exc-20211231x10kxexh1037






Execution Version  $300,000,000  CREDIT AGREEMENT  dated as of January 21, 2022  among  EXELON CORPORATION  as Borrower,   VARIOUS FINANCIAL INSTITUTIONS,  as Lenders,           and  U.S. BANK NATIONAL ASSOCIATION  as Administrative Agent    





 






  -i-  TABLE OF CONTENTS  Page  ARTICLE I    DEFINITIONS AND INTERPRETATION  SECTION 1.01 Certain Defined Terms ...................................................................................... 1  SECTION 1.02 Other Interpretive Provisions .......................................................................... 23  SECTION 1.03 Accounting Principles ..................................................................................... 23  SECTION 1.05 Divisions ......................................................................................................... 24  ARTICLE II    AMOUNTS AND TERMS OF THE COMMITMENTS  SECTION 2.01 Commitments .................................................................................................. 25  SECTION 2.02 Procedures for Advances; Limitations on Borrowings ................................... 25  SECTION 2.03 Fees ................................................................................................................. 25  SECTION 2.04 Termination of Commitments ......................................................................... 25  SECTION 2.05 Repayment of Advances ................................................................................. 25  SECTION 2.06 Interest on Advances ....................................................................................... 26  SECTION 2.07 [Reserved] ....................................................................................................... 26  SECTION 2.08 Interest Rate Determination ............................................................................ 26  SECTION 2.09 Continuation and Conversion of Advances .................................................... 26  SECTION 2.10 Prepayments .................................................................................................... 26  SECTION 2.11 Increased Costs ............................................................................................... 27  SECTION 2.12 Illegality .......................................................................................................... 28  SECTION 2.13 Payments and Computations ........................................................................... 29  SECTION 2.14 Taxes ............................................................................................................... 30  SECTION 2.15 Sharing of Payments, Etc ................................................................................ 34  SECTION 2.16 Availability of Types of Borrowings; Adequacy of Interest Rate;  Benchmark Replacement ................................................................................ 34  SECTION 2.17       Funding Indemnification......................................................................37  SECTION 2.18       Investment Payment Dates....................................................................37  ARTICLE III    CONDITIONS PRECEDENT  SECTION 3.01 Conditions Precedent to Effectiveness............................................................ 38  ARTICLE IV    REPRESENTATIONS AND WARRANTIES  SECTION 4.01 Representations and Warranties of the Borrower ........................................... 39  





 






TABLE OF CONTENTS  (continued)  Page    -ii-  ARTICLE V    COVENANTS OF THE BORROWER  SECTION 5.01 Affirmative Covenants .................................................................................... 42  SECTION 5.02 Negative Covenants ........................................................................................ 46  ARTICLE VI    EVENTS OF DEFAULT  SECTION 6.01 Events of Default ............................................................................................ 50  ARTICLE VII    THE ADMINISTRATIVE AGENT  SECTION 7.01 Authorization and Action ................................................................................ 52  SECTION 7.02 Administrative Agent’s Reliance, Etc............................................................. 52  SECTION 7.03 Administrative Agent and Affiliates ............................................................... 53  SECTION 7.04 Lender Credit Decision ................................................................................... 53  SECTION 7.05 Indemnification ............................................................................................... 53  SECTION 7.06 Successor Administrative Agent ..................................................................... 54  ARTICLE VIII    MISCELLANEOUS  SECTION 8.01 Amendments, Etc ............................................................................................ 54  SECTION 8.02 Notices, Etc ..................................................................................................... 55  SECTION 8.03 No Waiver; Remedies ..................................................................................... 55  SECTION 8.04 Costs and Expenses; Indemnification ............................................................. 55  SECTION 8.05 Right of Set-off ............................................................................................... 57  SECTION 8.06 Binding Effect ................................................................................................. 57  SECTION 8.07 Assignments and Participations ...................................................................... 57  SECTION 8.08 Governing Law ............................................................................................... 61  SECTION 8.09 Consent to Jurisdiction; Certain Waivers ....................................................... 61  SECTION 8.10 Waiver of Jury Trial ........................................................................................ 62  SECTION 8.11 Execution in Counterparts; Integration ........................................................... 62  SECTION 8.12 USA PATRIOT ACT NOTIFICATION ........................................................ 62  SECTION 8.13 No Advisory or Fiduciary Responsibility ....................................................... 63  SECTION 8.14 [Reserved] ....................................................................................................... 63  SECTION 8.15 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions....................................................................................................... 63  





 






TABLE OF CONTENTS  (continued)  Page    -iii-  SECTION 8.16 Confidentiality ................................................................................................ 64  SECTION 8.17 Material Non-Public Information ................................................................... 64  SECTION 8.18 Interest Rate Limitation .................................................................................. 65  SECTION 8.19 Severability ..................................................................................................... 65  SECTION 8.20 Headings ......................................................................................................... 65  SECTION 8.21 Survival ........................................................................................................... 65      SCHEDULE I COMMITMENTS  SCHEDULE 3.06 DISCLOSED MATTERS  SCHEDULE 5.02 EXISTING RESTRICTIONS    EXHIBIT A FORM OF ASSIGNMENT AND ASSUMPTION  EXHIBIT B FORM OF NOTICE OF BORROWING  EXHIBIT C FORM OF NOTE  EXHIBIT D FORM OF ANNUAL AND QUARTERLY COMPLIANCE CERTIFICATE  EXHIBIT E FORMS OF U.S. TAX COMPLIANCE CERTIFICATE  EXHIBIT F FORM OF NOTICE OF CONTINUATION OR CONVERSION  EXHIBIT G FORM OF NOTICE OF PREPAYMENT 





 






    CREDIT AGREEMENT  THIS CREDIT AGREEMENT dated as of January 21, 2022 is among EXELON  CORPORATION, a Pennsylvania, corporation the banks and other financial institutions or entities  listed on the signature pages hereof, and U.S. BANK NATIONAL ASSOCIATION, as  Administrative Agent.  The parties hereto, intending to be legally bound hereby, agree as follows:  ARTICLE I    DEFINITIONS AND INTERPRETATION  SECTION 1.01 Certain Defined Terms.  As used in this Agreement, each of the  following terms shall have the meaning set forth below (each such meaning to be equally  applicable to both the singular and plural forms of the term defined):  “Administrative Agent” means U.S. Bank National Association in its capacity as  administrative agent for the Lenders pursuant to Article VII, and not in its individual capacity as a  Lender, and any successor Administrative Agent appointed pursuant to Section 7.06.  “Administrative Questionnaire” means an administrative questionnaire,  substantially in the form supplied by the Administrative Agent, completed by a Lender and  furnished to the Administrative Agent in connection with this Agreement.  “Advance” means an advance by a Lender to the Borrower hereunder.  An Advance  may be a Base Rate Advance or a SOFR Advance, each of which shall be a “Type” of Advance.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any  UK Financial Institution.  “Affiliate” means, as to any Person, any other Person that, directly or indirectly,  controls, is controlled by or is under common control with such Person or is a director or officer  of such Person.  “Aggregate Commitment Amount” means the aggregate of the Commitments of all  the Lenders, as reduced or increased from time to time pursuant to the terms hereof. As of the  Effective Date, the Aggregate Commitment Amount is $300,000,000.  “Alternate Base Rate” means, for any day, a rate of interest per annum equal to the  highest of (a) zero, (b) the Prime Rate for such day, (c) the sum of the Federal Funds Effective  Rate for such day plus 0.50% per annum and (d) the Term SOFR Rate (without giving effect to  the Applicable Margin) for a one-month Interest Period on such day (or if such day is not a  Business Day or if the Term SOFR Rate for such Business Day is not published due to a holiday  or other circumstance that the Administrative Agent deems in its sole discretion to be temporary,  the immediately preceding Business Day) for Dollars plus 1.00%. Any change in the Alternate  Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate, or the Term SOFR  Rate shall be effective from the effective date of such change. If the Alternate Base Rate is being  used when Term SOFR Advances are unavailable pursuant to Section 2.16, then the Alternate Base  Rate shall be the highest of clauses (a), (b) and (c) above, without reference to clause (d) above.  





 






  -2-  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to the Borrower or any of its Affiliates from time to time concerning or relating to  money-laundering, bribery or corruption.   “Applicable Margin” means, 0.65% with respect to SOFR Advances, Term SOFR  Borrowings and Term SOFR Loans and (y) 0.00% with respect to Base Rate Advances, Base Rate  Borrowings and Base Rate Loans to Borrower.  “Approved Fund” has the meaning set forth in Section 8.07(a).  “Available Tenor” means, as of any date of determination and with respect to the  then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor  for such Benchmark that is or may be used for determining the length of an Interest Period or  (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as  applicable, pursuant to this Agreement as of such date.   “Assignment and Assumption” means an assignment and assumption entered into  by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially  the form of Exhibit A.  “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).   “Base Rate” means, for any day, a rate per annum equal to (a) the Alternate Base  Rate for such day plus (b) the Applicable Margin for such day, in each case changing when and as  the Alternate Base Rate or the Applicable Margin changes.   “Base Rate Advance” means an Advance that bears interest as provided in Section  2.06.  “Base Rate Borrowing” means a Borrowing that, except as otherwise provided in  Section 2.13(f), bears interest at the Base Rate.  “Base Rate Loan” means a Loan that, except as otherwise provided in Section  2.13(f), bears interest at the Base Rate.  





 






  -3-  “Benchmark” means, initially, Term SOFR; provided that if a replacement of the  Benchmark has occurred pursuant to Section 2.16(b), then “Benchmark” means the applicable  Benchmark Replacement to the extent that such Benchmark Replacement has become effective  pursuant to Section 2.16(b).   “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) Daily Simple SOFR; or  (2) the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the  applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation  of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant  Governmental Body or (ii) any evolving or then-prevailing market convention for determining a  benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated  syndicated credit facilities at such time 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 pursuant to clause (2)  thereof for any applicable Interest Period and Available Tenor for any setting of such 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 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 U.S. dollar-denominated syndicated credit facilities.  “Benchmark Replacement Conforming Changes” means, with respect to any  Benchmark Replacement, any technical, administrative or operational changes (including changes  to the definition of “Borrowing” and “Term SOFR Borrowing,” the definition of “Alternate Base  Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency  of determining rates and making payments of interest, timing of borrowing requests or prepayment,  conversion or continuation notices, length of lookback periods, the applicability of breakage  provisions, and other technical, administrative or operational matters) that the Administrative  Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark  Replacement and to permit the administration thereof by the Administrative Agent in a manner  substantially consistent with market practice (or, if the Administrative Agent decides that adoption  





 






  -4-  of any portion of such market practice is not administratively feasible or if the Administrative  Agent determines that no market practice for the administration of such Benchmark Replacement  exists, in such other manner of administration as the Administrative Agent decides is reasonably  necessary in connection with the administration of this Agreement and the other Loan Documents).  “Benchmark Replacement Date” means the earliest to occur of the following events  with respect to the then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition  Event,” the later of (a) the date of the public statement or publication of information referenced  therein and (b) the date on which the administrator of such Benchmark (or the published  component used in the calculation thereof) permanently or indefinitely ceases to provide all  Available Tenors of such Benchmark (or such component thereof);  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,”  the first date on which such Benchmark (or the published component used in the calculation  thereof) has been determined and announced by the regulatory supervisor for the administrator of  such Benchmark (or such component thereof) to be no longer representative; provided, that such  non-representativeness will be determined by reference to the most recent statement or publication  referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such  component thereof) continues to be provided on such date; and  (3) in the case of an Early Opt-in Election, the Business Day specified by the  Administrative Agent in the notice of the Early Opt-in Election provided to the Lenders, so long  as the Administrative Agent has not received, by 5:00 p.m. (Central time) on the fifth Business  Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice  of objection to such Early Opt-in Election from Lenders comprising the Majority Lenders.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark  Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of  any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the  Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be  deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the  occurrence of the applicable event or events set forth therein with respect to all then-current  Available Tenors of such Benchmark (or the published component used in the calculation thereof).  “Benchmark Transition Event” means the occurrence of one or more of the  following events with respect to the 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  





 






  -5-  calculation thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve  Bank of New York, 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), 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 any of the entities  referenced in clause (2) above 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 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 the then-current Benchmark in  accordance with Section 2.16(b), and (y) ending at the time that a Benchmark Replacement has  replaced the then-current Benchmark in accordance with Section 2.16(b).  “Beneficial Ownership Certification” means a certification regarding beneficial  ownership as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “BGE” shall mean Baltimore Gas and Electric Company.  “BGE Entity” shall mean RF Holdco, BGE and any of their Subsidiaries.    “Borrower” means Exelon Corporation or any Eligible Successor thereof.  “Borrowing” means a group of Advances of the same Type made, continued or  converted on the same day by the Lenders ratably according to their Pro Rata Shares and, in the  case of a Borrowing of Term SOFR Loans, having the same Interest Period.  “Business Day” means a day (other than a Saturday or Sunday) on which banks  generally are open in New York City, New York for the conduct of substantially all of their  commercial lending activities and interbank wire transfers can be made on the Fedwire system;  provided that, when used in connection with SOFR, Term SOFR, Term SOFR Base Rate or Term  SOFR Rate, the term “Business Day” excludes any day on which the Securities Industry and  Financial Markets Association (SIFMA) recommends that the fixed income departments of its  members be closed for the entire day for purposes of trading in United States government  securities.  





 






  -6-  “Capital Lease Obligations” of any Person means the obligations of such Person to  pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real  or personal property, or a combination thereof, which obligations are required to be classified and  accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP,  and the amount of such obligations shall be the capitalized amount thereof determined in  accordance with GAAP.  “Change in Control” means the acquisition of ownership, directly or indirectly  beneficially or of record, by any Person or group (within the meaning of the Securities Exchange  Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) of Equity Interests  representing more than 50% of the aggregate ordinary voting power represented by the issued and  outstanding Equity Interests of the Borrower.               “Change in Law” means (a) the adoption of any law, rule, regulation or treaty after  the date of this Agreement, (b) any change in any law, rule, regulation or treaty or in the  interpretation or application thereof by any Governmental Authority after the date of this  Agreement or (c) compliance by any Lender (or, for purposes of Section 2.11(b), by any lending  office of such Lender or by such Lender’s holding company, if any) with any request, rule,  guideline or directive (whether or not having the force of law) of any Governmental Authority  made or issued after the date of this Agreement; provided that notwithstanding anything herein to  the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,  rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests,  rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel  Committee on Banking Supervision (or any successor or similar authority) or the United States or  foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to  be a “Change in Law”, regardless of the date enacted, adopted or issued.   “Code” means the Internal Revenue Code of 1986, as amended.  “ComEd” means Commonwealth Edison Company, an Illinois corporation, or any  successor thereof.  “ComEd Entity” means ComEd and each of its Subsidiaries.  “Commitment” means, with respect to each Lender, the commitment of such  Lender to make an Advance, expressed as an amount representing the maximum principal amount  of the Advance to be made by such Lender.  The initial amount of each Lender’s Commitment is  set forth on Schedule I attached hereto.  “Commitment Amount” means, for any Lender at any time, the amount set forth  opposite such Lender’s name on Schedule I attached hereto or, if such Lender has entered into any  Assignment and Assumption, set forth for such Lender in the Register maintained by the  Administrative Agent pursuant to Section 8.07(c).   “Commodity Trading Obligations” shall mean the obligations of the Borrower (or,  prior to consummation of the Spin Transaction, Genco) under (i) any commodity swap agreement,  commodity future agreement, commodity option agreement, commodity cap agreement,  commodity floor agreement, commodity collar agreement, commodity hedge agreement,  





 






  -7-  commodity forward contract or derivative transaction and any put, call or other agreement,  arrangement or transaction, including natural gas, power, electric energy, emissions forward  contracts, renewable energy credits, or any combination of any such arrangements, agreements  and/or transactions, employed in the ordinary course of the Borrower or Genco’s business,  including the Borrower or Genco’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 or Genco  pursuant to asset optimization and risk management policies and procedures adopted pursuant to  authority delegated by the Board of Directors of the Borrower or Genco.  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.  “Connection Income Taxes” means Other Connection Taxes that are imposed on  or measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.    “Consolidated Capitalization Ratio” means, as of any date of determination, the  ratio of (a) Consolidated Total Indebtedness as of the last day of the applicable Test Period to  (b) the sum of Consolidated Total Indebtedness plus Consolidated Stockholders’ Equity as of the  last day for such Test Period.                “Consolidated Stockholders’ Equity” means, as of any date of determination, the  total stockholders’ equity of the Borrower on a consolidated basis, determined in accordance with  GAAP.              “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.     “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.  “Credit Extension” means the making of an Advance hereunder.  “Daily Simple SOFR” means for any day, SOFR, with the conventions for this rate  (which will include a lookback) being established by the Administrative Agent in accordance with  the conventions for this rate selected or recommended by the Relevant Governmental Body for  determining “Daily Simple SOFR” for syndicated business loans; provided, that if the  





 






  -8-  Administrative Agent decides that any such convention is not administratively feasible for the  Administrative Agent, then the Administrative Agent may establish another convention in its  reasonable discretion.   “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.  “Disclosed Matters” means the actions, suits and proceedings and the  environmental matters disclosed in Schedule 3.06.  “Domestic Lending Office” means, with respect to any Lender, the office of such  Lender specified as its “Domestic Lending Office” in its Administrative Questionnaire or in the  Assignment and Assumption pursuant to which it became a Lender, or such other office of such  Lender as such Lender may from time to time specify to the Borrower and the Administrative  Agent.  “Early Opt-in Election” means, if the then-current Benchmark is the Term SOFR  Base Rate, the joint election by the Administrative Agent and the Borrower to trigger a fallback  from the Term SOFR Base Rate to the Benchmark Replacement, and a notification by the  Administrative Agent to each of the other parties hereto of such election and the proposed  Benchmark Replacement.   “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 all conditions precedent set forth in  Section 3.01 have been satisfied.   “Electronic System” means any electronic system, including e-mail, e-fax,  Intralinks®, ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site,  whether such electronic system is owned, operated or hosted by the Administrative Agent or any  Lender and any of its respective Related Parties or any other Person, providing for access to data  protected by passcodes or other security system.  “Eligible Assignee” means (i) a commercial bank organized under the laws of the  United States, or any State thereof; (ii) a commercial bank organized under the laws of any other  





 






  -9-  country that is a member of the OECD or has concluded special lending arrangements with the  International Monetary Fund associated with its “General Arrangements to Borrow”, or a political  subdivision of any such country, provided that such bank is acting through a branch or agency  located in the United States; (iii) a finance company, insurance company or other financial  institution or fund (whether a corporation, partnership or other entity) engaged generally in  making, purchasing or otherwise investing in commercial loans in the ordinary course of its  business; (iv) the central bank of any country that is a member of the OECD; (v) any Lender; or  (vi) any Affiliate (excluding any individual) of a Lender; provided that, unless otherwise agreed  by the Borrower and the Administrative Agent in their sole discretion, (A) any Person described  in clause (i), (ii) or (iii) above shall also (x) have outstanding unsecured long-term debt that is rated  BBB- or better by S&P and Baa3 or better by Moody’s (or an equivalent rating by another  nationally recognized credit rating agency of similar standing if either such corporation is no  longer in the business of rating unsecured indebtedness of entities engaged in such businesses) and  (y) have combined capital and surplus (as established in its most recent report of condition to its  primary regulator) of not less than $100,000,000 (or its equivalent in foreign currency), and (B)  any Person described in clause (ii), (iii), (iv), (v) or (vi) above shall, on the date on which it is to  become a Lender hereunder, be entitled to receive payments hereunder without deduction or  withholding of any United States Federal income taxes (as contemplated by Section 2.14(e)).  In  no event shall an Eligible Assignee include an Ineligible Institution.  “Eligible Successor” means a Person that (i) is a corporation, limited liability  company or business trust duly incorporated or organized, validly existing and in good standing  under the laws of one of the states of the United States or the District of Columbia, (ii) as a result  of a contemplated acquisition, consolidation or merger, will succeed to all or substantially all of  the consolidated business and assets of the Borrower, (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) is acceptable to the Majority 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  





 






  -10-  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.  “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, 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 with respect to any Plan 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 to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its  ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the  Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt  by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan  from the Borrower or any ERISA Affiliate of any notice, concerning the imposition upon the  Borrower or any of its ERISA Affiliates of Withdrawal Liability under Section 4201 of ERISA or  a determination that a Multiemployer Plan is, or is expected to be, insolvent 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” shall have the meaning specified in Section 6.01.  “Exchange Act” means the Securities Exchange Act of 1934.  “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) any  captive insurance Subsidiary, (c) any not-for-profit Subsidiary or (d) any special purpose vehicle,  including any Securitization Vehicle.  





 






  -11-  “Excluded Taxes” means any of the following Taxes imposed on or with respect to  a Recipient or required to be withheld or deducted from a payment to a Recipient:  (a) Taxes  imposed on or measured by net income (however denominated), franchise Taxes, and branch  profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the  laws of, or having its principal office or, in the case of any Lender, its applicable lending office  located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are  Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on  amounts payable to or for the account of such Lender with respect to an applicable interest in an  Advance or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires  such interest in the Advance or Commitment (other than pursuant to an assignment request by the  Borrower under Section 8.07(g)) or (ii) such Lender changes its lending office, except in each case  to the extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either  to such Lender’s assignor immediately before such Lender acquired the applicable interest in an  Advance or Commitment or to such Lender immediately before it changed its lending office, (c)  Taxes attributable to such Recipient’s failure to comply with Section 2.14(f) and (d) any U.S.  Federal withholding Taxes imposed under FATCA.   “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this  Agreement, and any current or future regulations or official interpretations thereof; provided that  “FATCA” shall also include any amendments to Sections 1471 through 1474 of the Code that are  substantively comparable, but only if the requirements in such amended version for avoiding the  withholding are not materially more onerous than the requirements in the current version.  “Federal Funds Effective Rate” means, for any day, the greater of (a) zero and (b)  the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s  federal funds transactions by depository institutions (as determined in such manner as the Federal  Reserve Bank of New York shall set forth on its public website from time to time) and published  on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal  funds effective rate or, if such rate is not so published for any day which is a Business Day, the  average of the quotations at approximately 10:00 a.m. (Central time) on such day on such  transactions received by the Administrative Agent from three federal funds brokers of recognized  standing selected by the Administrative Agent in its sole discretion.  “Federal Reserve Bank of New York’s Website” means the website of the Federal  Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.  “Financial Officer” means the chief financial officer, principal accounting officer,  treasurer or controller of the Borrower.  “Fitch” means Fitch Ratings, Inc. or any successor.  “Fitch Rating” means, at any time, the rating issued by Fitch and then in effect with  respect to the Borrower’s senior unsecured long-term public debt securities without third party  credit enhancement (it being understood that if the Borrower does not have any outstanding debt  securities of the type described above but has an indicative rating from Fitch for debt securities of  such type, then such indicative rating shall be used for determining the “Fitch Rating” and if the  





 






  -12-  Borrower does not have such an indicative rating, but has an issuer rating from Fitch, then such  issuer rating shall be used for determining the “Fitch Rating”).  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially  (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement  or otherwise) with respect to the Term SOFR Rate.   “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a  U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized  under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  “GAAP” shall have meaning specified in Section 1.03(a).  “Genco” means Exelon Generation Company, LLC a Pennsylvania limited liability  company.  “Governmental Authority” means the government of the United States of America  or any other nation or any political subdivision thereof, whether state or local, and any agency,  authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  government (including any supra-national bodies such as the European Union or the European  Central Bank) and any group or body charged with setting financial accounting or regulatory  capital rules or standards (including, without limitation, the Financial Accounting Standards  Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or  any successor or similar authority to any of the foregoing).  “Granting Bank” shall have the meaning specified in Section 8.07(i).  “Guarantee” of or by any Person (the “guarantor”) means any obligation,  contingent or otherwise, of the guarantor guaranteeing or having the economic effect of  guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in  any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or  indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such  Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of)  any security for the payment thereof, (b) to purchase or lease property, securities or services for  the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof,  (c) to maintain working capital, equity capital or any other financial statement condition or  liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or  other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty  issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not  include endorsements for collection or deposit in the ordinary course of business.  “Hazardous Materials” means all explosive or radioactive substances or wastes and  all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum  distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,  infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to  any Environmental Law.  





 






  -13-  “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 the Borrower under this Agreement, and (b) Other Taxes.  “Index Debt” means senior, unsecured, long-term indebtedness for borrowed  money of the Borrower that is not guaranteed by any other Person or subject to any other credit  enhancement, provided, that if the Borrower does not have any outstanding debt securities of the  type described, an appropriate fallback will be determined by Administrative Agent in consultation  with Borrower.  “Ineligible Institution” has the meaning assigned to it in Section 8.07(a).  “Interest Period” means, with respect to a Term SOFR Borrowing, a period of one,  three or six months (in each case, subject to the availability thereof) commencing on a Business  Day selected by the Borrower pursuant to this Agreement and ending on the day that corresponds  numerically to such date one, three or six months thereafter; provided that  (i) any Interest Period that would otherwise end on a day that is not a  Business Day shall be extended to the next succeeding Business Day unless such  succeeding Business Day falls in a new calendar month, in which case such Interest  Period shall end on the immediately 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  





 






  -14-  in the calendar month at the end of such Interest Period) shall end on the last  Business Day of the calendar month at the end of such Interest Period;  (iii) no Interest Period shall extend beyond the Termination Date; and  (iv) no tenor that has been removed from this definition pursuant to  Section 2.16(b)(iv) may be available for selection by the Borrower.  “IRS” means the United States Internal Revenue Service.  “Lenders” means each of the financial institutions listed on the signature pages  hereof and each Eligible Assignee that shall become a party hereto pursuant to Section 8.07.  “Lien” means any lien (statutory or other), mortgage, pledge, security interest or  other charge or encumbrance, or any other type of preferential arrangement in the nature of a  security interest (including the interest of a vendor or lessor under any conditional sale, capitalized  lease or other title retention agreement).  “Loan Documents” means this Agreement, including schedules and exhibits hereto,  and any agreements entered into in connection herewith by the Borrower 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 other documents prepared  in connection with the other Loan Documents, if any.  “Loans” means the loans made by the Lenders to the Borrower pursuant to this  Agreement.  “Majority Lenders” means Lenders having Pro Rata Shares of more than 50%;  provided that, for purposes of this definition, neither the Borrower nor any of its Affiliates, if a  Lender, shall be included in calculating the amount of any Lender’s Pro Rata Share or the amount  of the Commitment Amounts or Outstanding Credit Extensions, as applicable, required to  constitute more than 50% of the Pro Rata Shares.  “Material Adverse Change” and “Material Adverse Effect” each means, relative to  any occurrence, fact or circumstances of whatsoever nature (including any determination in any  litigation, arbitration or governmental investigation or proceeding), (i) any materially adverse  change in, or materially adverse effect on, the financial condition, operations, assets or business of  the Borrower and its consolidated Subsidiaries, taken as a whole, provided that, except as  otherwise expressly provided herein, the assertion against the Borrower or any Subsidiary of  liability for any obligation arising under ERISA for which the Borrower or such Subsidiary bore  joint and several liability with any ComEd Entity, or the payment by the Borrower or any  Subsidiary of any such obligation, shall not be considered in determining whether a Material  Adverse Change or Material Adverse Effect has occurred; or (ii) any materially adverse effect on  the validity or enforceability against the Borrower of this Agreement.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  





 






  -15-  “Moody’s Rating” means, at any time, the rating issued by Moody’s and then in  effect with respect to the Borrower’s senior unsecured long-term public debt securities without  third-party credit enhancement (it being understood that if the Borrower does not have any  outstanding debt securities of the type described above but has an indicative rating from Moody’s  for debt securities of such type, then such indicative rating shall be used for determining the  “Moody’s Rating” and if the Borrower does not have such an indicative rating, but has an issuer  rating from Moody’s, then such issuer rating shall be used for determining the “Moody’s Rating”).  “Multiemployer Plan” means a Plan maintained pursuant to a collective bargaining  agreement or any other arrangement to which Exelon or any other member of the Controlled Group  is a party to which more than one employer is obligated to make contributions.  “Nonrecourse Indebtedness” means any Indebtedness that finances the acquisition,  development, ownership or operation of an asset or pool of assets 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.  “Notice of Borrowing” has the meaning set forth in Section 2.02(a).  “Obligations” means all advances to, and debts, liabilities, obligations, covenants  and duties of, the Borrower arising under any Loan Document or otherwise with respect to any  Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent,  due or to become due, now existing or hereafter arising and including interest and fees that accrue  after the commencement by or against the Borrower or any Affiliate thereof of any proceeding  under any debtor relief laws naming such Person as the debtor in such proceeding, regardless of  whether such interest and fees are allowed or allowable claims in such proceeding.  Without  





 






  -16-  limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest  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 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.  “OECD” means the Organization for Economic Cooperation and Development.  “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 Advance or document related thereto).  “Other Taxes” means all present or future stamp, court or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, this Agreement, except any such Taxes that are Other  Connection Taxes imposed with respect to an assignment (other than an assignment under Section  8.07(g)).  “Outstanding Credit Extensions” means the sum of the aggregate principal amount  of all outstanding Advances.  “Participant” has the meaning assigned to such term in Section 8.07(e).  “Participant Register” has the meaning assigned to such term in Section 8.07(e).  “Payment Date” means (i) for Base Rate Loans, the last day of each calendar quarter  and (ii) for Term SOFR Loans the last day of each Interest Period.  “PBGC” means the Pension Benefit Guaranty Corporation and any entity  succeeding to any or all of its functions under ERISA.  “PECO” means PECO Energy Company, a Pennsylvania corporation, or any  successor thereof.  “Pepco” means Pepco Holdings LLC, a Delaware limited liability company, or any  successor thereof.  “Pepco Entity” shall mean Pepco, PH Holdco and any of their Subsidiaries.  “Permitted Encumbrance” means (a) any right reserved to or vested in any  municipality or other governmental or public authority (i) by the terms of any right, power,  franchise, grant (including, without limitation, any financial assistance grant), license or permit  granted or issued to the Borrower (or prior to consummation of the Spin Transaction, Genco) or  (ii) to purchase or recapture or to designate a purchaser of any property of the Borrower (or prior  





 






  -17-  to consummation of the Spin Transaction, Genco) ; (b) any easement, restriction, exception or  reservation in any property and/or right of way of the Borrower (or prior to consummation of the  Spin Transaction, Genco)  for the purposes of roads, pipelines, transmission lines, distribution  lines, transportation lines or removal of minerals or timber or for other like purposes or for the  joint or common use of real property, rights of way, facilities and/or equipment, and defects,  irregularities and deficiencies in title of any property and/or rights of way, which, in each case  described in this clause (b), whether considered individually or collectively with all other items  described in this clause (b), do not materially impair the use of the relevant property and/or rights  of way for the purposes for which such property and/or rights of way are held by the Borrower (or  prior to consummation of the Spin Transaction, Genco); (c) rights reserved to or vested in any  municipality or other Governmental Authority to control or regulate any property of the Borrower  (or prior to consummation of the Spin Transaction, Genco)  or to use such property in a manner  that does not materially impair the use of such property for the purposes for which it is held by the  Borrower (or prior to consummation of the Spin Transaction, Genco) ; and (d) obligations or duties  of the Borrower (or prior to consummation of the Spin Transaction, Genco)  to any municipality  or other Governmental Authority that arise out of any franchise, grant, license or permit and that  affect any property of the Borrower (or prior to consummation of the Spin Transaction, Genco)   (including, without limitation, obligations with respect to nuclear waste disposal and related  arrangements).  “Permitted Obligations” mean (1) Hedging Obligations of the Borrower (or prior  to consummation of the Spin Transaction, Genco)  arising in the ordinary course of business and  in accordance with the Borrower’s (or prior to consummation of the Spin Transaction, Genco’s)  established risk management policies that are designed to protect the Borrower (or prior to  consummation of the Spin Transaction, Genco)  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 of the Borrower (or prior to  consummation of the Spin Transaction, Genco).  “Person” means an individual, partnership, corporation (including a business trust),  joint stock company, trust, unincorporated association, joint venture, limited liability company or  other entity, or a government or any political subdivision or agency thereof.  “PH Holdco” shall mean PH HoldCo LLC, a Delaware limited liability company.   “Plan” means an employee pension benefit plan that is covered by Title IV of  ERISA or subject to the minimum funding standards under Section 412 of the Code as to which  the Borrower or any other member of the Controlled Group has or may have any liability (including  contingent liability).  “Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar  electronic transmission system.  “Prime Rate” means a rate per annum equal to the prime rate of interest announced  by U.S. Bank National Association as its prime rate (which is not necessarily the lowest rate  charged to any customer) in effect at its office located in Minneapolis, Minnesota; each change in  





 






  -18-  the Prime Rate shall be effective from and including the date such change is publicly announced  as being effective.  “Principal Subsidiary” means each Subsidiary, other than PECO and its  Subsidiaries, any BGE Entity, any ComEd Entity and any Pepco Entity,  (i) the consolidated assets  of which, as of the date of any determination thereof, are at least equal to 10% of the consolidated  assets of the Borrower or (ii) the consolidated earnings before taxes of which are at least equal to  10% of the consolidated earnings before taxes of the Borrower for the most recently completed  fiscal year.   “Pro Rata Share” means, with respect to a Lender, the percentage that such Lender’s  Commitment Amount is of the Aggregate Commitment Amount.  If the Commitments have  terminated or expired, the Pro Rata Shares shall be determined based upon the Commitment  Amounts most recently in effect, giving effect to any assignments.  “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.  “Rating Agency” means each of S&P, Moody’s and Fitch.  “Recipient” means, as applicable, (a) the Administrative Agent and (b) any Lender.  “Reference Time” with respect to any setting of the then-current Benchmark means  (1) if such Benchmark is Term SOFR, 10:00 a.m. (Central time) on the day that is two Business  Days before the date of such setting, and (2) if such Benchmark is not Term SOFR, the time  determined by the Administrative Agent in its reasonable discretion.   “Register” has the meaning set forth in Section 8.07(c).  “Related Parties” means, with respect to any specified Person, such Person’s  Affiliates and the respective trustees, administrators, managers, representatives, directors, officers,  employees, agents and advisors of such Person and such Person’s Affiliates.  “Relevant Governmental Body” means the Board of Governors of the Federal  Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or  convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank  of New York, or any successor thereto.  “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.  





 






  -19-  “Resolution Authority” means an EEA Resolution Authority or, with respect to any  UK Financial Institution, a UK Resolution Authority.  “RF Holdco” shall mean RF HoldCo LLC, a Delaware limited liability company.  “S&P” means Standard and Poor’s Financial Services, LLC, or any successor.  “S&P Rating” means, at any time, the rating issued by S&P and then in effect with  respect to the Borrower’s senior unsecured long-term public debt securities without third-party  credit enhancement (it being understood that if the Borrower does not have any outstanding debt  securities of the type described above but has an indicative rating from S&P for debt securities of  such type, then such indicative rating shall be used for determining the “S&P Rating”).  “Sanctioned Country” means, at any time, a country, region or territory which is  itself, or whose government is, the subject or target of any Sanctions (as of the Effective Date,  Cuba, Iran, North Korea, Sudan, Syria and Crimea).  “Sanctioned Person” means, at any time, any Person that is the target of Sanctions,  including, without limitation, (a) any Person listed in any Sanctions-related list of designated  Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the  Treasury, the U.S. Department of State, or by the United Nations Security Council, the European  Union or any European Union member state or Her Majesty’s Treasury of the United Kingdom,  (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned  or controlled by any such Person or Persons described in the foregoing clause (a) or (b).  “Sanctions” means economic or financial sanctions or trade embargoes imposed,  administered or enforced from time to time by (a) the U.S. government, including those  administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or  the U.S. Department of State, or (b) the United Nations Security Council, the European Union,  any European Union member state or Her Majesty’s Treasury of the United Kingdom.  “Screen” has the meaning provided in the definition of Term SOFR Base Rate.  “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  





 






  -20-  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, with respect to any Business Day, a rate per annum equal to the  secured overnight financing rate for such Business Day published by the SOFR Administrator on  the SOFR Administrator’s Website.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a  successor administrator of the secured overnight financing rate).  “SOFR Administrator’s Website” means the website of the Federal Reserve Bank  of New York, 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 Advance” means any Advance that bears interest as provided in  Section 2.06.  “SPC” has the meaning set forth in Section 8.07(i).  “Spin Transaction” means (i) the transfer of the membership interests of Genco by  Exelon to SpinCo and (ii) the pro rata distribution of the capital stock of SpinCo to the holders of  Exelon’s common stock, at which point SpinCo will become a separate, independent publicly  traded company.  “SpinCo” means the new company established by Exelon in connection with the  Spin Transaction and that as of the effective date of the Spin Transaction, will own, directly, 100%  of the issued and outstanding membership interests of Genco (or its successor in interest, as  applicable).  





 






  -21-  “Subsidiary” means, with respect to any Person, any corporation or unincorporated  entity of which more than 50% of the outstanding capital stock (or comparable interest) having  ordinary voting power (irrespective of whether or not at the time capital stock, or comparable  interests, of any other class or classes of such corporation or entity shall or might have voting  power upon the occurrence of any contingency) is at the time directly or indirectly owned by such  Person (whether directly or through one or more other Subsidiaries).  Unless otherwise indicated,  each reference to a “Subsidiary” means a Subsidiary of the Borrower.  “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.  “Termination Date” means July 21, 2023.  “Term SOFR” means the rate per annum determined by the Administrative Agent  as the forward-looking term rate based on SOFR.  “Term SOFR Administrator” means CME Group Benchmark Administration Ltd.  (or a successor administrator of Term SOFR).  “Term SOFR Administrator’s Website” means  https://www.cmegroup.com/market-data/cme-group-benchmark-administration/term-sofr, or any  successor source for Term SOFR identified as such by the Term SOFR Administrator from time  to time.  “Term SOFR Base Rate” means, for the relevant Interest Period, the greater of (a)  zero and (b) the Term SOFR rate quoted by the Administrative Agent from the Term SOFR  Administrator’s Website or the applicable Bloomberg screen (or other commercially available  source providing such quotations as may be selected by the Administrative Agent from time to  time) (the “Screen”) for such Interest Period, which shall be the Term SOFR rate published two  Business Days before the first day of such Interest Period (such Business Day, the “Determination  Date”). If as of 5:00 p.m. (New York time) on any Determination Date, the Term SOFR rate has  not been published by the Term SOFR Administrator or on the Screen, then the rate used will be  that as published by the Term SOFR Administrator or on the Screen for the first preceding Business  Day for which such rate was published on such Screen so long as such first preceding Business  Day is not more than three (3) Business Days prior to such Determination Date.  “Term SOFR Borrowing” means a Borrowing that, except as otherwise provided  in Section 2.13(f), bears interest at the applicable Term SOFR Rate.  “Term SOFR Loan” means a Loan that, except as otherwise provided in Section  2.13(f), bears interest at the applicable Term SOFR Rate other than pursuant to clause (d) of the  definition of Alternate Base Rate.   “Term SOFR Rate” means, for the relevant Interest Period, the sum of (a) the Term  SOFR Base Rate applicable to such Interest Period, plus (b) the Applicable Margin; provided that  





 






  -22-  the Term SOFR Rate before an Event of Default or the Termination Date expressed as an annual  rate shall not be less than 0%.  “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(a).  “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.  “Type” means, with respect to any Borrowing, its nature as a Base Rate Borrowing  or a Term SOFR Borrowing and with respect to a Loan, its nature as a Base Rate Loan or a Term  SOFR Loan.  “UK Financial Institutions” means any BRRD Undertaking (as such term is defined  under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom  Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook  (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority,  which includes certain credit institutions and investment firms, and certain affiliates of such credit  institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark  Replacement excluding the related Benchmark Replacement Adjustment.  “Unfunded Liabilities” means, (i) in the case of any Single Employer Plan, the  amount (if any) by which the present value of all vested nonforfeitable benefits under such Plan  exceeds the fair market value of all Plan assets allocable to such benefits, all determined as of the  then most recent actuarial valuation date for such Plan using the actuarial assumptions set forth in  the most recent actuarial valuation report for such Single Employer Plan, and (ii) in the case of  any Multiemployer Plan, the Withdrawal Liability that would be incurred by the Controlled Group  if all members of the Controlled Group completely withdrew from such Multiemployer Plan.  “U.S. Person” means a “United States” person within the meaning of Section  7701(a)(30) of the Code.  “U.S. Tax Compliance Certificate” has the meaning assigned to such term in  Section 2.14(f)(ii)(B)(3).  





 






  -23-  “Withdrawal Liability” shall have the meaning specified in Part 1 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 Other Interpretive Provisions.  In this Agreement, (a) in the  computation of periods of time from a specified date to a later specified date, the word “from”  means “from and including” and the words “to” and “until” each means “to but excluding”; (b) the  term “including” means “including without limitation”; and (c) unless otherwise indicated, (i) any  reference to an Article, Section, Exhibit or Schedule means an Article or Section hereof or an  Exhibit or Schedule hereto; (ii) any reference to a time of day means such time in Minneapolis,  Minnesota; (iii) any reference to a law or regulation means such law or regulation as amended,  modified or supplemented from time to time and includes all statutory and regulatory provisions  consolidating, replacing or interpreting such law or regulation; and (d) any reference to an  agreement, instrument or other document means such agreement, instrument or other document as  amended, supplemented or otherwise modified from time to time. 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 SOFR Loan”) or by Class and Type (e.g., a “Term SOFR Revolving Loan”). Borrowings  also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g.,  a “Term SOFR Borrowing”) or by Class and Type (e.g., a “Term SOFR Revolving Borrowing”).  SECTION 1.03 Accounting Principles.  (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 Majority 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  





 






  -24-  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 Error! Reference  source not found. or in the definition of “Capital Lease Obligations,” any change in accounting  for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board  Accounting Standards Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such  adoption would require treating any lease (or similar arrangement conveying the right to use) as a  capital lease where such lease (or similar arrangement) would not have been required to be so  treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a capital  lease, and all calculations and deliverables under this Agreement or any other Loan Document  shall be made or delivered, as applicable, in accordance therewith.  SECTION 1.04 Term SOFR Notification.  The interest rate on Term SOFR  Borrowings is determined by reference to the Term SOFR Base Rate, which is derived from Term  SOFR. Section 2.16(b) provides a mechanism for (a) determining an alternative rate of interest if  Term SOFR is no longer available or in the other circumstances set forth in Section 2.16(b), and  (b) modifying this Agreement to give effect to such 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 or any other matter related to Term SOFR or other rates in the  definition of Term SOFR Base Rate or with respect to any alternative or successor rate thereto, or  replacement rate thereof (including any Benchmark Replacement), including without limitation,  whether any such alternative, successor or replacement reference rate (including any Benchmark  Replacement), as it may or may not be adjusted pursuant to Section 2.16(b), will have the same  value as, or be economically equivalent to, the Term SOFR Base Rate. The Administrative Agent  and its affiliates or other related entities may engage in transactions that affect the calculation of  Alternate Base Rate, Term SOFR, the Term SOFR Base Rate, any alternative, successor or  replacement rate (including any Benchmark Replacement) 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 the Alternate Base Rate, the Term SOFR  Base Rate, Term SOFR or any other Benchmark, 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 1.05 Divisions.  For all purposes hereunder or under any other 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  





 






  -25-  new Person comes into existence, such new Person shall be deemed to have been organized and  acquired on the first date of its existence by the holders of its equity interests at such time.  ARTICLE II    AMOUNTS AND TERMS OF THE COMMITMENTS  SECTION 2.01 Commitments.  Subject to the terms and conditions set forth herein,  each Lender severally (and not jointly) agrees to make an Advance in dollars to the Borrower, on  the Effective Date, in a principal amount not to exceed such Lender’s Commitment.  Amounts  prepaid or repaid in respect of such Advances may not be reborrowed.  SECTION 2.02 Procedures for Advances; Limitations on Borrowings.  (a) The Borrower shall request the Advance to be made on the Effective Date  by giving notice (a “Notice of Borrowing”) to the Administrative Agent (which shall promptly  advise each Lender of its receipt thereof) not later than 10:00 A.M. on the third Business Day prior  to the Effective Date of any proposed borrowing of SOFR Advances and on the Effective Date of  any proposed borrowing of Base Rate Advances.  Each Notice of Borrowing shall be in  substantially the form of Exhibit B, specifying therein (i) the Type of Advances requested, (ii) the  aggregate principal amount of the requested Advances and (iii) in the case of a borrowing of SOFR  Advances, the initial Interest Period therefor.  Each Lender shall, before 12:00 noon on the date of  such borrowing, make available for the account of its applicable lending office to the  Administrative Agent at its address referred to in Section 8.02, in same day funds, such Lender’s  ratable portion of the requested borrowing.  After the Administrative Agent’s receipt of such funds  and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent  will make such funds available to the Borrower at the Administrative Agent’s aforesaid address.  (b) Each Notice of Borrowing shall be irrevocable and binding on the  Borrower.  If a Notice of Borrowing requests SOFR Advances, the Borrower shall indemnify each  Lender against any loss, cost or expense incurred by such Lender as a result of any failure of the  Borrower to fulfill on or before the requested borrowing date the applicable conditions set forth in  Article III, including any loss, cost or expense incurred by reason of the liquidation or  reemployment of deposits or other funds acquired by such Lender to fund the requested Advance  to be made by such Lender.  SECTION 2.03 Fees.  The Borrower agrees to pay to the Administrative Agent, for  its own account, fees payable in the amounts and at the times separately agreed upon between the  Borrower and the Administrative Agent.  SECTION 2.04 Termination of Commitments. The Commitments shall terminate at  5:00 pm on the Effective Date.  SECTION 2.05 Repayment of Advances.  The Borrower shall repay all outstanding  Advances made by each Lender, and all other obligations of the Borrower hereunder on the  Termination Date.  





 






  -26-  SECTION 2.06 Interest on Advances.  Each Base Rate Loan shall bear interest on  the outstanding principal amount thereof, for each day from the date such Loan is made or is  automatically converted into a Base Rate Loan pursuant to Section 2.09, to the date it is paid or is  converted into a Term SOFR Loan pursuant to Section 2.09, at a rate per annum equal to the Base  Rate for such day. Changes in the rate of interest on each Base Rate Borrowing will take effect  simultaneously with each change in the Alternate Base Rate. Each Term SOFR Loan shall bear  interest on the outstanding principal amount thereof from the first day of the Interest Period  applicable thereto to the last day of such Interest Period at the interest rate determined by the  Administrative Agent as applicable to such Term SOFR Loan based upon the Borrower’s  selections under Sections 2.02 and 2.09 and the Applicable Margin.  SECTION 2.07 [Reserved].   SECTION 2.08 Interest Rate Determination.  The Administrative Agent shall give  prompt notice to the Borrower and the Lenders of each applicable interest rate determined by the  Administrative Agent for purposes of Section 2.06.  SECTION 2.09 Continuation and Conversion of Advances.  (a) The Borrower may on any Business Day, upon notice given to the  Administrative Agent, substantially in the form of Exhibit F to this Agreement, not later than 10:00  A.M. on the third Business Day prior to the date of any proposed continuation of or conversion  into SOFR Advances, and on the date of any proposed conversion into Base Rate Advances, and  subject to the provisions of Sections 2.08 and 2.12, continue SOFR Advances for a new Interest  Period or convert a Borrowing of Advances of one Type into Advances of the other Type; provided  that any continuation of SOFR Advances or conversion of SOFR Advances into Base Rate  Advances shall be made on, and only on, the last day of an Interest Period for such SOFR  Advances, unless, in the case of such a conversion, the Borrower shall also reimburse the Lenders  pursuant to Section 8.04(b) on the date of such conversion.  Each such notice of a continuation or  conversion shall, within the restrictions specified above, specify (i) the date of such continuation  or conversion, (ii) the Advances to be continued or converted, and (iii) in the case of continuation  of or conversion into SOFR Advances, the duration of the Interest Period for such Advances.  (b) If the Borrower fails to select the Type of any Advance or the duration of  any Interest Period for any Borrowing of SOFR Advances in accordance with the provisions  contained in the definition of “Interest Period” in Section 1.01 and Section 2.09(a), the  Administrative Agent will forthwith so notify the Borrower and the Lenders and such Advances  will automatically, on the last day of the then existing Interest Period therefor, convert into Base  Rate Advances.  SECTION 2.10 Prepayments.    (a) Optional Prepayments. The Borrower may, upon notice to the  Administrative Agent, substantially in the form of Exhibit G to this Agreement.  not later than  10:00 A.M. at least three Business Days prior to any prepayment of SOFR Advances or on the  date of any prepayment of Base Rate Advances, in each case stating the proposed date and  aggregate principal amount of the prepayment, and if such notice is given, the Borrower shall,  





 






  -27-  prepay the outstanding principal amounts of the Advances made as part of the same Borrowing in  whole or ratably in part, together with accrued interest to the date of such prepayment on the  principal amount prepaid; provided that (i) each partial prepayment shall be in an aggregate  principal amount not less than $10,000,000 or a higher integral multiple of $1,000,000 in the case  of any prepayment of SOFR Advances and $5,000,000 or a higher integral multiple of $1,000,000  in the case of any prepayment of Base Rate Advances and (ii) in the case of any such prepayment  of a SOFR Advance, the Borrower shall be obligated to reimburse the Lenders pursuant to Section  8.04(b) on the date of such prepayment.  (b) Mandatory Prepayment. In the event that the Spin Transaction is not  consummated on or before March 15, 2022 (or such later date approved by Administrative Agent  in its sole discretion), Borrower shall, within one (1) Business Day, (i) prepay all of the Loans and  (ii) pay all accrued but unpaid interest thereon.  SECTION 2.11 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 Term SOFR Rate);  (ii) impose on any Lender or the London interbank market any other  condition, cost or expense (other than Taxes) affecting this Agreement or SOFR  Advances made by such Lender; or  (iii) subject any Recipient to any Taxes (other than (A) Indemnified  Taxes (B) Taxes described in clauses (b) through (d) of the definition of Excluded  Taxes and (C) Connection Income Taxes on its loans, loan principal, letters of  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 SOFR Advance (or of maintaining  its obligation to make any such Advance) or to reduce the amount of any sum received or  receivable by such Lender or such other Recipient hereunder (whether of principal, interest or  otherwise), then the Borrower will pay to such Lender or such other Recipient, as the case may be,  such additional amount or amounts as will compensate such Lender or other Recipient, as the case  may be, for such additional costs incurred or reduction suffered.  (b) If any Lender determines that any Change in Law, regarding capital or  liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s  capital or on the capital of such Lender’s holding company, if any, as a consequence of this  Agreement or the Advances made by such Lender to a level below that which such Lender or such  Lender’s holding company could have achieved but for such Change in Law (taking into  consideration such Lender’s policies and the policies of such Lender’s holding company with  





 






  -28-  respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such  Lender such additional amount or amounts as will compensate such Lender or such Lender’s  holding company for any such reduction suffered.  (c) A certificate of a Lender setting forth the amount or amounts necessary to  compensate such Lender or its holding company, as the case may be, as specified in paragraph (a)  or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest  error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within  10 days after receipt thereof.  (d) Failure or delay on the part of any Lender to demand compensation pursuant  to this Section shall not constitute a waiver of such Lender’s right to demand such compensation;  provided that the Borrower shall not be required to compensate a Lender pursuant to this Section  for any increased costs or reductions incurred more than 90 days prior to the date that such Lender  notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and  of such Lender’s intention to claim compensation therefor; provided, further, that, if the Change  in Law giving rise to such increased costs or reductions is retroactive, then the 90-day period  referred to above shall be extended to include the period of retroactive effect thereof, provided that  such demand is made within 90 days after the implementation of such retroactive Change in Law.  SECTION 2.12 Illegality.  If any Lender determines that any Law has made it  unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or  its applicable lending office to make, maintain, or fund Loans whose interest is determined by  reference to the Term SOFR Rate, or to determine or charge interest rates based upon the Term  SOFR Rate, or any Governmental Authority has imposed material restrictions on the authority of  such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market,  then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent),  (a) any obligation of such Lender to make or continue Term SOFR Borrowings or to convert Base  Rate Borrowings to Term SOFR Borrowings shall be suspended, and (b) if such notice asserts the  illegality of such Lender making or maintaining Base Rate Borrowings the interest rate on which  is determined by reference to the Term SOFR Rate component of the Base Rate, the interest rate  on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined  by the Administrative Agent without reference to the Term SOFR Rate component of the Base  Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the  circumstances giving rise to such determination no longer exist. Upon receipt of such notice,  (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent),  prepay or, if applicable, convert each Term SOFR Loan of such Lender to a Base Rate Loan (the  interest rate on which Base Rate Loan shall, if necessary to avoid such illegality, be determined by  the Administrative Agent without reference to the Term SOFR Rate component of the Base Rate),  either on the last day of the Interest Period therefor, if such Lender can lawfully continue to  maintain such Term SOFR Loan to such day, or immediately, if such Lender cannot lawfully  continue to maintain such Term SOFR Loan, and (y) if such notice asserts the illegality of such  Lender determining or charging interest rates based upon the Term SOFR Rate, the Administrative  Agent shall during the period of such suspension compute the Base Rate applicable to such Lender  without reference to the Term SOFR Rate component thereof until the Administrative Agent is  advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge  interest rates based upon the Term SOFR Rate. Upon any such prepayment or conversion, the  





 






  -29-  Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any  additional amounts required pursuant to Section 2.17.  SECTION 2.13 Payments and Computations.  (a) The Borrower shall make each payment hereunder not later than 10:00 A.M.  on the day when due in U.S. dollars to the Administrative Agent at its address referred to in Section  8.02 in same day funds without setoff, counterclaim or other deduction.  The Administrative Agent  will promptly thereafter cause to be distributed like funds relating to the payment of principal,  interest and upfront fees ratably (other than amounts payable pursuant to Section 2.02(b), 2.11,  2.14 or 8.04(b)) to the Lenders for the account of their respective applicable lending offices, and  like funds relating to the payment of any other amount payable to any Lender to such Lender for  the account of its applicable lending office, in each case to be applied in accordance with the terms  of this Agreement.  Upon its acceptance of an Assignment and Assumption and recording of the  information contained therein in the Register pursuant to Section 8.07(d), from the effective date  specified in such Assignment and Assumption, the Administrative Agent shall make all payments  hereunder in respect of the interest assigned thereby to the Lender assignee thereunder, and the  parties to such Assignment and Assumption shall make all appropriate adjustments in such  payments for periods prior to such effective date directly between themselves.  (b) The Borrower hereby authorizes each Lender, if and to the extent any  payment owed to such Lender by the Borrower is not made when due hereunder, to charge from  time to time against any of the Borrower’s accounts with such Lender any amount so due.  Each  Lender agrees to notify the Borrower promptly after any such set-off and application made by such  Lender, provided that the failure to give such notice shall not affect the validity of such set-off and  application.  (c) All computations of interest based on the Alternate Base Rate shall be made  by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all  other computations of interest and of fees shall be made by the Administrative Agent on the basis  of a year of 360 days, in each case for the actual number of days (including the first day but  excluding the last day) occurring in the period for which such interest or fees are payable.  Each  determination by the Administrative Agent of an interest rate hereunder shall be conclusive and  binding for all purposes, absent manifest error.  (d) Whenever any payment hereunder shall be stated to be due on a day other  than a Business Day, such payment shall be made on the next succeeding Business Day, and such  extension of time shall in such case be included in the computation of any interest or fees, as the  case may be; provided that if such extension would cause payment of interest on or principal of a  SOFR Advance to be made in the next following calendar month, such payment shall be made on  the next preceding Business Day.  (e) Unless the Administrative Agent shall have received notice from the  Borrower prior to the date on which any payment is due by the Borrower to the Lenders hereunder  that the Borrower will not make such payment in full, the Administrative Agent may assume that  the Borrower has made such payment in full to the Administrative Agent on such date and the  Administrative Agent may, in reliance upon such assumption, cause to be distributed to each  





 






  -30-  Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent  that the Borrower shall not have so made such payment in full to the Administrative Agent, each  Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to  such Lender together with interest thereon, for each day from the date such amount is distributed  to such Lender until the date such Lender repays such amount to the Administrative Agent, at the  Federal Funds Effective Rate.  (f) Notwithstanding anything to the contrary contained herein, any amount  payable by the Borrower hereunder that is not paid when due (whether at stated maturity, by  acceleration or otherwise) shall (to the fullest extent permitted by law) bear interest from the date  when due until paid in full at a rate per annum equal at all times to the Alternate Base Rate plus  the Applicable Margin in effect from time to time plus 2%, payable upon demand.  SECTION 2.14 Taxes.  (a) Payments Free of Taxes.  Any and all payments by or on account of any  obligation of the Borrower under this Agreement shall be made without deduction or withholding  for any Taxes, except as required by applicable law.  If any applicable law (as determined in the  good faith discretion of an applicable withholding agent) requires the deduction or withholding of  any Tax from any such payment by a withholding agent, then the applicable withholding agent  shall be entitled to make such deduction or withholding and shall timely pay the full amount  deducted or withheld to the relevant Governmental Authority in accordance with applicable law  and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased  as necessary so that after such deduction or withholding has been made (including such deductions  and withholdings applicable to additional sums payable under this Section 2.14) the applicable  Recipient receives an amount equal to the sum it would have received had no such deduction or  withholding been made.  (b) Payment of Other Taxes by the Borrower.  The Borrower shall timely pay  to the relevant Governmental Authority in accordance with applicable law, or at the option of the  Administrative Agent timely reimburse it for, Other Taxes.  (c) Evidence of Payments.  As soon as practicable after any payment of Taxes  by the Borrower to a Governmental Authority pursuant to this Section 2.14, the Borrower shall  deliver to the Administrative Agent the original or a certified copy of a receipt issued by such  Governmental Authority evidencing such payment, a copy of the return reporting such payment or  other evidence of such payment reasonably satisfactory to the Administrative Agent.  (d) Indemnification by the Borrower.  The Borrower shall indemnify each  Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes  (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this  Section) payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether  or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate as to the amount of such payment or liability delivered to  the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative  Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.  





 






  -31-  (e) Indemnification by the Lenders.  Each Lender shall severally indemnify the  Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes  attributable to such Lender (but only to the extent that the Borrower has not already indemnified  the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the  Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the  provisions of Section 8.07(e) relating to the maintenance of a Participant Register and (iii) any  Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the  Administrative Agent in connection with this Agreement, and any reasonable expenses arising  therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or  asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment  or liability delivered to any Lender by the Administrative Agent shall be conclusive absent  manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any  and all amounts at any time owing to such Lender under this Agreement or otherwise payable by  the Administrative Agent to the Lender from any other source against any amount due to the  Administrative Agent under this paragraph (e).  (f) Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under this Agreement shall deliver  to the Borrower and the Administrative Agent, at the time or times reasonably  requested by the Borrower or the Administrative Agent, such properly completed  and executed documentation reasonably requested by the Borrower or the  Administrative Agent as will permit such payments to be made without withholding  or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested  by the Borrower or the Administrative Agent, shall deliver such other  documentation prescribed by applicable law or reasonably requested by the  Borrower or the Administrative Agent as will enable the Borrower or the  Administrative Agent to determine whether or not such Lender is subject to backup  withholding or information reporting requirements.  Notwithstanding anything to  the contrary in the preceding two sentences, the completion, execution and  submission of such documentation (other than such documentation set forth in  Section 2.14(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the  Lender’s reasonable judgment such completion, execution or submission would  subject such Lender to any material unreimbursed cost or expense or would  materially prejudice the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the  Borrower is a U.S. Person,  (A) any Lender that is a U.S. Person shall deliver to the Borrower  and the Administrative Agent on or prior to the date on which such Lender  becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent),  an executed IRS Form W-9 certifying that such Lender is exempt from U.S.  Federal backup withholding tax;  





 






  -32-  (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 IRS Form W-8BEN-E or IRS Form W-8BEN establishing  an exemption from, or reduction of, U.S. Federal withholding Tax  pursuant to the “interest” article of such tax treaty and (y) with  respect to any other applicable payments under this Agreement, IRS  Form W-8BEN-E or IRS Form W-8BEN establishing an exemption  from, or reduction of, U.S. Federal withholding Tax pursuant to the  “business profits” or “other income” article of such tax treaty;  (2) in the case of a Foreign Lender claiming that its  extension of credit will generate U.S. effectively connected income,  an executed IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits  of the exemption for portfolio interest under Section 881(c) of the  Code, (x) a certificate substantially in the form of Exhibit E to the  effect that such Foreign Lender is not a “bank” within the meaning  of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of  the Borrower within the meaning of Section 881(c)(3)(B) of the  Code, or a “controlled foreign corporation” described in Section  881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and  (y) an executed IRS Form W-8BEN-E or IRS Form W-8BEN; or  (4) to the extent a Foreign Lender is not the beneficial  owner, an executed IRS Form W-8IMY, accompanied by IRS Form  W-8ECI, IRS Form W-8BEN-E, IRS Form W-8BEN, a U.S. Tax  Compliance Certificate, IRS Form W-9, and/or other certification  documents from each beneficial owner, as applicable; provided that  if the Foreign Lender is a partnership and one or more direct or  indirect partners of such Foreign Lender are claiming the portfolio  interest exemption, such Foreign Lender may provide a U.S. Tax  Compliance Certificate on behalf of each such direct and indirect  partner;  (C) any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to the Borrower and the Administrative Agent (in such  number of copies as shall be requested by the recipient) on or prior to the  





 






  -33-  date on which such Foreign Lender becomes a Lender under this Agreement  (and from time to time thereafter upon the reasonable request of the  Borrower or the Administrative Agent), executed originals of any other  form prescribed by applicable law as a basis for claiming exemption from  or a reduction in U.S. Federal withholding Tax, duly completed, together  with such supplementary documentation as may be prescribed by applicable  law to permit the Borrower or the Administrative Agent to determine the  withholding or deduction required to be made; and  (D) if a payment made to a Lender under this Agreement would  be subject to U.S. Federal withholding Tax imposed by FATCA if such  Lender were to fail to comply with the applicable reporting requirements of  FATCA (including those contained in Section 1471(b) or 1472(b) of the  Code, as applicable), such Lender shall deliver to the Borrower and the  Administrative Agent at the time or times prescribed by law and at such  time or times reasonably requested by the Borrower or the Administrative  Agent such documentation prescribed by applicable law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional  documentation reasonably requested by the Borrower or the Administrative  Agent as may be necessary for the Borrower and the Administrative Agent  to comply with their obligations under FATCA and to determine that such  Lender has complied with such Lender’s obligations under FATCA or to  determine the amount to deduct and withhold from such payment.  Solely  for purposes of this clause (D), “FATCA” shall include any amendments  made to FATCA after the date of this Agreement.  Each Lender agrees that if any form or certification it previously delivered expires or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly  notify the Borrower and the Administrative Agent in writing of its legal inability to do so.  (g) Treatment of Certain Refunds.  If any party determines, in its sole discretion  exercised in good faith, that it has received a refund of any Taxes as to which it has been  indemnified pursuant to this Section 2.14 (including by the payment of additional amounts  pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund  (but only to the extent of indemnity payments made under this Section 2.14 with respect to the  Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such  indemnified party and without interest (other than any interest paid by the relevant Governmental  Authority with respect to such refund).  Such indemnifying party, upon the request of such  indemnified party, shall repay to such indemnified party the amount paid over pursuant to this  paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental  Authority) in the event that such indemnified party is required to repay such refund to such  Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no  event will the indemnified party be required to pay any amount to an indemnifying party pursuant  to this paragraph (g) the payment of which would place the indemnified party in a less favorable  net after-Tax position than the indemnified party would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or otherwise  imposed and the indemnification payments or additional amounts with respect to such Tax had  





 






  -34-  never been paid.  This paragraph shall not be construed to require any indemnified party to make  available its Tax returns (or any other information relating to its Taxes that it deems confidential)  to the indemnifying party or any other Person.  (h) Survival.  Each party’s obligations under this Section 2.14 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all obligations under this Agreement.  (i) Defined Terms.  For purposes of this Section 2.14, the term “applicable  law” includes FATCA.  (j) Status.  For purposes of determining withholding Taxes imposed under  FATCA, from and after the Effective Date, the Borrower and the Administrative Agent shall treat  (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not  qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section  1.1471-2(b)(2)(i).  SECTION 2.15 Sharing of Payments, Etc.  If any Lender shall obtain any payment  (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on  account of the Advances made by it to the Borrower (other than pursuant to Section 2.02(b), 2.11,  2.14, or 8.04(b)) in excess of its ratable share of payments on account of the Advances to the  Borrower, such Lender shall forthwith purchase from the other Lenders such participations in the  Advances as shall be necessary to cause such purchasing Lender to share the excess payment  ratably with each of them, provided that if all or any portion of such excess payment is thereafter  recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and  such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery  together with an amount equal to such Lender’s ratable share (according to the proportion of (i)  the amount of such Lender’s required repayment to (ii) the total amount so recovered from the  purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in  respect of the total amount so recovered.  The Borrower agrees that any Lender so purchasing a  participation from another Lender pursuant to this Section 2.15 may, to the fullest extent permitted  by law, exercise all its rights of payment (including the right of set-off) with respect to such  participation as fully as if such Lender were the direct creditor of the Borrower in the amount of  such participation.  SECTION 2.16 Availability of Types of Borrowings; Adequacy of Interest Rate;  Benchmark Replacement.  (a) Availability of Term SOFR Borrowings. Notwithstanding anything to the  contrary in this Agreement or any other Loan Document, but subject to Section 2.16(b), if the  Administrative Agent determines (which determination shall be conclusive absent manifest error),  or the Majority Lenders notify the Administrative Agent that the Majority Lenders have  determined, that:  (i) for any reason in connection with any request for a Term SOFR  Borrowing or a conversion or continuation thereof that the Term SOFR Base Rate  





 






  -35-  for any requested Interest Period with respect to a proposed Term SOFR Borrowing  does not adequately and fairly reflect the cost to such Lenders of the funding such  Loans, or  (ii) the interest rate applicable to Term SOFR Borrowings for any  requested Interest Period is not ascertainable or available (including, without  limitation, because the applicable Screen (or on any successor or substitute page on  such screen) is unavailable) and such inability to ascertain or unavailability is not  expected to be permanent, or does not adequately and fairly reflect the cost of  making or maintaining Term SOFR Borrowings,  then the Administrative Agent shall suspend the availability of Term SOFR  Borrowings and require any affected Term SOFR Borrowings to be repaid or  converted to Base Rate Borrowings, subject to the payment of any funding  indemnification amounts required by Section 2.17.  (b) Benchmark Replacement.  (i) Benchmark Transition Event; Early Opt-in Election.  Notwithstanding anything to the contrary herein or in any other Loan Document, if  a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its  related Benchmark Replacement Date have occurred prior to the Reference Time  in respect of any setting of the then-current Benchmark, then (x) if a Benchmark  Replacement is determined in accordance 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 Business Day after the date notice  of such Benchmark Replacement is provided by the Administrative Agent to the  Lenders without any amendment to, or further action or consent of any other party  to, this Agreement or any other Loan Document so long as the Administrative  Agent has not received, by such time, written notice of objection to such  Benchmark Replacement from Lenders comprising the Majority Lenders.  (ii) Benchmark Replacement Conforming Changes. In connection with  the implementation of a Benchmark Replacement, the Administrative Agent will  have the right to make Benchmark Replacement Conforming Changes from time to  time and, notwithstanding anything to the contrary herein 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.  





 






  -36-  (iii) Notices; Standards for Decisions and Determinations. The  Administrative Agent will promptly notify the Borrower and the Lenders of (A) the  implementation of any Benchmark Replacement, and (B) the effectiveness of any  Benchmark Replacement Conforming Changes. 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 2.16(b), including any determination  with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence  of an event, circumstance or date and any decision to take or refrain from taking  any action or any selection, will be conclusive and binding absent manifest error  and may be made in its or their sole discretion and without consent from any other  party to this Agreement or any other Loan Document, except, in each case, as  expressly required pursuant to this Section 2.16(b).  (iv) Unavailability of Tenor of Benchmark. 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 Base Rate and Term  SOFR) 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” (or any similar or analogous definition) for any  Benchmark settings at or after such time to remove any tenor of such Benchmark  that is unavailable or non-representative for any Benchmark settings 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” (or any similar or analogous definition) for all  Benchmark settings at or after such time to reinstate such previously removed tenor.   (v) Benchmark Unavailability Period. Upon notice to the Borrower by  the Administrative Agent in accordance with this Section 2.16(b) of the  commencement of a Benchmark Unavailability Period and until a Benchmark  Replacement is determined in accordance with this Section 2.16(b), the Borrower  may revoke any request for a Term SOFR Borrowing, or any request for the  conversion or continuation of a Term SOFR Borrowing to be made, converted or  continued during any Benchmark Unavailability Period at the end of the applicable  Interest Period, and, failing that, the Borrower will be deemed to have converted  any such request at the end of the applicable Interest Period into a request for a  Base Rate Borrowing or conversion to a Base Rate Borrowing. During any  Benchmark Unavailability Period or at any time that a tenor for the then-current  Benchmark is not an Available Tenor, the component of the Alternate Base Rate  





 






  -37-  based upon the then-current Benchmark or such tenor for such Benchmark, as  applicable, will not be used in any determination of the Alternate Base Rate.  SECTION 2.17 Funding Indemnification. If   (i) any payment of a Term SOFR Borrowing occurs on a date that is  not the last day of the applicable Interest Period, whether because of acceleration,  prepayment or otherwise;   (ii) a Term SOFR Borrowing is not made on the date specified by the  Borrower for any reason other than default by the Lenders;   (iii) a Term SOFR Borrowing is converted other than on the last day of  the Interest Period applicable thereto; or  (iv) the Borrower fails to borrow, convert, continue or prepay a Term  SOFR Borrowing on the date specified in any notice delivered pursuant hereto.   then the Borrower shall indemnify each Lender for such Lender’s costs, expenses and Interest  Differential (as determined by such Lender) incurred as a result of such prepayment. The term  “Interest Differential” means the greater of zero and the financial loss incurred by the Lender  resulting from prepayment, calculated as the difference between the amount of interest such  Lender would have earned (from like investments as of the first day of the Interest Period) had  prepayment not occurred and the interest such Lender will actually earn (from like investments as  of the date of prepayment) as a result of the redeployment of funds from the prepayment. Because  of the short-term duration of any Interest Period, the Borrower agrees that the Interest Differential  shall not be discounted to its present value.  The Borrower hereby acknowledges that the Borrower shall be required to pay Interest  Differential with respect to any portion of the principal balance accelerated or paid before the end  of the Interest Period for such Term SOFR Borrowing, whether voluntarily, involuntarily, or  otherwise, including without limitation any principal payment required upon maturity when the  Borrower has elected an Interest Period that extends beyond the scheduled maturity date of such  Loan and any principal payment required following default, demand for payment, acceleration,  collection proceedings, foreclosure, sale or other disposition of collateral, bankruptcy or other  insolvency proceedings, eminent domain, condemnation, application of insurance proceeds, or  otherwise. Such Interest Differential shall at all times be an Obligation as well as an undertaking  by the Borrower to the Lenders whether arising out of a voluntary or mandatory prepayment.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled  to receive pursuant to this Section 2.17 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 2.18 Interest Payment Dates. Interest accrued on each Base Rate Loan or  Term SOFR Loan shall be payable on each Payment Date, commencing with the first Payment  Date to occur after the Closing Date, on the date of any prepayment of such Loan (whether or not  as a result of acceleration) on the amount prepaid, and on the Termination Date. Interest accrued  





 






  -38-  on each Term SOFR Loan having an Interest Period longer than three months shall also be payable  on the last day of each three-month interval during such Interest Period. Interest accrued pursuant  to Section 2.13(f) is payable on demand. If any payment of principal of or interest on a Loan  becomes due on a day that is not a Business Day, such payment shall be made on the immediately  succeeding Business Day unless such succeeding Business Day falls in a new calendar month, in  which case such interest or principal shall be payable on the immediately preceding Business Day.  ARTICLE III    CONDITIONS PRECEDENT  SECTION 3.01 Conditions Precedent to Effectiveness.  This Agreement (including  the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become  effective if all of the following conditions precedent have been satisfied:  (a) the Administrative Agent shall have received (i) a counterpart of this  Agreement signed on behalf of each party hereto or (ii) written evidence (which may include  electronic transmission of a signed signature page of this Agreement) that each party hereto has  signed a counterpart of this Agreement and each of the following documents, each dated a date  reasonably satisfactory to the Administrative Agent and otherwise in form and substance  satisfactory to the Administrative Agent:  (i) Certified copies of resolutions of the Board of Directors or  equivalent managing body of the Borrower approving the transactions  contemplated by this Agreement and of all documents evidencing other necessary  organizational action of the Borrower with respect to this Agreement and the  documents contemplated hereby;  (ii) A certificate of the Secretary or an Assistant Secretary of Borrower  certifying (A) the names and true signatures of the officers of the Borrower  authorized to sign this Agreement and the other documents to be delivered  hereunder; (B) that attached thereto are true and correct copies of the organizational  documents of the Borrower, in each case in effect on such date; and (C) that  attached thereto are true and correct copies of all governmental and regulatory  authorizations and approvals required for the due execution, delivery and  performance by the Borrower of this Agreement and the documents contemplated  hereby;  (iii) A certificate signed by either the chief financial officer, principal  accounting officer or treasurer of the Borrower stating that (A) the representations  and warranties contained in Section 4.01 are correct on and as of the date of such  certificate as though made on and as of such date and (B) no Default or Event of  Default has occurred and is continuing on the date of such certificate;  (iv) Any notes requested by a Lender, substantially in the form of  Exhibit C; and  





 






  -39-  (v) A favorable opinion of Ballard Spahr LLP, counsel for the  Borrower, in form and substance reasonably acceptable to the Administrative  Agent.  (b) [Reserved];  (c) The Administrative Agent shall have received evidence, satisfactory to the  Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit  Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the  Effective Date;  (d) Upon the reasonable request of any Lender, the Borrower shall have  provided to such Lender the documentation and other information so requested in connection with  applicable “know your customer” and anti-money-laundering rules and regulations, including the  PATRIOT Act, in each case at least five days prior to the Effective Date; and   (e) Receipt by the Administrative Agent of the Beneficial Ownership  Certification in relation to the Borrower.   Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower  and the Lenders as to the Effective Date.    ARTICLE IV    REPRESENTATIONS AND WARRANTIES  SECTION 4.01 Representations and Warranties of the Borrower.  The Borrower  represents and warrants as follows:  (a) The Borrower is a corporation, validly existing and in good standing under  the laws of the Commonwealth of Pennsylvania.  (b) The execution, delivery and performance by the Borrower of this  Agreement are within the Borrower’s organizational powers, have been duly authorized by all  necessary organizational action on the part of the Borrower, and do not and will not contravene (i)  the organizational documents of the Borrower, (ii) applicable law or (iii) any contractual or legal  restriction binding on or affecting the properties of the Borrower or any Subsidiary.  (c) No authorization or approval or other action by, and no notice to or filing  with, any Governmental Authority or regulatory body is required for the due execution, delivery  and performance by the Borrower of this Agreement, except any order that has been duly obtained  and is (x) in full force and effect and (y) sufficient for the purposes hereof.  (d) This Agreement is a legal, valid and binding obligation of the Borrower,  enforceable against the Borrower in accordance with its terms, except as the enforceability thereof  





 






  -40-  may be limited by equitable principles or bankruptcy, insolvency, reorganization, moratorium or  similar laws affecting the enforcement of creditors’ rights generally.  (e) The consolidated balance sheet of the Borrower and its Subsidiaries as of  December 31, 2020 and the related consolidated statements of operations and comprehensive  income, changes in shareholders’ equity and cash flows of the Borrower and its Subsidiaries for  the fiscal year then ended, certified by PricewaterhouseCoopers LLP, copies of which have been  furnished to each Lender, fairly present in all material respects the consolidated financial condition  of the Borrower and its Subsidiaries as of such dates and the consolidated results of the operations  of the Borrower and its Subsidiaries for the periods ended on such dates in accordance with GAAP;  and (ii) since December 31, 2020, there has been no Material Adverse Change.  (f) Except as disclosed in the Borrower’s annual, quarterly or current Reports,  each as delivered in connection with Section 5.01 and/or filed with the Securities and Exchange  Commission and delivered to the Lenders prior to the Effective Date, there is no pending or  threatened action, investigation or proceeding affecting the Borrower or any Subsidiary before any  court, governmental agency or arbitrator that may reasonably be anticipated to have a Material  Adverse Effect.  There is no pending or threatened action or proceeding against the Borrower or  any Subsidiary that purports to affect the legality, validity, binding effect or enforceability against  the Borrower of this Agreement. Since December 31, 2021, there has been no material adverse  change in the business, assets, operations, prospects or condition, financial or otherwise, of the  Borrower and its Subsidiaries, taken as a whole.  (g) 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.  (h) No proceeds of any Advance have been or will be used directly or indirectly  in connection with the acquisition of in excess of 5% of any class of equity securities that is  registered pursuant to Section 12 of the Exchange Act or any transaction subject to the  requirements of Section 13 or 14 of the Exchange Act.  (i) The Borrower is not engaged principally, or as one of its important  activities, in the business of extending credit for the purpose of purchasing or carrying margin  stock (within the meaning of Regulation U issued by the Board of Governors of the Federal  Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin  stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.  Not  more than 25% of the value of the assets of the Borrower and its Subsidiaries is represented by  margin stock.  (j) The Borrower is not required to register as an “investment company” under  the Investment Company Act of 1940.  





 






  -41-  (k) During the twelve consecutive month period prior to the date of the  execution and delivery of this Agreement and prior to the date of any Credit Extension, no steps  have been taken by the Borrower or any member of the  Controlled Group or, to the knowledge of  the Borrower, by any other Person to terminate any Plan (excluding any termination arising out of  the institution by or against any ComEd Entity of any bankruptcy, insolvency or similar proceeding  so long as such termination would not constitute an Default or Event of Default under Section  6.01(g)), and there has been no failure to satisfy the minimum funding standard described in  Section 412(a)(2) of the Code with respect to any Single Employer Plan that would reasonably be  expected to result in a lien pursuant to Section 430(k) of the Code.  To the knowledge of the  Borrower, no condition exists or event or transaction has occurred with respect to any Plan, which  would reasonably be expected to result in the incurrence by the Borrower or any other member of  the Controlled Group of any material liability (other than to make contributions, pay annual PBGC  premiums or pay out benefits in the ordinary course of business), fine or penalty (excluding any  condition, event or transaction arising out of the institution by or against any ComEd Entity of any  bankruptcy, insolvency or similar proceeding so long as such condition, event or transaction does  not constitute an Default or Event of Default under Section 6.01(g)).  (l) The Borrower has implemented, and maintains in effect, policies and  procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective  directors, officers, employees and agents with all Anti-Corruption Laws and applicable Sanctions,  and the Borrower, its Subsidiaries and their respective officers and employees and to the  knowledge of the Borrower, its directors and agents, are in compliance with all Anti-Corruption  Laws and applicable Sanctions in all material respects.  None of (a) the Borrower, any Subsidiary  or any of their respective directors, officers or employees, or (b)  to the knowledge of the Borrower,  any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or  benefit from the credit facility established hereby or the transactions contemplated hereby, is a  Sanctioned Person.  No Advance, use of proceeds or other transaction contemplated by this  Agreement will violate any Anti-Corruption Law or applicable Sanctions.  (m) The Borrower is not an Affected Financial Institution.  (n) 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.  (o) As of the Effective Date, the information included in the Beneficial  Ownership Certification, if applicable, is true and correct in all respects.  (p) 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 (q) 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 (r) to the extent that  the failure to do so could not reasonably be expected to result in a Material Adverse Effect.  





 






  -42-  (s) 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.  ARTICLE V    COVENANTS OF THE BORROWER  SECTION 5.01 Affirmative Covenants.  The Borrower agrees that so long as any  amount payable by the Borrower hereunder remains unpaid, the Borrower will, and, in the case of  Section 5.01(a), will cause its Principal Subsidiaries to, unless the Majority Lenders shall  otherwise consent in writing:  (a) Financial Statements; Ratings Change and Other Information.  The  Borrower will furnish to the Administrative Agent and each Lender, including their Public-Siders:  (i) as soon as available and in any event within 60 days after the end of  each of the first three quarters of each fiscal year of the Borrower, a copy of the  Borrower’s Quarterly Report on Form 10-Q filed with the Securities and Exchange  Commission with respect to such quarter (or, if the Borrower is not required to file  a Quarterly Report on Form 10-Q, copies of an unaudited consolidated balance  sheet of the Borrower as of the end of such quarter and the related consolidated  statement of operations of the Borrower for the portion of the Borrower’s fiscal  year ending on the last day of such quarter, in each case prepared in accordance  with GAAP, subject to the absence of footnotes and to year-end adjustments),  together with a certificate of an authorized officer of the Borrower stating that no  Default or Event of Default has occurred and is continuing or, if any such Default  or Event of Default has occurred and is continuing, a statement as to the nature  thereof and the action which the Borrower proposes to take with respect thereto;  (ii) 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;  (iii) concurrently with the delivery of the quarterly and annual reports  referred to in subsections (i) and (ii) above, a compliance certificate in substantially  





 






  -43-  the form set forth in Exhibit D, duly completed and signed by the Chief Financial  Officer, Treasurer or an Assistant Treasurer of the Borrower;  (iv) except as otherwise provided in clause (i) or (ii) 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);  (v) 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;  (vi) 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;  (vii) promptly following any request therefor, (x) such other information  regarding the operations, business affairs and financial condition of the Borrower  or any Principal Subsidiary, or compliance with the terms of this Agreement, as the  Administrative Agent or any Lender (through the Administrative Agent) may  reasonably request and (y) information and documentation reasonably requested by  the Administrative Agent or any Lender for purposes of compliance with applicable  “know your customer” and anti-money laundering rules and regulations, including  the Patriot Act and the Beneficial Ownership Regulation; and   (viii) 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)(i), (ii) or (v) (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  





 






  -44-  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.  (b) Notices of Material Events.  The Borrower will furnish to the  Administrative Agent and each Lender prompt written notice of the following:  (i) 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;  (ii) 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  (iii) 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 5.01 of Exelon Corporation  Credit Agreement dated January 21, 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.  (c) 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  





 






  -45-  that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted  under Section 5.02(b).  (d) 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 (i) the validity or amount thereof is being contested  in good faith by appropriate proceedings, (ii) the Borrower has set aside on its books adequate  reserves with respect thereto in accordance with GAAP and (iii) the failure to make payment  pending such contest could not reasonably be expected to result in a Material Adverse Effect.  (e) Maintenance of Properties; Insurance.  The Borrower will, and will cause  each of its Principal Subsidiaries to, (i) keep and maintain all property material to the conduct of  its business in good working order and condition, ordinary wear and tear excepted, and  (ii) 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.  (f) 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 5.01(f) 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).  (g) 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.  (h) Use of Proceeds.  The proceeds of the Loans will be used only to make a  capital contribution to Genco in connection with Spin Transaction and to pay certain fees and  expenses in connection therewith, but in no event for any purpose that would be contrary to Section  4.01(h) or 4.01(i).  No part of the proceeds of any Loan will be used, whether directly or indirectly,  





 






  -46-  for any purpose that entails a violation of any of the regulations of the Federal Reserve Board,  including Regulations T, U and X.  The Borrower will not request any Borrowing, and the  Borrower shall not use, and shall ensure that its Subsidiaries and its or their respective directors,  officers, employees and agents shall not use, directly or indirectly, the proceeds of any Borrowing  (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving  of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b)  for the purpose of funding, financing or facilitating any activities, business or transaction of or  with any Sanctioned Person, or in any Sanctioned Country, or (c) in any manner that would result  in the violation of  any Sanctions applicable to any party hereto (including any Person participating  in the Loans hereunder, whether as underwriter, advisor, investor, lender, hedge provider, facility  or security agent or otherwise).  (i) 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.  SECTION 5.02 Negative Covenants.  The Borrower agrees that so long as any  amount payable by the Borrower hereunder remains unpaid, the Borrower will not, without the  written consent of the Majority Lenders:  (a) Limitation on Liens.  Create, incur, allow to assume or suffer to exist or  permit (and prior to consummation of the Spin Transaction allow Genco to create, incur, allow to  assume or suffer to exist) any Lien on its property, revenues or assets, whether now owned or  hereafter acquired, except as follows:  (i) Liens imposed by law, such as carriers’, warehousemen’s,  landlords’ repairmen’s, materialmen’s and mechanics’ Liens and other similar  Liens arising in the ordinary course of business;  (ii) Liens for taxes, assessments or governmental charges, levies, or  fines (including such amounts arising under environmental law) on property of the  Borrower (or prior to consummation of the Spin Transaction, Genco) 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;  (iii) Liens on the capital stock of or any other equity interest in any  Subsidiary (other than, prior to the Spin Transaction, Genco and any holding  company for Genco) to secure Nonrecourse Indebtedness;  (iv) Liens upon or in any property acquired in the ordinary course of  business to secure the purchase price of such property or to secure any obligation  incurred solely for the purpose of financing the acquisition of such property;  





 






  -47-  (v) Liens existing on property at the time of the acquisition thereof  (other than any such Lien created in contemplation of such acquisition unless  permitted by the preceding clause (iv));  (vi) Liens granted in connection with any financing arrangement for the  purchase of nuclear fuel or the financing of pollution control facilities, limited to  the fuel or facilities so purchased or acquired;  (vii) Liens arising in connection with sales or transfers of, or financing  secured by, accounts receivable or related contracts, provided that any such sale,  transfer or financing shall be on arms’ length terms;  (viii) Liens securing Permitted Obligations and reimbursement  obligations in respect of letters of credit issued to support Permitted Obligations  (for the avoidance of doubt, the Electric Reliability Council of Texas (ERCOT)  program and any other similar agreement or arrangement, including with any  Independent System Operator or Regional Transmission Organization, are  permitted under this clause (viii));  (ix) Permitted Encumbrances;  (x) Liens arising in connection with sale and leaseback transactions  entered into by the Borrower (or prior to consummation of the Spin Transaction,  Genco), but only to the extent that the aggregate purchase price of all assets sold by  the Borrower (or prior to consummation of the Spin Transaction, Genco) during the  term of this Agreement pursuant to such sale and leaseback transactions does not  exceed $1,000,000,000;  (xi) Liens arising out of pledges or deposits under worker’s  compensation laws, unemployment insurance, compensation arrangements,  supplemental retirement plans arising out of pledges or deposits under worker’s  compensation laws, unemployment insurance, compensation arrangements,  supplemental retirement plans or other social security or similar legislation;  (xii) Liens constituting attachment, judgment and other similar Liens  arising in connection with court proceedings to the extent not constituting an Event  of Default under Section 6.01(f);  (xiii) Liens created in the ordinary course of business to secure liability to  insurance carriers and Liens on insurance policies and the proceeds thereof  (whether accrued or not), rights or claims against an insurer or other similar asset  securing insurance premium financings;  (xiv) Liens in favor of customs and revenue authorities arising as a matter  of law to secure payment of customs duties in connection with the importation of  goods in the ordinary course of business;  





 






  -48-  (xv) Liens in the nature of rights of setoff, bankers’ liens, revocation,  refund, chargeback, counterclaim, netting of cash amounts or similar rights as to  deposit accounts, commodity accounts or securities accounts or other funds  maintained with a credit or depository institution;  (xvi) Liens consisting of pledges of industrial development, pollution  control or similar revenue bonds in connection with the remarketing of such bonds;  (xvii) Liens and similar customary cash collateralization obligations in  respect of letter of credit exposure or swingline loan exposure relating to defaulting  lenders in the Borrower’s senior unsecured credit facilities;  (xviii) Liens arising under leases or subleases, licenses or sublicenses  granted to others that do not materially interfere with the ordinary course of  business of the Borrower (or prior to the consummation of the Spin Transaction,  Genco);  (xix) Liens resulting from any restriction on any equity interest (or project  interest, interests in any energy facility (including undivided interests)) of a Person  providing for a breach, termination or default under any owners, participation,  shared facility, joint venture, stockholder, membership, limited liability company  or partnership agreement between such Person and one or more other holders of  equity interest (or project interest, interests in any energy facility (including  undivided interests)) of such Person, to the extent a security interest or other Lien  is created on any such interest as a result thereof;  (xx) Liens granted on cash or cash equivalents to defease or repay  Indebtedness of the Borrower (or, prior to consummation of the Spin Transaction,  Genco)  no later than 60 days after the creation of such Lien;  (xxi) Liens created in connection with sales, transfers, leases, assignment  or other conveyances or dispositions of assets, including (A) Liens on assets or  securities granted or deemed to arise in connection with and as a result of the  execution, delivery or performance of contracts to purchase or sell such assets or  securities, and (B) rights of first refusal, options or other contractual rights or  obligations to sell, assign or otherwise dispose of any interest therein; and  (xxii) Liens, other than those described above in this Section 5.02(a),  provided that the aggregate amount of all Indebtedness secured by Liens permitted  by this clause (xxii) shall (i) prior to consummation of the Spin Transaction, (A) in  the case of Genco, not exceed $100,000,000, and (B) in the case of the Borrower  and Genco, collectively, not exceed $200,000,000 and (ii) on and after the  consummation of the Spin Transaction, not exceed in the aggregate at any one time  outstanding $200,000,000.  (b) Mergers and Consolidations; Disposition of Assets.  Merge with or into or  consolidate with or into, or sell, assign, lease or otherwise dispose of (whether in one transaction  or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter  





 






  -49-  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 (and the Borrower may transfer any assets acquired by the Borrower through  any such merger, consolidation or transfer to any Principal Subsidiary), (iii) [Reserved] 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  transferee (as applicable), or (y) the surviving entity or transferee (as applicable), shall be an  Eligible Successor and shall have assumed all of the Obligations of the Borrower under this  Agreement pursuant to a written instrument in form and substance satisfactory to the  Administrative Agent, and the Administrative Agent shall have received an opinion of counsel in  form and substance satisfactory to it as to the enforceability of such obligations assumed and (C)  subject to clause (B) above, in the case of any such merger, consolidation or transfer of assets to  which any Principal Subsidiary is a party, a Principal Subsidiary shall be the surviving entity or  transferee (as applicable).  (c) Consolidated Capitalized Ratio.  the Consolidated Capitalization Ratio as  of the last day of any Test Period to exceed 0.65:1.00.  (d) Continuation of Businesses.  Engage, or permit any Subsidiary to engage,  in any line of business which is material to the Borrower and its Subsidiaries, taken as a whole,  other than businesses engaged in by the Borrower and its Subsidiaries as of the date hereof and  reasonable extensions thereof.  (e) Capital Structure. Prior to consummation of the Spin Transaction, fail at any  time to own, free and clear of all Liens, 100% of the issued and outstanding equity interests of  Genco (or of a holding company which owns, free and clear of all Liens, 100% of the issued and  outstanding equity interests of Genco).  (f) Restrictive Agreements.  The Borrower will not, and will not permit any of  its Subsidiaries (other than any Excluded Subsidiary) to, directly or indirectly, enter into, incur or  permit to exist any agreement or other arrangement that prohibits, restricts or imposes any  condition upon (a) the ability of the Borrower or any Subsidiary to create, incur or permit to exist  any Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or  other distributions with respect to any shares of its capital stock or to make or repay loans or  advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower  or any other Subsidiary; provided that (c) the foregoing shall not apply to restrictions and  conditions imposed by law or by this Agreement, (d) the foregoing shall not apply to restrictions  and conditions existing on the date hereof identified on Schedule 5.02 (but shall apply to any  extension or renewal of, or any amendment or modification expanding the scope of, any such  restriction or condition),(e) 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  





 






  -50-  hereunder, (f) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by  any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions  or conditions apply only to the property or assets securing such Indebtedness and (g) clause (a) of  the foregoing shall not apply to customary provisions in leases and other contracts restricting the  assignment thereof.  (g) Anti-Corruption Laws and Sanctions.  Request any Borrowing or Advance  and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective  directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Advance  (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving  of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B)  for the purpose of funding, financing or facilitating any activities, business or transaction of or  with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities, business  or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the  United States or in a European Union member state, or (C) in any manner that would result in the  violation of any Sanctions applicable to any party hereto.  ARTICLE VI    EVENTS OF DEFAULT  SECTION 6.01 Events of Default.  If any of the following events shall occur and be  continuing (any such event an “Event of Default”):  (a) The Borrower shall fail to pay (i) any principal of any Advance when the  same becomes due and payable or (ii) any interest on any Advance or any other amount payable  by the Borrower hereunder within three Business Days after the same becomes due and payable;  or  (b) Any representation or warranty made by the Borrower herein or by the  Borrower (or any of its officers) pursuant to the terms of this Agreement shall prove to have been  incorrect or misleading in any material respect when made; or  (c) The Borrower shall fail to perform or observe (i) any term, covenant or  agreement contained in Section 5.01(c) (with respect to Borrower’s existence), Section 5.01(h)  or  Section 5.02, 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); or  (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  





 






  -51-  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  Change; or  (e) The Borrower or any Principal Subsidiary shall generally not pay its debts  as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall  make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or  against the Borrower or any Principal Subsidiary seeking to adjudicate it as bankrupt or insolvent,  or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or  composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization  or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,  trustee, custodian or other similar official for it or for any substantial part of its property and, in  the case of any such proceeding instituted against it (but not instituted by it), either such proceeding  shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such  proceeding (including the entry of an order for relief against, or the appointment of a receiver,  trustee, custodian or other similar official for, it or for any substantial part of its property) shall  occur; or the Borrower or any Principal Subsidiary shall take any corporate or limited liability  company action to authorize or to consent to any of the actions set forth above in this Section  6.01(e);  or  (f) One or more judgments or orders for the payment of money in an aggregate  amount exceeding $100,000,000 (excluding any such judgments or orders to the extent covered  by insurance, subject to any customary deductible, and under which the applicable insurance  carrier has not denied coverage) shall be rendered against the Borrower or any Principal Subsidiary  and either (i) enforcement proceedings shall have been commenced by any creditor upon such  judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of  enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be  in effect; or  (g) (i) Any Reportable Event that the Majority Lenders determine in good faith  is reasonably likely to result in the termination of any Single Employer Plan or in the appointment  by the appropriate United States District Court of a trustee to administer a Single Employer Plan  shall have occurred and be continuing 60 days after written notice to such effect shall have been  given to the Borrower by the Administrative Agent; (ii) any Single Employer Plan shall be  terminated; (iii) a Trustee shall be appointed by an appropriate United States District Court to  administer any Single Employer Plan; (iv) the PBGC shall institute proceedings to terminate any  Single Employer Plan or to appoint a trustee to administer any Single Employer Plan; or (v) the  Borrower or any other member of the Controlled Group withdraws from any Multiemployer Plan;  provided that on the date of any event described in clauses (i) through (v) above, the Unfunded  Liabilities of the applicable Plan exceed $100,000,000;    





 






  -52-  (h) 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  (i) a Change in Control shall have occurred;  then, and in any such event, the Administrative Agent shall at the request, or may with the consent,  of the Majority Lenders, by notice to the Borrower, declare the outstanding principal amount of  the Advances, all interest thereon and all other amounts payable under this Agreement by the  Borrower to be forthwith due and payable, whereupon the outstanding principal amount of the  Advances, all such interest and all such other amounts shall become and be forthwith due and  payable, without presentment, demand, protest or further notice of any kind, all of which are  hereby expressly waived by the Borrower; provided that in the event of an Event of Default under  Section 6.01(e), (A) the obligation of each Lender to make any Advance to the Borrower shall  automatically be terminated and (B) the outstanding principal amount of all Advances, all interest  thereon and all other amounts payable by the Borrower hereunder shall automatically and  immediately become due and payable, without presentment, demand, protest or any notice of any  kind, all of which are hereby expressly waived by the Borrower.  ARTICLE VII    THE ADMINISTRATIVE AGENT  SECTION 7.01 Authorization and Action.  Each Lender hereby appoints and  authorizes the Administrative Agent to take such action as administrative agent on its behalf and  to exercise such powers under this Agreement as are delegated to the Administrative Agent by the  terms hereof, together with such powers as are reasonably incidental thereto.  As to any matters  not expressly provided for by this Agreement (including enforcement or collection of the  obligations of the Borrower hereunder), the Administrative Agent shall not be required to exercise  any discretion or take any action, but shall be required to act or to refrain from acting (and shall  be fully protected in so acting or refraining from acting) upon the instructions of the Majority  Lenders, and such instructions shall be binding upon all Lenders; provided that the Administrative  Agent shall not be required to take any action which exposes the Administrative Agent to personal  liability or which is contrary to this Agreement or applicable law.  The Administrative Agent  agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to  the terms of this Agreement.  SECTION 7.02 Administrative Agent’s Reliance, Etc.  Neither the Administrative  Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or  omitted to be taken by it or them under or in connection with this Agreement, except for its or their  respective own gross negligence or willful misconduct.  Without limiting the generality of the  foregoing: (i) the Administrative Agent may consult with legal counsel (including counsel for the  Borrower), independent public accountants and other experts selected by it and shall not be liable  





 






  -53-  for any action taken or omitted to be taken in good faith by it in accordance with the advice of such  counsel, accountants or experts; (ii) the Administrative Agent makes no warranty or representation  to any Lender and shall not be responsible to any Lender for any statements, warranties or  representations (whether written or oral) made in or in connection with this Agreement; (iii) the  Administrative Agent shall not have any duty to ascertain or to inquire as to the performance or  observance of any of the terms, covenants or conditions of this Agreement on the part of the  Borrower or to inspect the property (including the books and records) of the Borrower; (iv) the  Administrative Agent shall not be responsible to any Lender for the due execution, legality,  validity, enforceability, genuineness, sufficiency or value of this Agreement or any other  instrument or document furnished pursuant hereto; and (v) the Administrative Agent shall not incur  any liability under or in respect of this Agreement by acting upon any notice, consent, certificate  or other instrument or writing (which may be by facsimile) believed by it to be genuine and signed  or sent by the proper party or parties.  SECTION 7.03 Administrative Agent and Affiliates.  With respect to its  Commitment, Advances and other rights and obligations hereunder in its capacity as a Lender,  U.S. Bank National Association shall have the same rights and powers under this Agreement as  any other Lender and may exercise the same as though it were not the Administrative Agent; and  the term “Lender” or “Lenders” shall include U.S. Bank National Association in its individual  capacity.  U.S. Bank National Association and its affiliates may accept deposits from, lend money  to, act as trustee under indentures of, and generally engage in any kind of business with, the  Borrower, any Affiliate thereof and any Person who may do business with or own securities of the  Borrower or any such Affiliate, all as if it were not Administrative Agent and without any duty to  account therefor to the Lenders.  SECTION 7.04 Lender Credit Decision.  Each Lender acknowledges that it has,  independently and without reliance upon the Administrative Agent or any other Lender and based  on the financial statements referred to in Section 4.01(e) and such other documents and information  as it has deemed appropriate, made its own credit analysis and decision to enter into this  Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon  the Administrative Agent or any other Lender and based on such documents and information as it  shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking  action under this Agreement.  SECTION 7.05 Indemnification.  The Lenders severally agree to indemnify the  Administrative Agent (to the extent not reimbursed by the Borrower), ratably according to their  respective Pro Rata Shares, from and against any and all liabilities, obligations, losses, damages,  penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature  whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent  in any way relating to or arising out of this Agreement or any action taken or omitted by the  Administrative Agent under this Agreement, provided that no Lender shall be liable for any portion  of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,  expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful  misconduct.  Without limiting the foregoing, each Lender agrees to reimburse the Administrative  Agent promptly upon demand for its Pro Rata Share of any out-of-pocket expenses (including  reasonable counsel fees) incurred by the Administrative Agent in connection with the preparation,  execution, delivery, administration, modification, amendment or enforcement (whether through  





 






  -54-  negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or  responsibilities under, this Agreement, to the extent that such expenses are reimbursable by the  Borrower but for which the Administrative Agent is not reimbursed by the Borrower.  SECTION 7.06 Successor Administrative Agent.  The Administrative Agent may  resign at any time by giving written notice thereof to the Lenders and the Borrower and may be  removed at any time with or without cause by the Majority Lenders.  Upon any such resignation  or removal, the Majority Lenders shall have the right to appoint a successor Administrative Agent.   If no successor Administrative Agent shall have been so appointed by the Majority Lenders, and  shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s  giving of notice of resignation or the Majority Lenders’ removal of the retiring Administrative  Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor  Administrative Agent, which shall be a commercial bank described in clause (i) or (ii) of the  definition of “Eligible Assignee” having a combined capital and surplus of at least $500,000,000.   Upon the acceptance of any appointment as Administrative Agent hereunder by a successor  Administrative Agent, such successor Administrative Agent shall thereupon succeed to and  become vested with all the rights, powers, privileges and duties of the retiring Administrative  Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations  under this Agreement.  After any retiring Administrative Agent’s resignation or removal hereunder  as Administrative Agent, the provisions of this Article VII shall inure to its benefit as to any actions  taken or omitted to be taken by it while it was Administrative Agent under this Agreement.   Notwithstanding the foregoing, if no Default or Event of Default shall have occurred and be  continuing, then no successor Administrative Agent shall be appointed under this Section 7.06  without the prior written consent of the Borrower, which consent shall not be unreasonably  withheld or delayed.  ARTICLE VIII    MISCELLANEOUS  SECTION 8.01 Amendments, Etc.  No failure or delay by the Administrative Agent  or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor  shall any single or partial exercise of any such right or power, or any abandonment or  discontinuance of steps to enforce such a right or power, preclude any other or further exercise  thereof or the exercise of any other right or power.  The rights and remedies of the Administrative  Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies  that they would otherwise have.  No amendment or waiver of any provision of this Agreement, nor  consent to any departure by the Borrower therefrom, shall in any event be effective unless the same  shall be in writing and signed by the Majority Lenders and, in the case of an amendment, the  Borrower, and then such waiver or consent shall be effective only in the specific instance and for  the specific purpose for which given; provided that no amendment, waiver or consent shall: (a)  increase or extend the Commitment of any Lender, without the written consent of such Lender, (b)  reduce the principal of, or rate of interest on, any Advance or any fees payable hereunder, without  the written consent of each Lender directly affected thereby, (c) postpone any date fixed for any  payment of principal of, or interest on, any Advance or any fees payable hereunder, without the  written consent of each Lender directly affected thereby, (d) change the percentage of the  Commitments or of the aggregate unpaid principal amount of the Advances, or the number of  





 






  -55-  Lenders, that shall be required for the Lenders or any of them to take any action hereunder or the  definition of “Majority Lenders”, without the written consent of each Lender, (e) amend this  Section 8.01, without the written consent of each Lender or (f) waive or amend any provision  regarding pro rata sharing or otherwise relates to the distribution of payments among Lenders,  without the written consent of each Lender; provided, further, that no amendment, waiver or  consent shall, unless in writing and signed by the Administrative Agent, in addition to the Lenders  required above to take such action, affect the rights or duties of the Administrative Agent under  this Agreement.  Without limiting the generality of the foregoing, the making of an Advance shall  not be construed as a waiver of any Event of Default, regardless of whether the Administrative  Agent or any Lender may have had notice or knowledge of such Event of Default at the time.  If  the Administrative Agent and the Borrower acting together identify any ambiguity, omission,  mistake, typographical error or other defect in any provision of this Agreement or any other  document executed in connection herewith, then the Administrative Agent and the Borrower shall  be permitted to amend, modify or supplement such provision to cure such ambiguity, omission,  mistake, typographical error or other defect, and such amendment shall become effective without  any further action or consent of any other party to this Agreement.  SECTION 8.02 Notices, Etc. All notices and other communications provided for  hereunder shall be in writing (including facsimile transmission) and mailed, sent by facsimile or  delivered, if to the Borrower, at 10 S. Dearborn, 48th Floor, Chicago, IL 60603, Attention: Chief  Financial Officer, facsimile: 312-394-5443; if to any Lender, at its Domestic Lending Office  specified in its Administrative Questionnaire or in the Assignment and Assumption pursuant to  which it became a Lender; and if to the Administrative Agent, (a) for payments and notices  pursuant to Section 2.09 or 2.10, at its address at U.S. Bank National Association, 1095 Avenue  of the Americas, 15th Floor, New York, New York 10036, Attention: Johnny Hon, telephone: 917- 326-3944, facsimile: 917-256-2890 and email: johnny.hon@usbank.com,  ncb.utilities.oilgas@usbank.com and CCSLIBOR@usbank.com and at U.S. Bank National  Association, 1095 Avenue of the Americas, 15th Floor, New York, New York 10036, Attention:  Kevin Murphy, telephone: 917-326-3912, facsimile: 917-256-2890 and email:  kevin.murphy4@usbank.com, ncb.utilities.oilgas@usbank.com and CCSLIBOR@usbank.com;  or, as to each party, at such other address as shall be designated by such party in a written notice  to the other parties. All such notices and communications shall be effective (a) if mailed, three  Business Days after being deposited in the U.S. mail, postage prepaid, (b) if sent by facsimile,  when such facsimile is sent (except that if not sent during normal business hours for the recipient,  such facsimile shall be deemed to have been sent at the opening of business on the next Business  Day for the recipient), and (c) otherwise, when delivered, except that notices and communications  to the Administrative Agent pursuant to Article II or VII shall not be effective until received by  the Administrative Agent.  SECTION 8.03 No Waiver; Remedies.  No failure on the part of any Lender or the  Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as  a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or  further exercise thereof or the exercise of any other right.  The remedies herein provided are  cumulative and not exclusive of any remedies provided by law.  SECTION 8.04 Costs and Expenses; Indemnification.  





 






  -56-  (a) The Borrower agrees to pay on demand all costs and expenses incurred by  the Administrative Agent in connection with the preparation, execution, delivery, administration,  modification and amendment of this Agreement and the other documents to be delivered  hereunder, including the reasonable fees, internal charges and out-of-pocket expenses of counsel  (including in-house counsel) for the Administrative Agent with respect thereto and with respect to  advising the Administrative Agent as to its rights and responsibilities under this Agreement.  The  Borrower further agrees to pay on demand all costs and expenses, if any (including counsel fees  and expenses of outside counsel and of internal counsel), incurred by the Administrative Agent or  any Lender in connection with the collection and enforcement (whether through negotiations, legal  proceedings or otherwise) of the Borrower’s obligations under this Agreement and the other  documents to be delivered by the Borrower hereunder, including reasonable counsel fees and  expenses in connection with the enforcement of rights under this Section 8.04(a).  (b) In the event of any payment of principal of, or any conversion of, any SOFR  Advance is made other than on the last day of the Interest Period for such Advance, as a result of  a payment or conversion pursuant to Section 2.09 or 2.12 or acceleration of the maturity of the  Advances pursuant to Section 6.01 or for any other reason, or the assignment of a SOFR Advance  other than on the last day of the Interest Period for such Advance as a result of a request by the  Borrower pursuant to Section 8.07(g) or the failure to borrow any SOFR Advance on the date  specified in any notice delivered pursuant hereto, the Borrower shall, upon demand by any Lender  (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for  the account of such Lender any amount required to compensate such Lender for any additional  loss, cost or expense which it may reasonably incur as a result of such event, including any loss,  cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds  acquired by any Lender to fund or maintain such Advance.  (c) The Borrower agrees to indemnify and hold each Lender and the  Administrative Agent and each of their respective Related Parties (each, an “Indemnified Person”)  harmless from and against any claim, damage, loss, liability, cost or expense (including reasonable  attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any  proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding)  that any of them may pay or incur arising out of or relating to this Agreement or the transactions  contemplated hereby, or the use by the Borrower or any Subsidiary of the proceeds of any  Advance; provided that the Borrower shall not be liable for any portion of any such claim, damage,  loss, liability, cost or expense resulting from such Indemnified Person’s gross negligence or willful  misconduct as determined in a final non-appealable order of a court of competent jurisdiction.  The  Borrower’s obligations under this Section 8.04(c) shall survive the repayment of all amounts  owing by the Borrower to the Lenders and the Administrative Agent under this Agreement and the  termination of Commitments hereunder.  If and to the extent that the obligations of the Borrower  under this Section 8.04(c) are unenforceable for any reason, the Borrower agrees to make the  maximum contribution to the payment and satisfaction thereof which is permissible under  applicable law.  This Section 8.04(c) shall not apply with respect to Taxes other than any Taxes  that represent losses or damages arising from any non-Tax claim.  In the case of an investigation,  litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be  effective whether or not such investigation, litigation or proceeding is brought by the Borrower,  any of the Borrower’s equityholders or creditors, an Indemnified Person or any other person or  entity, whether or not an Indemnified Person is otherwise a party thereto.  





 






  -57-  SECTION 8.05 Right of Set-off.  Upon (i) the occurrence and during the  continuance of any Event of Default and (ii) the making of the request or the granting of the consent  specified by Section 6.01 to authorize the Administrative Agent to declare the Advances due and  payable pursuant to the provisions of Section 6.01, each Lender and each of its Affiliates is hereby  authorized at any time and from time to time, to the fullest extent permitted by law, to set off and  apply any and all deposits (general or special, time or demand, provisional or final) at any time  held and other indebtedness at any time owing by such Lender or Affiliate to or for the credit or  the account of the Borrower against any and all of the obligations of the Borrower now or hereafter  existing under this Agreement, whether or not such Lender shall have made any demand under  this Agreement and although such obligations may be unmatured.  Each Lender agrees to notify  the Borrower promptly after any such set-off and application made by such Lender or Affiliate  thereof, provided that the failure to give such notice shall not affect the validity of such set-off and  application.  The rights of each Lender under this Section 8.05 are in addition to other rights and  remedies (including other rights of set-off) that such Lender may have.  SECTION 8.06 Binding Effect.  This Agreement shall be binding upon and inure to  the benefit of the Borrower, the Administrative Agent and each Lender and their respective  successors and assigns, provided that (except as permitted by Section 5.02(b)(iii)) the Borrower  shall not have the right to assign rights hereunder or any interest herein without the prior written  consent of all Lenders.  SECTION 8.07 Assignments and Participations.  (a) Each Lender may, with the prior written consent of the Borrower and the  Administrative Agent (which consents shall not be unreasonably withheld or delayed), and if  demanded by the Borrower pursuant to Section 8.07(g) shall to the extent required by such Section,  assign to one or more banks or other entities (other than an Ineligible Institution) all or a portion  of its rights and obligations under this Agreement (including all or a portion of its Commitment  and the Advances owing to it); provided that (i) each such assignment shall be of a constant, and  not a varying, percentage of all of the assigning Lender’s rights and obligations under this  Agreement, (ii) the Commitment Amount of the assigning Lender being assigned pursuant to each  such assignment (determined as of the date of the Assignment and Assumption with respect to  such assignment) shall in no event be less than $5,000,000 or, if less, the entire amount of such  Lender’s Commitment Amount, and shall be an integral multiple of $1,000,000 or such Lender’s  entire Commitment Amount, (iii) each such assignment shall be to an Eligible Assignee, (iv) the  parties to each such assignment shall execute and deliver to the Administrative Agent, for its  acceptance and recording in the Register, an Assignment and Assumption, together with a  processing and recordation fee of $3,500 (which shall be payable by one or more of the parties to  the Assignment and Assumption, and not by the Borrower (except in the case of a demand under  Section 8.07(g)), and shall not be payable if the assignee is a Federal Reserve Bank), (v) the  consent of the Borrower shall not be required after the occurrence and during the continuance of  any Event of Default, and (vi) the Borrower shall be deemed to have consented to any such  assignment unless it shall object thereto by written notice to the Administrative Agent within five  (5) Business Days after having received notice thereof.  Upon such execution, delivery, acceptance  and recording, from and after the effective date specified in each Assignment and Assumption, (x)  the assignee thereunder shall be a party hereto and, to the extent that rights and obligations  hereunder have been assigned to it pursuant to such Assignment and Assumption, have the rights  





 






  -58-  and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent  that rights and obligations hereunder have been assigned by it pursuant to such Assignment and  Assumption, relinquish its rights and be released from its obligations under this Agreement and,  in the case of an Assignment and Assumption covering all or the remaining portion of an assigning  Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto  (although an assigning Lender shall continue to be entitled to indemnification pursuant to Section  8.04(c)).  Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A) the  consent of the Borrower and the Administrative Agent shall not be required with respect to any  assignment by any Lender to an Affiliate of such Lender or to another Lender or to an Approved  Fund, and (B) any Lender may at any time, without the consent of the Borrower or the  Administrative Agent, and without any requirement to have an Assignment and Assumption  executed, assign all or any part of its rights under this Agreement to a Federal Reserve Bank or  other central banking authority, provided that no such assignment shall release the transferor  Lender from any of its obligations hereunder.  For the purposes of this Section 8.07(a), the terms “Approved Fund” and “Ineligible  Institution” have the following meanings:  “Approved Fund” means any Person (other than a natural person) that is engaged in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the  ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Ineligible Institution” means (a) a natural person, (b) a holding company, investment  vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s)  thereof, (c) the Borrower or any of its Affiliates or (d) Lender, an Affiliate of a Lender or an  Approved Fund that, in each case at the time of such assignment, is a Sanctioned Person; provided  that, such holding company, investment vehicle or trust shall not constitute an Ineligible Institution  if it (x) has not been established for the primary purpose of acquiring any Borrowings or  Commitments, (y) is managed by a professional advisor, who is not such natural person or a  relative thereof, having significant experience in the business of making or purchasing commercial  loans, and (z) has assets greater than $25,000,000 and a significant part of its activities consist of  making or purchasing commercial loans and similar extensions of credit in the ordinary course of  its business.  (b) By executing and delivering an Assignment and Assumption, the Lender  assignor thereunder and the assignee thereunder confirm to and agree with each other and the other  parties hereto as follows: (i) other than as provided in such Assignment and Assumption, such  assigning Lender makes no representation or warranty and assumes no responsibility with respect  to any statements, warranties or representations made in or in connection with this Agreement or  the execution, legality, validity, enforceability, genuineness, sufficiency or value of this  Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning  Lender makes no representation or warranty and assumes no responsibility with respect to the  financial condition of the Borrower or the performance or observance by the Borrower of any of  its obligations under this Agreement or any other instrument or document furnished pursuant  hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with  copies of the financial statements referred to in Section 4.01(e) and such other documents and  





 






  -59-  information as it has deemed appropriate to make its own credit analysis and decision to enter into  such Assignment and Assumption; (iv) such assignee will, independently and without reliance  upon the Administrative Agent, such assigning Lender or any other Lender and based on such  documents and information as it shall deem appropriate at the time, continue to make its own credit  decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is  an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take  such action as agent on its behalf and to exercise such powers under this Agreement as are  delegated to the Administrative Agent by the terms hereof, together with such powers as are  reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with  their terms all of the obligations which by the terms of this Agreement are required to be performed  by it as a Lender.  (c) The Administrative Agent shall maintain at its address referred to in  Section 8.02 a copy of each Assignment and Assumption delivered to and accepted by it and a  register for the recordation of the names and addresses of the Lenders and the Commitment  Amount of, and principal amount of the Advances owing to, each Lender from time to time (the  “Register”).  The entries in the Register shall be conclusive and binding for all purposes, absent  manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person  whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.   The Register shall be available for inspection by the Borrower or any Lender at any reasonable  time and from time to time upon reasonable prior notice.  (d) Upon its receipt of an Assignment and Assumption executed by an  assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative  Agent shall, if such Assignment and Assumption has been completed and is in substantially the  form of Exhibit A (including any necessary consents of the Administrative Agent and the  Borrower), (i) accept such Assignment and Assumption, (ii) record the information contained  therein in the Register and (iii) give prompt notice thereof to the Borrower.  (e) Any Lender may, without the consent of the Borrower or the Administrative  Agent, sell participations to one or more banks or other entities other than an Ineligible Institution  (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement  (including all or a portion of its Commitment and the Advances owing to it); provided that (A)  such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall  remain solely responsible to the other parties hereto for the performance of such obligations; and  (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely  and directly with such Lender in connection with such Lender’s rights and obligations under this  Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation  shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve  any amendment, modification or waiver of any provision of this Agreement; provided that such  agreement or instrument may provide that such Lender will not, without the consent of the  Participant, agree to any amendment, modification or waiver described in the first proviso to  Section 8.01 that affects such Participant.  Borrower agrees that each Participant shall be entitled  to the benefits of Sections 2.11, 2.14 and 8.04(b) (subject to the requirements and limitations  therein, including the requirements under Section 2.14(f) (it being understood that the  documentation required under Section 2.14(f) shall be delivered to the participating Lender)) to  the same extent as if it were a Lender and had acquired its interest by assignment pursuant to  





 






  -60-  paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the  provisions of Sections 2.15 and 8.07(g) as if it were an assignee under paragraph (b) of this Section;  and (B) shall not be entitled to receive any greater payment under Sections 2.11 or 2.14, with  respect to any participation, than its participating Lender would have been entitled to receive,  except to the extent such entitlement to receive a greater payment results from a Change in Law  that occurs after the Participant acquired the applicable participation.  To the extent permitted by  law, each Participant also shall be entitled to the benefits of Section 8.05 as though it were a  Lender, provided such Participant agrees to be subject to Section 2.15 as though it were a  Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non- fiduciary agent of the Borrower, maintain a register on which it enters the name and address of  each Participant and the principal amounts (and stated interest) of each Participant’s interest in the  Advances or other obligations under this Agreement (the “Participant Register”); provided that no  Lender shall have any obligation to disclose all or any portion of the Participant Register to any  Person (including the identity of any Participant or any information relating to a Participant’s  interest in any Commitments, Advances or its other obligations hereunder) except to the extent  that such disclosure is necessary to establish that such Commitment, Advance, or other obligation  is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The  entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall  treat each person whose name is recorded in the Participant Register as the owner of such  participation for all purposes of this Agreement notwithstanding any notice to the contrary.  (f) [Reserved].  (g) If any Lender (i) shall make demand for payment under Section 2.11(a),  2.11(b) or 2.14, (ii) shall deliver any notice to the Administrative Agent pursuant to Section 2.12  resulting in the suspension of certain obligations of the Lenders with respect to SOFR Advances,  or (iii) does not consent to an amendment or waiver that requires the consent of all Lenders and  has been approved by the Majority Lenders, then (A) in the case of clause (i), within 60 days after  such demand (if, but only if, the payment demanded under Section 2.11(a), 2.11(b) or 2.14 has  been made by the Borrower), (B) in the case of clause (ii), within 60 days after such notice (if such  suspension is still in effect), or (C) in the case of clause (iii), within 60 days after the date the  Majority Lenders approve the applicable amendment or waiver, as the case may be, the Borrower  may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,  demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible  Assignees designated by the Borrower and reasonably acceptable to the Administrative Agent all  (but not less than all) of such Lender’s rights and obligations hereunder within the next succeeding  30 days; provided that such Lender shall have received payment of an amount equal to the  outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts  payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued  interest and fees) or the Borrower (in the case of all other amounts).  If any such Eligible Assignee  designated by the Borrower shall fail to consummate such assignment on terms acceptable to such  Lender, or if the Borrower shall fail to designate any such Eligible Assignee for all of such  Lender’s Commitment and Advances, then such Lender may (but shall not be required to) assign  such Commitment and Advances to any other Eligible Assignee in accordance with this Section  8.07 during such period.  In the event that a Lender assigns any SOFR Advances pursuant to this  Section 8.07(g), such assignment shall be deemed to be a prepayment by the Borrower of such  SOFR Advances for purposes of Section 8.04(b).  





 






  -61-  (h) [Reserved].  (i) Notwithstanding anything to the contrary contained herein, any Lender (a  “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such  in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower,  the option to provide to the Borrower all or any part of any Advance that such Granting Bank  would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein  shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to  exercise such option or otherwise fails to provide all or any part of such Advance, the Granting  Bank shall be obligated to make such Advance pursuant to the terms hereof.  The making of an  Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same  extent, and as if, such Advance were made by such Granting Bank.  Each party hereto hereby  agrees that no SPC shall be liable for any indemnity or similar payment obligation under this  Agreement (all liability for which shall remain with the Granting Bank).  In furtherance of the  foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this  Agreement) that, prior to the date that is one year and one day after the payment in full of all  outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against,  or join any other person in instituting against, such SPC any bankruptcy, reorganization,  arrangement, insolvency or liquidation proceedings under the laws of the United States or any  State thereof.  In addition, notwithstanding anything to the contrary contained in this Section 8.07,  any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the  Administrative Agent and without paying any processing fee therefor, assign all or a portion of its  interests in any Advance to the Granting Bank or to any financial institution (consented to by the  Borrower and Administrative Agent, which consents shall be unreasonably withheld or delayed)  providing liquidity and/or credit support to or for the account of such SPC to support the funding  or maintenance of Advances and (ii) disclose on a confidential basis any non-public information  relating to its Advances to any rating agency, commercial paper dealer or provider of any surety,  guarantee or credit or liquidity enhancement to such SPC.  This Section 8.07(i) may not be  amended in any manner which adversely affects a Granting Bank or an SPC without the written  consent of such Granting Bank or SPC.  (j) Any Lender may at any time pledge or assign a security interest in all or any  portion of its rights under this Agreement to secure obligations of such Lender, including any  pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge  or assignment shall release such Lender from any of its obligations hereunder or substitute any  such pledgee or assignee for such Lender as a party hereto.  SECTION 8.08 Governing Law.  THIS AGREEMENT SHALL BE GOVERNED  BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW  YORK.  SECTION 8.09 Consent to Jurisdiction; Certain Waivers.  THE BORROWER  HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE  COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN  IN NEW YORK CITY AND ANY UNITED STATES DISTRICT COURT SITTING IN THE  BOROUGH OF MANHATTAN IN NEW YORK CITY, AND ANY APPELLATE COURT  FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR  





 






  -62-  RELATING TO THIS AGREEMENT AND THE BORROWER HEREBY IRREVOCABLY  AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY  BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE  ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY  SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH  COURT IS AN INCONVENIENT FORUM.  NOTHING HEREIN SHALL LIMIT THE RIGHT  OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS  AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.  EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY  WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION  ARISING OUT OF OR RELATING TO THIS AGREEMENT ANY SPECIAL,  EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES  OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; PROVIDED THAT  NOTHING CONTAINED IN THIS SENTENCE SHALL LIMIT ANY OF THE  BORROWER’S INDEMNITY AND REIMBURSEMENT OBLIGATIONS TO ANY  INDEMNITEE TO THE EXTENT SUCH INDEMNITEE IS ENTITLED TO  INDEMNIFICATION WITH RESPECT TO THIRD PARTY CLAIMS.  SECTION 8.10 Waiver of Jury Trial.  EACH PARTY HERETO HEREBY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT  IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR  INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,  TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO  REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS  REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD  NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER  AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN  INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE  MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.  SECTION 8.11 Execution in Counterparts; Integration.  This Agreement may be  executed in any number of counterparts and by different parties hereto in separate counterparts,  each of which when so executed shall be deemed to be an original and all of which taken together  shall constitute one and the same agreement.  This Agreement constitutes the entire agreement and  understanding among the parties hereto and supersedes all prior and contemporaneous agreements  and understandings, oral or written, relating to the subject matter hereof.  SECTION 8.12 USA PATRIOT ACT NOTIFICATION.  The following notification  is provided to the Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C.  Section 5318:  IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW  ACCOUNT.  To help the government fight the funding of terrorism and money laundering  activities, Federal law requires all financial institutions to obtain, verify, and record  information that identifies each person or entity that opens an account, including any  





 






  -63-  deposit account, treasury management account, loan, other extension of credit, or other  financial services product.  What this means for the Borrower: When the Borrower opens  an account, the Administrative Agent and the Lenders will ask for the Borrower’s name,  tax identification number and business address and other information that will allow the  Administrative Agent and the Lenders to identify the Borrower.  The Administrative Agent  and the Lenders may also ask to see the Borrower’s legal organizational documents or other  identifying documents.  SECTION 8.13 No Advisory or Fiduciary Responsibility.  In connection with all  aspects of the transactions contemplated hereby (including in connection with any amendment,  waiver or other modification hereof), the Borrower acknowledges and agrees, and acknowledges  its Affiliates’ understanding, that:  (i) (A) the services regarding this Agreement provided by the  Administrative Agent and the Lenders are arm’s-length commercial transactions between the  Borrower and its Affiliates, on the one hand, and the Administrative Agent and the Lenders on the  other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors  to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and  understands and accepts, the terms, risks and conditions of the transactions contemplated hereby;  (ii) (A) the Administrative Agent and each Lender is and has been acting solely as a principal and,  except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be  acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person  and (B) neither the Administrative Agent nor any Lender has any obligation to the Borrower or  any of its Affiliates with respect to the transactions contemplated hereby except those obligations  expressly set forth herein; and (iii) the Administrative Agent and the Lenders and their respective  Affiliates may be engaged in a broad range of transactions that involve interests that differ from  those of the Borrower and its Affiliates, and neither the Administrative Agent nor any Lender has  any obligation to disclose any of such interests to the Borrower or its Affiliates.  To the fullest  extent permitted by law, the Borrower hereby waives and releases any claims that it may have  against the Administrative Agent and the Lenders with respect to any breach or alleged breach of  agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.  SECTION 8.14 [Reserved].  SECTION 8.15 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary 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;  





 






  -64-  (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 8.16 Confidentiality.  Each of the Administrative Agent and the Lenders  agrees to maintain the confidentiality of the Information (as defined below), except that  Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents,  including accountants, legal counsel and other advisors (it being understood that the Persons to  whom such disclosure is made will be informed of the confidential nature of such Information and  instructed to keep such Information confidential), (b) to the extent requested by any Governmental  Authority (including any self-regulatory authority, such as the National Association of Insurance  Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena  or similar legal process, (d) to any other party to this Agreement, (e) in connection with the  exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or  the enforcement of rights hereunder, (f) subject to an agreement containing provisions  substantially the same as those of this Section, to (i) any assignee of or Participant in, or any  prospective assignee of or Participant in, any of its rights or obligations under this Agreement or  (ii)  any actual or prospective counterparty (or its advisors) to any swap or derivative transaction  relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the  extent such Information (i) becomes publicly available other than as a result of a breach of this  Section or (ii) becomes available to the Administrative Agent or any Lender on a non-confidential  basis from a source other than the Borrower.  For the purposes of this Section, “Information”  means all information received from the Borrower relating to the Borrower or its business, other  than any such information that is available to the Administrative Agent or any Lender on a non- confidential basis prior to disclosure by the Borrower and other than information pertaining to this  Agreement routinely provided by arrangers to data service providers, including league table  providers, that serve the lending industry; provided that, in the case of information received from  the Borrower after the date hereof, such information is clearly identified at the time of delivery as  confidential.  Any Person required to maintain the confidentiality of Information as provided in  this Section shall be considered to have complied with its obligation to do so if such Person has  exercised the same degree of care to maintain the confidentiality of such Information as such  Person would accord to its own confidential information.  SECTION 8.17 Material Non-Public Information.  EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN  SECTION 8.16 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY  INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE  BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES,  AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES  





 






  -65-  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.  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 8.18 Interest Rate Limitation.  Notwithstanding anything herein to the  contrary, if at any time the interest rate applicable to any Advance or Borrowing, together with all  fees, charges and other amounts which are treated as interest on such Advance or Borrowing under  applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum  Rate”) which may be contracted for, charged, taken, received or reserved by a Lender holding such  Advance or Borrowing in accordance with applicable law, the rate of interest payable in respect of  such Advance or Borrowing hereunder, together with all Charges payable in respect thereof, shall  be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have  been payable in respect of such Advance or Borrowing but were not payable as a result of the  operation of this Section shall be cumulated and the interest and Charges payable to such Lender  in respect of other Advances or Borrowings or periods shall be increased (but not above the  Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal  Funds Effective Rate to the date of repayment, shall have been received by such Lender.  SECTION 8.19 Severability.  Any provision of this Agreement held to be invalid,  illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent  of such invalidity, illegality or unenforceability without affecting the validity, legality and  enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a  particular jurisdiction shall not invalidate such provision in any other jurisdiction.  SECTION 8.20 Headings.  Article and Section headings and the Table of Contents  used herein are for convenience of reference only, are not part of this Agreement and shall not  affect the construction of, or be taken into consideration in interpreting, this Agreement.  SECTION 8.21 Survival.  All covenants, agreements, representations and warranties  made by the Borrower herein and in the certificates or other instruments delivered in connection  with or pursuant to this Agreement shall be considered to have been relied upon by the other parties  hereto and shall survive the execution and delivery of this Agreement and the making of any  Advance, regardless of any investigation made by any such other party or on its behalf and  notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge  





 






  -66-  of any Default or Event of Default or incorrect representation or warranty at the time any credit is  extended hereunder, and shall continue in full force and effect as long as the principal of or any  accrued interest on any Advance or any fee or any other amount payable under this Agreement is  outstanding and unpaid.    [Signature Pages Follow]  





 






  [Signature Page to Credit Agreement]  IN WITNESS WHEREOF, Borrower, the Lenders and the Administrative Agent have  executed this Agreement as of the date first above written.  EXELON CORPORATION, as Borrower        By:   Name:   Title:  





 






  [Signature Page to Credit Agreement]    U.S. BANK NATIONAL ASSOCIATION, as  Administrative Agent and Lender      By:   Name:  Title:  





 






  I-1  SCHEDULE I  COMMITMENTS    Lender    Commitment  U.S. Bank National Association  $300,000,000.00  TOTAL $300,000,000.00    





 






  I-1  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. 





 






  I-1  SCHEDULE 5.02  Existing Restrictions   None.  





 






  A-1  EXHIBIT A  FORM OF ASSIGNMENT AND ASSUMPTION  This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the  Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the  “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not  defined herein shall have the meanings given to them in the Credit Agreement identified below (as  amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the  Assignee.  The Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to  and incorporated herein by reference and made a part of this Assignment and Assumption as if set  forth herein in full.  For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the  Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject  to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the  Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to  all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement  and any other documents or instruments delivered pursuant thereto that represents the amount and  percentage interest identified below of all of the Assignor’s outstanding rights and obligations  under the respective facilities identified below (including without limitation any guaranties  included in such facilities and, to the extent permitted to be assigned under applicable law, all  claims (including without limitation contract claims, tort claims, malpractice claims, statutory  claims and all other claims at law or in equity), suits, causes of action and any other right of the  Assignor against any Person whether known or unknown arising under or in connection with the  Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan  transactions governed thereby) other than claims for indemnification or reimbursement with  respect to any period prior to Effective Date (the “Assigned Interest”).  Such sale and assignment  is without recourse to the Assignor and, except as expressly provided in this Assignment and  Assumption, without representation or warranty by the Assignor.  1. Assignor:     2. Assignee:     [and is an Affiliate of Assignor]  3. Borrower: Exelon Corporation  4. Administrative Agent: U.S. Bank National Association  5. Credit Agreement: Credit Agreement, dated as of January 21, 2022, as amended, among  the Borrower, the Lenders party thereto, and the Administrative Agent.  6. Assigned Interest:  Facility Assigned Aggregate Amount of  Commitment/  Outstanding Credit  Amount of Commitment/  Outstanding Credit  Exposure Assigned  Percentage Assigned of  Commitment/  





 






  A-2  Exposure for all   Lenders  Outstanding Credit  Exposure1   ____________ $ $ _______%  ____________ $ $ _______%  ____________ $ $ _______%    7. Trade Date:2  Effective Date: ____________________, 20__ [TO BE INSERTED BY THE  ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF  RECORDATION OF TRANSFER BY THE ADMINISTRATIVE AGENT.]  The terms set forth in this Assignment and Assumption are hereby agreed to:  ASSIGNOR  [NAME OF ASSIGNOR]  By:  Title:  ASSIGNEE  [NAME OF ASSIGNEE]  By:  Title:  [Consented to and]3Accepted:  U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent  By:  Title:  [Consented to:]4  [NAME OF RELEVANT PARTY]  By:  Title:    Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the  Trade Date and the Effective Date.  1 Set forth, to at least 9 decimals, as a percentage of the Commitment/loans of all Lenders thereunder.  2 Insert if satisfaction of minimum amounts is to be determined as of the Trade Date.  3 To be added only if the consent of the Administrative Agent is required by the terms of the Credit  Agreement.  4 To be added only if the consent of the Borrower and/or other parties is required by the terms of the Credit  Agreement.  





 






  A-3  ANNEX 1  TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION  1.  Representations and Warranties.  1.1  Assignor.  The Assignor represents and warrants that (i) it is the legal and  beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,  encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all  action necessary, to execute and deliver this Assignment and Assumption and to consummate the  transactions contemplated hereby.  Neither the Assignor nor any of its officers, directors,  employees, agents or attorneys shall be responsible for (i) any statements, warranties or  representations made in or in connection with the Credit Agreement, (ii) the execution, legality,  validity, enforceability, genuineness, sufficiency, perfection, priority, collectability, or value of the  Credit Agreement or any collateral thereunder, (iii) the financial condition of the Borrower, any of  its Subsidiaries or Affiliates or any other Person obligated in respect of the Credit Agreement, (iv)  the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other  Person of any of their respective obligations under the Credit Agreement, (v) inspecting any of the  property, books or records of the Borrower, or any guarantor, or (vi) any mistake, error of  judgment, or action taken or omitted to be taken in connection with the Credit Extensions or the  Credit Agreement.  1.2.  Assignee.  The Assignee (a) represents and warrants that (i) it has full power  and authority, and has taken all action necessary, to execute and deliver this Assignment and  Assumption and to consummate the transactions contemplated hereby and to become a Lender  under the Credit Agreement, (ii) from and after the Effective Date, it shall be bound by the  provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned  Interest, shall have the obligations of a Lender thereunder, (iii) agrees that its payment instructions  and notice instructions are as set forth in Schedule 1 to this Assignment and Assumption, (iv)  confirms that none of the funds, monies, assets or other consideration being used to make the  purchase and assumption hereunder are “plan assets” as defined under ERISA and that its rights,  benefits and interests in and under the Credit Agreement will not be “plan assets” under ERISA,  (v) agrees to indemnify and hold the Assignor harmless against all losses, costs and expenses  (including, without limitation, reasonable attorneys’ fees) and liabilities incurred by the Assignor  in connection with or arising in any manner from the Assignee’s non-performance of the  obligations assumed under this Assignment and Assumption, (vi) it has received a copy of the  Credit Agreement, together with copies of financial statements and such other documents and  information as it has deemed appropriate to make its own credit analysis and decision to enter into  this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it  has made such analysis and decision independently and without reliance on the Administrative  Agent or any other Lender, and (vii) attached as Schedule 1 to this Assignment and Assumption is  any documentation required to be delivered by the Assignee with respect to its tax status pursuant  to the terms of the Credit Agreement, duly completed and executed by the Assignee and (b) agrees  that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or  any other Lender, and based on such documents and information as it shall deem appropriate at  the time, continue to make its own credit decisions in taking or not taking action under the Credit  





 






  A-4  Agreement, and (ii) it will perform in accordance with their terms all of the obligations which by  the terms of the Credit Agreement are required to be performed by it as a Lender.  2.  Payments.  The Assignee shall pay the Assignor, on the Effective Date, the  amount agreed to by the Assignor and the Assignee.  From and after the Effective Date, the  Administrative Agent shall make all payments in respect of the Assigned Interest (including  payments of principal, interest, fees and other amounts) to the Assignee.  3.  General Provisions.  This Assignment and Assumption shall be binding upon,  and inure to the benefit of, the parties hereto and their respective successors and assigns.  This  Assignment and Assumption may be executed in any number of counterparts, which together shall  constitute one instrument.  Delivery of an executed counterpart of a signature page of this  Assignment and Assumption by facsimile shall be effective as delivery of a manually executed  counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be  governed by, and construed in accordance with, the law of the State of New York.     





 






  B-1  EXHIBIT B  FORM OF NOTICE OF BORROWING  [____], 20[__]    U.S. Bank National Association  1095 Avenue of the Americas, 15th Floor  New York, New York, 10036  Attn: Conchita Vergara and Kevin Murphy    and the Lenders that are parties to   the Credit Agreement referred to below       Ladies and Gentlemen:  The undersigned, Exelon Corporation, a Pennsylvania corporation (the  “Borrower”), refers to the Credit Agreement, dated as of January 21, 2022, as amended, among  the Borrower, various financial institutions and U.S. Bank National Association, as Administrative  Agent (as amended, modified or supplemented from time to time, the “Credit Agreement”), and  hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit Agreement that the  undersigned requests a Borrowing under the Credit Agreement, and in that connection sets forth  below the information relating to such Borrowing (the “Proposed Borrowing”) as required by  Section 2.02(a) of the Credit Agreement:  (i) The Type of Advances to be made in connection with the Proposed  Borrowing is [Base Rate Advances] [SOFR Advances].  (ii) The aggregate amount of the Proposed Borrowing is $[___].  (iii) The Interest Period for each SOFR Advance made as part of the  Proposed Borrowing is [    month[s]].  The undersigned hereby certifies that the following statements are true on the date  hereof, and will be true on the date of the Proposed Borrowing:  (A) the representations and warranties of the undersigned  contained in Section 4.01 of the Credit Agreement are correct, before and  after giving effect to the Proposed Borrowing and to the application of the  proceeds therefrom, as though made on and as of such date;  (B) no event has occurred and is continuing, or would result  from the Proposed Borrowing or from the application of the proceeds  therefrom, that constitutes an Default or Event of Default; and  





 






  B-2  (C) after giving effect to the Proposed Borrowing, the  undersigned will not have exceeded any limitation on its ability to incur  indebtedness (including any limitation imposed by any governmental or  regulatory authority).  Very truly yours,  EXELON CORPORATION    By:  Name:  Title:  





 






  C-1    EXHIBIT C  FORM OF NOTE  __________, 20__  Exelon Corporation, a Pennsylvania corporation (“Borrower”) promises to pay to  _____________ (“Lender”) the aggregate unpaid principal amount of all Advances made by  Lender to Borrower pursuant to the Credit Agreement (as defined below), at the main office of  U.S. Bank National Association, in Minneapolis, Minnesota as Administrative Agent, together  with interest on the unpaid principal amount hereof at the rates and on the dates set forth in the  Credit Agreement.  Borrower shall pay the principal of and accrued and unpaid interest on the  Advances in full on the Termination Date.  Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to  otherwise record in accordance with its usual practice, the date and amount of the Advances and  the date and amount of each principal payment hereunder.  This note (this “Note”) is one of the notes issued pursuant to, and is entitled to the benefits  of, the Credit Agreement dated as of January 21, 2022 (as further amended or otherwise modified  from time to time, the “Credit Agreement”), among Borrower, the various financial institutions  from time to time made party as Lenders thereto, and U.S Bank National Association, as  Administrative Agent and a Lender.  The Credit Agreement reference is hereby made for a  statement of the terms and conditions governing this Note, including the terms and conditions  under which this Note may be prepaid or its maturity date accelerated.  Capitalized terms used  herein and not otherwise defined herein are used with the meanings attributed to them in the Credit  Agreement.  All payments hereunder shall be made in lawful money of the United States of America  and in immediately available funds.  THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL  LAWS OF THE STATE NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS  APPLICABLE TO NATIONAL BANKS.  EXELON CORPORATION     By____________________________________  Name:  Title:  





 






  D-1    EXHIBIT D  FORM OF ANNUAL AND QUARTERLY COMPLIANCE CERTIFICATE  ______________________, 20____  Pursuant to the Credit Agreement, dated as of January 21, 2022, as amended, among  Exelon Corporation, a Pennsylvania corporation (the “Borrower”), various financial institutions  and U.S. Bank National Association, as Administrative Agent (as amended, modified or  supplemented from time to time, the “Credit Agreement”), the undersigned, being  ______________________ of the Borrower, hereby certifies on behalf of the Borrower as follows:  1.  [Delivered] [Posted concurrently]* herewith are the financial statements  prepared pursuant to Section 5.01(a)[(ii)/(iii)] of the Credit Agreement for the fiscal ________  ended ___________, 20__.  All such financial statements comply with the applicable requirements  of the Credit Agreement.  *Applicable language to be used based on method of delivery.  2.  Schedule I hereto sets forth in reasonable detail the information and calculations  necessary to establish the Borrower’s compliance with the provisions of Section 5.02(c) of the  Credit Agreement as of the end of the fiscal period referred to in paragraph 1 above.  3. (Check one and only one:)  __ No Default or Event of Default has occurred and is continuing.  __ An Default or Event of Default has occurred and is continuing, and the  document(s) attached hereto as Schedule II specify in detail the nature and period of existence of  such Default or Event of Default as well as any and all actions with respect thereto taken or  contemplated to be taken by the Borrower.  4.  The undersigned has personally reviewed the Credit Agreement, and this  certificate was based on an examination made by or under the supervision of the undersigned  sufficient to assure that this certificate is accurate.  5.  Capitalized terms used in this certificate and not otherwise defined shall have  the meanings given in the Credit Agreement.  EXELON CORPORATION      By____________________________________  Name:  Title:  Date:     





 






  E-1  EXHIBIT E  FORMS OF U.S. TAX COMPLIANCE CERTIFICATE  [See Attached Forms]     





 






        EXHIBIT E-1  [FORM OF U.S. TAX COMPLIANCE CERTIFICATE]  (FOR FOREIGN LENDERS THAT ARE NOT PARTNERSHIPS  FOR U.S. FEDERAL INCOME TAX PURPOSES)  Reference is hereby made to the Credit Agreement dated as of January 21, 2022, as  amended, among Exelon Corporation, a Pennsylvania corporation (the “Borrower”), various  financial institutions and U.S Bank National Association, as Administrative Agent (as amended,  modified or supplemented from time to time, the “Agreement”).  Pursuant to the provisions of Section 2.14 of the Agreement, the undersigned hereby  certifies that (i) it is the sole record and beneficial owner of the Advances in respect of which it is  providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the  Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of  Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the  Borrower as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in  question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.  The undersigned has furnished the Administrative Agent and the Borrower with a  certificate of its non-U.S. person status on United States Internal Revenue Service Form W-8BEN.   By executing this certificate, the undersigned agrees that (1) if the information provided on this  certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative  Agent and (2) the undersigned shall have at all times furnished the Borrower and the  Administrative Agent with a properly completed and currently effective certificate in either the  calendar year in which each payment is to be made to the undersigned, or in either of the two  calendar years preceding such payments.  [NAME OF LENDER]  By: ______________________________________  Name:  Title:  Date: ________ __, 20[ ]     





 






    EXHIBIT E-2  [FORM OF U.S. TAX COMPLIANCE CERTIFICATE]  (For Foreign Lenders That Are Partnerships  For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Credit Agreement dated as of January 21, 2022, as  amended, among Exelon Corporation, a Pennsylvania corporation (the “Borrower”), various  financial institutions and U.S. Bank National Association, as Administrative Agent (as amended,  modified or supplemented from time to time, the “Agreement”).  Pursuant to the provisions of Section 2.14 of the Agreement, the undersigned hereby  certifies that (i) it is the sole record owner of the Advances and interests in respect of which it is  providing this certificate, (ii) with respect to the extension of credit pursuant to the Agreement,  neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a  loan agreement entered into in the ordinary course of its trade or business within the meaning of  Section 881(c)(3)(A) of the Code, (iii) none of its partners/members is a ten percent shareholder  of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) none of its  partners/members is a controlled foreign corporation related to the Borrower as described in  Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively  connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.  The undersigned has furnished the Administrative Agent and the Borrower with United  States Internal Revenue Service Form W-8IMY accompanied by a United States Internal Revenue  Service Form W-8BEN from each of its partners/members claiming the portfolio interest  exemption.  By executing this certificate, the undersigned agrees that (1) if the information  provided on this certificate changes, the undersigned shall promptly so inform the Borrower and  the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrower  and the Administrative Agent with a properly completed and currently effective certificate in either  the calendar year in which each payment is to be made to the undersigned, or in either of the two  calendar years preceding such payments.  [NAME OF LENDER ]  By:______________________________________  Name:  Title:  Date: ________ __, 20[ ]  





 






    EXHIBIT E-3  [FORM OF U.S. TAX COMPLIANCE CERTIFICATE]  (For Non-U.S. Participants That Are Not Partnerships  For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Credit Agreement dated as of January 21, 2022, as  amended, among Exelon Corporation, a Pennsylvania corporation  (the “Borrower”), various  financial institutions and U.S. Bank National Association, as Administrative Agent (as amended,  modified or supplemented from time to time, the “Agreement”).  Pursuant to the provisions of Section 2.14 of the Agreement, the undersigned hereby  certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it  is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the  Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section  871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Borrower as  described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in question are not  effectively connected with the undersigned’s conduct of a U.S. trade or business.  The undersigned has furnished its participating Lender with a certificate of its non-U.S.  person status on United States Internal Revenue Service Form W-8BEN.  By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes,  the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall  have at all times furnished such Lender with a properly completed and currently effective  certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two calendar years preceding such payments.  [NAME OF PARTICIPANT ]  By:______________________________________  Name:  Title:  Date: ________ __, 20[ ]     





 






    EXHIBIT E-4  [FORM OF U.S. TAX COMPLIANCE CERTIFICATE]  (For Non-U.S. Participants That Are Partnerships  For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Credit Agreement dated as of January 21, 2022, as  amended, among Exelon Corporation, a Pennsylvania corporation (the “Borrower”), various  financial institutions and U.S. Bank National Association, as Administrative Agent (as amended,  modified or supplemented from time to time, the “Agreement”).  Pursuant to the provisions of Section 2.14 of the Agreement, the undersigned hereby  certifies that (i) it is the sole record owner of the participation in respect of which it is providing  this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii)  with respect such participation, neither the undersigned nor any of its partners/members is a bank  extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or  business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its  partners/members is a ten percent shareholder of the Borrower within the meaning of  Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign  corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the  interest payments in question are not effectively connected with the undersigned’s or its  partners/members’ conduct of a U.S. trade or business.  The undersigned has furnished its participating Lender with United States Internal Revenue  Service Form W-8IMY accompanied by a United States Internal Revenue Service Form W-8BEN  from each of its partners/members claiming the portfolio interest exemption.  By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes,  the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all  times furnished such Lender with a properly completed and currently effective certificate in either  the calendar year in which each payment is to be made to the undersigned, or in either of the two  calendar years preceding such payments.        [NAME OF PARTICIPANT ]  By:______________________________________  Name:  Title:  Date: ________ __, 20[ ] 





 






    EXHIBIT F  FORM OF NOTICE OF CONTINUATION OR CONVERSION    U.S. Bank National Association  1095 Avenue of the Americas, 15th Floor  New York, New York, 10036  Attn: Conchita Vergara and Kevin Murphy    Ladies and Gentlemen:     This Notice of Conversion/Continuation (this “Notice”) is delivered to you pursuant to  Section 2.09 of the Credit Agreement dated as of January 21, 2022 (as amended, restated,  supplemented or otherwise modified from time to time, the “Credit Agreement”), by and between  Exelon Corporation, a Pennsylvania corporation (the “Borrower”) and U.S Bank National  Association, as Administrative Agent.      1. This Notice is submitted for the purpose of:5        Converting a Base Rate Advance into a SOFR Advance.    (a) The principal amount of such Advance to be converted is  $_______________.      (b) The requested effective date of the conversion of such Advance is  _______________.6      (c) The requested Interest Period applicable to the converted Advance is  _______________.        Converting a SOFR Advance into a Base Rate Advance.    (d) The principal amount of such Advance to be converted is  $_______________.    (e) The last day of the current Interest Period is _______________.       5 Check one and complete applicable information in accordance with the Credit Agreement.  6 Complete with a Business Day.  





 






    (f) The requested effective date of the conversion of such Advance is  _______________.7        Continuing all or a portion of a SOFR Advance as a Base Rate Advance     (g) The principal balance of such Advance is _______________.    (h) The last day of the current Interest Period for such Advance is  _______________.    (i) The principal amount of such Advance to be continued is  _______________.8      (j) The requested effective date of the continuation of such Advance is  _______________.9      (k) The requested Interest Period applicable to the continued Advance is  _______________.       3. Capitalized terms used herein and not defined herein shall have the meanings assigned  thereto in the Credit Agreement.    [Signature Page Follows]    7 Complete with a Business Day.  8 Insert amount in U.S. Dollars.  9 Complete with a Business Day.  





 






     IN WITNESS WHEREOF, the undersigned has executed this Notice of  Conversion/Continuation as of the day and year first written above.    EXELON CORPORATION        By:    Name:              Title:  _____________________________________ 





 






    EXHIBIT G  FORM OF NOTICE OF PREPAYMENT  [____], 20[__]    U.S. Bank National Association  1095 Avenue of the Americas, 15th Floor  New York, New York, 10036  Attn: Conchita Vergara and Kevin Murphy    Ladies and Gentlemen:     The undersigned, Exelon Corporation, a Pennsylvania corporation (the “Borrower”),  provides a Notice of Prepayment delivered to you pursuant to Section 2.10 of the Credit Agreement  dated as of January 21, 2022 (as amended, restated, supplemented or otherwise modified from time  to time, the “Credit Agreement”), by and between the Borrower and U.S Bank National Association,  as Administrative Agent.      1. The Borrower hereby provides notice to the Administrative Agent that it shall repay  the following [Base Rate Advances] and/or [SOFR Advances]:      2. The Advance to be prepaid is a [check each applicable box]       Base Rate Advance (amount to be prepaid _______________)     SOFR Advance (amount to be prepaid ____________)     3. The Borrower shall repay the above-referenced Advances on the following Business  Day: _______________.1      4. Capitalized terms used herein and not defined herein shall have the meanings assigned  thereto in the Credit Agreement.    [Signature Page Follows]    1 Complete with a date no earlier than (i) the same Business Day as of the date of this Notice of Prepayment with respect to any  Base Rate Advance and (ii) three (3) Business Days subsequent to date of this Notice of Prepayment with respect to any SOFR  Advance.  





 






     IN WITNESS WHEREOF, the undersigned has executed this Notice of Prepayment as of the  day and year first written above.      EXELON CORPORATION       By:             Name:            Title: