benefits  of an income tax treaty to which the United States is a party (x) with  respect to payments of interest under any Loan Document, an executed  copy of IRS Form W-8BEN-E or IRS Form W-8BEN establishing an  exemption from, or reduction of, U.S. federal withholding Tax pursuant to  the “interest” article of such tax treaty and (y) with respect to any other  applicable payments under any Loan Document, IRS Form W-8BEN-E or  IRS Form W-8BEN establishing an exemption from, or reduction of, U.S.  federal withholding Tax pursuant to the “business profits” or “other  income” article of such tax treaty;  





 






  38  #95368685v14  (2) in the case of a Foreign Lender claiming that its  extension of credit will generate U.S. effectively connected income, an  executed copy of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits  of the exemption for portfolio interest under Section 881(c) of the Code,  (x) a certificate substantially in the form of Exhibit F-1 to the effect that  such Foreign Lender is not a “bank” within the meaning of Section  881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower  within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled  foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S.  Tax Compliance Certificate”) and (y) an executed copy of IRS Form W- 8BEN-E or IRS Form W-8BEN; or  (4) to the extent a Foreign Lender is not the beneficial  owner, an executed copy of IRS Form W-8IMY, accompanied by IRS  Form W-8ECI, IRS Form W-8BEN-E, IRS Form W-8BEN, a U.S. Tax  Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit  F-3, IRS Form W-9, and/or other certification documents from each  beneficial owner, as applicable; provided that if the Foreign Lender is a  partnership and one or more direct or indirect partners of such Foreign  Lender are claiming the portfolio interest exemption, such Foreign Lender  may provide a U.S. Tax Compliance Certificate substantially in the form  of Exhibit F-4 on behalf of each such direct and indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number  of copies as shall be requested by the recipient) on or prior to the date on  which such Foreign Lender becomes a Lender under this Agreement (and  from time to time thereafter upon the reasonable request of the Borrower  or the Administrative Agent), executed copies of any other form  prescribed by applicable law as a basis for claiming exemption from or a  reduction in U.S. federal withholding Tax, duly completed, together with  such supplementary documentation as may be prescribed by applicable  law to permit the Borrower or the Administrative Agent to determine the  withholding or deduction required to be made; and  (D) if a payment made to a Lender under any Loan Document would  be subject to U.S. federal withholding Tax imposed by FATCA if such  Lender were to fail to comply with the applicable reporting requirements  of FATCA (including those contained in Section 1471(b) or 1472(b) of the  Code, as applicable), such Lender shall deliver to the Borrower and the  Administrative Agent at the time or times prescribed by law and at such  time or times reasonably requested by the Borrower or the Administrative  Agent such documentation prescribed by applicable law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional  documentation reasonably requested by the Borrower or the  Administrative Agent as may be necessary for the Borrower and the  Administrative Agent to comply with their obligations under FATCA and  to determine that such Lender has complied with such Lender’s  obligations under FATCA or to determine the amount to deduct and  





 






  39  #95368685v14  withhold from such payment.  Solely for purposes of this clause (D),  “FATCA” shall include any amendments made to FATCA after the date  of this Agreement.  Each Lender agrees that if any form or certification it previously delivered expires or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly  notify the Borrower and the Administrative Agent in writing of its legal inability to do so.  (g) [Reserved].  (h) Treatment of Certain Refunds.  If any party determines, in its sole discretion  exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified  pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it  shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity  payments made under this Section with respect to the Taxes giving rise to such refund), net of all out- of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any  interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying  party, upon the request of such indemnified party, shall repay to such indemnified party the amount  paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the  relevant Governmental Authority) in the event that such indemnified party is required to repay such  refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph  (h), in no event will the indemnified party be required to pay any amount to an indemnifying party  pursuant to this paragraph (h) the payment of which would place the indemnified party in a less  favorable net after-Tax position than the indemnified party would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed  and the indemnification payments or additional amounts with respect to such Tax had never been paid.   This paragraph shall not be construed to require any indemnified party to make available its Tax  returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying  party or any other Person.  (i) Survival.  Each party’s obligations under this Section shall survive the resignation  or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a  Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all  obligations under any Loan Document.  (j) Defined Terms.  For purposes of this Section, the term “applicable law” includes  FATCA.  Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.  (a) The  Borrower shall make each payment or prepayment required to be made by it hereunder (whether of  principal, interest or fees or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) in  Dollars prior to 12:00 noon, New York City time, on the date when due or the date fixed for any  prepayment hereunder, in immediately available funds, without setoff, recoupment or counterclaim.   Any amounts received after such time on any date may, in the discretion of the Administrative Agent,  be deemed to have been received on the next succeeding Business Day for purposes of calculating  interest thereon.  All such payments shall be made to the Administrative Agent at its offices at 383  Madison Avenue, New York, New York, except that payments pursuant to Sections 2.15, 2.16, 2.17  and 9.03 shall be made directly to the Persons entitled thereto.  The Administrative Agent shall  distribute any such payments received by it for the account of any other Person to the appropriate  recipient promptly following receipt thereof.  If any payment hereunder shall be due on a day that is  not a Business Day, the date for payment shall be extended to the next succeeding Business Day,  





 






  40  #95368685v14  and, in the case of any payment accruing interest, interest thereon shall be payable for the period of  such extension.  All payments hereunder shall be made in Dollars.  (b) At any time that payments are not required to be applied in the manner required by  Section 7.03, if at any time insufficient funds are received by and available to the Administrative  Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be  applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties  entitled thereto in accordance with the amounts of interest and fees then due to such parties, and  (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled  thereto in accordance with the amounts of principal then due to such parties.  (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,  obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender  receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest  thereon than the proportion received by any other Lender, then the Lender receiving such greater  proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the  extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in  accordance with the aggregate amount of principal of and accrued interest on their respective Loans;  provided that (i) if any such participations are purchased and all or any portion of the payment giving  rise thereto is recovered,  such participations shall be rescinded and the purchase price restored to the  extent of such recovery, without interest, and (ii)  the provisions of this paragraph shall not be  construed to apply to any payment made by the Borrower pursuant to and in accordance with the  express terms of this Agreement or any payment obtained by a Lender as consideration for the  assignment of or sale of a participation in any of its Loans to any assignee or participant, other than  to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this  paragraph shall apply).  The Borrower consents to the foregoing and agrees, to the extent it may  effectively do so under applicable law, that any Lender acquiring a participation pursuant to the  foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with  respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the  amount of such participation.  (d) Unless the Administrative Agent shall have received, prior to any date on which any  payment is due to the Administrative Agent for the account of the Lenders pursuant to the terms  hereof or any other Loan Document (including any date that is fixed for prepayment by notice from  the Borrower to the Administrative Agent pursuant to Section 2.11(b)), notice from the Borrower that  the Borrower will not make such payment or prepayment, the Administrative Agent may assume that  the Borrower has made such payment on such date in accordance herewith and may, in reliance upon  such assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in  fact made such payment, then each of the Lenders severally agrees to repay to the Administrative  Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each  day from and including the date such amount is distributed to it to but excluding the date of payment  to the Administrative Agent, at the Federal Funds Effective Rate.  Section 2.19. Mitigation Obligations; Replacement of Lenders.  (a)  If any Lender  requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified  Taxes or additional amounts to any Lender or any Governmental Authority for the account of any  Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a  different lending office for funding or booking its Loans hereunder or to assign its rights and  obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such  Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to  Sections 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any  





 






  41  #95368685v14  unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The  Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in  connection with any such designation or assignment.  (b) If any Lender requests compensation under Section 2.15, or if the Borrower is  required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental  Authority for the account of any Lender pursuant to Section 2.17, or if any Lender becomes Defaulting  Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the  Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance  with and subject to the restrictions contained in Section 9.04), all its interests, rights (other than its  existing rights to payments pursuant to Sections 2.15 or 2.17) and obligations under this Agreement  and the other Loan Documents to an assignee that shall assume such obligations (which assignee may  be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have  received the prior written consent of the Administrative Agent, which consent shall not unreasonably  be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it  hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees)  or the Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting  from a claim for compensation under Section 2.15 or payments required to be made pursuant to  Section 2.17, such assignment will result in a reduction in such compensation or payments.  A Lender  shall not be required to make any such assignment and delegation if, prior thereto, as a result of a  waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such  assignment and delegation cease to apply.  Each party hereto agrees that (A) an assignment required  pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by  the Borrower, the Administrative Agent and the assignee (or, to the extent applicable, an agreement  incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic  Platform as to which the Administrative Agent and such parties are participants), and (B) the Lender  required to make such assignment need not be a party thereto in order for such assignment to be  effective and shall be deemed to have consented to an be bound by the terms thereof; provided that,  following the effectiveness of any such assignment, the other parties to such assignment agree to  execute and deliver such documents necessary to evidence such assignment as reasonably requested  by the applicable Lender; provided that any such documents shall be without recourse to or warranty  by the parties thereto.  Section 2.20. Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes  a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a  Defaulting Lender:  (a) any payment of principal, interest, fees or other amounts received by the  Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at  maturity, pursuant to Section 7.03 or otherwise) or received by the Administrative Agent from a  Defaulting Lender pursuant to Section 9.08 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  such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request  (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such  Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined  by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower,  to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s  potential future funding obligations (if applicable) with respect to Loans under this Agreement, in  





 






  42  #95368685v14  accordance with this Section; fourth, to the payment of any amounts owing to the Lenders as a result  of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting  Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under  any other Loan Document; fifth, 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 such Defaulting Lender as a result of such Defaulting Lender’s  breach of its obligations under this Agreement or under any other Loan Document; and eighth, to such  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 Loans in respect of which such  Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time  when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied  solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the  payment of any Loans of such 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender  irrevocably consents hereto; and  (b) the Commitment and Loans of such Defaulting Lender shall not be included in  determining whether the Required Lenders have taken or may take any action hereunder (including  any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that  this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver  or other modification requiring the consent of such Lender or each Lender affected thereby.  ARTICLE 3  REPRESENTATIONS AND WARRANTIES  The Borrower represents and warrants to the Lenders that:  Section 3.01. Organization; Powers.  The Borrower is a corporation duly organized,  validly existing and in good standing under the laws of the Commonwealth of Pennsylvania.  Section 3.02. Authorization; Enforceability.  The Transactions are within the  Borrower’s corporate powers and have been duly authorized by all necessary corporate action.  This  Agreement has been duly executed and delivered by the Borrower and constitutes a legal, valid and  binding obligation of the Borrower, enforceable in accordance with its terms, subject to applicable  bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights  generally and subject to general principles of equity, regardless of whether considered in a  proceeding in equity or at law.  Section 3.03. Governmental Approvals; No Conflicts.  The Transactions (a)  do not  require any consent or approval of, registration or filing with, or any other action by, any  Governmental Authority, except such as have been obtained or made and are in full force and effect,  (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational  documents of the Borrower or any order of any Governmental Authority, (c) will not violate or result  in a default under any indenture, agreement or other instrument binding upon the Borrower or its  assets, or give rise to a right thereunder to require any payment to be made by the Borrower, and  (d) will not result in the creation or imposition of, or the requirement to create, any Lien on any asset  of the Borrower.  Section 3.04. Financial Condition; No Material Adverse Effect.    





 






  43  #95368685v14  (a) (i) The consolidated balance sheet of the Borrower and its Subsidiaries as at  December 31, 2020 and the related consolidated statements of operations, changes in shareholders’  equity and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, certified by  Pricewaterhouse Coopers LLP, and the consolidated balance sheet of the Borrower and its  Subsidiaries as at March 31, 2021, June 30, 2021 and September 30, 2021 and the related consolidated  statements of operations, changes in shareholders’ equity and cash flows of the Borrower and its  Subsidiaries for the fiscal quarters then ended, in each case, copies of which have been furnished to  each Lender, fairly present in all material respects the consolidated financial condition of the  Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the  Borrower and its Subsidiaries for the periods ended on such dates in accordance with GAAP; and (ii)  since December 31, 2020, there has been no Material Adverse Effect.  (b) Except as disclosed in the Borrower’s annual, quarterly or current Reports, each as  delivered in connection with Section 5.01 and/or filed with the Securities and Exchange Commission  and delivered to the Lenders prior to the Effective Date, there is no pending or threatened action,  investigation or proceeding affecting the Borrower or any Subsidiary before any court, governmental  agency or arbitrator that may reasonably be anticipated to have a Material Adverse Effect.  There is  no pending or threatened action or proceeding against the Borrower or any Subsidiary that purports  to affect the legality, validity, binding effect or enforceability against the Borrower of this Agreement.  Since December 31, 2020, there has been no material adverse change in the business, assets,  operations, prospects or condition, financial or otherwise, of the Borrower and its Subsidiaries, taken  as a whole.  Section 3.05. Reserved.    Section 3.06. Litigation and Environmental Matters.  (a) Except as disclosed in the  Borrower’s annual, quarterly or current Reports, each as delivered in connection with Section 5.01  and/or filed with the Securities and Exchange Commission and delivered to the Lenders prior to the  Effective Date, there is no pending or threatened action, investigation or proceeding affecting the  Borrower or any Subsidiary before any court, governmental agency or arbitrator that may reasonably  be anticipated to have a Material Adverse Effect.  There is no pending or threatened action or  proceeding against the Borrower or any Subsidiary that purports to affect the legality, validity,  binding effect or enforceability against the Borrower of this Agreement.    (b) Except for the Disclosed Matters and except with respect to any other matters that,  individually or in the aggregate, could not reasonably be expected to result in a Material Adverse  Effect, the Borrower (i) has not failed to comply with any Environmental Law or to obtain, maintain  or comply with any permit, license or other approval required under any Environmental Law, (ii) has  not become subject to any Environmental Liability, (iii) has not received notice of any claim with  respect to any Environmental Liability or (iv) has no knowledge of any basis for any Environmental  Liability.  (c) Since the date of this Agreement, there has been no change in the status of the  Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the  likelihood of, a Material Adverse Effect.  Section 3.07. Compliance with Laws and Agreements.  The Borrower is in compliance  with all laws, regulations and orders of any Governmental Authority applicable to it or its property  and all indentures, agreements and other instruments binding upon it or its property, except where  the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a  Material Adverse Effect.  No Default has occurred and is continuing.  





 






  44  #95368685v14  Section 3.08. Investment Company Status.  The Borrower is not required to register as  an “investment company” as defined in the Investment Company Act of 1940.  Section 3.09. Taxes.  The Borrower has timely filed or caused to be filed all Tax returns  and reports required to have been filed and has paid or caused to be paid all Taxes required to have  been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings  and for which the Borrower has set aside on its books adequate reserves or (b) to the extent that the  failure to do so could not reasonably be expected to result in a Material Adverse Effect.  Section 3.10. ERISA.  No ERISA Event has occurred or is reasonably expected to occur  that, when taken together with all other such ERISA Events for which liability is reasonably  expected to occur, could reasonably be expected to result in a Material Adverse Effect.  Section 3.11. Beneficial Ownership.  As of the Effective Date, to the best knowledge of  the Borrower, the information included in the Beneficial Ownership Certification provided on or  prior to the Effective Date to any Lender in connection with this Agreement is true and correct in all  respects.  Section 3.12. Reserved.    Section 3.13. Anti-Corruption Laws and Sanctions.  None of (a) the Borrower, any  Subsidiary, any of their respective directors or officers, or (b) to the knowledge of the Borrower,  any affiliate, agent or employee of the Borrower or any Subsidiary have engaged in any activity or  conduct which would violate any applicable Anti-Corruption Laws or any applicable Sanctions and  the Borrower has implemented and maintains in effect policies and procedures designed to ensure  compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and  agents with Anti-Corruption Laws and applicable Sanctions.  None of (a) the Borrower, any  Subsidiary, any of their respective directors or officers or employees, or (b) to the knowledge of the  Borrower, any affiliate or agent of the Borrower or any Subsidiary is a Sanctioned Person.  No  Borrowing, use of proceeds or other transaction contemplated by this Agreement will violate any  Anti-Corruption Law or applicable Sanctions.    Section 3.14. Affected Financial Institutions.  The Borrower is not an Affected Financial  Institution.  Section 3.15. Reserved.  Section 3.16. Margin Regulations.  The Borrower is not engaged and will not engage,  principally or as one of its important activities, in the business of purchasing or carrying Margin  Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of  the proceeds of any Borrowing hereunder will be used to buy or carry any Margin Stock.  Following  the application of the proceeds of each Borrowing, not more than 25% of the value of the assets  (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) will be  Margin Stock.  Section 3.17. Reserved.  Section 3.18. Exchange Act.  No proceeds of any Loan have been or will be used directly  or indirectly in connection with the acquisition of in excess of 5% of any class of equity securities  that is registered pursuant to Section 12 of the Exchange Act or any transaction subject to the  requirements of Section 13 or 14 of the Exchange Act.  





 






  45  #95368685v14  ARTICLE 4  CONDITIONS  Section 4.01. Effective Date.  The obligations of the Lenders to make Loans hereunder  shall not become effective until the date on which each of the following conditions is satisfied (or  waived in accordance with Section 9.02):  (a) The Administrative Agent (or its counsel) shall have received from each party hereto  a counterpart of this Agreement signed on behalf of such party (which, subject to Section 9.06(b),  may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic  means that reproduces an image of an actual executed signature page).  (b) The Administrative Agent shall have received a favorable written opinion  (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of  Ballard  Spahr LLP, counsel for the Borrower, substantially in the form of Exhibit D, and covering such other  matters relating to the Borrower, this Agreement or the Transactions as the Required Lenders shall  reasonably request.  The Borrower hereby requests such counsel to deliver such opinion.  (c) The Administrative Agent shall have received such documents and certificates as  the Administrative Agent or its counsel may reasonably request relating to the organization, existence  and good standing of the Borrower, the authorization of the Transactions and any other legal matters  relating to the Borrower, this Agreement or the Transactions, all in form and substance satisfactory  to the Administrative Agent and its counsel.  (d) The Administrative Agent shall have received a certificate, dated the Effective Date  and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming  compliance with the conditions set forth in paragraphs (j) and (k) below.  (e) The Administrative Agent shall have received all fees and other amounts due and  payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment  of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.  (f) The Administrative Agent shall have received the audited financial statements and  the unaudited quarterly financial statements of the Borrower referred to in Section 3.04.  (g) (i) The Administrative Agent shall have received, at least five days prior to the  Effective Date, all documentation and other information regarding the Borrower requested in  connection with applicable “know your customer” and anti-money laundering rules and regulations,  including the Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to  the Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the  Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has  requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial  Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership  Certification (provided that, upon the execution and delivery by such Lender of its signature page to  this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).  (h) The Administrative Agent shall have received such other documents as the  Administrative Agent or the Required Lenders (through the Administrative Agent) may reasonably  request.  





 






  46  #95368685v14  (i) The Administrative Agent shall have received a Borrowing Request in accordance  with the requirements hereof.  (j) The representations and warranties of the Borrower set forth in this Agreement are  true and correct on and as of the Effective Date before and after giving effect to the Borrowing on  such date.  (k) At the time of and immediately after giving effect to the Borrowing on the Effective  Date, no Default shall have occurred and be continuing.  ARTICLE 5  AFFIRMATIVE COVENANTS  Until the principal of and interest on each Loan and all fees payable hereunder shall have  been irrevocably paid in full, the Borrower and, in the case of Sections 5.03, 5.04, 5.05, 5.06, 5.07  and 5.08  the Principal Subsidiaries, covenant(s) and agree(s) with the Lenders that:  Section 5.01. Financial Statements; Ratings Change and Other Information.  The  Borrower will furnish to the Administrative Agent and each Lender, including their Public-Siders:  (a) as soon as available and in any event within 60 days after the end of each of the first  three quarters of each fiscal year of the Borrower, a copy of the Borrower’s Quarterly Report on Form  10-Q filed with the Securities and Exchange Commission with respect to such quarter (or, if the  Borrower is not required to file a Quarterly Report on Form 10-Q, copies of an unaudited consolidated  balance sheet of the Borrower as of the end of such quarter and the related consolidated statement of  operations of the Borrower for the portion of the Borrower’s fiscal year ending on the last day of such  quarter, in each case prepared in accordance with GAAP, subject to the absence of footnotes and to  year-end adjustments), together with a certificate of an authorized officer of the Borrower stating that  no Default or Event of Default has occurred and is continuing or, if any such Default or Event of  Default has occurred and is continuing, a statement as to the nature thereof and the action which the  Borrower proposes to take with respect thereto;  (b) as soon as available and in any event within 105 days after the end of each fiscal  year of the Borrower, a copy of the Borrower’s Annual Report on Form 10-K filed with the Securities  and Exchange Commission with respect to such fiscal year (or, if the Borrower is not required to file  an Annual Report on Form 10-K, the consolidated balance sheet of the Borrower and its Subsidiaries  as of the last day of such fiscal year and the related consolidated statements of operations, changes in  shareholders’ equity (if applicable) and cash flows of the Borrower for such fiscal year, certified by  PricewaterhouseCoopers LLP or other certified public accountants of recognized national standing),  together with a certificate of an authorized officer of the Borrower stating that no Default or Event of  Default has occurred and is continuing or, if any such Default or Event of Default has occurred and  is continuing, a statement as to the nature thereof and the action which the Borrower proposes to take  with respect thereto;  (c) concurrently with the delivery of the quarterly and annual reports referred to in  subsections (a) and (b) above, a compliance certificate in substantially the form set forth in Exhibit E,  duly completed and signed by the Chief Financial Officer, Treasurer or an Assistant Treasurer of the  Borrower;  (d) except as otherwise provided in clause (a) or (b) above, promptly after the sending  or filing thereof, copies of all reports that the Borrower sends to its security holders generally, and  





 






  47  #95368685v14  copies of all Reports on Form 10-K, 10-Q or 8-K, and registration statements and prospectuses that  the Borrower or any Subsidiary files with the Securities and Exchange Commission or any national  securities exchange (except to the extent that any such registration statement or prospectus relates  solely to the issuance of securities pursuant to employee purchase, benefit or dividend reinvestment  plans of the Borrower or a Subsidiary);  (e) promptly upon becoming aware of the institution of any steps by the Borrower or  any other Person to terminate any Plan, or the failure to make a required contribution to any Plan if  such failure is sufficient to give rise to a lien under section 430(k) of the Code, or the taking of any  action with respect to a Plan which could result in the requirement that the Borrower furnish a bond  or other security to the PBGC or such Plan, or the occurrence of any event with respect to any Plan  which could result in the incurrence by the Borrower or any other member of the Controlled Group  of any material liability, fine or penalty, notice thereof and a statement as to the action the Borrower  or such member of the Controlled Group proposes to take with respect thereto;  (f) promptly after any Rating Agency shall have announced a change in the rating  established or deemed to have been established for the Index Debt, written notice of such rating  change;  (g) promptly following any request therefor, (x) such other information regarding the  operations, business affairs and financial condition of the Borrower or any Principal Subsidiary, or  compliance with the terms of this Agreement, as the Administrative Agent or any Lender (through  the Administrative Agent) may reasonably request and (y) information and documentation reasonably  requested by the Administrative Agent or any Lender for purposes of compliance with applicable  “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and  the Beneficial Ownership Regulation; and   (h) such other information respecting the condition, operations or business, financial or  otherwise, of the Borrower or any Subsidiary as any Lender, through the Administrative Agent, may  from time to time reasonably request (including any information that any Lender reasonably requests  in order to comply with its obligations under any “know your customer” or anti-money laundering  laws or regulations, including the Patriot Act and the Beneficial Ownership Regulation).  Documents required to be delivered pursuant to Section 5.01(a), (b) or (e) (to the extent  any such documents are included in materials otherwise filed with the SEC) may be delivered  electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which  such materials are publicly available as posted on the Electronic Data Gathering, Analysis and  Retrieval system (EDGAR); or (ii) on which such documents are posted on the Borrower’s behalf  on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have  access (whether a commercial, third-party website or whether made available by the Administrative  Agent); provided that:  (A) upon written request by the Administrative Agent (or any Lender  through the Administrative Agent) to the Borrower, the Borrower shall deliver paper copies of such  documents to the Administrative Agent or such Lender until a written request to cease delivering  paper copies is given by the Administrative Agent or such Lender and (B) the Borrower shall notify  the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any  such documents and provide to the Administrative Agent by electronic mail electronic versions  (i.e., soft copies) of such documents.  The Administrative Agent shall have no obligation to request  the delivery of or to maintain paper copies of the documents referred to above, and in any event  shall have no responsibility to monitor compliance by the Borrower with any such request by a  Lender for delivery, and each Lender shall be solely responsible for timely accessing posted  





 






  48  #95368685v14  documents or requesting delivery of paper copies of such document to it and maintaining its copies  of such documents.  Section 5.02. Notices of Material Events.  The Borrower will furnish to the  Administrative Agent and each Lender prompt written notice of the following:  (a) as soon as possible, and in any event within five Business Days after the occurrence  of any Default or Event of Default with respect to the Borrower continuing on the date of such  statement, a statement of an authorized officer of the Borrower setting forth details of such Default or  Event of Default and the action which the Borrower proposes to take with respect thereto;  (b) any change in the credit ratings from a credit rating agency, or the placement by a  credit rating agency of the Borrower or its parent on a “CreditWatch” or “WatchList” or any similar  list, in each case with negative implications, or the cessation by a credit rating agency of, or its intent  to cease, rating the Borrower’s debt; and  (c) any change in the information provided in the Beneficial Ownership Certification  delivered to such Lender that would result in a change to the list of beneficial owners identified in  such certification.  Each notice delivered under this Section (i) shall be in writing, (ii) shall contain a heading  or a reference line that reads “Notice under Section 5.02 of Exelon Corporation 364-Day Term  Loan Credit Agreement dated January 24, 2022” and (iii) shall be accompanied by a statement of  a Financial Officer or other executive officer of the Borrower setting forth the details of the event  or development requiring such notice and any action taken or proposed to be taken with respect  thereto.  Section 5.03. Existence; Conduct of Business.  The Borrower will do or cause to be done  all things necessary to preserve, renew and keep in full force and effect its legal existence and the  rights, licenses, permits, privileges and franchises material to the conduct of its business; provided  that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted  under Section 6.02.  Section 5.04. Payment of Obligations.  The Borrower will pay its obligations, including  Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall  become delinquent or in default, except where (a) the validity or amount thereof is being contested  in good faith by appropriate proceedings, (b) the Borrower has set aside on its books adequate  reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending  such contest could not reasonably be expected to result in a Material Adverse Effect.  Section 5.05. Maintenance of Properties; Insurance.  The Borrower will, and will cause  each of its Principal Subsidiaries to, (a) keep and maintain all property material to the conduct of its  business in good working order and condition, ordinary wear and tear excepted, and (b) maintain,  with financially sound and reputable insurance companies, insurance in such amounts and against  such risks as are customarily maintained by companies engaged in the same or similar businesses  operating in the same or similar locations.  Section 5.06. Books and Records; Inspection Rights.  The Borrower will, at any  reasonable time and from time to time, pursuant to prior notice delivered to the Borrower, permit  any Lender, or any agent or representative of any thereof, to examine and, at such Lender’s expense,  make copies of, and abstracts from the records and books of account of, and visit the properties of,  





 






  49  #95368685v14  the Borrower and any Principal Subsidiary and to discuss the affairs, finances and accounts of the  Borrower and any Principal Subsidiary with any of their respective officers; provided that any non- public information (which has been identified as such by the Borrower or the applicable Principal  Subsidiary) obtained by any Lender or any of its agents or representatives pursuant to this Section  5.06 shall be treated confidentially by such Person; provided, further, that such Person may disclose  such information to (a) any other party to this Agreement, its examiners, Affiliates, outside auditors,  counsel or other professional advisors in connection with this Agreement, (b) to any direct, indirect,  actual or prospective counterparty (and its advisor) to any swap, derivative or securitization  transaction related to the obligations under this Agreement, (c) to any credit insurance provider or  (d) if otherwise required to do so by law or regulatory process (it being understood that, unless  prevented from doing so by any applicable law or governmental authority, such Person shall use  reasonable efforts to notify the Borrower of any demand or request for any such information  promptly upon receipt thereof so that the Borrower may seek a protective order or take other  appropriate action).  Section 5.07. Compliance with Laws.  The Borrower will comply with all laws, rules,  regulations and orders of any Governmental Authority applicable to it or its property, except where  the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a  Material Adverse Effect.  The Borrower will maintain in effect and enforce policies and procedures  designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors,  officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.  Section 5.08. Use of Proceeds.  The proceeds of the Loans will be used only for general  limited liability company or corporate purposes (including the making of acquisitions and funding  a portion of the $1,750,000,000 cash capital contribution to Constellation Energy Corporation in  connection with the Spin Transaction), but in no event for any purpose that would be contrary to  Section 3.13, 3.16 or 3.18.  No part of the proceeds of any Loan will be used, whether directly or  indirectly, for any purpose that entails a violation of any of the regulations of the Federal Reserve  Board, including Regulations T, U and X.  The Borrower will not request any Borrowing, and the  Borrower shall not use, and shall ensure that its Subsidiaries and its or their respective directors,  officers, employees and agents shall not use, directly or indirectly, the proceeds of any Borrowing  (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of  money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for  the purpose of funding, financing or facilitating any activities, business or transaction of or with any  Sanctioned Person, or in any Sanctioned Country, or (c) in any manner that would result in the  violation of  any Sanctions applicable to any party hereto (including any Person participating in the  Loans hereunder, whether as underwriter, advisor, investor, lender, hedge provider, facility or  security agent or otherwise).  Section 5.09. Accuracy of Information.  The Borrower will ensure that any information,  including financial statements or other documents, furnished to the Administrative Agent or the  Lenders in connection with this Agreement or any amendment or modification hereof or waiver  hereunder contains no material misstatement of fact or omits to state any material fact necessary to  make the statements therein, in the light of the circumstances under which they were made, not  misleading, and the furnishing of such information shall be deemed to be a representation and  warranty by the Borrower on the date thereof as to the matters specified in this Section.  





 






  50  #95368685v14  ARTICLE 6  NEGATIVE COVENANTS  Until the principal of and interest on each Loan and all fees  payable hereunder have been paid in  full the Borrower covenants and agrees with the Lenders that:  Section 6.01. Liens.  The Borrower will not create, incur, assume or permit to exist any  Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or  revenues (including accounts receivable) or rights in respect of any thereof, except:  (a) Liens imposed by law, such as carriers’, warehousemen’s, landlords’ repairmen’s,  materialmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business;  (b) Liens on the capital stock of or any other Equity Interest in any Subsidiary to secure  Nonrecourse Indebtedness;  (c) Liens for taxes, assessments or governmental charges, levies, or fines (including  such amounts arising under environmental law) on property of the Borrower if the same shall not at  the time be delinquent or thereafter can be paid without a material penalty, or are being contested in  good faith and by appropriate proceedings;   (d) Liens upon or in any property acquired in the ordinary course of business to secure  the purchase price of such property or to secure any obligation incurred solely for the purpose of  financing the acquisition of such property;  (e) Liens existing on property at the time of the acquisition thereof (other than any such  Lien created in contemplation of such acquisition unless permitted by the preceding clause (d));  (f) Liens granted in connection with any financing arrangement for the purchase of  nuclear fuel or the financing of pollution control facilities, limited to the fuel or facilities so purchased  or acquired;  (g) Liens arising in connection with sales or transfers of, or financing secured by,  accounts receivable or related contracts, provided that any such sale, transfer or financing shall be on  arms’ length terms;  (h) Liens securing Permitted Obligations;  (i) Permitted Encumbrances;  (j) Liens arising in connection with sale and leaseback transactions entered into by the  Borrower, but only to the extent that the aggregate purchase price of all assets sold by the Borrower  during the term of this Agreement pursuant to such sale and leaseback transactions does not exceed  $1,000,000,000;  (k) Liens arising out of pledges or deposits under worker’s compensation laws,  unemployment insurance, compensation arrangements, supplemental retirement plans arising out of  pledges or deposits under worker’s compensation laws, unemployment insurance, compensation  arrangements, supplemental retirement plans or other social security or similar legislation;  





 






  51  #95368685v14  (l) Liens constituting attachment, judgment and other similar Liens arising in  connection with court proceedings to the extent not constituting an Event of Default under Section  7.01(f);  (m) Liens created in the ordinary course of business to secure liability to insurance  carriers and Liens on insurance policies and the proceeds thereof (whether accrued or not), rights or  claims against an insurer or other similar asset securing insurance premium financings;  (n) Liens in favor of customs and revenue authorities arising as a matter of law to secure  payment of customs duties in connection with the importation of goods in the ordinary course of  business;  (o) Liens in the nature of rights of setoff, bankers’ liens, revocation, refund, chargeback,  counterclaim, netting of cash amounts or similar rights as to deposit accounts, commodity accounts  or securities accounts or other funds maintained with a credit or depository institution;  (p) Liens consisting of pledges of industrial development, pollution control or similar  revenue bonds in connection with the remarketing of such bonds;  (q) Liens and similar customary cash collateralization obligations in respect of letter of  credit exposure or swingline exposure relating to defaulting lenders in the Borrower’s senior  unsecured credit facilities;  (r) 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 Interests (or project interest, interests in any energy facility (including  undivided interests)) of such Person, to the extent a security interest or other Lien is created on any  such interest as a result thereof;  (s) Liens granted on cash or cash equivalents to defease or repay Indebtedness of the  Borrower no later than 60 days after the creation of such Lien;   (t) Liens created in connection with sales, transfers, leases, assignment or other  conveyances or Dispositions of assets, including (A) Liens on assets or securities granted or deemed  to arise in connection with and as a result of the execution, delivery or performance of contracts to  purchase or sell such assets or securities, and (B) rights of first refusal, options or other contractual  rights or obligations to sell, assign or otherwise dispose of any interest therein;   (u) Liens securing Permitted Obligations and reimbursement obligations in respect of  letters of credit issued to support Permitted Obligations; and  (v) Liens, other than those described above in this Section 6.01, provided that the  aggregate amount of all Indebtedness secured by Liens permitted by this clause (v) shall not exceed  in the aggregate at any one time outstanding $200,000,000.  Section 6.02. Fundamental Changes; Mergers and Consolidations; Disposition of  Assets.  Merge with or into or consolidate with or into, or sell, assign, lease or otherwise dispose of  (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether  now owned or hereafter acquired) to any Person or permit any Principal Subsidiary to do so, except  





 






  52  #95368685v14  that (i) any Principal Subsidiary may merge with or into or consolidate with or transfer assets to any  other Principal Subsidiary, (ii) any Principal Subsidiary may merge with or into or consolidate with  or transfer assets to the Borrower, (iii) the Borrower may merge or consolidate with or into a  Subsidiary thereof formed for the purpose of converting the Borrower into a corporation and (iv) the  Borrower or any Principal Subsidiary may merge with or into or consolidate with or transfer assets  to any other Person; provided that, in each case, (A) immediately before and after giving effect  thereto, no Default or Event of Default shall have occurred and be continuing (except in the case  where any Principal Subsidiary may merge with or into or consolidate with or transfer assets to any  other Principal Subsidiary), (B) in the case of any such merger, consolidation or transfer of assets to  which the Borrower is a party, either (x) the Borrower shall be the surviving entity or (y) the  surviving entity shall be an Eligible Successor and shall have assumed all of the obligations of the  Borrower under this Agreement pursuant to a written instrument in form and substance satisfactory  to the Administrative Agent and the Administrative Agent shall have received an opinion of counsel  in form and substance satisfactory to it as to the enforceability of such obligations assumed, and (C)  subject to clause (B) above, in the case of any such merger, consolidation or transfer of assets to  which any Principal Subsidiary is a party, a Principal Subsidiary shall be the surviving entity or  transferee (as applicable); provided, further, that the consummation of the Spin Transaction shall be  permitted.  Section 6.03. Continuation of Businesses.  Engage, or permit any Subsidiary to engage,  in any line of business which is material to the Borrower and its Subsidiaries, taken as a whole, other  than businesses engaged in by the Borrower and its Subsidiaries as of the date hereof and reasonable  extensions thereof.    Section 6.04. Restrictive Agreements.  The Borrower will not, and will not permit any  of its Subsidiaries (other than any Excluded Subsidiary) to, directly or indirectly, enter into, incur or  permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition  upon (a) the ability of the Borrower or any Subsidiary to create, incur or permit to exist any Lien  upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other  distributions with respect to any shares of its capital stock or to make or repay loans or advances to  the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other  Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by  law by this Agreement, (ii) the foregoing shall not apply to restrictions and conditions existing on  the date hereof identified on Schedule 6.04 (but shall apply to any extension or renewal of, or any  amendment or modification expanding the scope of, any such restriction or condition), (iii) the  foregoing shall not apply to customary restrictions and conditions contained in agreements relating  to the sale of a Subsidiary pending such sale; provided that such restrictions and conditions apply  only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of the  foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured  Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the  property or assets securing such Indebtedness and (v) clause (a) of the foregoing shall not apply to  customary provisions in leases and other contracts restricting the assignment thereof.  Section 6.05. Consolidated Capitalization Ratio.  The Borrower will not permit the  Consolidated Capitalization Ratio as of the last day of any Test Period to exceed 0.65:1.00.  Section 6.06. Most Favored Lender. The Borrower will not, and will not permit any of  its Subsidiaries to, enter into any amendment, waiver, consent, modification, refunding, refinancing  or replacement of the Existing Credit Agreement with terms the effect of which is to (i) include a  term, covenant and/or event of default which imposes a restriction, limitation or obligation in favor  of another lender not imposed in favor of the Lenders by this Agreement, or (ii) revise or alter any  





 






  53  #95368685v14  term, covenant and/or event of default contained therein the effect of which is to impose a restriction,  limitation or obligation in favor of another lender not imposed in favor of the Lenders by this  Agreement, unless the Borrower or such Subsidiary, as the case may be, incorporates herein such  additional term, covenant and/or event of default. Within ten Business Days, the Borrower shall  deliver to the Administrative Agent an amendment to this Agreement incorporating such additional  term, covenant and/or event of default.  Prior to the execution and delivery of such amendment by  the Borrower, this Agreement shall be deemed to contain each such additional term, covenant and/or  event of default for the purposes of determining the rights and obligations hereunder.    ARTICLE 7  EVENTS OF DEFAULT  Section 7.01. Events of Default.  If any of the following events (“Events of Default”)  shall occur:  (a) The Borrower shall fail to pay (i) any principal of any Loan when the same becomes  due and payable or (ii) any interest on any Loan or any other amount payable by the Borrower  hereunder within three Business Days after the same becomes due and payable;   (b) Any representation or warranty made or deemed made by or on behalf of the  Borrower herein or by the Borrower (or any of its officers) pursuant to the terms of this Agreement  shall prove to have been incorrect or misleading in any material respect when made;   (c) The Borrower shall fail to perform or observe (i) any term, covenant or agreement  contained in Section 5.02, 5.03 (with respect to Borrower’s existence), 5.08 or Article 6 or (ii) any  other term, covenant or agreement contained in this Agreement on its part to be performed or observed  if the failure to perform or observe such other term, covenant or agreement shall remain unremedied  for 30 days after written notice thereof shall have been given to the Borrower by the Administrative  Agent (which notice shall be given by the Administrative Agent at the written request of any Lender);   (d) The Borrower or any Principal Subsidiary shall fail to pay any principal of or  premium or interest on any Indebtedness that is outstanding in a principal amount in excess of  $100,000,000 in the aggregate (but excluding Indebtedness hereunder and Nonrecourse Indebtedness)  when the same becomes due and payable (whether by scheduled maturity, required prepayment,  acceleration, demand or otherwise), and such failure shall continue after the applicable grace period,  if any, specified in the agreement or instrument relating to such Indebtedness; or any other event shall  occur or condition shall exist under any agreement or instrument relating to any such Indebtedness  and shall continue after the applicable grace period, if any, specified in such agreement or instrument,  if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity  of such 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), prior to the stated maturity  thereof, other than any acceleration of any Indebtedness secured by equipment leases or fuel leases  of the Borrower or a Principal Subsidiary as a result of the occurrence of any event requiring a  prepayment (whether or not characterized as such) thereunder, which prepayment will not result in a  Material Adverse Effect;   (e) The Borrower or any Principal Subsidiary shall generally not pay its debts as such  debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a  general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the  Borrower or any Principal Subsidiary seeking to adjudicate it as bankrupt or insolvent, or seeking  liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition  





 






  54  #95368685v14  of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors,  or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other  similar official for it or for any substantial part of its property and, in the case of any such proceeding  instituted against it (but not instituted by it), either such proceeding shall remain undismissed or  unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry  of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar  official for, it or for any substantial part of its property) shall occur; or the Borrower or any Principal  Subsidiary shall take any corporate or limited liability company action to authorize or to consent to  any of the actions set forth above in this Section 7.01(e);   (f) One or more judgments or orders for the payment of money in an aggregate amount  exceeding $100,000,000 (excluding any such judgments or orders to the extent covered by insurance,  subject to any customary deductible, and under which the applicable insurance carrier has not denied  coverage) shall be rendered against the Borrower or any Principal Subsidiary and either (i)  enforcement proceedings shall have been commenced by any creditor upon such judgment or order  or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such  judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;   (g) (i) Any Reportable Event that the Required Lenders determine in good faith is  reasonably likely to result in the termination of any Single Employer Plan or in the appointment by  the appropriate United States District Court of a trustee to administer a Single Employer Plan shall  have occurred and be continuing 60 days after written notice to such effect shall have been given to  the Borrower by the Administrative Agent; (ii) any Single Employer Plan shall be terminated; (iii) a  Trustee shall be appointed by an appropriate United States District Court to administer any Single  Employer Plan; (iv) the PBGC shall institute proceedings to terminate any Single Employer Plan or  to appoint a trustee to administer any Single Employer Plan; or (v) the Borrower or any other member  of the Controlled Group withdraws from any Multiemployer Plan; provided that on the date of any  event described in clauses (i) through (v) above, the Unfunded Liabilities of the applicable Plan  exceed $100,000,000;   (h) [Reserved];   (i) any material provision of any Loan Document, at any time after its execution and  delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction  in full of all Obligations, ceases to be in full force and effect; or the Borrower or any other Person  contests in writing the validity or enforceability of any provision of any Loan Document; or the  Borrower denies in writing that it has any or further liability or obligation under any Loan Document,  or purports in writing to revoke, terminate or rescind any Loan Document; or   (j) a Change in Control shall have occurred.  Section 7.02. Remedies Upon an Event of Default.  If an Event of Default occurs (other  than an event with respect to the Borrower described in Section 7.01(e), and at any time thereafter  during the continuance of such Event of Default, the Administrative Agent may with the consent of  the Required Lenders, and shall at the request of the Required Lenders, by notice to the Borrower,  take any or all of the following actions, at the same or different times:  (a) declare the Loans then outstanding to be due and payable in whole (or in part, in  which case any principal not so declared to be due and payable may thereafter be declared to be due  and payable), and thereupon the principal of the Loans so declared to be due and payable, together  with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder  





 






  55  #95368685v14  and under any other Loan Document, shall become due and payable immediately, without  presentment, demand, protest or other notice of any kind, all of which are hereby waived by the  Borrower; and  (b) exercise on behalf of itself and the Lenders all rights and remedies available to it  andthe Lenders under the Loan Documents and Applicable Law.  If an Event of Default described in Section 7.01(e) occurs with respect to the Borrower,  the principal of the Loans then outstanding, together with accrued interest thereon and all fees and  other obligations of the Borrower accrued hereunder and under any other Loan Document including  any break funding payment or prepayment premium, shall automatically become due and payable,  in each case, without presentment, demand, protest or other notice of any kind, all of which are  hereby waived by the Borrower.  Section 7.03. Application of Payments.  Notwithstanding anything herein to the contrary,  following the occurrence and during the continuance of an Event of Default, and notice thereof to  the Administrative Agent by the Borrower or the Required Lenders, all payments received on  account of the Obligations shall, subject to Section 2.20, be applied by the Administrative Agent as  follows:  (a) first, to payment of that portion of the Obligations constituting fees, indemnities,  expenses and other amounts payable to the Administrative Agent (including fees and disbursements  and other charges of counsel to the Administrative Agent payable under Section 9.03 and amounts  pursuant to Section 2.12 payable to the Administrative Agent in its capacity as such);  (b) second, to payment of that portion of the Obligations constituting fees, expenses,  indemnities and other amounts (other than principal and interest) payable to the Lenders (including  fees and disbursements and other charges of counsel to the Lenders payable under Section 9.03)  arising under the Loan Documents, ratably among them in proportion to the respective amounts  described in this clause (b) payable to them;  (c) third, to payment of that portion of the Obligations constituting accrued and unpaid  interest on the Loans, ratably among the Lenders in proportion to the respective amounts described in  this clause (c) payable to them;  (d) fourth, to payment of that portion of the Obligations constituting unpaid principal of  the Loans, ratably among the Lenders in proportion to the respective amounts described in this  clause (d) payable to them;  (e) fifth, to the payment in full of all other Obligations, in each case ratably among the  Administrative Agent and the Lenders based upon the respective aggregate amounts of all such  Obligations owing to them in accordance with the respective amounts thereof then due and payable;  and  (f) finally, the balance, if any, after all Obligations have been indefeasibly paid in full,  to the Borrower or as otherwise required by law.  





 






  56  #95368685v14  ARTICLE 8  THE ADMINISTRATIVE AGENT  Section 8.01. Authorization and Action.  (a) Each Lender hereby irrevocably appoints  the entity named as Administrative Agent in the heading of this Agreement and its successors and  assigns to serve as the administrative agent under the Loan Documents and each Lender authorizes  the Administrative Agent to take such actions as agent on its behalf and to exercise such powers  under this Agreement and the other Loan Documents as are delegated to the Administrative Agent  under such agreements and to exercise such powers as are reasonably incidental thereto. Without  limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and  deliver, and to perform its obligations under, each of the Loan Documents to which the  Administrative Agent is a party, and to exercise all rights, powers and remedies that the  Administrative Agent may have under such Loan Documents.  (b) As to any matters not expressly provided for herein and in the other Loan Documents  (including enforcement or collection), the Administrative Agent shall not be required to exercise any  discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully  protected in so acting or refraining from acting) upon the written instructions of the Required Lenders  (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the  Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon  each Lender; provided, however, that the Administrative Agent shall not be required to take any action  that (i)  the Administrative Agent in good faith believes exposes it to liability unless the  Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it  from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan  Document or applicable law, including any action that may be in violation of the automatic stay under  any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or  that may effect a forfeiture, modification or termination of property of a Defaulting Lender in  violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of  debtors; provided, further, that the Administrative Agent may seek clarification or direction from the  Required Lenders prior to the exercise of any such instructed action and may refrain from acting until  such clarification or direction has been provided.  Except as expressly set forth in the Loan Documents,  the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to  disclose, any information relating to the Borrower, any Subsidiary or any Affiliate of any of the  foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any  of its Affiliates in any capacity.  Nothing in this Agreement shall require the Administrative Agent to  expend or risk its own funds or otherwise incur any financial liability in the performance of any of its  duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds  for believing that repayment of such funds or adequate indemnity against such risk or liability is not  reasonably assured to it.  (c) In performing its functions and duties hereunder and under the other Loan  Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited  circumstances expressly provided for herein relating to the maintenance of the Register), and its duties  are entirely mechanical and administrative in nature.  Without limiting the generality of the foregoing:  (i) the Administrative Agent does not assume and shall not be deemed to have  assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee  of or for any Lender or holder of any other obligation other than as expressly set forth  herein and in the other Loan Documents, regardless of whether a Default or an Event of  Default has occurred and is continuing (and it is understood and agreed that the use of the  term “agent” (or any similar term) herein or in any other Loan Document with reference to  





 






  57  #95368685v14  the Administrative Agent is not intended to connote any fiduciary duty or other implied (or  express) obligations arising under agency doctrine of any applicable law, and that such  term is used as a matter of market custom and is intended to create or reflect only an  administrative relationship between contracting parties); additionally, each Lender agrees  that it will not assert any claim against the Administrative Agent based on an alleged breach  of fiduciary duty by the Administrative Agent in connection with this Agreement and/or  the transactions contemplated hereby;  (ii) [Reserved];  (iii) [Reserved]; and  (iv) nothing in this Agreement or any Loan Document shall require the  Administrative Agent to account to any Lender for any sum or the profit element of any  sum received by the Administrative Agent for its own account;  (d) The Administrative Agent may perform any of its duties and exercise its rights and  powers hereunder or under any other Loan 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 of their respective duties and exercise their respective rights and powers through their  respective Related Parties.  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 pursuant to this Agreement.  The Administrative Agent shall not be  responsible for the negligence or misconduct of any sub-agent except to the extent that a court of  competent jurisdiction determines in a final and nonappealable judgment that the Administrative  Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.  (e) The Arranger shall not have obligations or duties whatsoever in such capacity under  this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in  such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.  (f) In case of the pendency of any proceeding with respect to any Loan Party under any  Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,  the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement  obligation shall then be due and payable as herein expressed or by declaration or otherwise and  irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall  be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:  (i) to file and prove a claim for the whole amount of the principal and interest  owing and unpaid in respect of the Loans and all other Obligations that are owing and  unpaid and to file such other documents as may be necessary or advisable in order to have  the claims of the Lenders and the Administrative Agent (including any claim under  Sections 2.12, 2.13, 2.15, 2.17 and 9.03) allowed in such judicial proceeding; and  (ii) to collect and receive any monies or other property payable or deliverable  on any such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such proceeding is hereby authorized by each Lender to make such payments to the  Administrative Agent and, in the event that the Administrative Agent shall consent to the making  of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it,  





 






  58  #95368685v14  in its capacity as the Administrative Agent, under the Loan Documents (including under Section  9.03).  Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize  or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,  adjustment or composition affecting the Obligations or the rights of any Lender to authorize the  Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.    (g) The provisions of this Article are solely for the benefit of the Administrative Agent  and the Lenders, and, except solely to the extent of the Borrower’s rights to consent pursuant to and  subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary, or any of  their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.  Section 8.02. Administrative Agent’s Reliance, Limitation of Liability, Etc.  (a) Neither  the Administrative Agent nor any of its Related Parties shall be (i) liable  for any action taken or  omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or in  connection with this Agreement or the other Loan Documents (x) with the consent of or at the request  of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary,  or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances  as provided in the Loan Documents) or (y) in the absence of its own gross negligence or willful  misconduct (such absence to be presumed unless otherwise determined by a court of competent  jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the  Lenders for any recitals, statements, representations or warranties made by or any officer thereof  contained in this Agreement or any other Loan Document or in any certificate, report, statement or  other document referred to or provided for in, or received by the Administrative Agent under or in  connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness,  genuineness, enforceability or sufficiency of this Agreement or any other Loan Document (including,  for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic  Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an  image of an actual executed signature page) or for any failure of to perform its obligations hereunder  or thereunder.  (b) The Administrative Agent shall be deemed not to have knowledge of any (i) notice  of any of the events or circumstances set forth or described in Section 5.02 unless and until written  notice thereof stating that it is a “notice under Section 5.02” in respect of this Agreement and  identifying the specific clause under said Section is given to the Administrative Agent by the  Borrower, or (ii) notice of any Default or Event of Default unless and until written notice thereof  (stating that it is a “notice of Default” or a “notice of an Event of Default”) is given to the  Administrative Agent by the Borrower or a Lender.  Further, the Administrative Agent shall not be  responsible for or have any duty to ascertain or inquire into (A)  any statement, warranty or  representation made in or in connection with any Loan Document, (B) the contents of any certificate,  report or other document delivered thereunder or in connection therewith, (C) the performance or  observance of any of the covenants, agreements or other terms or conditions set forth in any Loan  Document or the occurrence of any Default or Event of Default, (D)  the sufficiency, validity,  enforceability, effectiveness or genuineness of any Loan Document or any other agreement,  instrument or document, or (E) the satisfaction of any condition set forth in Article 4 or elsewhere in  any Loan Document, other than to confirm receipt of items (which on their face purport to be such  items) expressly required to be delivered to the Administrative Agent or satisfaction of any condition  that expressly refers to the matters described therein being acceptable or satisfactory to the  Administrative Agent.  (c) Without limiting the foregoing, the Administrative Agent (i) may treat the payee of  any promissory note as its holder until such promissory note has been assigned in accordance with  





 






  59  #95368685v14  Section 9.04, (ii) may rely on the Register to the extent set forth in Section 9.04(b), (iii) may consult  with legal counsel (including counsel to the Borrower), independent public accountants and other  experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith  by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty  or representation to any Lender and shall not be responsible to any Lender for any statements,  warranties or representations made by or on behalf of any Loan Party in connection with this  Agreement or any other Loan Document, (v) in determining compliance with any condition hereunder  to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, may presume  that such condition is satisfactory to such Lender unless the Administrative Agent shall have received  notice to the contrary from such Lender sufficiently in advance of the making of such Loan and (vi)  shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any  other Loan Document by acting upon, any notice, consent, certificate or other instrument or writing  (which writing may be a fax, any electronic message, Internet or intranet website posting or other  distribution) or any statement made to it orally or by telephone and believed by it to be genuine and  signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person  in fact meets the requirements set forth in the Loan Documents for being the maker thereof).  Section 8.03. Posting of Communications.  (a)  The Borrower agrees that the  Administrative Agent may, but shall not be obligated to, make any Communications available to the  Lenders by posting the Communications on IntraLinksTM, DebtDomain, SyndTrak, ClearPar or any  other electronic platform chosen by the Administrative Agent to be its electronic transmission  system (the “Approved Electronic Platform”).  (b) Although the Approved Electronic Platform and its primary web portal are secured  with generally-applicable security procedures and policies implemented or modified by the  Administrative Agent from time to time (including, as of the Effective Date, a user ID/password  authorization system) and the Approved Electronic Platform is secured through a per-deal  authorization method whereby each user may access the Approved Electronic Platform only on a deal- by-deal basis, each of the Lenders and the Borrower acknowledges and agrees that the distribution of  material through an electronic medium is not necessarily secure, that the Administrative Agent is not  responsible for approving or vetting the representatives or contacts of any Lender that are added to  the Approved Electronic Platform, and that there may be confidentiality and other risks associated  with such distribution.  Each of the Lenders and the Borrower hereby approves distribution of the  Communications through the Approved Electronic Platform and understands and assumes the risks  of such distribution.  (c) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS  ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS  DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE  COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM  AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE  APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS.  NO WARRANTY  OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF  THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS  MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS  OR THE APPROVED ELECTRONIC PLATFORM.  IN NO EVENT SHALL THE  ADMINISTRATIVE AGENT, THE ARRANGER OR ANY OF THEIR RESPECTIVE RELATED  PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY  LOAN PARTY, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF  ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR  





 






  60  #95368685v14  CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT  OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE  AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE  APPROVED ELECTRONIC PLATFORM.  “Communications” means, collectively, any notice, demand, communication, information,  document or other material provided by or on behalf of any Loan Party pursuant to any Loan  Document or the transactions contemplated therein which is distributed by the Administrative  Agent or any Lender by means of electronic communications pursuant to this Section, including  through an Approved Electronic Platform.  (d) Each Lender agrees that notice to it (as provided in the next sentence) specifying  that Communications have been posted to the Approved Electronic Platform shall constitute effective  delivery of the Communications to such Lender for purposes of the Loan Documents.  Each Lender  agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic  communication) from time to time of such Lender’s email address to which the foregoing notice may  be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.  (e) Each of the Lenders and the Borrower agrees that the Administrative Agent may,  but (except as may be required by applicable law) shall not be obligated to, store the Communications  on the Approved Electronic Platform in accordance with the Administrative Agent’s generally  applicable document retention procedures and policies.  (f) Nothing herein shall prejudice the right of the Administrative Agent or any Lender  to give any notice or other communication pursuant to any Loan Document in any other manner  specified in such Loan Document.  Section 8.04. The Administrative Agent Individually.  With respect to its Commitment  and Loans, the Person serving as the Administrative Agent shall have and may exercise the same  rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent  set forth herein for any other Lender.  The terms “Lenders”, “Required Lenders” and any similar  terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its  individual capacity as a Lender or as one of the Required Lenders, as applicable.  The Person serving  as the Administrative Agent and its Affiliates may accept deposits from, lend money to, own  securities of, act as the financial advisor or in any other advisory capacity for and generally engage  in any kind of banking, trust or other business with, the Borrower, any Subsidiary or any Affiliate  of any of the foregoing as if such Person was not acting as the Administrative Agent and without  any duty to account therefor to the Lenders.  Section 8.05. Successor Administrative Agent.  (a)  The Administrative Agent may  resign at any time by giving 30 days’ prior written notice thereof to the Lenders and the Borrower,  whether or not a successor Administrative Agent has been appointed.  Upon any such resignation,  the Required Lenders shall have the right to appoint a successor Administrative Agent.  If no  successor Administrative Agent shall have been so appointed by the Required Lenders, and shall  have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of  notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint  a successor Administrative Agent, which shall be a bank with an office in New York, New York or  an Affiliate of any such bank.  Such appointment shall be subject to the prior written approval of the  Borrower (which approval may not be unreasonably withheld and shall not be required while an  Event of Default has occurred and is continuing).  Upon the acceptance of any appointment as  Administrative Agent by a successor Administrative Agent, such successor Administrative Agent  





 






  61  #95368685v14  shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring  Administrative Agent.  Upon the acceptance of appointment as Administrative Agent by a successor  Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and  obligations under this Agreement and the other Loan Documents.  Prior to any retiring  Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative  Agent shall take such action as may be reasonably necessary to assign to the successor  Administrative Agent its rights as Administrative Agent under the Loan Documents.  (b) Notwithstanding paragraph (a) of this Section, in the event no successor  Administrative Agent shall have been so appointed and shall have accepted such appointment within  30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring  Administrative Agent may give notice of the effectiveness of its resignation to the Lenders and the  Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the  retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under  the other Loan Documents and (ii) the Required Lenders shall succeed to and become vested with all  the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all  payments required to be made hereunder or under any other Loan Document to the Administrative  Agent for the account of any Person other than the Administrative Agent shall be made directly to  such Person and (B) all notices and other communications required or contemplated to be given or  made to the Administrative Agent shall directly be given or made to each Lender.  Following the  effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of  this Article and Section 9.03, as well as any exculpatory, reimbursement and indemnification  provisions set forth in any other Loan Document, 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.  Section 8.06. Acknowledgements of Lenders.  (a) Each Lender acknowledges that (i) the  Loan Documents set forth the terms of a commercial lending facility, (ii) it is engaged in making,  acquiring or holding commercial loans  and in providing other facilities set forth herein as may be  applicable to such Lender in the ordinary course of business and is making the Loans hereunder as  commercial loans in the ordinary course of business, and not for the purpose of purchasing, acquiring  or holding any other type of financial instrument (and each Lender agrees not to assert a claim in  contravention of the foregoing), (iii)  it has, independently and without reliance upon the  Administrative Agent, the Arranger or any other Lender, or any of the Related Parties of any of the  foregoing, and based on such documents and information as it has deemed appropriate, made its  own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or  hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or  hold commercial loans and to provide other facilities set forth herein, as may be applicable to such  Lender, and either it, or the Person exercising discretion in making its decision to make, acquire  and/or hold such commercial loans or to provide such other facilities, is experienced in making,  acquiring or holding such commercial loans or providing such other facilities.  Each Lender also  acknowledges that it will, independently and without reliance upon the Administrative Agent, the  Arranger or any other Lender, or any of the Related Parties of any of the foregoing, and based on  such documents and information (which may contain material, non-public information within the  meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall  from time to time deem appropriate, continue to make its own decisions in taking or not taking action  under or based upon this Agreement, any other Loan Document or any related agreement or any  document furnished hereunder or thereunder.  





 






  62  #95368685v14  (b) Each Lender, by delivering its signature page to this Agreement on the Effective  Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document  pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt  of, and consented to and approved, each Loan Document and each other document required to be  delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the  Effective Date.  (c) (i) Each Lender hereby agrees that (x) if the Administrative Agent notifies such  Lender that the Administrative Agent has determined in its sole discretion that any funds received by  such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment  or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”)  were erroneously transmitted to such Lender (whether or not known to such Lender), and demands  the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later  than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment  (or portion thereof) as to which such a demand was made in same day funds, together with interest  thereon in respect of each day from and including the date such Payment (or portion thereof) was  received by such Lender to the date such amount is repaid to the Administrative Agent at the greater  of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance  with banking industry rules on interbank compensation from time to time in effect, and (y) to the  extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the  Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect  to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments  received, including without limitation any defense based on “discharge for value” or any similar  doctrine.  A notice of the Administrative Agent to any Lender under this Section 8.06(c) shall be  conclusive, absent manifest error.  (ii) Each Lender hereby further agrees that if it receives a Payment from the  Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a  different date from, that specified in a notice of payment sent by the Administrative Agent  (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was  not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case,  that an error has been made with respect to such Payment.  Each Lender agrees that, in  each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have  been sent in error, such Lender shall promptly notify the Administrative Agent of such  occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no  event later than one Business Day thereafter, return to the Administrative Agent the amount  of any such Payment (or portion thereof) as to which such a demand was made in same day  funds, together with interest thereon in respect of each day from and including the date  such Payment (or portion thereof) was received by such Lender to the date such amount is  repaid to the Administrative Agent at the greater of the Federal Funds Effective Rate and  a rate determined by the Administrative Agent in accordance with banking industry rules  on interbank compensation from time to time in effect.  (iii) The Borrower and each other Loan Party hereby agrees that (x) in the event  an erroneous Payment (or portion thereof) are not recovered from any Lender that has  received such Payment (or portion thereof) for any reason, the Administrative Agent shall  be subrogated to all the rights of such Lender with respect to such amount and (y) an  erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any  Obligations owed by the Borrower or any other Loan Party.  





 






  63  #95368685v14  (iv) Each party’s obligations under this Section 8.06(c) shall survive the  resignation or replacement of the Administrative Agent or any transfer of rights or  obligations by, or the replacement of, a Lender, the termination of the Commitments or the  repayment, satisfaction or discharge of all Obligations under any Loan Document.  Section 8.07. [Reserved].    Section 8.08. [Reserved].    Section 8.09. Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as  of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such  Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for  the benefit of, the Administrative Agent and the Arranger and their respective Affiliates, and not,  for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least  one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of the Plan  Asset Regulations) of one or more Benefit Plans in connection with the Loans or the  Commitments,  (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84- 14 (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95-60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90-1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91-38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE 96- 23 (a class exemption for certain transactions determined by in-house asset managers), is  applicable with respect to such Lender’s entrance into, participation in, administration of  and performance of the Loans, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Commitments  and this Agreement, (C) the entrance into, participation in, administration of and  performance of the Loans, the Commitments and this Agreement satisfies the requirements  of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of  such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with  respect to such Lender’s entrance into, participation in, administration of and performance  of the Loans, the Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in  writing between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with  respect to a Lender or such Lender has provided another representation, warranty and covenant as  provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents  and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from  the date such Person became a Lender party hereto to the date such Person ceases being a Lender  party hereto, for the benefit of, the Administrative Agent and the Arranger and their respective  Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan  





 






  64  #95368685v14  Party, that none of the Administrative Agent or the Arranger or any of their respective Affiliates is a  fiduciary with respect to the assets of such Lender (including in connection with the reservation or  exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any  documents related to hereto or thereto).  (c) The Administrative Agent and the Arranger hereby informs the Lenders that each  such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity,  in connection with the transactions contemplated hereby, and that such Person has a financial interest  in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive  interest or other payments with respect to the Loans, the Commitments, this Agreement and any other  Loan Documents (ii) may recognize a gain if it extended the Loans, or the Commitments for an  amount less than the amount being paid for an interest in the Loans or the Commitments by such  Lender or (iii) may receive fees or other payments in connection with the transactions contemplated  hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement  fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or  collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal- away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s  acceptance fees, breakage or other early termination fees or fees similar to the foregoing.  ARTICLE 9  MISCELLANEOUS  Section 9.01. Notices.  (a) Except in the case of notices and other communications  expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and  other communications provided for herein shall be in writing and shall be delivered by hand or  overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:  (i) if to the Borrower, to it at 10 S. Dearborn, 54th Floor, Chicago, IL 60603,  Attention: Chief Financial Officer, facsimile: 312-394-5443;  (ii) if to the Administrative Agent, at its address at 400 Jefferson Park,  Whippany, NY 07981, Attention: Michael Xu, email: michael.xu@barclays.com;  (iii) if to any other Lender, to it at its address (or telecopy number) set forth in  its Administrative Questionnaire.  Notices sent by hand or overnight courier service, or mailed by certified or registered mail,  shall be deemed to have been given when received; notices sent by facsimile shall be deemed to  have been given when sent (except that, if not given during normal business hours for the recipient,  shall be deemed to have been given at the opening of business on the next business day for the  recipient).  Notices delivered through Approved Electronic Platforms, to the extent provided in  paragraph (b) below, shall be effective as provided in said paragraph (b).  (b) Notices and other communications to the Borrower and the Lenders hereunder may  be delivered or furnished by using Approved Electronic Platforms pursuant to procedures approved  by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article  2 unless otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative  Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it  hereunder by electronic communications pursuant to procedures approved by it; provided that  approval of such procedures may be limited to particular notices or communications.  





 






  65  #95368685v14  (c) Unless the Administrative Agent otherwise prescribes, (i)  notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an  acknowledgement from the intended recipient (such as by the “return receipt requested” function, as  available, return e-mail or other written acknowledgement), and (ii)  notices or communications  posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the  intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that  such notice or communication is available and identifying the website address therefor; provided that,  for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the  normal business hours of the recipient, such notice or communication shall be deemed to have been  sent at the opening of business on the next business day for the recipient.  (d) Any party hereto may change its address or telecopy number for notices and other  communications hereunder by notice to the other parties hereto.  Section 9.02. Waivers; Amendments.  (a) No failure or delay by the Administrative  Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,  nor shall any single or partial exercise of any such right or power, or any abandonment or  discontinuance of steps to enforce such a right or power, preclude any other or further exercise  thereof or the exercise of any other right or power.  The rights and remedies of the Administrative  Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that  they would otherwise have.  No waiver of any provision of this Agreement or consent to any  departure by the Borrower therefrom shall in any event be effective unless the same shall be  permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only  in the specific instance and for the purpose for which given.  Without limiting the generality of the  foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of  whether the Administrative Agent or any Lender may have had notice or knowledge of such Default  at the time.  (b) Subject to Section 2.14(b) and (c) and Section 9.02(c) below, neither this Agreement  nor any provision hereof may be waived, amended or modified except pursuant to an agreement or  agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and  the Administrative Agent with the consent of the Required Lenders; provided that no such agreement  shall (i)  increase the Commitment of any Lender without the written consent of such Lender,  (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees  payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the  scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees  payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the  scheduled date of expiration of any Commitment, without the written consent of each Lender affected  thereby, (iv) change 2.18(b) or (c) in a manner that would alter the ratable reduction of Commitments  or the pro rata sharing of payments required thereby, without the written consent of each Lender, (v)  change the payment waterfall provisions of Section 2.20(a) or 7.03 without the written consent of  each Lender, or (vi) change any of the provisions of this Section or the definition of “Required  Lenders” or any other provision hereof specifying the number or percentage of Lenders required to  waive, amend or modify any rights hereunder or make any determination or grant any consent  hereunder, without the  written consent of each Lender; provided further that no such agreement shall  amend, modify or otherwise affect the rights or duties of the Administrative Agent without the prior  written consent of the Administrative Agent.  (c) If the Administrative Agent and the Borrower acting together identify any ambiguity,  omission, mistake, typographical error or other defect in any provision of this Agreement or any other  Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify  





 






  66  #95368685v14  or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other  defect, and such amendment shall become effective without any further action or consent of any other  party to this Agreement.  Section 9.03. Expenses; Limitation of Liability; Indemnity, Etc.  (a) Expenses.  The Borrower shall pay (i) all reasonable out of pocket expenses incurred  by the Administrative Agent and its Affiliates, including the reasonable fees, charges and  disbursements of counsel for the Administrative Agent, in connection with the syndication of the  credit facilities provided for herein, the preparation and administration of this Agreement and the  other Loan Documents or any amendments, modifications or waivers of the provisions hereof or  thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and  (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the fees,  charges and disbursements of any counsel for the Administrative Agent or any Lender, in connection  with the enforcement or protection of its rights in connection with this Agreement and the other Loan  Documents, including its rights under this Section, or in connection with the Loans made hereunder,  including all such out-of-pocket expenses incurred during  any workout, restructuring or negotiations  in respect of such Loans.  (b) Limitation of Liability.  To the extent permitted by applicable law (i) the Borrower  shall not assert, and the Borrower hereby waives, any claim against the Administrative Agent, the  Arranger and any Lender, and any Related Party of any of the foregoing Persons (each such Person  being called a “Lender-Related Person”) for any Liabilities arising from the use by others of  information or other materials (including, without limitation, any personal data) obtained through  telecommunications, electronic or other information transmission systems (including the Internet),  and (ii) no party hereto shall assert, and each such party hereby waives, any Liabilities against any  other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages  (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this  Agreement, any other Loan Document, or any agreement or instrument contemplated hereby or  thereby, the Transactions, any Loan or the use of the proceeds thereof; provided that, nothing in this  Section 9.03(b) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee,  as provided in Section 9.03(c), against any special, indirect, consequential or punitive damages  asserted against such Indemnitee by a third party.  (c) Indemnity.  The Borrower shall indemnify the Administrative Agent, the Arranger  and each Lender, and each Related Party of any of the foregoing Persons (each such Person being  called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all Liabilities and  related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee,  incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of  (i) the execution or delivery of this Agreement, any other Loan Document, or any agreement or  instrument contemplated hereby or thereby, (ii)  the performance by the parties hereto of their  respective obligations hereunder or thereunder or the consummation of the Transactions or any other  transactions contemplated hereby, (iii)  any actual or alleged presence or release of Hazardous  Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or  any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any  actual or prospective  Proceeding relating to any of the foregoing, whether or not such Proceeding is  brought by the Borrower or its equity holders, Affiliates, creditors or any other third Person and  whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a  party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent  that such Liabilities or related expenses are determined by a court of competent jurisdiction by final  and nonappealable judgment to have resulted primarily from the gross negligence or willful  





 






  67  #95368685v14  misconduct of such Indemnitee.  This Section 9.03(c) shall not apply with respect to Taxes other than  any Taxes that represent losses, claims or damages arising from any non-Tax claim.  (d) Lender Reimbursement.  Each Lender severally agrees to pay any amount required  to be paid by the Borrower under paragraphs (a), (b) or (c) of this Section 9.03 to the Administrative  Agent and each Related Party of any of the foregoing Persons (each, an “Agent-Related Person”) (to  the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do  so), ratably according to their respective Applicable Percentage in effect on the date on which such  payment is sought under this Section (or, if such payment is sought after the date upon which the  Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance  with such Applicable Percentage immediately prior to such date), and agrees to indemnify and hold  each Agent-Related Person harmless from and against any and all Liabilities and related expenses,  including the fees, charges and disbursements of any kind whatsoever that may at any time (whether  before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent- Related Person in any way relating to or arising out of the Commitments, this Agreement, any of the  other Loan Documents or any documents contemplated by or referred to herein or therein or the  transactions contemplated hereby or thereby or any action taken or omitted by such Agent-Related  Person under or in connection with any of the foregoing; provided that the unreimbursed expense or  Liability or related expense, as the case may be, was incurred by or asserted against such Agent- Related Person in its capacity as such; provided further that no Lender shall be liable for the payment  of any portion of such Liabilities, costs, expenses or disbursements that are found by a final and  nonappealable decision of a court of competent jurisdiction to have resulted primarily from such  Agent-Related Person’s gross negligence or willful misconduct.  The agreements in this Section shall  survive the termination of this Agreement and the payment of the Loans and all other amounts payable  hereunder.  (e) Payments.  All amounts due under this Section 9.03 shall be payable promptly after  written demand therefor.  Section 9.04. Successors and Assigns.  (a) The provisions of this Agreement shall be  binding upon and inure to the benefit of the parties hereto and their respective successors and assigns  permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights  or obligations hereunder without the prior written consent of each Lender (and any attempted  assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no  Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance  with this Section.  Nothing in this Agreement, expressed or implied, shall be construed to confer  upon any Person (other than the parties hereto, their respective successors and assigns permitted  hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent  expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the  Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.  (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may  assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and  obligations under this Agreement (including all or a portion of its Commitment and the Loans at the  time owing to it) with the prior written consent (such consent not to be unreasonably withheld,  conditioned or delayed) of:  (A) the Borrower; provided that, the Borrower shall be deemed to  have consented to an assignment of all or a portion of the Loans and  Commitments unless it shall have objected thereto by written notice to the  Administrative Agent within ten (10) Business Days after having received  





 






  68  #95368685v14  notice thereof provided that no consent of the Borrower shall be required  for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund  or, if an Event of Default has occurred and is continuing, any other  assignee; and  (B) the Administrative Agent; provided that no consent of the  Administrative Agent shall be required for an assignment of any  Commitment to an assignee that is a Lender (other than a Defaulting  Lender) with a Commitment immediately prior to giving effect to such  assignment.  (ii) Assignments shall be subject to the following additional conditions:  (A) except in the case of an assignment to a Lender or an Affiliate of  a Lender or an assignment of the entire remaining amount of the assigning  Lender’s Commitment or Loans, the amount of the Commitment or Loans  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) shall not be less than $5,000,000  unless each of the Borrower and the Administrative Agent otherwise  consent; provided that no such consent of the Borrower shall be required  if an Event of Default has occurred and is continuing;  (B) each partial assignment shall be made as an assignment of a  proportionate part of all the assigning Lender’s rights and obligations  under this Agreement;  (C) the parties to each assignment shall execute and deliver to the  Administrative Agent (x) an Assignment and Assumption or (y) to the  extent applicable, an agreement incorporating an Assignment and  Assumption by reference pursuant to an Approved Electronic Platform as  to which the Administrative Agent and the parties to the Assignment and  Assumption are participants, together with a processing and recordation  fee of $3,500; and  (D) the assignee, if it shall not be a Lender, shall deliver to the  Administrative Agent an Administrative Questionnaire in which the  assignee designates one or more Credit Contacts to whom all syndicate- level information (which may contain material non-public information  about the Borrower and its Related Parties or its securities) will be made  available and who may receive such information in accordance with the  assignee’s compliance procedures and applicable laws, including Federal  and state securities laws.  For the purposes of this Section 9.04(b), the term “Approved Fund” and “Ineligible  Institution” have the following meanings:  “Approved Fund” means any Person (other than a natural person) that is engaged in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the  ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  





 






  69  #95368685v14  “Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its  Lender  Parent, (c) a company, investment vehicle or trust for, or owned and operated for the primary  benefit of, a natural person or relative(s) thereof or (d)  the Borrower or any of its Affiliates;  provided that, with respect to clause (c), such company, investment vehicle or trust shall not  constitute an Ineligible Institution if it (x) has not been established for the primary purpose of  acquiring any Loans or Commitments, (y) is managed by a professional advisor, who is not such  natural person or a relative thereof, having significant experience in the business of making or  purchasing commercial loans, and (z) has assets greater than $25,000,000 and a significant part of  its activities consist of making or purchasing commercial loans and similar extensions of credit in  the ordinary course of its business.   (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)  of this Section, from and after the effective date specified in each Assignment and  Assumption 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 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 of  the assigning Lender’s rights and obligations under this Agreement, such Lender shall  cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15,  2.16, 2.17 and 9.03).  Any assignment or transfer by a Lender of rights or obligations under  this Agreement that does not comply with 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 (c) of this Section.  (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent  of the Borrower, 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 Commitment of, and principal amount (and stated interest) of the  Loans owing to, each Lender pursuant to the terms hereof from time to time (the  “Register”).  The entries in the Register shall be conclusive, and the Borrower, the  Administrative Agent and the Lenders shall 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 the Borrower and any Lender, at any reasonable time and from time to time  upon reasonable prior notice.  (v) Upon its receipt of (x) a duly completed Assignment and Assumption  executed by an assigning Lender and an assignee or (y) to the extent applicable, an  agreement incorporating an Assignment and Assumption by reference pursuant to an  Approved Electronic Platform as to which the Administrative Agent and the parties to the  Assignment and Assumption are participants, the assignee’s completed Administrative  Questionnaire (unless the assignee shall already be a Lender hereunder), the processing  and recordation fee referred to in paragraph (b) of this Section and any written consent to  such assignment required by paragraph (b) of this Section, the Administrative Agent shall  accept such Assignment and Assumption and record the information contained therein in  the Register; provided that if either the assigning Lender or the assignee shall have failed  to make any payment required to be made by it pursuant to Section 2.07(b), 2.18(d) or  9.03(d), the Administrative Agent shall have no obligation to accept such Assignment and  Assumption and record the information therein in the Register unless and until such  payment shall have been made in full, together with all accrued interest thereon.  No  





 






  70  #95368685v14  assignment shall be effective for purposes of this Agreement unless it has been recorded in  the Register as provided in this paragraph.  (c) Any Lender may, without the consent of, or notice to, the Borrower or the  Administrative Agent, sell participations to one or more banks or other entities (a “Participant”),  other than an Ineligible Institution, in all or a portion of such Lender’s rights and/or obligations under  this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided  that (i) such Lender’s obligations under this Agreement shall remain unchanged; (ii) such Lender  shall remain solely responsible to the other parties hereto for the performance of such obligations;  and (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely  and directly with such Lender in connection with such Lender’s rights and obligations under this  Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall  provide that such Lender shall retain the sole right to enforce this Agreement and to approve any  amendment, modification or waiver of any provision of this Agreement; provided that such agreement  or instrument may provide that such Lender will not, without the consent of the Participant, agree to  any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects  such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Section  2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements  under Sections 2.17(f) (it being understood that the documentation required under Section 2.17(f)  shall be delivered to the participating Lender and the information)) to the same extent as if it were a  Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided  that such Participant (A) agrees to be subject to the provisions of Section 2.19 as if it were an assignee  under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under  Section 2.15 or 2.17, with respect to any participation, than its participating Lender would have been  entitled to receive, except to the extent such entitlement to receive a greater payment results from a  Change in Law that occurs after the Participant acquired the applicable participation.  Each Lender  that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to  cooperate with the Borrower to effectuate the provisions of Section 2.19(b) with respect to any  Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits of  Section 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section  2.18(c) as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this  purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and  address of each Participant and the principal amounts (and stated interest) of each Participant’s  interest in the Loans or other obligations under the Loan Documents (the “Participant Register”);  provided that no Lender shall have any obligation to disclose all or any portion of the Participant  Register (including the identity of any Participant or any information relating to a Participant’s interest  in any Commitments, Loans or its other obligations under any Loan Document) to any Person except  to the extent that such disclosure is necessary to establish that such Commitment, Loan or other  obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.   The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall  treat each Person whose name is recorded in the Participant Register as the owner of such participation  for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of  doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility  for maintaining a Participant Register.  (d) Any Lender may at any time pledge or assign a security interest in all or any portion  of its rights under this Agreement to secure obligations of such Lender, including any pledge or  assignment to secure obligations to a Federal Reserve Bank or other central bank, and this  Section shall not apply to any such pledge or assignment of a security interest; provided that no such  pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder  or substitute any such pledgee or assignee for such Lender as a party hereto.  





 






  71  #95368685v14  Section 9.05. Survival.  All covenants, agreements, representations and warranties made  by the Borrower herein and in the other Loan Documents and in the certificates or other instruments   delivered in connection with or pursuant to this Agreement or any other Loan Documents shall be  considered to have been relied upon by the other parties hereto and shall survive the execution and  delivery of this Agreement and the making of any Loans, regardless of any investigation made by  any such other party or on its behalf and notwithstanding that the Administrative Agent or any  Lender may have had notice or knowledge of any Default or incorrect representation or warranty at  the time any credit is extended hereunder, and shall continue in full force and effect as long as the  principal of or any accrued interest on any Loan or any fee or any other amount payable under this  Agreement is outstanding and unpaid and so long as the Commitments have not expired or  terminated.  The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article 8 shall survive and  remain in full force and effect regardless of the consummation of the transactions contemplated  hereby, the repayment of the Loans and the Commitments or the termination of this Agreement or  any provision hereof.  Section 9.06. Counterparts; Integration; Effectiveness; Electronic Execution.  (a) This  Agreement may be executed in counterparts (and by different parties hereto on different  counterparts), each of which shall constitute an original, but all of which when taken together shall  constitute a single contract.  This Agreement and any separate letter agreements with respect to fees  payable to the Administrative Agent constitute the entire contract among the parties relating to the  subject matter hereof and supersede any and all previous agreements and understandings, oral or  written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement  shall become effective when it shall have been executed by the Administrative Agent and when the  Administrative Agent shall have received counterparts hereof which, when taken together, bear the  signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the  benefit of the parties hereto and their respective successors and assigns.  (b) Delivery of an executed counterpart of a signature page of (x) this Agreement, (y)  any other Loan Document and/or (z) any document, amendment, approval, consent, information,  notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 9.01),  certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan  Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary  Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other  electronic means that reproduces an image of an actual executed signature page shall be effective as  delivery of a manually executed counterpart of this Agreement, such other Loan Document or such  Ancillary Document, as applicable.  The words “execution,” “signed,” “signature,” “delivery,” and  words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary  Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in  any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that  reproduces an image of an actual executed signature page), each of which shall be of the same legal  effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use  of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require  the Administrative Agent to accept Electronic Signatures in any form or format without its prior  written consent and pursuant to procedures approved by it; provided, further, without limiting the  foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature,  the Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic Signature  purportedly given by or on behalf of the Borrower without further verification thereof and without  any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the  request of the Administrative Agent or any Lender, any Electronic Signature  shall be promptly  followed by a manually executed counterpart.  Without limiting the generality of the foregoing, the  Borrower hereby (A) agrees that, for all purposes, including without limitation, in connection with  





 






  72  #95368685v14  any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the  Administrative Agent, the Lenders, the Borrower, Electronic Signatures transmitted by telecopy,  emailed pdf. or any other electronic means that reproduces an image of an actual executed signature  page and/or any electronic images of this Agreement,  any other Loan Document and/or any Ancillary  Document shall have the same legal effect, validity and enforceability as any paper original, (B) the  Administrative Agent and each of the Lenders may, at its option, create one or more copies of this  Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged  electronic record in any format, which shall be deemed created in the ordinary course of such Person’s  business, and destroy the original paper document (and all such electronic records shall be considered  an original for all purposes and shall have the same legal effect, validity and enforceability as a paper  record), (C) waives any argument, defense or right to contest the legal effect, validity or enforceability  of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the  lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary  Document, respectively, including with respect to any signature pages thereto and (D) waives any  claim against any Lender-Related Person for any Liabilities arising solely from the Administrative  Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by  telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed  signature page, including any Liabilities arising as a result of the failure of the Borrower to use any  available security measures in connection with the execution, delivery or transmission of any  Electronic Signature.  Section 9.07. Severability.  Any provision of this Agreement held to be invalid, illegal  or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such  invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of  the remaining provisions hereof; and the invalidity of a particular provision in a particular  jurisdiction shall not invalidate such provision in any other jurisdiction.  Section 9.08. Right of Setoff.  If an Event of Default shall have occurred and be  continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to  time, to the fullest extent permitted by law, to setoff and apply any and all deposits (general or  special, time or demand, provisional or final) at any time held, and other obligations at any time  owing, by such Lender or any such Affiliate, to or for the credit or the account of the Borrower  against any and all of the obligations of the Borrower now or hereafter existing under this Agreement  or any other Loan Document to such Lender or its Affiliates, irrespective of whether or not such  Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document  and although such obligations of the Borrower may be contingent or unmatured or are owed to a  branch office or Affiliate of such Lender different from the branch office or Affiliate holding such  deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender  shall exercise any such right of setoff, (x) all amounts so setoff shall be paid over immediately to  the Administrative Agent for further application in accordance with the provisions of Section 2.20  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 and its Affiliates under this Section are in addition to other  rights and remedies (including other rights of setoff) that such Lender or its Affiliates may have.   Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such  setoff and application; provided that the failure to give such notice shall not affect the validity of  such setoff and application.  





 






  73  #95368685v14  Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process.  (a) This  Agreement and the other Loan Documents shall be construed in accordance with and governed by  the law of the State of New York.  (b) Each of the Lenders and the Administrative Agent hereby irrevocably and  unconditionally agrees that, notwithstanding the governing law provisions of any applicable Loan  Document, any claims brought against the Administrative Agent by any Lender relating to this  Agreement, any other Loan Document or the consummation or administration of the transactions  contemplated hereby or thereby shall be construed in accordance with and governed by the law of the  State of New York.  (c) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself  and its property, to the exclusive jurisdiction of the United States District Court for the Southern  District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter  jurisdiction, the Supreme Court of the State of New York sitting in the  Borough of Manhattan), and  any appellate court from any thereof, in any action or proceeding arising out of or relating to this  Agreement or any other Loan Document or the transactions relating hereto or thereto, or for  recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and  unconditionally agrees that all claims in respect of any such action or proceeding may (and any such  claims, cross-claims or third party claims brought against the Administrative Agent or any of its  Related Parties may only) be heard and determined in such Federal (to the extent permitted by law)  or New York State court.  Each of the parties hereto 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.  Nothing in this Agreement or in any other Loan Document  shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any  action or proceeding relating to this Agreement against the Borrower or its properties in the courts of  any jurisdiction.  (d) Each of the parties hereto hereby irrevocably and unconditionally waives, to the  fullest extent it may legally and effectively do so, any objection which it may now or hereafter have  to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or  any other Loan Document in any court referred to in paragraph (c) of this Section.  Each of the parties  hereto 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.  (e) Each party to this Agreement irrevocably consents to service of process in the  manner provided for notices in Section 9.01.  Nothing in this Agreement will affect the right of any  party to this Agreement to serve process in any other manner permitted by law.  Section 9.10. WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT  MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR  INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT  OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO  REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS  REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,  IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND  (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN  INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE  MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.  





 






  74  #95368685v14  Section 9.11. Headings.  Article and Section headings and the Table of Contents used  herein are for convenience of reference only, are not part of this Agreement and shall not affect the  construction of, or be taken into consideration in interpreting, this Agreement.  Section 9.12. Confidentiality.  Each of the Administrative Agent and the Lenders agrees  to maintain the confidentiality of the Information (as defined below), except that Information may  be disclosed (a)  to its and its Affiliates’ directors, officers, employees and agents, including  accountants, legal counsel and other advisors (it being understood that the Persons to whom such  disclosure is made will be informed of the confidential nature of such Information and instructed to  keep such Information confidential), (b) to the extent requested by any Governmental Authority  (including any self-regulatory authority, such as the National Association of Insurance  Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or  similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of  any remedies hereunder or under any other Loan Document or any suit, action or proceeding relating  to this Agreement or the enforcement of rights hereunder or under any other Loan Document,  (f) subject to an agreement containing provisions substantially the same as those of this Section, to  (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights  or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors)  to any swap or derivative transaction relating to the Borrower and its obligations, (g)  on a  confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries  or the credit facilities provided for herein, (ii) the CUSIP Service Bureau or any similar agency in  connection with the issuance and monitoring of identification numbers with respect to the credit  facilities provided for herein or (iii) insurers, reinsurers and brokers to the Administrative Agent or  any Lender, (h) with the consent of the Borrower or (i) to the extent such Information (ii) becomes  publicly available other than as a result of a breach of this Section or (iii) becomes available to the  Administrative Agent or any Lender on a non-confidential basis from a source other than the  Borrower.  For the purposes of this Section, “Information” means all information received from the  Borrower relating to the Borrower or its business, other than any such information that is available  to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure by the  Borrower and other than information pertaining to this Agreement routinely provided by arrangers  to data service providers, including league table providers, that serve the lending industry; provided  that, in the case of information received from the Borrower after the date hereof, such information  is clearly identified at the time of delivery as confidential.  Any Person required to maintain the  confidentiality of Information as provided in this Section shall be considered to have complied with  its obligation to do so if such Person has exercised the same degree of care to maintain the  confidentiality of such Information as such Person would accord to its own confidential information.  Section 9.13. Material Non-Public Information.  (a)  EACH LENDER  ACKNOWLEDGES THAT INFORMATION AS DEFINED IN Section 9.12 FURNISHED TO IT  PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC  INFORMATION CONCERNING THE BORROWER AND  ITS RELATED PARTIES OR THEIR  RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE  PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND  THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN  ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING  FEDERAL AND STATE SECURITIES LAWS.  (b) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND  AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT  PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE  SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC  





 






  75  #95368685v14  INFORMATION ABOUT THE BORROWER AND ITS RELATED PARTIES OR ITS  SECURITIES.  ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND  THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE  QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY  CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS  COMPLIANCE PROCEDURES AND APPLICABLE LAW.  Section 9.14. Interest Rate Limitation.  Notwithstanding anything herein to the contrary,  if at any time the interest rate applicable to any Loan, together with all fees, charges and other  amounts which are treated as interest on such Loan under applicable law (collectively the  “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted  for, charged, taken, received or reserved by the Lender holding such Loan in accordance with  applicable law, the rate of interest payable in respect of such Loan hereunder, together with all  Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,  the interest and Charges that would have been payable in respect of such Loan but were not payable  as a result of the operation of this Section shall be cumulated and the interest and Charges payable  to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum  Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds  Effective Rate to the date of repayment, shall have been received by such Lender.  Section 9.15. No Fiduciary Duty, etc.  (a) The Borrower acknowledges and agrees, and  acknowledges its Subsidiaries’ understanding, that no Credit Party will have any obligations except  those obligations expressly set forth herein and in the other Loan Documents and each Credit Party  is acting solely in the capacity of an arm’s length contractual counterparty to the Borrower with  respect to the Loan Documents and the transactions contemplated herein and therein and not as a  financial advisor or a fiduciary to, or an agent of, the Borrower or any other person.  The Borrower  agrees that it will not assert any claim against any Credit Party based on an alleged breach of  fiduciary duty by such Credit Party in connection with this Agreement and the transactions  contemplated hereby.  Additionally, the Borrower acknowledges and agrees that no Credit Party is  advising the Borrower as to any legal, tax, investment, accounting, regulatory or any other matters  in any jurisdiction.  The Borrower shall consult with its own advisors concerning such matters and  shall be responsible for making its own independent investigation and appraisal of the transactions  contemplated herein or in the other Loan Documents, and the Credit Parties shall have no  responsibility or liability to the Borrower with respect thereto.  (b) The Borrower further acknowledges and agrees, and acknowledges its Subsidiaries’  understanding, that each Credit Party, together with its Affiliates, is a full service securities or banking  firm engaged in securities trading and brokerage activities as well as providing investment banking  and other financial services.  In the ordinary course of business, any Credit Party may provide  investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts  and the accounts of customers, equity, debt and other securities and financial instruments (including  bank loans and other obligations) of, the Borrower and other companies with which the Borrower  may have commercial or other relationships.  With respect to any securities and/or financial  instruments so held by any Credit Party or any of its customers, all rights in respect of such securities  and financial instruments, including any voting rights, will be exercised by the holder of the rights, in  its sole discretion.  (c) In addition, the Borrower acknowledges and agrees, and acknowledges its  Subsidiaries’ understanding, that each Credit Party and its affiliates may be providing debt financing,  equity capital or other services (including financial advisory services) to other companies in respect  of which the Borrower may have conflicting interests regarding the transactions described herein and  





 






  76  #95368685v14  otherwise.  No Credit Party will use confidential information obtained from the Borrower by virtue  of the transactions contemplated by the Loan Documents or its other relationships with the Borrower  in connection with the performance by such Credit Party of services for other companies, and no  Credit Party will furnish any such information to other companies.  The Borrower also acknowledges  that no Credit Party has any obligation to use in connection with the transactions contemplated by the  Loan Documents, or to furnish to the Borrower, confidential information obtained from other  companies.  Section 9.16. USA PATRIOT Act.  Each Lender that is subject to the requirements of the  USA PATRIOT Act of 2001 (the “Patriot Act”) hereby notifies the Borrower that pursuant to the  requirements of the Patriot 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 to identify the Borrower in accordance with the Patriot Act.  Section 9.17. Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other  agreement, arrangement or understanding among any such parties, each party hereto acknowledges  that any liability of any Affected Financial Institution arising under any Loan Document may be  subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and  agrees and consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party  hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent entity, or a  bridge institution that may be issued to it or otherwise conferred on it, and that such shares  or other instruments of ownership will be accepted by it in lieu of any rights with respect  to any such liability under this Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the exercise  of the Write-Down   and Conversion Powers of the applicable Resolution Authority.  Section 9.18. Acknowledgement Regarding Any Supported QFCs.  To the extent that the  Loan Documents provide support, through a guarantee or otherwise, for Swap Agreements or any  other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such  QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the  resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance  Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with  the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such  Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that  the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of  the State of New York and/or of the United States or any other state of the United States):  In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such  





 






  77  #95368685v14  Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or  under such Supported QFC and such QFC Credit Support, and any rights in property securing such  Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same  extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported  QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were  governed by the laws of the United States or a state of the United States.  In the event a Covered  Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.  Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply  to such Supported QFC or any QFC Credit Support that may be exercised against such Covered  Party are permitted to be exercised to no greater extent than such Default Rights could be exercised  under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were  governed by the laws of the United States or a state of the United States.  Without limitation of the  foregoing, it is understood and agreed that rights and remedies of the parties with respect to a  Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a  Supported QFC or any QFC Credit Support.  Section 9.19. Judgment Currency.  If, for the purposes of obtaining judgment in any  court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency  into another currency, the rate of exchange used shall be that at which in accordance with normal  banking procedures the Administrative Agent could purchase the first currency with such other  currency on the Business Day preceding that on which final judgment is given.  The obligation of  the Borrower in respect of any such sum due from it to the Administrative Agent or any Lender  hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency  (the “Judgment Currency”) other than that in which such sum is denominated in accordance with  the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the  extent that on the Business Day following receipt by the Administrative Agent or such Lender, as  the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative  Agent or such Lender, as the case may be, may in accordance with normal banking procedures  purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement  Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender  from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and  notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the  case may be, against such loss.  If the amount of the Agreement Currency so purchased is greater  than the sum originally due to the Administrative Agent or any Lender in such currency, the  Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess  to the Borrower (or to any other Person who may be entitled thereto under applicable law).  Section 9.20. Payments Set Aside.  To the extent that the Borrower makes a payment or  payments to the Administrative Agent or any Lender, or Administrative Agent or any Lender  exercises its rights of set-off, and such payment or payments or the proceeds of such set-off or any  part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or  required (including pursuant to any settlement entered into by the Administrative Agent or any  Lender in its discretion) to be repaid to a trustee, receiver or any other party in connection with any  bankruptcy, insolvency or similar proceeding, or otherwise, then (a) to the extent of such recovery,  the obligation hereunder or part thereof originally intended to be satisfied shall be revived and  continued in full force and effect as if such payment had not been made or such enforcement or  setoff had not occurred and (b) each Lender severally agrees to pay to the Administrative Agent  upon demand its ratable share of the total amount so recovered from or repaid by the Administrative  Agent to the extent paid to such Lender.  





 






  [Signature Page to Exelon 364-Day Term Loan Agreement]     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly  executed and delivered by their respective authorized officers as of the day and year first above  written.  EXELON CORPORATION,  By:    Name:    Title:     BARCLAYS BANK PLC, individually and as  Administrative Agent,  By:    Name:    Title:     BARCLAYS BANK PLC, as Lender  By:    Name:    Title: