day of a month, the period shall run
from the date on which it starts to the corresponding date in the next month
and, as appropriate, to succeeding months thereafter.
Whenever an event is to
be performed or a payment is to be made by a particular date and the date in
question falls on a day which is not a Business Day, the event shall be
performed, or the payment shall be made, on the next succeeding Business Day;
provided, however, that all calculations shall be made regardless of whether any
given day is a Business Day and whether or not any given period ends on a
Business Day.
(6)
All references to a particular entity shall
include such entity's permitted successors and permitted assigns unless
otherwise specifically provided herein.
(7)
All references herein to any Law or to any
contract or other agreement shall be to such Law, contract or other agreement as
amended, supplemented or modified from time to time unless otherwise
specifically provided herein.
1.2.2.
THE TITLES OF THE ARTICLES AND SECTIONS HEREIN HAVE
BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE ONLY, AND SHALL NOT
CONTROL OR AFFECT THE MEANING OR CONSTRUCTION OF ANY OF THE TERMS OR PROVISIONS
HEREOF.
1.2.3.
THIS AGREEMENT WAS NEGOTIATED AND PREPARED BY ALL
PARTIES WITH ADVICE OF COUNSEL TO THE EXTENT DEEMED NECESSARY BY EACH PARTY; THE
PARTIES HAVE AGREED TO THE WORDING OF THIS AGREEMENT; AND NONE OF THE PROVISIONS
HEREOF SHALL BE CONSTRUED AGAINST ONE PARTY ON THE GROUND THAT SUCH PARTY IS THE
AUTHOR OF THIS AGREEMENT OR ANY PART HEREOF.
1.2.4.
THE EXHIBIT HERETO IS INCORPORATED IN AND IS INTENDED
TO BE A PART OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT IN THE EVENT OF A
CONFLICT BETWEEN THE TERMS OF THE EXHIBIT AND THE TERMS OF THIS AGREEMENT, THE
TERMS OF THE EXHIBIT SHALL TAKE PRECEDENCE; AND PROVIDED, FURTHER, THAT IN THE
EVENT OF A CONFLICT BETWEEN THE TERMS OF EITHER OR BOTH OF THIS AGREEMENT AND
THE EXHIBIT AND THE TERMS OF THE LETTER OF CREDIT, THE TERMS OF THE LETTER OF
CREDIT SHALL TAKE PRECEDENCE.
2.
CREDIT SUPPORT.
2.1.
LETTER OF CREDIT.
2.1.1.
ZION SOLUTIONS' PARENT OR GUARANTOR SHALL DELIVER OR
CAUSE TO BE DELIVERED TO EXELON ON THE DATE HEREOF, AND AT ALL TIMES PRIOR TO
SUBSTANTIAL COMPLETION SHALL MAINTAIN, OR CAUSE TO BE MAINTAINED, THE INITIAL
LETTER OF CREDIT, ANOTHER LETTER OF
5
CREDIT ISSUED BY A QUALIFIED INSTITUTION SUBSTANTIALLY IN THE FORM OF EXHIBIT A,
OR ANOTHER LETTER OF CREDIT ISSUED BY A QUALIFIED INSTITUTION OTHERWISE IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO EXELON (THE "LETTER OF CREDIT") WITH A
FACE AMOUNT OF TWO HUNDRED MILLION DOLLARS ($200,000,000), AS SUCH AMOUNT MAY BE
REDUCED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 2.2.
IF THE EXPIRATION
DATE IS A DATE PRIOR TO SUBSTANTIAL COMPLETION, ZION SOLUTIONS' PARENT OR
GUARANTOR SHALL, NOT LESS THAN NINETY (90) DAYS PRIOR TO THE EXPIRATION DATE,
EITHER (I) CAUSE THE ISSUER OF THE