ceg-20211231x10kxexh1010






Execution Version             $3,500,000,000  CREDIT AGREEMENT  dated as of  February 1, 2022  among  CONSTELLATION ENERGY GENERATION, LLC   The Lenders Party Hereto  and  JPMORGAN CHASE BANK, N.A.,  as Administrative Agent  ___________________________  BANK OF AMERICA, N.A., BARCLAYS BANK PLC, BNP PARIBAS SECURITIES CORP.,  CITIBANK, N.A., CREDIT AGRICOLE CORPORATE & INVESTMENT BANK,  CREDIT SUISSE AG, NEW YORK BRANCH, GOLDMAN SACHS BANK USA,  MORGAN STANLEY SENIOR FUNDING, INC., ROYAL BANK OF CANADA, and  THE BANK OF NOVA SCOTIA,  as Co-Documentation Agents  ___________________________  JPMORGAN CHASE BANK, N.A., BOFA SECURITIES, INC., BARCLAYS BANK  PLC, BNP PARIBAS SECURITIES CORP., CITIBANK, N.A., CREDIT AGRICOLE  CORPORATE & INVESTMENT BANK, CREDIT SUISSE AG, NEW YORK BRANCH,  GOLDMAN SACHS BANK USA, MORGAN STANLEY SENIOR FUNDING, INC., ROYAL  BANK OF CANADA, and THE BANK OF NOVA SCOTIA,  as Joint Lead Arrangers and Joint Bookrunners        





 






  i  TABLE OF CONTENTS  Page  ARTICLE 1 DEFINITIONS _______________________________________________________ 1  Section 1.01. Defined Terms ........................................................................................................ 1  Section 1.02. Classification of Loans and Borrowings .............................................................. 29  Section 1.03. Terms Generally ................................................................................................... 30  Section 1.04. Accounting Terms; GAAP ................................................................................... 30  Section 1.05. Interest Rates; Benchmark Notification ............................................................... 31  Section 1.06. Letter of Credit Amounts ..................................................................................... 31  Section 1.07. Divisions ............................................................................................................... 31  ARTICLE 2 THE CREDITS ______________________________________________________ 31  Section 2.01. Commitments ....................................................................................................... 31  Section 2.02. Loans and Borrowings.......................................................................................... 32  Section 2.03. Requests for Revolving Borrowings .................................................................... 32  Section 2.04. Optional Increases in Commitments .................................................................... 33  Section 2.05. [Reserved] ............................................................................................................ 34  Section 2.06. Letters of Credit ................................................................................................... 34  Section 2.07. Funding of Borrowings ........................................................................................ 38  Section 2.08. Interest Elections .................................................................................................. 39  Section 2.09. Termination and Reduction of Commitments ...................................................... 40  Section 2.10. Repayment of Loans; Evidence of Indebtedness .................................................. 40  Section 2.11. Prepayment of Loans ............................................................................................ 41  Section 2.12. Fees....................................................................................................................... 41  Section 2.13. Interest .................................................................................................................. 42  Section 2.14. Alternate Rate of Interest ..................................................................................... 43  Section 2.15. Increased Costs ..................................................................................................... 45  Section 2.16. Break Funding Payments...................................................................................... 46  Section 2.17. Withholding of Taxes; Gross-Up ......................................................................... 47  Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs ............................. 51  Section 2.19. Mitigation Obligations; Replacement of Lenders ................................................ 52  Section 2.20. Defaulting Lenders ............................................................................................... 53  Section 2.21. Extension of Maturity Date .................................................................................. 55  ARTICLE 3 REPRESENTATIONS AND WARRANTIES __________________________________ 56  Section 3.01. Organization; Powers ........................................................................................... 56  Section 3.02. Authorization; Enforceability ............................................................................... 57  Section 3.03. Governmental Approvals; No Conflicts ............................................................... 57  Section 3.04. Financial Condition; No Material Adverse Effect ................................................ 57  Section 3.05. Reserved ............................................................................................................... 57  Section 3.06. Litigation and Environmental Matters.................................................................. 57  Section 3.07. Compliance with Laws and Agreements .............................................................. 58  Section 3.08. Investment Company Status ................................................................................. 58  Section 3.09. Taxes .................................................................................................................... 58  Section 3.10. ERISA .................................................................................................................. 58  Section 3.11. Beneficial Ownership ........................................................................................... 58  Section 3.12. Reserved ............................................................................................................... 58  Section 3.13. Anti-Corruption Laws and Sanctions ................................................................... 58  Section 3.14. Affected Financial Institutions ............................................................................. 58  





 






  ii  Section 3.15. Reserved ............................................................................................................... 58  Section 3.16. Margin Regulations .............................................................................................. 58  Section 3.17. Reserved ............................................................................................................... 59  Section 3.18. Exchange Act ....................................................................................................... 59  ARTICLE 4 CONDITIONS _______________________________________________________ 59  Section 4.01. Effective Date ....................................................................................................... 59  Section 4.02. Each Credit Event ................................................................................................. 60  ARTICLE 5 AFFIRMATIVE COVENANTS ___________________________________________ 60  Section 5.01. Financial Statements; Ratings Change and Other Information ............................ 60  Section 5.02. Notices of Material Events ................................................................................... 62  Section 5.03. Existence; Conduct of Business ........................................................................... 63  Section 5.04. Payment of Obligations ........................................................................................ 63  Section 5.05. Maintenance of Properties; Insurance .................................................................. 63  Section 5.06. Books and Records; Inspection Rights ................................................................. 63  Section 5.07. Compliance with Laws ......................................................................................... 63  Section 5.08. Use of Proceeds and Letters of Credit .................................................................. 63  Section 5.09. Accuracy of Information ...................................................................................... 64  ARTICLE 6 NEGATIVE COVENANTS ______________________________________________ 64  Section 6.01. Liens ..................................................................................................................... 64  Section 6.02. Fundamental Changes; Mergers and Consolidations; Disposition of Assets ....... 66  Section 6.03. Continuation of Businesses .................................................................................. 66  Section 6.04. Restrictive Agreements ........................................................................................ 66  Section 6.05. Consolidated Leverage Ratio ............................................................................... 67  ARTICLE 7 EVENTS OF DEFAULT ________________________________________________ 67  Section 7.01. Events of Default .................................................................................................. 67  Section 7.02. Remedies Upon an Event of Default .................................................................... 68  Section 7.03. Application of Payments ...................................................................................... 69  ARTICLE 8 THE ADMINISTRATIVE AGENT _________________________________________ 70  Section 8.01. Authorization and Action ..................................................................................... 70  Section 8.02. Administrative Agent’s Reliance, Limitation of Liability, Etc ............................ 72  Section 8.03. Posting of Communications ................................................................................. 74  Section 8.04. The Administrative Agent Individually ............................................................... 75  Section 8.05. Successor Administrative Agent .......................................................................... 75  Section 8.06. Acknowledgements of Lenders and Issuing Banks .............................................. 76  Section 8.07. [Reserved] ............................................................................................................ 78  Section 8.08. [Reserved] ............................................................................................................ 78  Section 8.09. Certain ERISA Matters ........................................................................................ 78  ARTICLE 9 MISCELLANEOUS ___________________________________________________ 79  Section 9.01. Notices .................................................................................................................. 79  Section 9.02. Waivers; Amendments ......................................................................................... 80  Section 9.03. Expenses; Limitation of Liability; Indemnity, Etc ............................................... 81  Section 9.04. Successors and Assigns ........................................................................................ 83  Section 9.05. Survival ................................................................................................................ 86  Section 9.06. Counterparts; Integration; Effectiveness; Electronic Execution .......................... 86  Section 9.07. Severability ........................................................................................................... 88  





 






  iii  Section 9.08. Right of Setoff ...................................................................................................... 88  Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process .............................. 88  Section 9.10. WAIVER OF JURY TRIAL ................................................................................ 89  Section 9.11. Headings ............................................................................................................... 89  Section 9.12. Confidentiality ...................................................................................................... 89  Section 9.13. Material Non-Public Information ......................................................................... 90  Section 9.14. Interest Rate Limitation ........................................................................................ 90  Section 9.15. No Fiduciary Duty, etc ......................................................................................... 91  Section 9.16. USA PATRIOT Act ............................................................................................. 91  Section 9.17. Acknowledgement and Consent to Bail-In of Affected Financial  Institutions ............................................................................................................ 92  Section 9.18. Acknowledgement Regarding Any Supported QFCs ........................................... 92  Section 9.19. Judgment Currency............................................................................................... 93  Section 9.20. Payments Set Aside .............................................................................................. 93      SCHEDULES:  Schedule 2.01A – Commitments  Schedule 2.01C – Letter of Credit 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 – Incremental Request    





 






  1  CREDIT AGREEMENT dated as of February 1, 2022 (this “Agreement”), among  CONSTELLATION ENERGY GENERATION, LLC, a Pennsylvania limited liability company,  the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A., 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.    “Additional Lender” has the meaning given to such term in Section 2.04.  “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 JPMorgan Chase Bank, N.A. (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 NYFRB Rate in effect on such day plus 1⁄2 of 1% and  (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S.  Government Securities Business Days prior to such day (or if such day is not a Business Day, the  immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the  Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at  approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term  





 






  2  SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR  Reference Rate methodology).  Any change in the Alternate Base Rate due to a change in the Prime  Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the  effective date of such change in the Prime Rate, the NYFRB 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 (for the avoidance of doubt, only until the Benchmark Replacement has been  determined pursuant to Section 2.14(b)), then the Alternate Base Rate shall be the greater of clauses  (a) and (b) 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  Commitments represented by such Lender’s Commitment; provided that, in the case of Section  2.20 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of  the total Commitments (disregarding any Defaulting Lender’s Commitment) represented by such  Lender’s Commitment.  If the Commitments have terminated or expired, the Applicable  Percentages shall be determined based upon the Commitments most recently in effect, giving effect  to any assignments and to any Lender’s status as a Defaulting Lender at the time of determination.  “Applicable Rate” means, for any day, with respect to any ABR Loan or Term Benchmark  Revolving Loan, RFR Revolving Loan or with respect to the facility fees payable hereunder, as the  case may be, the applicable rate per annum set forth below under the caption “Applicable Rate for  Term Benchmark Revolving Loans and LC Fee Rate”, “Applicable Rate for ABR Loans” or  “Facility Fee Rate”, as the case may be, based upon the ratings by Moody’s, S&P and Fitch,  respectively, applicable on such date to the Pricing Level:  Pricing  Level      Index Debt Rating  S&P/Moody’s/Fitch  Applicable   Rate for  Term  Benchmark  Revolving  Loans, RFR  Revolving  Loans and  LC   Fee Rate   Applicable   Rate for  ABR Loans   Facility Fee   Rate  I ≥ A3/A-/A- 1.000% 0.000% 0.125%  II Baa1/BBB+/BBB+ 1.075% 0.075% 0.175%  III Baa2/BBB/BBB 1.275% 0.275% 0.225%  IV Baa3/BBB-/BBB- 1.475% 0.475% 0.275%  





 






  3  V Ba1/BB+/BB+ 1.650% 0.650% 0.350%  VI < Ba1/BB+/BB+ 2.000% 1.000% 0.500%    “Debt Rating” means, as of any date of determination, the Fitch Rating, the Moody’s  Rating or the S&P Rating.  For purposes of the foregoing, (x) at any time that Debt Ratings are available from each of  S&P, Moody’s and Fitch and there is a split among such Debt Ratings, then (i) if any two of such  Debt Ratings are in the same level, such level shall apply or (ii) if each of such Debt Ratings is in  a different level, the level that is the middle level shall apply and (y) at any time that Debt Ratings  are available only from any two of S&P, Moody’s and Fitch and there is a split in such Debt Ratings,  then the higher* of such Debt Ratings shall apply, unless there is a split in Debt Ratings of more  than one level, in which case the level that is one level lower than the higher Debt Rating shall  apply.  The Debt Ratings shall be determined from the most recent public announcement of any  changes in the Debt Ratings.  If the rating system of S&P, Moody’s or Fitch shall change, the  Borrower and the Administrative Agent shall negotiate in good faith to amend the definition of  “Debt Rating” to reflect such changed rating system and, pending the effectiveness of such  amendment (which shall require the approval of the Required Lenders), the Debt Rating shall be  determined by reference to the rating most recently in effect prior to such change.  If the Borrower  has no Fitch Rating, no Moody’s Rating and no S&P Rating, Pricing Level VI shall apply it being  understood that if the Borrower does not have such an indicative ratings, appropriate fallbacks will  be determined by Administrative Agent in consultation with Borrower.  “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).  “Arrangers” means each of JPMorgan Chase Bank, N.A., BofA Securities, Inc., N.A.,  Barclays Bank PLC, BNP Paribas Securities Corp., Citibank, N.A., Credit Agricole Corporate &  Investment Bank, Credit Suisse AG, New York Branch, Goldman Sachs Bank USA, Morgan  Stanley Senior Funding, Inc., Royal Bank of Canada, and The Bank of Nova Scotia, in its capacity  as a joint lead arranger and joint 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.  “Availability Period” means the period from and including the Effective Date to but  excluding the earlier of the Maturity Date and the date of termination of the Commitments.  “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    * It being understood and agreed, by way of example, that a Debt Rating of A- is one level higher  than a Debt Rating of BBB+.  





 






  4  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  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  





 






  5  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  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 Revolving 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  





 






  6  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  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 CME 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- 





 






  7  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.  “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”.  “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 Constellation Energy Generation, LLC, a Pennsylvania limited liability  company.  “Borrowing” means Revolving Borrowing.  “Borrowing Request” means a request by the Borrower for a Revolving 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 occurrence of one of the following:  (a) that any person,  entity or group (within the meaning of Rule 13d-5 under the Exchange Act), excluding Spinco,  shall beneficially own, directly or indirectly, 50% or more of the Equity Interests of the Borrower  having ordinary voting power; or (b) at any time after the Borrower has a Board of Directors or  similar governing body (a “Board”), Continuing Directors shall fail to constitute a majority of the  Board of the Borrower; provided that, for purposes of this definition, the Spin Transaction shall not  constitute a Change in Control.  For purposes of the foregoing, “Continuing Director” means an  individual who (x) is elected or appointed to be a member of the Board of the Borrower by Spinco  or an affiliate of Spinco at a time when Spinco owns (directly or indirectly) a majority of the Equity  





 






  8  Interests of the Borrower or (y) is nominated to be a member of such Board by a majority of the  Continuing Directors then in office.  “Change in Law” means 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 Issuing Bank (or, for purposes of  Section 2.15(b), by any lending office of such Lender or by such Lender’s or Issuing Bank’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 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.  “Class” when used in reference to any Loan or Borrowing, refers to whether such Loan, or  the Loans comprising such Borrowing, are Revolving Loans.  “CME Term SOFR Administrator” means CME Group Benchmark Administration  Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR)  (or a successor administrator).  “Co-Documentation Agent” means each of Bank of America, N.A., Barclays Bank PLC,  BNP Paribas Securities Corp., Citibank, N.A., Credit Agricole Corporate & Investment Bank,  Credit Suisse AG, New York Branch, Goldman Sachs Bank USA, Morgan Stanley Senior Funding,  Inc., Royal Bank of Canada, and The Bank of Nova Scotia in its capacity as a co-documentation  agent hereunder.  “Code” means the Internal Revenue Code of 1986, as amended.  “Commitment” means, with respect to each Lender, the  amount set forth on Schedule 2.01  opposite such Lender’s name, or in the Assignment and Assumption or other documentation or  record (as such term is defined in Section 9-102(a)(70) of the New York Uniform Commercial  Code) as provided in Section 9.04(b)(ii)(C), pursuant to which such Lender shall have assumed its  Commitment, as applicable, and giving effect to (a) any reduction in such amount from time to  time pursuant to Section 2.09 and (b) any reduction or increase in such amount from time to time  pursuant to assignments by or to such Lender pursuant to Section 9.04; provided, that at no time  shall the Revolving Credit Exposure of any Lender exceed its Commitment.  The initial aggregate  amount of the Lenders’ Commitments is $3,500,000,000.  “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,  





 






  9  agreements and/or transactions, employed in the ordinary course of the Borrower’s business,  including the Borrower’s energy marketing, trading and asset optimization business, or (ii) any  commodity swap agreement, commodity future agreement, commodity option agreement,  commodity cap agreement, commodity floor agreement, commodity collar agreement, commodity  hedge agreement, commodity forward contract or derivative transaction and any put, call or other  agreement or arrangement, or combination thereof (including an agreement or arrangement to  hedge foreign exchange risks) in respect of commodities entered into by the Borrower pursuant to  asset optimization and risk management policies and procedures adopted pursuant to authority  delegated by the Board of Directors of the Borrower or Spinco.  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 Depreciation and Amortization Expense” means, with respect to the  Borrower and its Subsidiaries for any period, the total amount of depreciation and amortization  expense, including the amortization of deferred financing fees or costs, capitalized expenditures,  customer acquisition costs and incentive payments, conversion costs and contract acquisition costs,  the amortization of original issue discount resulting from the issuance of Indebtedness at less than  par and amortization of favorable or unfavorable lease assets or liabilities, of the Borrower and its  Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with  GAAP.  “Consolidated EBITDA” means, with respect to the Borrower and its Subsidiaries on a  consolidated basis for any period, the sum (without duplication) of:  (a) Consolidated Net Income for such period; plus  (b) Consolidated Interest Expense; plus  (c) provision for taxes based on income or profits or capital, including, without  limitation, state franchise, excise and similar taxes and foreign withholding taxes of such Person  paid or accrued during such period, including any penalties and interest relating to any tax  examinations, deducted (and not added back) in computing Consolidated Net Income; plus  (d) Consolidated Depreciation and Amortization Expense of the Borrower and its  Subsidiaries for such period to the extent the same were deducted (and not added back) in  computing Consolidated Net Income; plus  (e) certain operating adjustments, including mark-to-market for economic hedging  activities, costs associated with early plant retirements, costs incurred to achieve cost management  program savings, merger, integration, and separation costs, and other non-recurring items not  directly related to the ongoing operations of the business, consistent with the Borrower’s external  financial reporting; plus  





 






  10  (f) other non-cash charges, asset write-offs or write-downs related to intangible assets,  long-lived assets and investments in debt and equity securities, expenses, losses, or non-cash items  reducing Consolidated Net Income for such period, consistent with the Borrower’s external  financial reporting.  “Consolidated Interest Expense” means, with respect to the Borrower and its Subsidiaries  on a consolidated basis for any period, the sum (without duplication) of:  (a) consolidated interest expense of the Borrower and its Subsidiaries for such period,  to the extent such expense was deducted (and not added back) in computing Consolidated Net  Income (including (a) amortization of original issue discount or premium resulting from the  issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges  owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments, (d) the  interest component of Capital Lease Obligations and (e) net payments, if any, pursuant to interest  rate obligations under any Swap Agreements with respect to Indebtedness); plus  (b) consolidated capitalized interest of the Borrower and its Subsidiaries for such  period, whether paid or accrued; less  (c) interest income for such period.  For purposes of this definition, interest in respect of any Capital Lease Obligations shall be  deemed to accrue at an interest rate reasonably determined by the Borrower to be the rate of interest  implicit in such Capital Lease Obligation in accordance with GAAP.  “Consolidated Leverage 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) Consolidated EBITDA as of the last day for such Test Period.  “Consolidated Net Income” means, for any period, an amount equal to the net income (or  loss) of the Borrower on a consolidated basis, determined in accordance with GAAP, for such  period, but excluding (without duplication):  (a) any net gain (or loss) from disposed, abandoned or discontinued operations and  any net gain (or loss) on disposal of disposed, discontinued or abandoned operations;  (b) gain, loss, charge or expense with respect to any extraordinary, nonrecurring or  unusual item; and  (c) gains or charges attributable to the application of any accounting changes,  including as a result of the application of Financial Accounting Standards Board’s Accounting  Standards Codification No. 715 (or any subsequently adopted standards relating to pension and  postretirement benefits) after the date of this Agreement.  “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.    “Constellation Nuclear” shall mean Constellation Energy Nuclear Group, LLC, a  Maryland limited liability company.  





 






  11  “Constellation Nuclear Entity” shall mean Constellation Nuclear, LLC, CE Nuclear, LLC  and Constellation Nuclear and its Subsidiaries.  “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, each Issuing Bank or any other Lender.  “Daily Simple SOFR Rate” means, for any day (a “SOFR Rate Day”), a rate per annum  equal SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government  Securities Business Day 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.  Any change in 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.  “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, (ii) fund any portion of  its participations in Letters of Credit or (iii) 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  





 






  12  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 and participations in then outstanding Letters of Credit  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.  “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.  





 






  13  “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, (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.  “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  





 






  14  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 Nonrecourse Indebtedness) with respect to any Nonrecourse  Indebtedness outstanding at such time.   “Excluded Subsidiary” shall mean (a) an Excluded Project Subsidiary, (b) NewEnergy  Receivables LLC, (c) any captive insurance Subsidiary, (d) any not-for-profit Subsidiary or (e) any  special purpose vehicle, including any Securitization Vehicle.  “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, Letter  of Credit or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires  such interest in the Loan, Letter of Credit 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, Letter of Credit 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.  “Existing Letter of Credit” means each letter of credit issued by an Issuing Bank and  specified by the Borrower to the Administrative Agent on the Effective Date.  “Existing Maturity Date” has the meaning assigned to such term in Section 2.21(a).  “Extending Lender” has the meaning assigned to such term in Section 2.21(b)(ii).  “Extension Request” means a written request from the Borrower to the Administrative  Agent requesting an extension of the Maturity Date pursuant to Section 2.21.  “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  





 






  15  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, assistant treasurer or controller of the Borrower.  “Fitch” means Fitch Ratings Inc.  "Fitch Rating" means, at any time, the rating issued by Fitch and then in effect with respect  to the Borrower’s senior unsecured long-term public debt securities without third-party credit  enhancement it being understood that if the Borrower does not have such an indicative rating, an  appropriate fallback will be determined by Administrative Agent in consultation with Borrower.  “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,  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  





 






  16  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  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.  “Ineligible Institution” has the meaning assigned to it in Section 9.04(b).  “Information” has the meaning assigned to it in Section 9.12.   “Information Memorandum” means the Confidential Information Memorandum dated  November 12, 2021 relating to the Borrower and the Transactions.  





 






  17  “Interest Election Request” means a request by the Borrower to convert or continue a  Revolving 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  is made and, in the case of a Revolving Borrowing, 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.  “Issuing Bank” means each of JPMorgan Chase Bank, N.A., Bank of America, N.A.,  Barclays Bank PLC, BNP Paribas Securities Corp., Citibank, N.A., Credit Agricole Corporate &  Investment Bank, Credit Suisse AG, New York Branch, Goldman Sachs Bank USA, Morgan  Stanley Bank, N.A., Morgan Stanley Senior Funding, Inc., Royal Bank of Canada, The Bank of  Nova Scotia, and any other Lender that, with the consent of the Borrower and the Administrative  Agent, agrees to issue Letters of Credit hereunder, in each case in its capacity as the issuer of the  applicable Letters of Credit.  Each Issuing Bank may, in its discretion, arrange for one or more  Letters of Credit to be issued by any Affiliate of such Issuing Bank (provided that (i) the identity  and creditworthiness of such Affiliate is reasonably acceptable to the Borrower and (ii) no such  Affiliate shall be entitled to any greater indemnification under Section 2.15 or 2.17 than that to  which the applicable Issuing Bank was entitled on the date on which such Letter of Credit was  issued except in connection with any indemnification entitlement arising as a result of any Change  in Law after the date on which such Letter of Credit was issued), in which case the term “Issuing  Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it  





 






  18  being agreed that such Issuing Bank shall, or shall cause such branch or Affiliate to, comply with  the requirements of Sections 2.06 and 2.17(f) with respect to such Letters of Credit).   Notwithstanding anything in this Agreement to the contrary, in no event shall Morgan Stanley  Bank, N.A., Morgan Stanley Senior Funding, Barclays Bank PLC, Goldman Sachs Bank USA,  Credit Suisse AG, or any of their respective Affiliates be an “Issuing Bank” with respect to any  Letter of Credit that is not a standby letter of credit.  “LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of  Credit.  “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all  outstanding Letters of Credit at such time, plus (b) the aggregate amount of all LC Disbursements  that have not yet been reimbursed by or on behalf of the Borrower at such time.  The LC Exposure  of any Lender at any time shall be its Applicable Percentage of the LC Exposure at such time. For  all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its  terms but any amount may still be drawn thereunder by reason of the operation of applicable law  or Article 29(a) of the Uniform Customs and Practice for Documentary Credits, International  Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the  applicable time) or Rule 3.13 or Rule 3.14 of the International Standby Practices, International  Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the  applicable time) or similar terms of the Letter of Credit itself, or if compliant documents have been  presented but not yet honored, such Letter of Credit shall be deemed to be “outstanding” and  “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrower  and each Lender shall remain in full force and effect until the Issuing Bank and the Lenders shall  have no further obligations to make any payments or disbursements under any circumstances with  respect to any Letter of Credit.  “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 2.01A 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.  Unless the context otherwise requires, the term “Lenders” includes the Issuing Banks.  “Letter of Credit” means any letter of credit issued pursuant to this Agreement and shall  include each Existing Letter of Credit.   “Letter of Credit Agreement” has the meaning assigned to it in Section 2.06(b).  “Letter of Credit Commitment” means, with respect to each Issuing Bank, the commitment  of such Issuing Bank to issue Letters of Credit hereunder.  The initial amount of each Issuing Bank’s  Letter of Credit Commitment is set forth on Schedule 2.01C, or if an Issuing Bank has entered into  an Assignment and Assumption or has otherwise assumed a Letter of Credit Commitment after the  Effective Date, the amount set forth for such Issuing Bank as its Letter of Credit Commitment in  the Register maintained by the Administrative Agent. The Letter of Credit Commitment of an  Issuing Bank may be modified from time to time by agreement between such Issuing Bank and the  Borrower, and notified to the Administrative Agent.  





 






  19  “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, flood determinations, letter of credit applications and any agreements between the   Borrower and an Issuing Bank regarding the issuance by such Issuing Bank of Letters of Credit  hereunder and/or the respective rights and obligations between the Borrower and such Issuing Bank  in connection thereunder 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.  “Maturity Date” means, with respect to any Lender, the later of (a) February 1, 2027 and  (b) if the maturity date is extended for such Lender pursuant to Section 2.21, such extended  maturity date as determined pursuant to such Section; provided, however, in each case, 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.  "Moody's Rating" means, at any time, the rating issued by Moody’s and then in effect with  respect to the Borrower’s senior unsecured long-term public debt securities without third-party  credit enhancement, it being understood that if the Borrower does not have such an indicative  rating, an appropriate fallback will be determined by Administrative Agent in consultation with  Borrower.  





 






  20  “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of  ERISA.  “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.  “Non-extending Lender” has the meaning assigned to such term in Section 2.21(a).  “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.  “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in  effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day  that is not a Business Day, for the immediately preceding Business Day); provided that if none of  such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate  for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative  Agent from a federal funds broker of recognized standing selected by it; provided, further, that if  any of the aforesaid rates as so determined be less than 0%, such rate shall be deemed to be 0% for  purposes of this Agreement.  “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 or  Letter of Credit, 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,  Letter of Credit commissions, 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  





 






  21  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, Letter of Credit 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).  “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight  federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed  banking offices of depository institutions, as such composite rate shall be determined by the  NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next  succeeding Business Day by the NYFRB as an overnight bank funding rate.  “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.  “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;  (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;  





 






  22  (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.  “Permitted Obligations” mean (1) Hedging Obligations of the Borrower or any Subsidiary  arising in the ordinary course of business and in accordance with the applicable Person’s  established risk management policies that are designed to protect such Person against, among other  things, fluctuations in interest rates or currency exchange rates and which in the case of agreements  relating to interest rates shall have a notional amount no greater than the payments due with respect  to the applicable obligations being hedged and (2) Commodity Trading Obligations.  “Person” means any natural person, corporation, limited liability company, trust, joint  venture, association, company, partnership, Governmental Authority or other entity.  “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,  





 






  23  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). Each  change in the Prime Rate shall be effective from and including the date such change is publicly  announced or quoted as being effective.  “Principal Subsidiary” means each Subsidiary, other than, except as provided in the  proviso below, any Constellation Nuclear Entity, (i) the consolidated assets of which, as of the date  of any determination thereof, constitute at least 10% of the consolidated assets of the Borrower or  (ii) the consolidated earnings before taxes of which constitute at least 10% of the consolidated  earnings before taxes of the Borrower for the most recently completed fiscal year; provided, that,  regardless of whether Constellation Nuclear or any of its Subsidiaries is a consolidated Subsidiary  of the Borrower, (A) the Constellation Nuclear Entities shall be subject to being tested as Principal  Subsidiaries under clauses (i) and (ii) above only at any time that the Borrower shall own, directly  or indirectly through one or more other Subsidiaries, 51% or more of the outstanding capital stock  (or other comparable interest) of Constellation Nuclear having ordinary voting power (irrespective  of whether or not at the time capital stock, or comparable interests, of any other class or classes of  such corporation or entity shall or might have voting power upon the occurrence of any  contingency), and (B) the assets and earnings of Constellation Nuclear and its Subsidiaries shall be  included in the computation of the 10% tests set forth in clauses (i) and (ii) above, as applicable,  only to the extent of the Borrower’s proportional Equity Interest in Constellation Nuclear.   “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, (b) any Lender and (c) any Issuing Bank,  as applicable.  





 






  24  “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).  “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  CME 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.  “Replacement Lender” has the meaning assigned to such term in Section 2.21(c).  “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, (a) at any time prior to the earlier of  the Loans becoming due and payable pursuant to Section 7.01 or the Commitments terminating or  expiring, Lenders having Revolving Credit Exposures and Unfunded Commitments representing  at least 50% of the sum of the Total Revolving Credit Exposure and Unfunded Commitments at  such time, provided that, solely for purposes of declaring the Loans to be due and payable pursuant  to Section 7.01, the Unfunded Commitment of each Lender shall be deemed to be zero; and (b) for  all purposes after the Loans become due and payable pursuant to Section 7.01 or the Commitments  expire or terminate, Lenders having Revolving Credit Exposures representing at least 50% of the  





 






  25  Total Revolving Credit Exposure at such time; provided that, for the purpose of determining the  Required Lenders needed for any waiver, amendment, modification or consent of or under this  Agreement or any other Loan Document, any Lender that is the Borrower or an Affiliate of the  Borrower shall be disregarded  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Response Date” has the meaning assigned to such term in Section 2.21(a).  “Responsible Officer” means the president, Financial Officer or other executive officer of  the Borrower.  “Reuters” means, as applicable, Thomson Reuters Corp., Refinitiv, or any successor  thereto.  “Revolving Borrowing” means Revolving 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.  “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of  the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure at such  time.  “Revolving Loan” means a Loan made pursuant to Section 2.03.  “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.  “S&P Rating” means, at any time, the rating issued by S&P and then in effect with respect  to the Borrower’s senior unsecured long-term public debt securities without third-party credit  enhancement, it being understood that if the Borrower does not have such an indicative rating, an  appropriate fallback will be determined by Administrative Agent in consultation with Borrower.  “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.  





 






  26  “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.  “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 a rate equal to the secured overnight financing rate as administered by the  SOFR Administrator.  “SOFR Administrator” means the NYFRB (or a successor administrator of the secured  overnight financing rate).  





 






  27  “SOFR Administrator’s Website” means the NYFRB’s website, currently at  http://www.newyorkfed.org, or any successor source for the secured overnight financing rate  identified as such by the SOFR Administrator from time to time.  “SOFR Determination Date” has the meaning specified in the definition of “Daily Simple  SOFR 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 Borrower by  Exelon Corporation (“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 the Borrower.  “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.  “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.  





 






  28  “Term SOFR Determination Day” has the meaning assigned to it under the definition of  Term SOFR Reference Rate.  “Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any  tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at  approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to  the commencement of such tenor comparable to the applicable Interest Period, as such rate is  published by the CME Term SOFR Administrator.  “Term SOFR Reference Rate”  means, for any day and time (such day, the “Term SOFR  Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars  and for any tenor comparable to the applicable Interest Period, the rate per annum determined by  the Administrative Agent as the forward-looking term rate based on SOFR.  If by 5:00 pm (New  York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for  the applicable tenor has not been published by the CME Term SOFR Administrator and a  Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term  SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference  Rate as published in respect of the first preceding U.S. Government Securities Business Day for  which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so  long as such first preceding Business Day is not more than five (5) Business Days prior to such  Term SOFR Determination Day.    “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.  “Total Revolving Credit Exposure” means, at any time, the sum of (a) the outstanding  principal amount of the Revolving Loans at such time and (b) the total LC Exposure at such time.  “Transactions” means the execution, delivery and performance by the Borrower of this  Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of  Credit hereunder.  “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  





 






  29  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 Commitment” means, with respect to each Lender, the Commitment of such  Lender less its Revolving Credit Exposure.  “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  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 Class (e.g., a “Revolving Loan”) or by Type (e.g., a  “Term Benchmark Loan” or an “RFR Loan”) or by Class and Type (e.g., a “Term Benchmark  





 






  30  Revolving Loan” or an “RFR Revolving Loan”).  Borrowings also may be classified and referred to  by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Term Benchmark Borrowing” or an  “RFR Borrowing”) or by Class and Type (e.g., a “Term Benchmark Revolving Borrowing” or an  “RFR Revolving 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.  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  





 






  31  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  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. Letter of Credit Amounts.  Unless otherwise specified herein, the amount  of a Letter of Credit at any time shall be deemed to be the amount of such Letter of Credit available  to be drawn during the remaining life thereof; provided that with respect to any Letter of Credit that,  by its terms or the terms of any Letter of Credit Agreement related thereto, provides for one or more  automatic increases in the available amount thereof, the amount of such Letter of Credit shall be  deemed to be the maximum amount available to be drawn under such Letter of Credit after giving  effect to all such increases, whether or not such maximum amount is available to be drawn at such  time.  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 Revolving Loans in Dollars to the Borrower from time to time during the  Availability Period in an aggregate principal amount that will not result in such Lender’s Revolving  Credit Exposure exceeding such Lender’s Commitment.  Within the foregoing limits and subject to  





 






  32  the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving  Loans.  Section 2.02. Loans and Borrowings.  (a) Each Revolving Loan shall be made as part of  a Borrowing consisting of Revolving 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 Revolving 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 Revolving  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 Revolving 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; provided that an ABR Revolving Borrowing  may be in an aggregate amount that is equal to the entire unused balance of the total Commitments  or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section  2.06(e).  Borrowings of more than one Type and Class may be outstanding at the same time;  provided that there shall not at any time be more than a total of ten Term Benchmark Revolving  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 Revolving Borrowings.  To request a Revolving Borrowing,  the Borrower shall notify the Administrative Agent of such request by submitting a Borrowing  Request (a)(i) in the case of a Term Benchmark Borrowing, not later than 12:00 noon, New York  City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an  RFR Borrowing, not later than 12:00 noon, New York City time, five 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 Borrowing; provided that any such notice of an  ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated  by Section 2.06(e) may be given not later than 10:00 a.m., New York City time, on the date of the  proposed 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, a Term Benchmark  Borrowing or an RFR Borrowing;  





 






  33  (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 Revolving Borrowing is specified, then the requested Revolving  Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with respect to any  requested Term Benchmark Revolving 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. Optional Increases in Commitments.  The Borrower may, from time to  time, by means of a letter delivered to the Administrative Agent substantially in the form of Exhibit  G, request that the Commitments be increased by an aggregate amount (for all such increases) not  exceeding $650,000,000 by (a) increasing the Commitments of one or more Lenders that have  agreed to such increase (in their sole discretion) and/or (b) adding one or more commercial banks or  other Persons as a party hereto (each an “Additional Lender”) with a Commitments in an amount  agreed to by any such Additional Lender; provided that (i) any increase in the Commitments shall  be in an aggregate amount of $25,000,000 or a higher integral multiple of $1,000,000; (ii) no  Additional Lender shall be added as a party hereto without the written consent of the Administrative  Agent and the Issuing Banks (which consents shall not be unreasonably withheld) or if a Default or  Event of Default exists; (iii) subject to Section 9.04(b), no such increase shall be effective without  the written consent of the Issuing Banks (which consent shall not be unreasonably withheld or  delayed); and (iv) the Borrower may not request an increase in the Commitments unless the  Borrower has delivered to the Administrative Agent (with a copy for each Lender) a certificate (A)  stating that any applicable governmental authority has approved such increase, (B) attaching  evidence, reasonably satisfactory to the Administrative Agent, of each such approval and (C) stating  that the representations and warranties contained in Article III are correct on and as of the date of  such certificate as though made on and as of such date and that no Default or Event of Default exists  on such date.  Any increase in the Commitments pursuant to this Section 2.04 shall be effective three  Business Days after the date on which the Administrative Agent has received and accepted the  applicable increase letter in the form of Annex 1 to Exhibit G (in the case of an increase in the  Commitments of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit G (in  the case of the addition of a commercial bank or other Person as a new Lender).  The Administrative  Agent shall promptly notify the Borrower and the Lenders of any increase in the Commitments  pursuant to this Section 2.04 and of the Commitments and Pro rata Commitment of each Lender  after giving effect thereto.  The Borrower shall prepay any Loans outstanding on the effective date  of such increase (and pay any additional amounts required pursuant to Section 9.03) to the extent  necessary to keep the outstanding Loans ratable among the Lenders in accordance with any revised  Pro rata Commitments arising from any non-ratable increase in the Commitments under this Section  2.04; provided that, notwithstanding any other provision of this Agreement, the Administrative  Agent, the Borrower and each increasing Lender and Additional Lender, as applicable, may make  arrangements satisfactory to such parties to cause an increasing Lender or an Additional Lender to  temporarily hold risk participations in the outstanding Loans of the other Lenders (rather than fund  its Pro rata Commitment of all outstanding Loans concurrently with the applicable increase) with a  view toward minimizing breakage costs and transfers of funds in connection with any increase in  the Commitments  To the extent that any increase pursuant to this Section 2.04 is not expressly  





 






  34  authorized pursuant to resolutions or consents delivered pursuant to Section 4.01(c), the Borrower  shall, prior to the effectiveness of such increase, deliver to the Administrative Agent a certificate  signed by an authorized officer of the Borrower certifying and attaching the resolutions or consents  that have been adopted to approve or consent to such increase.  Section 2.05. [Reserved].    Section 2.06. Letters of Credit.  (a) General.  Subject to the terms and conditions set forth herein, the Borrower may  request any Issuing Bank to issue Letters of Credit as the applicant thereof for the support of its or  its Subsidiaries’ obligations, in a form reasonably acceptable to such Issuing Bank, at any time and  from time to time during the Availability Period.  (b) Notice of Issuance, Amendment, Extension; Certain Conditions.  To request the  issuance of a Letter of Credit (or the amendment or extension of an outstanding Letter of Credit),  the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if  arrangements for doing so have been approved by the respective Issuing Bank) to an Issuing Bank  selected by it and to the Administrative Agent (reasonably in advance of the requested date of  issuance, amendment or extension, but in any event no less than three Business Days) a notice  requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended or  extended, and specifying the date of issuance, amendment or extension (which shall be a Business  Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c)  of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof  and such other information as shall be necessary to prepare, amend or extend such Letter of Credit.   In addition, as a condition to any such Letter of Credit issuance, the Borrower shall have entered  into a continuing agreement (or other letter of credit agreement) for the issuance of letters of credit  and/or shall submit a letter of credit application, in each case, as required by the respective Issuing  Bank and using such Issuing Bank’s standard form (each, a “Letter of Credit Agreement”).  In the  event of any inconsistency between the terms and conditions of this Agreement and the terms and  conditions of any Letter of Credit Agreement, the terms and conditions of this Agreement shall  control.  A Letter of Credit shall be issued, amended or extended only if (and upon issuance,  amendment or extension of each Letter of Credit the Borrower shall be deemed to represent and  warrant that), after giving effect to such issuance, amendment or extension (i) (x) the aggregate  undrawn amount of all outstanding Letters of Credit issued by any Issuing Bank at such time plus  (y) the aggregate amount of all LC Disbursements made by such Issuing Bank that have not yet  been reimbursed by or on behalf of the Borrower at such time shall not exceed its Letter of Credit  Commitment, (ii) the LC Exposure shall not exceed the total Letter of Credit Commitments and  (iii) no Lender’s Revolving Credit Exposure shall exceed its Commitment.  The Borrower may, at  any time and from time to time, reduce the Letter of Credit Commitment of any Issuing Bank with  the consent of such Issuing Bank; provided that the Borrower shall not reduce the Letter of Credit  Commitment of any Issuing Bank if, after giving effect of such reduction, the conditions set forth  in clauses (i) through (iii) above shall not be satisfied.  An Issuing Bank shall not be under any obligation to issue any Letter of Credit if:  (i) any order, judgment or decree of any Governmental Authority or arbitrator  shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter  of Credit, or any law applicable to such Issuing Bank shall prohibit, or require that such  Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit  in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit  





 






  35  any restriction, reserve or capital requirement (for which such Issuing Bank is not  otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon  such Issuing Bank any unreimbursed loss, cost or expense that was not applicable on the  Effective Date and that such Issuing Bank in good faith deems material to it; or  (ii) the issuance of such Letter of Credit would violate one or more policies of  such Issuing Bank applicable to letters of credit generally.  (c) Expiration Date.  Each Letter of Credit shall expire (or be subject to termination by  notice from the applicable Issuing Bank to the beneficiary thereof) at or prior to the close of  business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit  (or, in the case of any extension of the expiration date thereof, one year after such extension) and  (ii) the date that is five Business Days prior to the Maturity Date.  (d) Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter  of Credit increasing the amount thereof) and without any further action on the part of the applicable  Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each Lender  hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such  Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter  of Credit.  In consideration and in furtherance of the foregoing, each Lender hereby absolutely and  unconditionally agrees to pay to the Administrative Agent, for the account of the respective Issuing  Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank  and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section,  or of any reimbursement payment required to be refunded to the Borrower for any reason, including  after the Maturity Date.  Each such payment shall be made without any offset, abatement,  withholding or reduction whatsoever.  Each Lender acknowledges and agrees that its obligation to  acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and  unconditional and shall not be affected by any circumstance whatsoever, including any amendment  or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or  termination of the Commitments.  (e) Reimbursement.  If an Issuing Bank shall make any LC Disbursement in respect of  a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the  Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon,  New York City time, on the date that such LC Disbursement is made, if the Borrower shall have  received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date,  or, if such notice has not been received by the Borrower prior to such time on such date, then not  later than 12:00 noon, New York City time, on the Business Day immediately following the day  that the Borrower receives such notice, if such notice is not received prior to such time on the day  of receipt; provided that, the Borrower may, subject to the conditions to borrowing set forth herein,  request in accordance with Section 2.03 that such payment be financed with an ABR Revolving  Borrowing, the Borrower’s obligation to make such payment shall be discharged and replaced by  the resulting ABR Revolving Borrowing, as applicable.  If the Borrower fails to make such payment  when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement,  the payment then due from the Borrower in respect thereof and such Lender’s Applicable  Percentage thereof.  Promptly following receipt of such notice, each Lender shall pay to the  Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the  same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section  2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the  Administrative Agent shall promptly pay to the respective Issuing Bank the amounts so received  by it from the Lenders.  Promptly following receipt by the Administrative Agent of any payment  





 






  36  from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such  payment to the respective Issuing Bank or, to the extent that Lenders have made payments pursuant  to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as  their interests may appear.  Any payment made by a Lender pursuant to this paragraph to reimburse  an Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans as  contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation  to reimburse such LC Disbursement.  (f) Obligations Absolute.  The Borrower’s obligation to reimburse LC Disbursements  as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and  shall be performed strictly in accordance with the terms of this Agreement under any and all  circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter  of Credit, any Letter of Credit Agreement or this Agreement, or any term or provision therein,  (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent  or invalid in any respect or any statement therein being untrue or inaccurate in any respect,  (iii) payment by the respective Issuing Bank under a Letter of Credit against presentation of a draft  or other document that does not comply with the terms of such Letter of Credit or (iv) any other  event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but  for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of  setoff against, the Borrower’s obligations hereunder.  Neither the Administrative Agent, the  Lenders nor any Issuing Bank, nor any of their respective Related Parties, shall have any liability  or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit  or any payment or failure to make any payment thereunder (irrespective of any of the circumstances  referred to in the preceding sentence), or any error, omission, interruption, loss or delay in  transmission or delivery of any draft, notice or other communication under or relating to any Letter  of Credit (including any document required to make a drawing thereunder), any error in  interpretation of technical terms, any error in translation or any consequence arising from causes  beyond the control of the respective Issuing Bank; provided that the foregoing shall not be  construed to excuse an Issuing Bank from liability to the Borrower to the extent of any direct  damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of  which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by  the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining  whether drafts and other documents presented under a Letter of Credit comply with the terms  thereof.  The parties hereto expressly agree that, in the absence of gross negligence or willful  misconduct on the part of an Issuing Bank (as finally determined by a court of competent  jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination.   In furtherance of the foregoing and without limiting the generality thereof, the parties agree that,  with respect to documents presented which appear on their face to be in substantial compliance  with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and  make payment upon such documents without responsibility for further investigation, regardless of  any notice or information to the contrary, or refuse to accept and make payment upon such  documents if such documents are not in strict compliance with the terms of such Letter of Credit.  (g) Disbursement Procedures.  The Issuing Bank for any Letter of Credit shall, within  the time allowed by applicable law or the specific terms of the Letter of Credit following its receipt  thereof, examine all documents purporting to represent a demand for payment under such Letter of  Credit.  Such Issuing Bank shall promptly after such examination notify the Administrative Agent  and the Borrower by telephone (confirmed by telecopy or electronic mail) of such demand for  payment if such Issuing Bank has made or will make an LC Disbursement thereunder; provided  that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation  to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.  





 






  37  (h) Interim Interest.  If the Issuing Bank for any Letter of Credit shall make any LC  Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date  such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from  and including the date such LC Disbursement is made to but excluding the date that the  reimbursement is due and payable at the rate per annum then applicable to ABR Revolving Loans  and such interest shall be due and payable on the date when such reimbursement is payable;  provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to  paragraph (e) of this Section, then Section 2.13(d) shall apply.  Interest accrued pursuant to this  paragraph shall be for the account of such Issuing Bank, except that interest accrued on and after  the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse such  Issuing Bank for such LC Disbursement shall be for the account of such Lender to the extent of  such payment.  (i) Replacement and Resignation of an Issuing Bank.  (i) An Issuing Bank may be  replaced at any time by written agreement among the Borrower, the Administrative Agent, the  replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the  Lenders of any such replacement of an Issuing Bank.  At the time any such replacement shall  become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced  Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such replacement,  (x) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under  this Agreement with respect to Letters of Credit to be issued by it thereafter and (y) references  herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous  Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.   After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party  hereto and shall continue to have all the rights and obligations of an Issuing Bank under this  Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be  required to issue additional Letters of Credit or extend or otherwise amend any existing Letter of  Credit.  (ii) Any Issuing Bank may resign as an Issuing Bank at any time upon thirty  days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in  which case, such resigning  Issuing Bank shall be replaced in accordance with Section  2.06(i)(i) above.  (j) Cash Collateralization.  If any Event of Default shall occur and be continuing, on  the Business Day that the Borrower receives notice from the Administrative Agent or the Required  Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall  deposit in an account or accounts with the Administrative Agent, in the name of the Administrative  Agent and for the benefit of the Lenders (the “Collateral Account”), an amount in cash equal to  105% of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided  that the obligation to deposit such cash collateral shall become effective immediately, and such  deposit shall become immediately due and payable, without demand or other notice of any kind,  upon the occurrence of any Event of Default with respect to the Borrower described in Section  7.01(e).  Such deposit shall be held by the Administrative Agent as collateral for the payment and  performance of the obligations of the Borrower under this Agreement.  In addition, and without  limiting the foregoing or paragraph (c) of this Section, if any LC Exposure remain outstanding after  the expiration date specified in said paragraph (c), the Borrower shall immediately deposit into the  Collateral Account an amount in cash equal to 105% of such LC Exposure as of such date plus any  accrued and unpaid interest thereon.  





 






  38  The Administrative Agent shall have exclusive dominion and control, including the  exclusive right of withdrawal, over such account.  Other than any interest earned on the investment  of such deposits, which investments shall be made at the option and sole discretion of the  Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest.   Interest or profits, if any, on such investments shall accumulate in such account.  Moneys in such  account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC  Disbursements for which it has not been reimbursed, together with related fees, costs and customary  processing charges, and, to the extent not so applied, shall be held for the satisfaction of the  reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of  the Loans has been accelerated, be applied to satisfy other Obligations.  If the Borrower is required  to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of  Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower  within three Business Days after all Events of Default have been cured or waived.  (k) Letters of Credit Issued for Account of Subsidiaries.  Notwithstanding that a Letter  of Credit issued or outstanding hereunder supports any obligations of, or is for the account of, a  Subsidiary, or states that a Subsidiary is the “account party,” “applicant,” “customer,” “instructing  party,” or the like of or for such Letter of Credit, and without derogating from any rights of the  applicable Issuing Bank (whether arising by contract, at law, in equity or otherwise) against such  Subsidiary in respect of such Letter of Credit, the Borrower (i) shall reimburse, indemnify and  compensate the applicable Issuing Bank hereunder for such Letter of Credit (including to reimburse  any and all drawings thereunder) as if such Letter of Credit had been issued solely for the account  of the Borrower and (ii) irrevocably waives any and all defenses that might otherwise be available  to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such  Letter of Credit.  The Borrower hereby acknowledges that the issuance of such Letters of Credit  for its Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives  substantial benefits from the businesses of such Subsidiaries.  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.  Except in respect of the provisions of  this Agreement covering the reimbursement of Letters of Credit, 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; provided that ABR Revolving Loans made to finance the reimbursement of an  LC Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to  the Issuing Bank.  (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 NYFRB Rate and a rate determined by the Administrative  





 






  39  Agent in accordance with 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 Revolving Borrowing initially shall be of the  Type specified in the applicable Borrowing Request and, in the case of a Term Benchmark  Revolving 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 Revolving 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 Revolving 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 Revolving 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  





 






  40  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 request of the Required Lenders, so notifies the Borrower, then, so  long as an Event of Default is continuing (i)  no outstanding Revolving 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 and Reduction of Commitments.  (a)  Unless previously  terminated, the Commitments shall terminate on the Maturity Date.  (b) The Borrower may at any time terminate, or from time to time reduce, the  Commitments; provided that (i) each reduction of the Commitments shall be in an amount that is  an integral multiple of $10,000,000 and not less than $50,000,000 and (ii) the Borrower shall not  terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the  Loans in accordance with Section 2.11, any Lender’s Revolving Credit Exposure would exceed its  Commitment.  (c) The Borrower shall notify the Administrative Agent of any election to terminate or  reduce the Commitments under paragraph (b) of this Section at least three Business Days prior to  the effective date of such termination or reduction, specifying such election and the effective date  thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the  Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this  Section shall be irrevocable; provided that a notice of termination of the Commitments 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 such condition is not satisfied.   Any termination or reduction of the Commitments shall be permanent.  Each reduction of the  Commitments shall be made ratably among the Lenders in accordance with their respective  Commitments.  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 Revolving 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 Class and 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.  





 






  41  (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 Revolving Borrowing, not later than 12:00 noon, New York City time, three  Business Days before the date of prepayment or (2) an RFR Revolving 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 Revolving Borrowing, not later than 12:00 noon, New York City  time, one Business Day before the date of prepayment.  Each such notice shall be irrevocable and  shall specify the prepayment date and the principal amount of each Borrowing or portion thereof  to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional  notice of termination of the Commitments as contemplated by Section 2.09, then such notice of  prepayment may be revoked if such notice of termination is revoked in accordance with Section  2.09.  Promptly following receipt of any such notice relating to a Revolving Borrowing, the  Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of  any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance  of a Revolving Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a  Revolving 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.  Section 2.12. Fees.  (a) The Borrower agrees to pay to the Administrative Agent for the  account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily amount  of the Commitment of such Lender (whether used or unused) during the period from and including  the Effective Date to but excluding the date on which such Commitment terminates; provided that,  if such Lender continues to have any Revolving Credit Exposure after its Commitment terminates,  then such facility fee shall continue to accrue on the daily amount of such Lender’s Revolving Credit  Exposure from and including the date on which its Commitment terminates to but excluding the date  on which such Lender ceases to have any Revolving Credit Exposure.  Facility fees accrued through  and including the last day of March, June, September and December of each year shall be payable  in arrears on the fifteenth day following such last day and on the date on which the Commitments  terminate, commencing on the first such date to occur after the date hereof; provided that any facility  fees accruing after the date on which the Commitments terminate shall be payable on demand.  All  facility fees shall be computed on the basis of a year of 360 days and shall be payable for the actual  number of days elapsed (including the first day and the last day of each period but excluding the  date on which the Commitments terminate).  (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each  Lender a participation fee with respect to its participations in each outstanding Letter of Credit,  which shall accrue on the daily maximum amount then available to be drawn under such Letter of  Credit at the same Applicable Rate used to determine the interest rate applicable to Term  Benchmark Revolving Loans, during the period from and including the Effective Date to but  





 






  42  excluding the later of the date on which such Lender’s Commitment terminates and the date on  which such Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank for its own  account a fronting fee with respect to each Letter of Credit issued by such Issuing Bank, which  shall accrue at the rate or rates per annum separately agreed upon between the Borrower and such  Issuing Bank on the daily maximum amount then available to be drawn under such Letter of Credit,  during the period from and including the Effective Date to but excluding the later of the date of  termination of the Commitments and the date on which there ceases to be any LC Exposure with  respect to Letters of Credit issued by such Issuing Bank, as well as such Issuing Bank’s standard  fees with respect to the issuance, amendment or extension of any Letter of Credit and other  processing fees, and other standard costs and charges, of such Issuing bank relating the Letters of  Credit as from time to time in effect.  Participation fees and fronting fees accrued through and  including the last day of March, June, September and December of each year shall be payable on  the fifteenth day following such last day, commencing on the first such date to occur after the  Effective Date; provided that all such fees shall be payable on the date on which the Commitments  terminate and any such fees accruing after the date on which the Commitments terminate shall be  payable on demand.  Any other fees payable to an Issuing Bank pursuant to this paragraph shall be  payable within 10 days after demand.  All participation fees and fronting fees shall be computed  on the basis of a year of 360 days and shall be payable for the actual number of days elapsed  (including the first day but excluding the last day).  (c) 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.  (d) All fees payable hereunder shall be paid on the dates due, in dollars in immediately  available funds, to the Administrative Agent (or to an Issuing Bank, in the case of fees payable to  it) for distribution, in the case of facility fees and participation fees, to the Lenders.  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 the  case of a Term Benchmark Revolving Loan, 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 and, in the case of Revolving Loans, upon termination of the Commitments;  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 (other than a prepayment of  





 






  43  an ABR Revolving Loan prior to the end of the Availability Period), 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 Revolving 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.  (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 Revolving Borrowing to, or continuation of any Revolving  Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term  Benchmark Revolving 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  





 






  44  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 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 of each  affected Class.   (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  





 






  45  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  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) or Issuing Bank;  





 






  46  (ii) impose on any Lender or Issuing Bank 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 any Letter of Credit or participation therein; 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;  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 increase the cost to such Lender, such Issuing Bank or  such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the  amount of any sum received or receivable by such Lender, such Issuing Bank or such other  Recipient hereunder (whether of principal, interest or otherwise), then the Borrower will pay to  such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amount  or amounts as will compensate such Lender, such Issuing Bank or such other Recipient, as the case  may be, for such additional costs incurred or reduction suffered.  (b) If any Lender or Issuing Bank 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 or the Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding  company, if any, as a consequence of this Agreement or the Loans made by, or participations in  Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a  level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding  company could have achieved but for such Change in Law (taking into consideration such Lender’s  or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company  with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to  such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will  compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for  any such reduction suffered.  (c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts  necessary to compensate such Lender or Issuing Bank 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 or Issuing Bank, as the case  may be, 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 or Issuing Bank to demand compensation  pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to  demand such compensation; provided that the Borrower shall not be required to compensate a  Lender or Issuing Bank pursuant to this Section for any increased costs or reductions incurred more  than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the  Borrower of the Change in Law giving rise to such increased costs or reductions and of such  Lender’s or Issuing Bank’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  





 






  47  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  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.  





 






  48  (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 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;  





 






  49  (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;  (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  





 






  50  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 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.  





 






  51  (j) Defined Terms.  For purposes of this Section, the term “Lender” includes any  Issuing Bank and 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, fees or reimbursement of LC Disbursements, 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 payments  to be made directly to Issuing Banks as expressly provided herein and 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, 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, unreimbursed LC Disbursements, 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 and unreimbursed LC  Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with  the amounts of principal and unreimbursed LC Disbursements 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 Revolving Loans or  participations in LC Disbursements resulting in such Lender receiving payment of a greater  proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements  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  Revolving Loans and participations in LC Disbursements 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 Revolving Loans and  participations in LC Disbursements; 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 or participations in LC Disbursements 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.  





 






  52  (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 or the Issuing Banks  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 or the  Issuing Banks, as the case may be, the amount due.  In such event, if the Borrower has not in fact  made such payment, then each of the Lenders or the Issuing Banks, as the case may be, severally  agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such  Lender or Issuing Bank 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 NYFRB  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  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 (and if a  Commitment is being assigned, the Issuing Banks), 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 and participations in LC Disbursements, 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  





 






  53  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) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant  to Section 2.12;  (b) 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, to the payment on a pro  rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third,  to cash collateralize LC Exposure with respect to such Defaulting Lender in accordance with this  Section; fourth, 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; fifth, if so  determined by the Administrative Agent and the Borrower, to be held in a deposit account and  released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding  obligations with respect to Loans under this Agreement and (y) cash collateralize future LC  Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued  under this Agreement, in accordance with this Section; sixth, to the payment of any amounts owing  to the Lenders, the Issuing Banks as a result of any judgment of a court of competent jurisdiction  obtained by any Lender, the Issuing Banks 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; seventh, so long as no Default or Event of Default exists, to the payment of any amounts  owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by  the Borrower against 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 or LC Disbursements in respect  of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans  were made or the related Letters of Credit were issued at a time when the conditions set forth in  Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of,  and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being  applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender  until such time as all Loans and funded and unfunded participations in the Borrower’s obligations  corresponding to such Defaulting Lender’s LC Exposure are held by the Lenders pro rata in  accordance with the Commitments without giving effect to clause (d) below.  Any payments,  prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to  pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall  





 






  54  be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents  hereto.  (c) the Commitment and Revolving Credit Exposure 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 (c) 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;  (d) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender  then:  (i) all or any part of the LC Exposure of such Defaulting Lender shall be  reallocated among the non-Defaulting Lenders in accordance with their respective  Applicable Percentages but only to the extent that such reallocation does not, as to any non- Defaulting Lender, cause such non-Defaulting Lender’s Revolving Credit Exposure to  exceed its Commitment;  (ii) if the reallocation described in clause (i) above cannot, or can only  partially, be effected, the Borrower shall within one Business Day following notice by the  Administrative Agent  prepay, cash collateralize for the benefit of the Issuing Banks only  the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after  giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the  procedures set forth in Section 7.02(c) for so long as such LC Exposure is outstanding;  (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s  LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any  fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting  Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash  collateralized;  (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant  to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and  Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’  Applicable Percentages; and  (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither  reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without  prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all  facility fees that otherwise would have been payable to such Defaulting Lender (solely with  respect to the portion of such Defaulting Lender’s Commitment that was utilized by such  LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such  Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks until and to the  extent that such LC Exposure is reallocated and/or cash collateralized; and  (e) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to  issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the  Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of  the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance  with Section 2.20(d), and LC Exposure related to any newly issued or increased Letter of Credit  





 






  55  shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(d)(i)  (and such Defaulting Lender shall not participate therein).  If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur  following the date hereof and for so long as such event shall continue or (ii) any Issuing Bank has  a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other  agreements in which such Lender commits to extend credit, no Issuing Bank shall be required to  issue, amend or increase any Letter of Credit, unless the Issuing Banks, as the case may be, shall  have entered into arrangements with the Borrower or such Lender, satisfactory to Issuing Bank, as  the case may be, to defease any risk to it in respect of such Lender hereunder.  In the event that each of the Administrative Agent, the Borrower, and each Issuing Bank  agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be  a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion  of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans  of the other Lenders as the Administrative Agent shall determine may be necessary in order for  such Lender to hold such Loans in accordance with its Applicable Percentage.  Section 2.21. Extension of Maturity Date.  (a) The Borrower may, by delivering an  Extension Request to the Administrative Agent (who shall promptly deliver a copy to each of the  Lenders), not less than 60 days in advance of the Maturity Date in effect at such time (the “Existing  Maturity Date”), request that the Lenders extend the Existing Maturity Date to the first anniversary  of such Existing Maturity Date.  Each Lender, acting in its sole discretion, shall, by written notice  to the Administrative Agent given not later than the date that is the 20th day after the date of the  Extension Request, or if such date is not a Business Day, the immediately following Business Day  (the “Response Date”), advise the Administrative Agent in writing whether or not such Lender  agrees to the requested extension.  Each Lender that advises the Administrative Agent that it will  not extend the Existing Maturity Date is referred to herein as a “Non-extending Lender”; provided,  that any Lender that does not advise the Administrative Agent of its consent to such requested  extension by the Response Date and any Lender that is a Defaulting Lender on the Response Date  shall be deemed to be a Non-extending Lender.  The Administrative Agent shall notify the Borrower,  in writing, of the Lenders’ elections promptly following the Response Date.  The election of any  Lender to agree to such an extension shall not obligate any other Lender to so agree.  The Maturity  Date may be extended no more than two times pursuant to this Section 2.21.  (b) (i) If, by the Response Date, Lenders holding Commitments that aggregate 50% or  more of the total Commitments shall constitute Non-extending Lenders, then the Existing Maturity  Date shall not be extended and the outstanding principal balance of all Loans and other amounts  payable hereunder shall be payable, and the Commitments shall terminate, on the Existing Maturity  Date in effect prior to such extension.  (ii) If (and only if), by the Response Date, Lenders holding Commitments that  aggregate more than 50% of the total Commitments shall have agreed to extend the  Existing Maturity Date (each such consenting Lender, an “Extending Lender”), then  effective as of the Existing Maturity Date, the Maturity Date for such Extending Lenders  shall be extended to the first anniversary of the Existing Maturity Date (subject to  satisfaction of the conditions set forth in Section 2.21(d)).  In the event of such extension,  the Commitment of each Non-extending Lender shall terminate on the Existing Maturity  Date in effect for such Non-extending Lender prior to such extension and the outstanding  principal balance of all Loans and other amounts payable hereunder to such Non-extending  Lender shall become due and payable on such Existing Maturity Date and, subject to  





 






  56  Section 2.21(c) below, the total Commitments hereunder shall be reduced by the  Commitments of the Non-extending Lenders so terminated on such Existing Maturity Date.  (c) In the event of any extension of the Existing Maturity Date pursuant to Section  2.21(b)(ii), the Borrower shall have the right on or before the Existing Maturity Date, at its own  expense, to require any Non-extending Lender to transfer and assign without recourse (in  accordance with and subject to the restrictions contained in Section 9.04) all its interests, rights  (other than its rights to payments pursuant to Section 2.15, Section 2.16, Section 2.17 or Section  9.03 arising prior to the effectiveness of such assignment) and obligations under this Agreement to  one or more banks or other financial institutions identified to the Non-extending Lender by the  Borrower, which may include any existing Lender (each a “Replacement Lender”); provided that  (i) such Replacement Lender, if not already a Lender hereunder, shall be subject to the approval of  the Administrative Agent and each Issuing Bank (such approvals to not be unreasonably withheld)  to the extent the consent of the Administrative Agent or the Issuing Banks would be required to  effect an assignment under Section 9.04(b), (ii) such assignment shall become effective as of a date  specified by the Borrower (which shall not be later than the Existing Maturity Date in effect for  such Non-extending Lender prior to the effective date of the requested extension) and (iii) the  Replacement Lender shall pay to such Non-extending Lender in immediately available funds on  the effective date of such assignment the principal of and interest accrued to the date of payment  on the outstanding principal amount Loans made by it hereunder and all other amounts accrued and  unpaid for its account or otherwise owed to it hereunder on such date.  (d) As a condition precedent to each such extension of the Existing Maturity Date  pursuant to Section 2.21(b)(ii), the Borrower shall (i)  deliver to the Administrative Agent a  certificate of the Borrower dated as of the Existing Maturity Date signed by a Responsible Officer  of the Borrower certifying that, as of such date, both before and immediately after giving effect to  such extension, (A) the representations and warranties of the Borrower set forth in this Agreement  shall be true and correct and (B) no Default shall have occurred and be continuing and (ii) first  make such prepayments of the outstanding Loans and second provide such cash collateral (or make  such other arrangements satisfactory to the applicable Issuing Bank) with respect to the outstanding  Letters of Credit as shall be required such that, after giving effect to the termination of the  Commitments of the Non-extending Lenders pursuant to Section 2.21(b) and any assignment  pursuant to Section 2.21(c), the aggregate Revolving Credit Exposure less the face amount of any  Letter of Credit supported by any such cash collateral (or other satisfactory arrangements) so  provided does not exceed the aggregate amount of Commitments being extended.  (e) For the avoidance of doubt, (i) no consent of any Lender (other than the existing  Lenders participating in the extension of the Existing Maturity Date) shall be required for any  extension of the Maturity Date pursuant to this Section 2.21 and (ii) the operation of this Section  2.21 in accordance with its terms is not an amendment subject to Section 9.02.  ARTICLE 3  REPRESENTATIONS AND WARRANTIES  The Borrower represents and warrants to the Lenders that:  Section 3.01. Organization; Powers.  The Borrower is a limited liability company (or  after a transaction contemplated by Section 6.02(iii), a corporation) duly organized, validly existing  and in good standing under the laws of the Commonwealth of Pennsylvania  





 






  57  Section 3.02. Authorization; Enforceability.  The Transactions are within the  Borrower’s corporate or other organizational powers and have been duly authorized by all necessary  organizational 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.  (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, 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.  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.  





 






  58  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.  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 or Letter of Credit, 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 and no Letter of Credit issued hereunder will be used to buy or carry  any Margin Stock.  Following the application of the proceeds of each Borrowing or drawing under  each Letter of Credit, 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.  





 






  59  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.  ARTICLE 4  CONDITIONS  Section 4.01. Effective Date.  The obligations of the Lenders to make Loans and of the  Issuing Banks to issue Letters of Credit 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 Financial Officer of the Borrower, confirming  compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.  (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 5.01.  (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  





 






  60  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.  (i) The Administrative Agent shall have received evidence of consummation of the  Spin Transaction in form and substance satisfactory to Administrative Agent.  (j) Administrative Agent shall have received evidence, that outstanding indebtedness  under the (x) Credit Agreements among Administrative Agent, certain other parties thereto and  (i)  Baltimore Gas & Electric Company, (ii) Commonwealth Edison Company, (iii) Exelon  Corporation, (iv) Exelon Generation Company and (v) PECO Energy Company, in each case dated  as of March 23, 2011 and (y) Second Amended and Restated Credit Agreement, dated as of August  1, 2011, among Potomac Electric Power Company, Delmarva Power & Light Company, Atlantic  City Electric Company and Wells Fargo Bank, National Association shall be paid in full and the  credit facilities extended in connection therewith shall be terminated.  Section 4.02. Each Credit Event.  The obligation of each Lender to make a Loan on the  occasion of any Borrowing, and of each Issuing Bank to issue, amend or extend any Letter of Credit,  is subject to the satisfaction of the following conditions:  (a) The representations and warranties of the Borrower set forth in this Agreement  (excluding the representations and warranties set forth in Section 3.04(a)(ii) and the first sentence  of Section 3.06(a)) shall be true and correct on and as of the date of such Borrowing or the date of  issuance, amendment or extension of such Letter of Credit, as applicable.  (b) At the time of and immediately after giving effect to such Borrowing or the issuance,  amendment or extension of such Letter of Credit, as applicable, no Default shall have occurred and  be continuing.  Each Borrowing and each issuance, amendment or extension of a Letter of Credit shall be  deemed to constitute a representation and warranty by the Borrower on the date thereof as to the  matters specified in paragraphs (a) and (b) of this Section.  ARTICLE 5  AFFIRMATIVE COVENANTS  Until the Commitments have expired or been terminated and the principal of and interest  on each Loan and all fees payable hereunder shall have been irrevocably paid in full and all Letters  of Credit shall have expired or terminated, in each case, without any pending draw, and all LC  Disbursements shall have been reimbursed, 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  





 






  61  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 a Financial Officer 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  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  





 






  62  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  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 Constellation Credit Agreement dated  February 1, 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.  





 






  63  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,  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 and Letters of Credit.  The proceeds of the Loans will be  used only for general limited liability company or corporate purposes (including the making of  acquisitions), but in no event for any purpose that would be contrary to Section 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,  





 






  64  U and X.  The Borrower will not request any Borrowing or use any Letter of Credit, 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 or Letter  of Credit (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.  ARTICLE 6  NEGATIVE COVENANTS  Until the Commitments have expired or terminated and the principal of and interest on each Loan  and all fees  payable hereunder have been paid in full and all Letters of Credit have expired or  terminated, in each case, without any pending draw,  and all LC Disbursements shall have been  reimbursed, 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));  





 






  65  (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 and reimbursement obligations in respect of  letters of credit issued to support Permitted Obligations (for the avoidance of doubt, the Electric  Reliability Council of Texas (ERCOT) program and any other similar agreement or arrangement,  including with any Independent System Operator or Regional Transmission Organization, are  permitted under this clause (i));  (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;  (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 created under Section 2.20 and similar cash collateralization obligations  relating to defaulting lenders and remedies upon default;  (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,  





 






  66  membership, limited liability company or partnership agreement between such Person and one or  more other holders of Equity Interest (or project interest, interests in any energy facility (including  undivided interests)) of such Person, to the extent a security interest or other Lien is created on any  such interest as a result thereof;  (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; and  (u) 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 $100,000,000.  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  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 and the Letters of Credit 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).  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 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  





 






  67  shall not apply to restrictions and conditions imposed by law or 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) and (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.    Section 6.05. Consolidated Leverage Ratio.  The Borrower will not permit the  Consolidated Leverage Ratio as of the last day of any Test Period to exceed 3.50:1.00.  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, (ii) any reimbursement obligation in respect of any LC Disbursement within one  Business Day after the same becomes due and payable or (iii) 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;   





 






  68  (e) The Borrower or any Principal Subsidiary shall generally not pay its debts as such  debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a  general assignment for the benefit of creditors; or any proceeding shall be instituted by or against  the Borrower or any Principal Subsidiary seeking to adjudicate it as bankrupt or insolvent, or  seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or  composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or  relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee,  custodian or other similar official for it or for any substantial part of its property and, in the case of  any such proceeding instituted against it (but not instituted by it), either such proceeding shall  remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such  proceeding (including the entry of an order for relief against, or the appointment of a receiver,  trustee, custodian or other similar official for, it or for any substantial part of its property) shall  occur; or the Borrower or any Principal Subsidiary shall take any corporate or limited liability  company action to authorize or to consent to any of the actions set forth above in this Section  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) Spinco shall fail to own, directly or indirectly, free and clear of all Liens, 100% of  the Equity Interests of the Borrower;   (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  





 






  69  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) terminate the Commitments, and thereupon the Commitments shall terminate  immediately;  (b) 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 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;  (c) require that the Borrower provide cash collateral as required in Section 2.06(j); and  (d) exercise on behalf of itself, the Lenders and the Issuing Banks all rights and remedies  available to it, the Lenders and the Issuing Banks 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 Commitments shall automatically terminate and 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, and the obligation of the  Borrower to cash collateralize the LC Exposure as provided in clause (c) above shall automatically  become effective, 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:  (a) all payments received on account of the Obligations shall, subject to Section 2.20,  be applied by the Administrative Agent as follows:  (i) 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(c) payable to the Administrative  Agent in its capacity as such);  (ii) second, to payment of that portion of the Obligations constituting fees,  expenses, indemnities and other amounts (other than principal, reimbursement obligations  in respect of LC Disbursements, interest and Letter of Credit fees) payable to the Lenders  and the Issuing Banks (including fees and disbursements and other charges of counsel to  the Lenders and the Issuing Banks payable under Section 9.03) arising under the Loan  Documents, ratably among them in proportion to the respective amounts described in this  clause (ii) payable to them;  (iii) third, to payment of that portion of the Obligations constituting accrued  and unpaid Letter of Credit fees and charges and interest on the Loans and unreimbursed  





 






  70  LC Disbursements, ratably among the Lenders and the Issuing Banks in proportion to the  respective amounts described in this clause (iii) payable to them;  (iv) fourth, (A)  to payment of that portion of the Obligations constituting  unpaid principal of the Loans and unreimbursed LC Disbursements and (B)  to cash  collateralize that portion of LC Exposure comprising the undrawn amount of Letters of  Credit to the extent not otherwise cash collateralized by the Borrower pursuant to Section  2.06 or 2.20, ratably among the Lenders and the Issuing Banks in proportion to the  respective amounts described in this clause (iv) payable to them; provided that (x) any such  amounts applied pursuant to subclause (B) above shall be paid to the Administrative Agent  for the ratable account of the applicable Issuing Banks to cash collateralize Obligations in  respect of Letters of Credit, (y) subject to Section 2.06 or 2.20, amounts used to cash  collateralize the aggregate amount of Letters of Credit pursuant to this clause (iv) shall be  used to satisfy drawings under such Letters of Credit as they occur and (z) upon the  expiration of any Letter of Credit (without any pending drawings), the pro rata  Commitment of cash collateral shall be distributed to the other Obligations, if any, in the  order set forth in this Section 7.03;  (v) fifth, to the payment in full of all other Obligations, in each case ratably  among the Administrative Agent, the Lenders and the Issuing Banks 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  (vi) finally, the balance, if any, after all Obligations have been indefeasibly  paid in full, to the Borrower or as otherwise required by law; and  (b) if any amount remains on deposit as cash collateral after all Letters of Credit have  either been fully drawn or expired (without any pending drawings), such remaining amount shall  be applied to the other Obligations, if any, in the order set forth above.  ARTICLE 8  THE ADMINISTRATIVE AGENT  Section 8.01. Authorization and Action.  (a) Each Lender and each Issuing Bank 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 and each Issuing Bank 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 and each Issuing Bank  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 and each Issuing Bank; provided, however, that the Administrative  





 






  71  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 and the Issuing Banks 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 and the Issuing  Banks (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, Issuing Bank 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 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  





 






  72  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) None of any Co-Documentation Agents or Arranger shall 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, LC Disbursements 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, the Issuing Banks 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, each Issuing Bank 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, the Issuing Banks, to pay to the  Administrative Agent any amount due to it, 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 or Issuing Bank any plan of reorganization, arrangement, adjustment or composition  affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize the  Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such  proceeding.    (g) The provisions of this Article are solely for the benefit of the Administrative Agent,  the Lenders and the Issuing Banks, 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  





 






  73  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, a Lender or an Issuing Bank.  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. Notwithstanding anything herein to the contrary, the  Administrative Agent shall not be liable for, or be responsible for any Liabilities, costs or expenses  suffered by the Borrower, any Subsidiary, any Lender or any Issuing Bank as a result of, any  determination of the Revolving Credit Exposure, any of the component amounts thereof or any  portion thereof attributable to each Lender or Issuing Bank.  (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  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 or Issuing Bank and shall not be responsible to any Lender  or Issuing Bank 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, or the issuance of a Letter of  Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, may  





 






  74  presume that such condition is satisfactory to such Lender or Issuing Bank unless the  Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank  sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit 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 and the Issuing Banks 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, each of the Issuing Banks 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, each of the  Issuing Banks 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, ANY ARRANGER, ANY CO-DOCUMENTATION  AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY,  “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER,  ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY  KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR  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.  





 






  75  “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, any Lender or any Issuing Bank by means of electronic communications pursuant to this  Section, including through an Approved Electronic Platform.  (d) Each Lender and each Issuing Bank 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 and Issuing Bank 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 or  Issuing Bank’s (as applicable) 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, each of the Issuing Banks 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, any Lender or  any Issuing Bank 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,  Loans, Letter of Credit Commitments and Letters of Credit, 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 or Issuing Bank,  as the case may be.  The terms “Issuing Banks”, “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, Issuing Bank 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 or the Issuing Banks.  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, the Issuing Banks  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  and the Issuing Banks, 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 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  





 






  76  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, the  Issuing Banks 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 and each Issuing Bank.  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 and Issuing Banks.  (a) Each Lender and  each Issuing Bank 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 or Issuing Bank, in each case in  the ordinary course of business and is making the Loans hereunder as commercial loans in the  ordinary course of its business, and not for the purpose of purchasing, acquiring or holding any other  type of financial instrument (and each Lender and each Issuing Bank agrees not to assert a claim in  contravention of the foregoing), (iii)  it has, independently and without reliance upon the  Administrative Agent, any Arranger, any Co-Documentation Agent or any other Lender or Issuing  Bank, 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 or such Issuing Bank, 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 and each Issuing Bank also  acknowledges that it will, independently and without reliance upon the Administrative Agent, any  Arranger, any Co-Documentation Agent or any other Lender or Issuing Bank, 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.  





 






  77  (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 NYFRB 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 NYFRB 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.  





 






  78  (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 each 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, the Letters  of Credit 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 Letters of Credit, 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 Letters of Credit,  the Commitments and this Agreement, (C) the entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, 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 Letters of Credit, 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 each Arranger and  





 






  79  their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower  or any other Loan Party, that none of the Administrative Agent, or any Arranger, any Co- Documentation Agent 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, each Arranger and each Co-Documentation Agent  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 Letters of Credit, the Commitments, this Agreement and any other Loan Documents (ii) may  recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount  less than the amount being paid for an interest in the Loans, the Letters of Credit 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, to JPMorgan Chase Bank, N.A., JPMorgan  Loan Services, 500 Stanton Christiana Road, NCC5, Floor 1, Newark, DE 19713, Attention  of Suzanna Gallagher, Wholesale Lending Services, Investment Bank (Fax No. (302) 634- 3301);  (iii) if to JPMorgan Chase Bank, 1-800-634-1969 and  gts.client.services@jpmchase.com; and  (iv) 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).  





 






  80  (b) Notices and other communications to the Borrower, the Lenders and the Issuing  Banks 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.  (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, any Issuing Bank 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, the Issuing Banks 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 or issuance of a Letter of Credit shall not be  construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender  or any Issuing Bank 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 LC Disbursement 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 LC Disbursement, 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 Section  2.09(c) or 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(b) or 7.03 without the written consent of  





 






  81  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, the Issuing  Banks without the prior written consent of the Administrative Agent or the Issuing Banks, as the  case may be; and provided further that no such agreement shall amend or modify the provisions of  Section 2.06 without the prior written consent of the Administrative Agent and the Issuing Banks.  (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 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),  (ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in connection with the  issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment  thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Issuing  Bank or any Lender, including the fees, charges and disbursements of any counsel for the  Administrative Agent, any Issuing Bank 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 or Letters of Credit issued  hereunder, including all such out-of-pocket expenses incurred during  any workout, restructuring  or negotiations in respect of such Loans or Letters of Credit.  (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, any  Arranger, any Co-Documentation Agent, any Issuing Bank 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 Letter of  Credit 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.  





 






  82  (c) Indemnity.  The Borrower shall indemnify the Administrative Agent, each Arranger,  each Co-Documentation Agent, each Issuing Bank 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 Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an  Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented  in connection with such demand do not strictly comply with the terms of such Letter of Credit),  (iv) 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 (v) 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 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, each Issuing Bank, 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.  





 






  83  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 (including any Affiliate of an Issuing Bank that issues any Letter of Credit), 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 (including any Affiliate of  an Issuing Bank that issues any Letter of Credit), 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, the Issuing Banks 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, participations in  Letters of Credit 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 Revolving Loans and  Commitments unless it shall have objected thereto by written notice to the  Administrative Agent within ten (10) Business Days after having received 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;  (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; and  (C) each Issuing Bank.  (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 of any Class, 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; provided that this clause shall not be construed to prohibit the  





 






  84  assignment of a proportionate part of all the assigning Lender’s rights and  obligations in respect of one Class of Commitments or Loans;  (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.  “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; provided, further, that upon the occurrence and during the  continuance of an Event of Default, any Person (other than a Lender) shall be an Ineligible  Institution if after giving effect to any proposed assignment to such Person, such Person would hold  more than 25% of the then outstanding Total Revolving Credit Exposure or Commitments, as the  case may be.  (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  





 






  85  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 and LC Disbursements 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, the Issuing Banks 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, any Issuing Bank 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 2.06(d) or (e), 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  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, the  Administrative Agent, the Issuing Banks, 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, the Issuing  Banks 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  





 






  86  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, Letters of Credit  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, Letter of Credit 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.  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 and issuance of any Letters of Credit,  regardless of any investigation made by any such other party or on its behalf and notwithstanding  that the Administrative Agent, any Issuing Bank 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 or any  Letter of Credit is outstanding 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, the expiration or termination of the Letters of Credit 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  





 






  87  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 (i)  fees payable to the Administrative Agent and (ii) the reductions of the Letter of Credit Commitment  of any Issuing Bank 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 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  





 






  88  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, each Issuing Bank, and each of their respective 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, such Issuing Bank 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 such Issuing Bank or their respective Affiliates, irrespective of whether or not such Lender,  Issuing Bank 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 or such Issuing Bank 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,  the Issuing Banks, 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, each  Issuing Bank and their respective Affiliates under this Section are in addition to other rights and  remedies (including other rights of setoff) that such Lender, such Issuing Bank or their respective  Affiliates may have.  Each Lender and Issuing Bank 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.  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  





 






  89  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, any Issuing Bank 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.  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, the Issuing Banks 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  





 






  90  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,  the Issuing Banks 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, any Issuing Bank 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, any Issuing  Bank 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  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  





 






  91  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 NYFRB 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 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  





 






  92  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  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  





 






  93  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.  





 






  94  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.  CONSTELLATION ENERGY GENERATION,  LLC  By: /s/ Shane Smith   Name: Shane Smith   Title: Vice President and Treasurer        





 






  95      JPMORGAN CHASE BANK, N.A., as  Administrative Agent, and a Lender,  By: /s/ Nancy R. Barwig   Name: Nancy R. Barwig   Title: Executive Director                 





 






  96  Bank of America, N.A.  By: /s/ Dee Dee Farkas   Name: Dee Dee Farkas   Title: Managing Director           





 






  97      Barclays Bank PLC, as Lender and Issuing Bank  By: /s/ Craig Malloy   Name: Craig Malloy   Title: Director       





 






  98      BNP Paribas, as Lender  By: /s/ Nicole Rodriguez   Name: Nicole Rodriguez   Title: Director    By: /s/ Nicole Doche   Name: Nicole Doche   Title: Vice President         





 






  99      CITIBANK, N.A.  By: /s/ Ashwani Khubani   Name: Ashwani Khubani   Title: Managing Director/Vice President       





 






  100      CREDIT AGRICOLE CORPORATE AND  INVESTMENT BANK  By: /s/ Dixon Schultz   Name: Dixon Schultz   Title: Managing Director    By: /s/ Michael Willis   Name: Michael Willis   Title: Managing Director       





 






  101      CREDIT SUISSE AG, NEW YORK BRANCH  By: /s/ Judy Smith   Name: Judy Smith   Title: Authorized Signatory    By: /s/ Michael Dieffenbacher   Name: Michael Dieffenbacher   Title: Authorized Signatory       





 






  102      GOLDMAN SACHS BANK USA  By: /s/ William Briggs IV   Name: William Briggs IV   Title: Authorized Signatory       





 






  103      MORGAN STANLEY BANK, N.A., as Lender  By: /s/ Alysha Salinger   Name: Alysha Salinger   Title: Authorized Signatory       





 






  104      MORGAN STANLEY SENIOR FUNDING,  INC., as Lender  By: /s/ Alysha Salinger   Name: Alysha Salinger   Title: Authorized Signatory       





 






  105      ROYAL BANK OF CANADA  By: /s/ Martina Wellik   Name: Martina Wellik   Title: Authorized Signatory       





 






  106      BANK OF NOVA SCOTIA  By: /s/ David Dewar   Name: David Dewar   Title: Director       





 






  107      MIZUHO BANK, LTD  By: /s/ Edward Sacks   Name: Edward Sacks   Title: Authorized Signatory       





 






  108      MUFG Bank, Ltd.  By: /s/ Viet-Linh Fujitaki   Name: Viet-Linh Fujitaki   Title: Director       





 






  109      PNC Bank, National Association  By: /s/ Alex Rolfe   Name: Alex Rolfe   Title: Vice President       





 






  110      SUMITOMO MITSUI BANKING  CORPORATION  By: /s/ Gail Motonaga   Name: Gail Motonaga   Title: Executive Director       





 






  111      TRUIST BANK  By: /s/ Justin Lien   Name: Justin Lien   Title: Director       





 






  112      BANCO SANTANDER, S.A., NEW YORK  BRANCH  By: /s/ Andres Barbosa   Name: Andres Barbosa   Title: Managing Director    By: /s/ Rita Walz-Cuccioli   Name: Rita Walz-Cuccioli   Title: Executive Director       





 






  113      Bank of China, Chicago Branch  By: /s/ Xu Yang   Name: Xu Yang   Title: SVP       





 






  114      MANUFACTURERS AND TRADERS TRUST  COMPANY, as Lender  By: /s/ Joanna Rombro   Name: Joanna Rombro   Title: Vice President       





 






  115      THE HUNTINGTON NATIONAL BANK  By: /s/ Nolan Woodbury   Name: Nolan Woodbury   Title: Assistant Vice President       





 






  116      The Northern Trust Company  By: /s/ Keith L. Burson   Name: Keith L. Burson   Title: Senior Vice President  





 






  117  SCHEDULE 2.01A  Commitments    Lender Commitment  J.P. Morgan Chase Bank, N.A.  $205,000,000.00  Bank of America, N.A.  $205,000,000.00  Barclays Bank PLC  $205,000,000.00  BNP Paribas $205,000,000.00  Citibank, N.A. $205,000,000.00  Credit Agricole Corporate & Investment Bank $205,000,000.00  Credit Suisse AG, New York Branch $205,000,000.00  Goldman Sachs Bank USA $205,000,000.00  Morgan Stanley Bank, N.A. $105,000,000.00  Morgan Stanley Senior Funding, Inc. $100,000,000.00  Royal Bank of Canada $205,000,000.00  The Bank of Nova Scotia $205,000,000.00  Mizuho Bank, Ltd. $159,000,000.00  MUFG Bank, Ltd.  $159,000,000.00  PNC Bank, National Association $159,000,000.00  Sumitomo Mitsui Banking Corporation $159,000,000.00  Truist Bank $159,000,000.00  Banco Santander, S.A., New York Branch $90,000,000.00  Bank of China, Chicago Branch $90,000,000.00  M&T Bank $90,000,000.00  The Huntington National Bank $90,000,000.00  The Northern Trust Company $90,000,000.00  TOTAL $3,500,000,000.00  





 






  118  SCHEDULE 2.01C  Letter of Credit Commitments    Lender Commitment  J.P. Morgan Chase Bank, N.A.  $227,272,727.28  Bank of America, N.A.  $227,272,727.28  Barclays Bank PLC  $227,272,727.27  BNP Paribas Securities Corp.  $227,272,727.27  Citibank, N.A. $227,272,727.27  Goldman Sachs Bank USA $227,272,727.27  The Bank of Nova Scotia $227,272,727.27  Credit Agricole Corporate & Investment Bank $227,272,727.27  Credit Suisse AG, New York Branch $227,272,727.27  Royal Bank of Canada $227,272,727.27  Morgan Stanley Senior Funding, Inc.  $227,272,727.28  TOTAL $2,500,000,000.00   





 






  119  SCHEDULE 3.06  Disclosed Matters  Nothing other than what has been previously disclosed in the Borrower’s Annual Report  on Form 10-K for the year ended December 31, 2020, Quarterly Reports on Form 10-Q for the  periods ending March 31, 2021, June 30, 2021 and September 30, 2021, and Periodic Reports on  Form 8-K filed by the Borrower with the United States Securities and Exchange Commission  during the period between January 1, 2021 and the date hereof. 





 






  120  SCHEDULE 6.04  Existing Restrictions  None.