Exhibit 4-1
$1,500,000,000
364-DAY CREDIT AGREEMENT
dated as of December 12, 2001
among
EXELON CORPORATION,
COMMONWEALTH EDISON COMPANY,
PECO ENERGY COMPANY
and
EXELON GENERATION COMPANY, LLC
as Borrowers
VARIOUS FINANCIAL INSTITUTIONS
as Lenders
BANK ONE, NA
as Administrative Agent
ABN AMRO BANK, N.V.
and
BARCLAYS BANK PLC
as Co-Documentation Agents
and
CITIBANK, N.A.
and
FIRST UNION NATIONAL BANK
as Co-Syndication Agents
BANC ONE CAPITAL MARKETS, INC.
Lead Arranger and Sole Book Runner
364-DAY CREDIT AGREEMENT
dated as of December 12, 2001
EXELON CORPORATION, COMMONWEALTH EDISON COMPANY, PECO ENERGY COMPANY,
EXELON GENERATION COMPANY, LLC, the banks listed on the signature pages hereof,
BANK ONE, NA, as Administrative Agent, ABN AMRO BANK, N.V. and BARCLAYS BANK
PLC, as Co-Documentation Agents, and CITIBANK, N.A. and FIRST UNION NATIONAL
BANK, as Co-Syndication Agents hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
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 Bank One 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.
"Advance" means an advance by a Lender to a Borrower hereunder. An Advance
may be a Base Rate Advance or a Eurodollar Rate Advance, each of which shall be
a "Type" of Advance.
"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.
"Agents" means the Administrative Agent, the Co-Documentation Agents and
the Co-Syndication Agents; and "Agent" means any one of the foregoing.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" - see Schedule II.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent, in substantially the form of Exhibit C hereto.
"Bank One" means Bank One, NA, a national banking association with its
main office in Chicago, Illinois.
"Base Rate" means, for any period, a fluctuating interest rate per annum
which rate per annum shall at all times be equal to the higher of:
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(a) the Prime Rate; and
(b) the sum of 0.5% per annum plus the Federal Funds Rate in effect
from time to time.
"Base Rate Advance" means an Advance that bears interest as provided in
Section 2.06(a).
"Borrowers" means Exelon, ComEd, PECO and Genco; and "Borrower" means any
one of the foregoing.
"Borrowing" means a group of Advances to the same Borrower 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 Eurodollar
Rate Advances, having the same Interest Period.
"Business Day" means a day on which banks are not required or authorized
to close in Philadelphia, Pennsylvania, Chicago, Illinois or New York, New York,
and, if the applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Closing Date" shall mean the date on which all conditions precedent to
the initial Credit Extension have been satisfied.
"Code" means the Internal Revenue Code of 1986, and the regulations
promulgated thereunder, in each case as amended, reformed or otherwise modified
from time to time.
"Co-Documentation Agent" means each of ABN AMRO Bank, N.V. and Barclays
Bank plc in its capacity as a co-documentation agent hereunder.
"Commitment" means, for any Lender, such Lender's commitment to make
Advances and participate in Facility LCs for the account of each Borrower
hereunder.
"Commitment Amount" means, for any Lender at any time, the amount set
forth opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to Section
8.07(c), as such amount may be reduced pursuant to Section 2.04.
"Commitment Termination Date" means, with respect to any Borrower, the
earlier of (i) December 11, 2002 or such later date to which the scheduled
Commitment Termination Date may be extended pursuant to Section 2.17 (or, if any
such date is not a Business Day, the next preceding Business Day) or (ii) the
date of termination in whole of the Commitments to such Borrower pursuant to
Section 2.04 or 6.01.
"ComEd" means Commonwealth Edison Company, an Illinois corporation, or any
Eligible Successor thereof.
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"ComEd Sublimit" means $300,000,000, subject to adjustment as provided in
Section 2.04(c).
"ComEd Mortgage" means the Mortgage, dated July 1, 1923, as amended and
supplemented by supplemental indentures, including the Supplemental Indenture,
dated August 1, 1944, from ComEd to Harris Trust and Savings Bank and D.G.
Donovan, as trustees; provided that no effect shall be given to any amendment,
supplement or refinancing after the date of this Agreement that would broaden
the definition of "permitted liens" as defined in the ComEd Mortgage as
constituted on the date of this Agreement.
"Consolidated Adjusted Total Capitalization" means, for any Borrower, the
sum, without duplication, of the following with respect to such Borrower and its
consolidated Subsidiaries determined on a consolidated basis (exclusive, in each
case, to the extent otherwise included in such item, of (i) Nonrecourse
Indebtedness of any Subsidiary of such Borrower and (ii) the aggregate principal
amount of Transitional Funding Instruments of such Borrower and its consolidated
Subsidiaries): (a) total capitalization as of such date, as determined in
accordance with GAAP without, in the case of PECO, giving effect to the
"Receivable from Parent" recorded as a debit to shareholders' equity on PECO's
books in connection with the corporate restructuring described in Exelon's Form
10-Q filed with the Securities and Exchange Commission on May 15, 2001, (b) the
current portion of liabilities which as of such date would be classified in
whole or part as long-term debt in accordance with GAAP (it being understood
that the noncurrent portion of such liabilities is included in the total
capitalization referred to in clause (a)), (c) all obligations as lessee which,
in accordance with GAAP, are capitalized as liabilities (including the current
portion thereof), and (d) all other liabilities which would be classified as
short-term debt in accordance with GAAP (including, without limitation, all
liabilities of the types classified as "Notes Payable, Bank" on the audited
balance sheets of PECO and Exelon for December 31, 2000).
"Consolidated Adjusted Total Debt" means, for any Borrower, the sum,
without duplication, of the following with respect to such Borrower and its
consolidated Subsidiaries determined on a consolidated basis (exclusive, in each
case, to the extent otherwise included in such item, of (i) Nonrecourse
Indebtedness of any Subsidiary of such Borrower, (ii) the aggregate principal
amount of Subordinated Deferrable Interest Securities of such Borrower and its
Subsidiaries and (iii) the aggregate principal amount of Transitional Funding
Instruments of such Borrower and its Subsidiaries): (a) all liabilities which as
of such date would be classified in whole or in part as long-term debt in
accordance with GAAP (including the current portion thereof), (b) all
obligations as lessee which, in accordance with GAAP, are capitalized as
liabilities (including the current portion thereof), and (c) all other
liabilities which would be classified as short-term debt in accordance with GAAP
(including, without limitation, all liabilities of the types classified as
"Notes Payable, Bank" on the audited balance sheets of PECO and Exelon for
December 31, 2000).
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
that, together with Exelon or any Subsidiary, are treated as a single employer
under Section 414(b) or 414(c) of the Code.
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"Co-Syndication Agent" means each of Citibank, N.A. and First Union
National Bank in its capacity as co-syndication agent hereunder.
"Credit Extension" means the making of an Advance or the issuance or
modification of a Facility LC hereunder.
"Debt" means (i) indebtedness for borrowed money, (ii) obligations
evidenced by bonds, debentures, notes or other similar instruments (iii)
obligations to pay the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of business), (iv)
obligations as lessee under leases that shall have been or are required to be,
in accordance with GAAP, recorded as capital leases, (v) obligations (contingent
or otherwise) under reimbursement or similar agreements with respect to the
issuance of letters of credit (other than obligations in respect of documentary
letters of credit opened to provide for the payment of goods or services
purchased in the ordinary course of business) and (vi) obligations under direct
or indirect guaranties in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds referred to in
clauses (i) through (v) above.
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance 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 Borrowers and the Administrative Agent.
"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 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; or (iv) the central
bank of any country that is a member of the OECD; provided, however, that,
unless otherwise agreed by Exelon and the Administrative Agent in their sole
discretion, (A) any such 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) or (iv) 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)).
"Eligible Successor" means a Person which (i) is a corporation, limited
liability company or business trust duly incorporated or organized, validly
existing and in good standing under the
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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 a
Borrower and its Subsidiaries, (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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder, each as amended and modified from time to time.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrowers and the Administrative Agent.
"Eurodollar Rate" means, for each Interest Period for each Eurodollar Rate
Advance made as part of a Borrowing, an interest rate per annum equal to the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum,
if such average is not such a multiple) of the rates per annum at which deposits
in U.S. dollars are offered by the principal office of each of the Reference
Banks in London, England, to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's Eurodollar Rate
Advance made as part of such Borrowing and for a period equal to such Interest
Period. The Eurodollar Rate for each Interest Period for each Eurodollar Rate
Advance made as part of a Borrowing shall be determined by the Administrative
Agent on the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions of Section
2.08.
"Eurodollar Rate Advance" means any Advance that bears interest as
provided in Section 2.06(b).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest Period
means the reserve percentage applicable during such Interest Period (or if more
than one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such Lender
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" - see Section 6.01.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended and
modified from time to time.
"Exelon" means Exelon Corporation, a Pennsylvania corporation, or any
Eligible Successor thereof.
"Exelon Sublimit" means $900,000,000, subject to adjustment as provided in
Section 2.04(c).
"Existing Agreement" means the 364-Day Credit Agreement dated as of
December 19, 2000 among Exelon, PECO, ComEd, various financial institutions and
Bank One, as Administrative Agent, as amended prior to the Closing Date.
"Facility Fee Rate" - see Schedule II.
"Facility LC" is defined in Section 2.16.1. "Facility LC Application" is
defined in Section 2.16.3.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Final Termination Date" means, with respect to any Borrower, the earlier
of (i) the date on or after the Commitment Termination Date for such Borrower on
which all of such Borrower's obligations hereunder have been paid in full and
all Facility LC's issued for the account of such Borrower have expired or been
terminated and (ii) the date on which all of such Borrower's obligations
hereunder have become due and payable (pursuant to Section 6.01 or otherwise).
"GAAP" - see Section 1.03.
"Genco" means Exelon Generation Company, LLC, a Pennsylvania limited
liability company, or any Eligible Successor thereof.
"Genco Sublimit" means zero, subject to adjustment as provided in Section
2.04(c); provided that the Genco Sublimit may not be increased prior to the date
on which the conditions precedent to the initial Advance to Genco set forth in
Section 3.03 have been satisfied.
"Granting Bank" - see Section 8.07(h).
"Interest Period" means, for each Eurodollar Rate Advance, the period
commencing on the date of such Eurodollar Rate Advance is made or is converted
from a Base Rate Advance and
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ending on the last day of the period selected by the applicable Borrower
pursuant to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by such Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be 1, 2, 3 or
6 months, as the applicable Borrower may select in accordance with Section 2.02
or 2.09; provided that:
(i) no Borrower may select any Interest Period that ends after
the scheduled Commitment Termination Date;
(ii) Interest Periods commencing on the same date for Advances
made as part of the same Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, unless such extension would cause the last
day of such Interest Period to occur in the next following calendar
month, in which case the last day of such Interest Period shall
occur on the next preceding Business Day; and
(iv) if there is no day in the appropriate calendar month at
the end of such Interest Period numerically corresponding to the
first day of such Interest Period, then such Interest Period shall
end on the last Business Day of such appropriate calendar month.
"LC Fee Rate" - see Schedule II.
"LC Issuer" means Bank One in its capacity as issuer of Facility LCs
hereunder.
"LC Obligations" means, with respect to any Borrower at any time, the sum,
without duplication, of (i) the aggregate undrawn stated amount under all
Facility LCs issued for the account of such Borrower outstanding at such time
plus (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations of such Borrower.
"LC Payment Date" is defined in Section 2.16.5.
"Lead Arranger" means Banc One Capital Markets in its capacity as Lead
Arranger and Sole Book Runner.
"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.
"Letter of Credit Sublimit" means $100,000,000.
"Lien" means any lien (statutory or other), mortgage, pledge, security
interest or other charge or encumbrance, or any other type of preferential
arrangement (including, without limitation, the interest of a vendor or lessor
under any conditional sale, capitalized lease or other title retention
agreement).
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"Leverage Ratio" means, for any Borrower, the ratio of such Borrower's
Consolidated Adjusted Total Debt to such Borrower's Consolidated Adjusted Total
Capitalization.
"Majority Lenders" means Lenders having Pro Rata Shares of more than 50%
(provided that, for purposes of this definition, no Borrower nor any Affiliate
of a Borrower, 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, without limitation, any determination in any litigation, arbitration
or governmental investigation or proceeding) with respect to any Borrower, (i)
any materially adverse change in, or materially adverse effect on, the financial
condition, operations, assets or business of such Borrower and its consolidated
Subsidiaries, taken as a whole, or (ii) any materially adverse effect on the
validity or enforceability against such Borrower of this Agreement or any
applicable Note.
"Material Subsidiary" means, with respect to Exelon, each of ComEd, PECO
and Genco and any holding company for any of the foregoing.
"Modify" and "Modification" are defined in Section 2.16.1.
"Moody's" means Moody's Investors Service, Inc.
"Moody's Rating" means, at any time for any Borrower, the rating issued by
Moody's and then in effect with respect to such Borrower's senior unsecured
long-term public debt securities without third-party credit enhancement (it
being understood that if such 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").
"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 Debt that finances the acquisition,
development, ownership or operation of an asset in respect of which the Person
to which such Debt is owed has no recourse whatsoever to any Borrower or any of
their respective Affiliates other than:
(i) recourse to the named obligor with respect to such Debt
(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 Debt 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 Debt,
but only
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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.
"Note" means a promissory note of a Borrower payable to the order of a
Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Advances made by
such Lender to such Borrower.
"Notice of Borrowing" - see Section 2.02(a).
"OECD" means the Organization for Economic Cooperation and Development.
"Outstanding Credit Extensions" means, with respect to any Borrower, the
sum of the aggregate principal amount of all outstanding Advances to such
Borrower plus all LC Obligations of such Borrower.
"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
Eligible Successor thereof.
"PECO Mortgage" means the First and Refunding Mortgage, dated as of May 1,
1923, between The Counties Gas & Electric Company (to which PECO is successor)
and Fidelity Trust Company, Trustee (to which First Union National Bank is
successor), as amended, supplemented or refinanced from time to time, provided
that no effect shall be given to any amendment, supplement or refinancing after
the date of this Agreement that would broaden the definition of "excepted
encumbrances" as defined in the PECO Mortgage as constituted on the date of this
Agreement.
"PECO Sublimit" means $300,000,000, subject to adjustment as provided in
Section 2.04(c).
"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.
"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 Exelon or any other member of the Controlled Group may have any
liability.
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"Prime Rate" means a rate per annum equal to the prime rate of interest
announced by Bank One or by its parent, BANK ONE CORPORATION (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Principal Subsidiary" means, with respect to a Borrower, (i) each Utility
Subsidiary of such Borrower (other than Commonwealth Edison Company of Indiana,
Inc., so long as it does not qualify as a Principal Subsidiary under the
following clause (ii)) and (ii) each other Subsidiary of such Borrower the
assets of which exceeded $150,000,000 in book value at any time during the
preceding 24-month period.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment Amount (plus, after
the Commitments have terminated with respect to any Borrower, the principal
amount of such Lender's outstanding Advances to such Borrower plus the amount of
such Lender's participation in all of such Borrower's LC Obligations) and the
denominator of which is the aggregate amount of the Commitment Amounts (plus,
after the Commitments have terminated with respect to any Borrower, the
principal amount of all outstanding Advances to such Borrower plus all LC
Obligations of such Borrower).
"Reference Banks" means Bank One, Citibank, N.A. and First Union National
Bank.
"Register" - see Section 8.07(c).
"Reimbursement Obligations" means, with respect to any Borrower at any
time, the aggregate of all obligations of such Borrower then outstanding under
Section 2.16 to reimburse the LC Issuer for amounts paid by the LC Issuer in
respect of any one or more drawings under Facility LCs.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and regulations issued under such section with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, 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(d) of the Code.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"S&P Rating" means, at any time for any Borrower, the rating issued by S&P
and then in effect with respect to such Borrower's senior unsecured long-term
public debt securities without third-party credit enhancement (it being
understood that if such 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").
"Single Employer Plan" means a Plan maintained by Exelon or any other
member of the Controlled Group for employees of Exelon or any other member of
the Controlled Group.
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"SPC" - see Section 8.07(h).
"Special Purpose Subsidiary" means a direct or indirect wholly owned
Subsidiary of ComEd or PECO, substantially all of the assets of which are
"intangible transition property" (as defined in Section 18-102 of the Illinois
Public Utilities Law, as amended, or in 66 Pa. Cons. Stat. Ann. ss.2812(g) (West
Supp. 1997) or any successor provision of similar import), and proceeds thereof,
formed solely for the purpose of holding such assets and issuing such
Transitional Funding Instruments, and which complies with the requirements
customarily imposed on bankruptcy-remote corporations in receivables
securitizations.
"Sublimit" means the Exelon Sublimit, the ComEd Sublimit, the PECO
Sublimit or the Genco Sublimit.
"Subordinated Deferrable Interest Securities" means, with respect to any
Borrower, all obligations of such Borrower and its Subsidiaries, as set forth
from time to time in the consolidated balance sheets of such Borrower and its
Subsidiaries delivered pursuant to Section 5.01(b) hereof, in respect of
"Company Obligated Mandatorily Redeemable Preferred Securities of Subsidiary
Trusts holding solely the Company's Subordinated Debt Securities" or
"Company-Obligated Mandatorily Redeemable Preferred Securities of a Partnership,
which holds solely Subordinated Debentures of the Company."
"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).
"Taxes" - see Section 2.14.
"Transitional Funding Instrument" means any instruments, pass-through
certificates, notes, debentures, certificates of participation, bonds,
certificates of beneficial interest or other evidences of indebtedness or
instruments evidencing a beneficial interest which (i) in the case of ComEd (A)
are issued pursuant to a "transitional funding order" (as such term is defined
in Section 18-102 of the Illinois Public Utilities Act, as amended) issued by
the Illinois Commerce Commission at the request of an electric utility and (B)
are secured by or otherwise payable from non-bypassable cent per kilowatt hour
charges authorized pursuant to such order to be applied and invoiced to
customers of such utility and (ii) in the case of PECO, are "transition bonds"
(as defined in 66 Pa. Cons. Stat. Ann. ss.2812(g) (West Supp. 1997), or any
successor provision of similar import), representing a securitization of
"intangible transition property" (as defined in the foregoing statute). The
instrument funding charges so applied and invoiced must be deducted and stated
separately from the other charges invoiced by such utility against its
customers.
"Type" - see the definition of Advance.
"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
11
recent evaluation date for such Plan, and (ii) in the case of any Multiemployer
Plan, the withdrawal liability that would be incurred by the Controlled Group if
all members of the Controlled Group completely withdrew from such Multiemployer
Plan.
"Unmatured Event of Default" means any event which (if it continues
uncured) will, with lapse of time or notice or both, became an Event of Default.
"Utility Subsidiary" means, with respect to a Borrower, each Subsidiary of
such Borrower that is engaged principally in the generation, transmission, or
distribution of electricity or gas and is subject to rate regulation as a public
utility by federal or state regulatory authorities.
"Utilization Fee Rate" - see Schedule II.
SECTION 1.02 Computation of Time Periods. In this Agreement 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".
SECTION 1.03 Accounting Principles. (a) As used in this Agreement, "GAAP"
shall mean generally accepted accounting principles in the United States,
applied on a basis consistent with the principles used in preparing Exelon's
audited consolidated financial statements as of December 31, 2000 and for the
fiscal year then ended. In this Agreement, except to the extent, if any,
otherwise provided herein, all accounting and financial terms shall have the
meanings ascribed to such terms by GAAP, and all computations and determinations
as to accounting and financial matters shall be made in accordance with GAAP. In
the event that the financial statements generally prepared by any Borrower apply
accounting principles other than GAAP (including as a result of any event
described in Section 1.03(b)), the compliance certificate delivered pursuant to
Section 5.01(b)(iv) accompanying such financial statements shall include
information in reasonable detail reconciling such financial statements to GAAP
to the extent relevant to the calculations set forth in such compliance
certificate.
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth herein and the applicable
Borrower or the Majority Lenders shall so request, the Administrative Agent, the
Lenders and such Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Majority Lenders); provided that, until so
amended, such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein.
SECTION 1.04 Section References. Unless indicated otherwise, any section
reference herein refers to a section of this Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE COMMITMENTS
SECTION 2.01 Commitments. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to (a) make Advances to any Borrower and (b)
to participate in Facility LCs issued upon the request of any Borrower, in each
case from time to time during the
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period from the date hereof to the Commitment Termination Date for such
Borrower, in an aggregate amount not to exceed such Lender's Commitment Amount
as in effect from time to time; provided that (i) the aggregate principal amount
of all Advances by such Lender to any Borrower shall not exceed such Lender's
Pro Rata Share of the aggregate principal amount of all Advances to such
Borrower; (ii) such Lender's participation in Facility LCs issued for the
account of any Borrower shall not exceed such Lender's Pro Rata Share of all LC
Obligations of such Borrower; (iii) the Outstanding Credit Extensions to Exelon
shall not at any time exceed the Exelon Sublimit; (iv) the Outstanding Credit
Extensions to ComEd shall not any time exceed the ComEd Sublimit; (v) the
Outstanding Credit Extensions to PECO shall not at any time exceed the PECO
Sublimit; (vi) the Outstanding Credit Extensions to Genco shall not at any time
exceed the Genco Sublimit; and (vii) the LC Obligations of all Borrowers
collectively shall not at any time exceed the Letter of Credit Sublimit. Within
the foregoing limits, each Borrower may from time to time borrow, prepay
pursuant to Section 2.10 and reborrow hereunder prior to the Commitment
Termination Date for such Borrower.
SECTION 2.02 Procedures for Advances; Limitations on Borrowings.
(a) Any Borrower may request Advances hereunder 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. (Chicago time) on
the third Business Day prior to the date of any proposed borrowing of Eurodollar
Rate Advances and on the date of any proposed borrowing of Base Rate Advances.
Each Notice of Borrowing shall be sent by telecopier, confirmed immediately in
writing, and shall be in substantially the form of Exhibit B hereto, specifying
therein the Borrower which is requesting Advances and the requested (i) date of
borrowing (which shall be a Business Day), (ii) Type of Advances to be borrowed,
(iii) the aggregate amount of such Advances, and (iv) in the case of a borrowing
of Eurodollar Rate Advances, the initial Interest Period therefor. Each Lender
shall, before 12:00 noon (Chicago time) 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 applicable Borrower at the Administrative Agent's aforesaid
address.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
applicable Borrower. If a Notice of Borrowing requests Eurodollar Rate Advances,
the applicable Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the requested borrowing date the applicable conditions set forth in
Article III, including, without limitation, 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.
(c) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any requested borrowing that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of such
borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the requested borrowing date in
accordance with subsection (a) of this Section 2.02 and the
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Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and such Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of such Borrower, the interest rate
applicable at the time to Advances made in connection with such borrowing and
(ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Advance as part of such Borrowing for
purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it
on any borrowing date shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make any Advance to be made
by such other Lender.
(e) Each Borrowing of Base Rate Advances shall at all times be in an
aggregate amount not less than $5,000,000; and each Borrowing of Eurodollar Rate
Advances shall at all times be in an aggregate amount not less than $10,000,000.
Notwithstanding anything to the contrary contained herein, the Borrowers
collectively may not have more than 25 Borrowings of Eurodollar Rate Advances
outstanding at any time.
SECTION 2.03 Facility and Utilization Fees.
(a) Each Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders according to their Pro Rata Shares, a facility fee for
the period from the Closing Date to the Commitment Termination Date for such
Borrower (or, if later, the date on which all Outstanding Credit Extensions to
such Borrower have been paid in full) in an amount equal to the Facility Fee
Rate for such Borrower multiplied by such Borrower's Sublimit (or, after the
Commitment Termination Date, the principal amount of all Outstanding Credit
Extensions to such Borrower), payable on the last day of each March, June,
September and December and on the Final Termination Date for such Borrower (and,
if applicable, thereafter on demand).
(b) Utilization Fee. Each Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders according to their Pro Rata
Shares, a utilization fee for each day on which either (i) the Outstanding
Credit Extensions to all Borrowers exceed 33-1/3% of the aggregate amount of the
Commitment Amounts or (ii) such Borrower's Outstanding Credit Extensions exceed
33-1/3% of such Borrower's Sublimit, in each case in an amount equal to the
Utilization Fee Rate for such Borrower multiplied by such Borrower's Outstanding
Credit Extensions on such day, payable on the last day of each March, June,
September and December and on the Commitment Termination Date for such Borrower.
SECTION 2.04 Reduction of Commitment Amounts; Adjustment of Sublimits. (a)
Each Borrower shall have the right, upon at least two Business Days' notice to
the Administrative Agent, to ratably reduce the respective Commitment Amounts of
the Lenders in accordance with their Pro Rata Shares; provided that no Borrower
may reduce the Commitment Amounts by an
14
amount that is greater than the remainder of the amount of such Borrower's
Sublimit minus the Outstanding Credit Extensions to such Borrower; and provided,
further, that each partial reduction of the Commitment Amounts shall be in the
aggregate amount of $10,000,000 or an integral multiple thereof. Once reduced
pursuant to this Section 2.04, the Commitment Amounts may not be increased.
(b) Any Borrower shall have the right at any time such Borrower's
Sublimit has been reduced to zero, upon at least two Business Days' notice to
the Administrative Agent, to terminate the Commitment of each Lender with
respect to such Borrower in its entirety (but only if such Borrower concurrently
pays all of its obligations hereunder). Upon any such termination, such Borrower
shall cease to be a party hereto and shall no longer have any rights or
obligations hereunder (except under provisions hereof which by their terms would
survive any termination hereof).
(c) The Borrowers may from time to time so long as no Event of
Default or Unmatured Event of Default exists with respect to any Borrower, upon
not less than five Business Days' notice to the Administrative Agent (which
shall promptly notify each Lender), change their respective Sublimits; provided
that (i) the sum of the Sublimits shall at all times be equal to the aggregate
amount of the Commitment Amounts; and (ii) after giving effect to any adjustment
of the Sublimits, (A) each Sublimit shall be an integral multiple of $50,000,000
(except that one Sublimit may not be such an integral multiple if the aggregate
amount of the Commitment Amounts is not an integral multiple of $50,000,000);
(B) no Sublimit shall exceed $1,000,000,000; (C) the Outstanding Credit
Extensions to Exelon shall not exceed the Exelon Sublimit; (D) the Outstanding
Credit Extensions to ComEd shall not exceed the ComEd Sublimit; (E) the
Outstanding Credit Extensions to Genco shall not exceed the Genco Sublimit and
(F) the Outstanding Credit Extensions to PECO shall not exceed the PECO
Sublimit.
SECTION 2.05 Repayment of Advances. Each Borrower shall repay the
principal amount of all Advances made to it on or before the Commitment
Termination Date for such Borrower.
SECTION 2.06 Interest on Advances. Each Borrower shall pay interest on the
unpaid principal amount of each Advance made to it from the date of such Advance
until such principal amount shall be paid in full, at the following rates per
annum:
(a) At all times such Advance is a Base Rate Advance, a rate per
annum equal to the Base Rate in effect from time to time, payable quarterly on
the last day of each March, June, September and December and on the date such
Base Rate Advance is converted to a Eurodollar Rate Advance or paid in full.
(b) Subject to Section 2.07, at all times such Advance is a
Eurodollar Rate Advance, a rate per annum equal to the sum of the Eurodollar
Rate for each applicable Interest Period plus the Applicable Margin in effect
from time to time for such Borrower, payable on the last day of each Interest
Period for such Eurodollar Rate Advance (and, if any Interest Period for such
Advance is six months, on the day that is three months after the first day of
such Interest Period) or, if earlier, on the date such Eurodollar Rate Advance
is converted to a Base Rate Advance or paid in full.
15
SECTION 2.07 Additional Interest on Eurodollar Advances. Each Borrower
shall pay to each Lender, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each Eurodollar Rate Advance of such Lender made to such Borrower, from the date
of such Advance until such principal amount is paid in full or converted to a
Base Rate Advance, at an interest rate per annum equal to the remainder obtained
by subtracting (i) the Eurodollar Rate for each Interest Period for such Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is payable on such
Advance; provided that no Lender shall be entitled to demand such additional
interest more than 90 days following the last day of the Interest Period in
respect of which such demand is made; provided further, however, that the
foregoing proviso shall in no way limit the right of any Lender to demand or
receive such additional interest to the extent that such additional interest
relates to the retroactive application of the reserve requirements described
above if such demand is made within 90 days after the implementation of such
retroactive reserve requirements. Such additional interest shall be determined
by the applicable Lender and notified to the applicable Borrower through the
Administrative Agent, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
SECTION 2.08 Interest Rate Determination. (a) Each Reference Bank agrees
to furnish to the Administrative Agent timely information for the purpose of
determining each Eurodollar Rate. If any one of the Reference Banks shall not
furnish such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
applicable Borrower and the Lenders of each applicable interest rate determined
by the Administrative Agent for purposes of Section 2.06(a) or (b), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining each applicable interest rate under Section 2.06(b).
(c) If all of the Reference Banks fail to furnish timely information
to the Administrative Agent for determining the Eurodollar Rate for any
Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the
applicable Borrower and the Lenders that the interest rate cannot be
determined for such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, continue or
convert into Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall
16
notify the applicable Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the applicable Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor (unless
prepaid or converted to a Base Rate Advance prior to such day),
convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, continue or
convert into Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the applicable Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.09 Continuation and Conversion of Advances. (a) Any Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 10:00 A.M. (Chicago time) on the third Business Day prior to the date of
any proposed continuation of or conversion into Eurodollar Rate 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 Eurodollar Rate 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 Eurodollar Rate Advances
or conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
on, and only on, the last day of an Interest Period for such Eurodollar Rate
Advances, unless, in the case of such a conversion, such 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 Eurodollar Rate Advances, the
duration of the Interest Period for such Advances.
(b) If a Borrower shall fail to select the Type of any Advance or
the duration of any Interest Period for any Borrowing of Eurodollar Rate
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 such 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. Any Borrower may, upon notice to the
Administrative Agent at least three Business Days prior to any prepayment of
Eurodollar Rate Advances, or one Business Day's notice prior to 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 that Borrower
shall, 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
17
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 Eurodollar Rate 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 Eurodollar Rate Advance, such Borrower shall be obligated to reimburse the
Lenders pursuant to Section 8.04(b) on the date of such prepayment.
SECTION 2.11 Increased Costs. (a) If on or after the date of this
Agreement, any Lender or the LC Issuer determines that (i) the introduction of
or any change (other than, in the case of Eurodollar Rate Advances, any change
by way of imposition or increase of reserve requirements, included in the
Eurodollar Rate Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
shall increase the cost to such Lender or the LC Issuer, as the case may be, of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances or
of issuing or participating in any Facility LC, then the applicable Borrower
shall from time to time, upon demand by such Lender (with a copy of such demand
to the Administrative Agent) or the LC Issuer, as applicable, pay to the
Administrative Agent for the account of such Lender additional amounts (without
duplication of any amount payable pursuant to Section 2.14) sufficient to
compensate such Lender or the LC Issuer, as applicable, for such increased cost;
provided that no Lender shall be entitled to demand such compensation more than
90 days following the last day of the Interest Period in respect of which such
demand is made and the LC Issuer shall not be entitled to demand such
compensation more than 90 days following the expiration or termination (by a
drawing or otherwise) of the Facility LC in respect of which such demand is
made; provided further, however, that the foregoing proviso shall in no way
limit the right of any Lender or the LC Issuer to demand or receive such
compensation to the extent that such compensation relates to the retroactive
application of any law, regulation, guideline or request described in clause (i)
or (ii) above if such demand is made within 90 days after the implementation of
such retroactive law, interpretation, guideline or request. A certificate as to
the amount of such increased cost, submitted to the applicable Borrower and the
Administrative Agent by a Lender or the LC Issuer, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender or the LC Issuer determines that, after the date
of this Agreement, compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) regarding capital adequacy requirements affects or
would affect the amount of capital required or expected to be maintained by such
Lender or the LC Issuer or any Person controlling such Lender or the LC Issuer
(including, in any event, any determination after the date of this Agreement by
any such governmental authority or central bank that, for purposes of capital
adequacy requirements, any Lender's Commitment to a Borrower or the LC Issuer's
commitment to issue Facility LCs for the account of such Borrower as the case
may be does not constitute a commitment with an original maturity of less than
one year) and that the amount of such capital is increased by or based upon the
existence of such Lender's Commitment to such Borrower or the LC Issuer's
commitment to issue Facility LCs for the account of such Borrower, as
applicable, or the Advances made by such Lender to such Borrower or
Reimbursement Obligations owed to the LC Issuer by such Borrower, as the case
may be, then, upon demand by such Lender (with a copy of such demand to the
Administrative Agent) or the LC Issuer, as applicable, such Borrower shall
immediately pay to the Administrative Agent for the account of such Lender or LC
Issuer, as
18
applicable, from time to time as specified by such Lender or the LC Issuer, as
applicable, additional amounts sufficient to compensate such Lender, the LC
Issuer or such controlling Person, as applicable, in the light of such
circumstances, to the extent that such Lender determines such increase in
capital to be allocable to the existence of such Lender's Commitment to such
Borrower or the Advances made by such Lender to such Borrower or the LC Issuer
determines such increase in capital to be allocable to the LC Issuer's
commitment to issue Facility LCs for the account of such Borrower or the
Reimbursement Obligations owed by such Borrower to the LC Issuer; provided that
no Lender or the LC Issuer shall be entitled to demand such compensation more
than one year following the payment to or for the account of such Lender of all
other amounts payable hereunder by such Borrower and under any Note of such
Borrower held by such Lender and the termination of such Lender's Commitment to
such Borrower and the LC Issuer shall not be entitled to demand such
compensation more than one year after the expiration or termination (by drawing
or otherwise) of all Facility LCs issued for the account of such Borrower and
the termination of the LC Issuer's commitment to issue Facility LCs for the
account of such Borrower; provided further, however, that the foregoing proviso
shall in no way limit the right of any Lender or the LC Issuer to demand or
receive such compensation to the extent that such compensation relates to the
retroactive application of any law, regulation, guideline or request described
above if such demand is made within one year after the implementation of such
retroactive law, interpretation, guideline or request. A certificate as to such
amounts submitted to the applicable Borrower and the Administrative Agent by the
applicable Lender or the LC Issuer shall be conclusive and binding, for all
purposes, absent manifest error.
(c) Any Lender claiming compensation pursuant to this Section 2.11
shall use its best efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such compensation that may thereafter accrue and would not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.12 Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (i) the obligation of
such Lender to make, continue or convert Advances into Eurodollar Rate Advances
shall be suspended (subject to the following paragraph of this Section 2.12)
until the Administrative Agent shall notify the applicable Borrower and the
Lenders that the circumstances causing such suspension no longer exist and (ii)
all Eurodollar Rate Advances of such Lender then outstanding shall, on the last
day of the then applicable Interest Period (or such earlier date as such Lender
shall designate upon not less than five Business Days' prior written notice to
the Administrative Agent), be automatically converted into Base Rate Advances.
If the obligation of any Lender to make, continue or convert into
Eurodollar Rate Advances has been suspended pursuant to the preceding paragraph,
then, unless and until the Administrative Agent shall notify the applicable
Borrower and the Lenders that the circumstances causing such suspension no
longer exist, (i) all Advances that would otherwise be
19
made by such Lender as Eurodollar Rate Advances shall instead be made as Base
Rate Advances and (ii) to the extent that Eurodollar Rate Advances of such
Lender have been converted into Base Rate Advances pursuant to the preceding
paragraph or made instead as Base Rate Advances pursuant to the preceding clause
(i), all payments and prepayments of principal that would have otherwise been
applied to such Eurodollar Rate Advances of such Lender shall be applied instead
to such Base Rate Advances of such Lender.
SECTION 2.13 Payments and Computations. (a) Each Borrower shall make each
payment hereunder and under any Note issued by such Borrower not later than
10:00 A.M. (Chicago time) 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, facility fees, utilization fees and letter of
credit fees ratably (other than amounts payable pursuant to Section 2.02(b),
2.07, 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 Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Administrative Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) Each Borrower hereby authorizes each Lender, if and to the
extent any payment owed to such Lender by such Borrower is not made when due
hereunder, to charge from time to time against any or all of such Borrower's
accounts with such Lender any amount so due.
(c) All computations of interest based on the Prime 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 computations of interest based on the Eurodollar Rate
or the Federal Funds Rate and of fees shall be made by the Administrative Agent,
and all computations of interest pursuant to Section 2.07 shall be made by a
Lender, 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 (or, in the case of Section 2.07, by a Lender) of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes 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 Eurodollar Rate Advance to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
20
(e) Unless the Administrative Agent shall have received notice from
a Borrower prior to the date on which any payment is due by such Borrower to the
Lenders hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such 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 Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that such 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 Rate.
(f) Notwithstanding anything to the contrary contained herein, any
amount payable by a 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 Base Rate plus 2%, payable upon demand.
SECTION 2.14 Taxes. (a) Any and all payments by any Borrower hereunder or
under any Note issued by such Borrower shall be made, in accordance with Section
2.13, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender, the LC Issuer and
the Administrative Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender, the LC
Issuer or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If a Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note issued by such Borrower to any Lender, the LC Issuer
or the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender, the
LC Issuer or the Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower severally agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies to the extent arising from the execution, delivery or
registration of this Agreement or the Notes (hereinafter referred to as "Other
Taxes"), in each case to the extent attributable to such Borrower; it being
understood that to the extent any Other Taxes so payable are not attributable to
any particular Borrower, each Borrower shall pay its proportionate share thereof
according to the amounts of the Borrowers' respective Sublimits at the time such
Other Taxes arose.
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(c) No Lender may claim or demand payment or reimbursement in
respect of any Taxes or Other Taxes pursuant to this Section 2.14 if such Taxes
or Other Taxes, as the case may be, were imposed solely as the result of a
voluntary change in the location of the jurisdiction of such Lender's Applicable
Lending Office.
(d) Each Borrower will indemnify each Lender, the LC Issuer and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.14) paid by such Lender, the LC Issuer or
the Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted, in
each case to the extent attributable to such Borrower; it being understood that
to the extent any Taxes, Other Taxes or other liabilities described above are
not attributable to a particular Borrower, each Borrower shall pay its
proportionate share thereof according to the amounts of the Borrowers'
respective Sublimits at the time such Taxes, Other Taxes or other liability
arose. This indemnification shall be made within 30 days from the date such
Lender, the LC Issuer or the Administrative Agent (as the case may be) makes
written demand therefor.
(e) Prior to the date of an initial borrowing hereunder in the case
of each Lender listed on the signature pages hereof, and on the date of the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender, and from time to time thereafter within 30 days from the date
of request if requested by any Borrower or the Administrative Agent, each Lender
organized under the laws of a jurisdiction outside the United States shall
provide the Administrative Agent and each Borrower with the forms prescribed by
the Internal Revenue Service of the United States certifying that such Lender is
exempt from United States withholding taxes with respect to all payments to be
made to such Lender hereunder and under the Notes. If for any reason during the
term of this Agreement, any Lender becomes unable to submit the forms referred
to above or the information or representations contained therein are no longer
accurate in any material respect, such Lender shall notify the Administrative
Agent and the Borrowers in writing to that effect. Unless the Borrowers and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments hereunder or under any Note are not subject to United
States withholding tax, the Borrowers or the Administrative Agent shall withhold
taxes from such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a jurisdiction outside
the United States and no Lender may claim or demand payment or reimbursement for
such withheld taxes pursuant to this Section 2.14.
(f) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 shall use its best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts which may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(g) If a Borrower makes any additional payment to any Lender
pursuant to this Section 2.14 in respect of any Taxes or Other Taxes, and such
Lender determines that it has received (i) a refund of such Taxes or Other Taxes
or (ii) a credit against or relief or remission
22
for, or a reduction in the amount of, any tax or other governmental charge
attributable solely to any deduction or credit for any Taxes or Other Taxes with
respect to which it has received payments under this Section 2.14, such Lender
shall, to the extent that it can do so without prejudice to the retention of
such refund, credit, relief, remission or reduction, pay to such Borrower such
amount as such Lender shall have determined to be attributable to the deduction
or withholding of such Taxes or Other Taxes. If, within one year after the
payment of any such amount to such Borrower, such Lender determines that it was
not entitled to such refund, credit, relief, remission or reduction to the full
extent of any payment made pursuant to the first sentence of this Section
2.14(g), such Borrower shall upon notice and demand of such Lender promptly
repay the amount of such overpayment. Any determination made by a Lender
pursuant to this Section 2.14(g) shall in the absence of bad faith or manifest
error be conclusive, and nothing in this Section 2.14(g) shall be construed as
requiring any Lender to conduct its business or to arrange or alter in any
respect its tax or financial affairs (except as required by Section 2.14(f)) so
that it is entitled to receive such a refund, credit or reduction or as allowing
any Person to inspect any records, including tax returns, of such Lender.
(h) Without prejudice to the survival of any other agreement of any
Borrower or any Lender hereunder, the agreements and obligations of the
Borrowers and the Lenders contained in this Section 2.14 shall survive the
payment in full of principal and interest hereunder and under the Notes;
provided that no Lender shall be entitled to demand any payment from a Borrower
under this Section 2.14 more than one year following the payment to or for the
account of such Lender of all other amounts payable by such Borrower hereunder
and under any Note issued by such Borrower to such Lender and the termination of
such Lender's Commitment to such Borrower; provided further, however, that the
foregoing proviso shall in no way limit the right of any Lender to demand or
receive any payment under this Section 2.14 to the extent that such payment
relates to the retroactive application of any Taxes or Other Taxes if such
demand is made within one year after the implementation of such Taxes or Other
Taxes.
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 any Borrower or
its participation interest in any Facility LC issued for the account of any
Borrower (other than pursuant to Section 2.02(b), 2.07, 2.11, 2.14 or 8.04(b))
in excess of its ratable share of payments on account of the Advances to such
Borrower and Facility LCs issued for the account of such Borrower obtained by
all Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances made by them to such Borrower and/or LC
Obligations of such Borrower 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 Borrowers agree 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
23
as if such Lender were the direct creditor of the applicable Borrower in the
amount of such participation.
SECTION 2.16 Facility LCs.
SECTION 2.16.1 Issuance. The LC Issuer hereby agrees, on the terms
and conditions set forth in this Agreement (including the limitations set
forth in Section 2.01), upon the request of any Borrower, to issue standby
letters of credit (each a "Facility LC") and to renew, extend, increase,
decrease or otherwise modify Facility LCs ("Modify," and each such action
a "Modification") for such Borrower, from time to time from and including
the date of this Agreement and prior to the Commitment Termination Date
for such Borrower. No Facility LC shall have an expiry date later than the
earlier of (a) 364 days after the date of issuance, or of extension or
renewal, thereof or (b) 360 days after the scheduled Commitment
Termination Date. No Facility LC may be renewed or extended, or increased
in amount, after the Commitment Termination Date.
SECTION 2.16.2 Participations. Upon the issuance or Modification by
the LC Issuer of a Facility LC in accordance with this Section 2.16, the
LC Issuer shall be deemed, without further action by any party hereto, to
have unconditionally and irrevocably sold to each Lender, and each Lender
shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from the LC Issuer, a
participation in such Facility LC (and each Modification thereof) and the
related LC Obligations in proportion to its Pro Rata Share.
SECTION 2.16.3 Notice. Subject to Section 2.16.1, the applicable
Borrower shall give the LC Issuer notice prior to 10:00 A.M. (Chicago
time) at least five Business Days prior to the proposed date of issuance
or Modification of each Facility LC, specifying the beneficiary, the
proposed date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC and the
nature of the transactions proposed to be supported thereby. Upon receipt
of such notice, the LC Issuer shall promptly notify the Administrative
Agent, and the Administrative Agent shall promptly notify each Lender, of
the contents thereof and of the amount of such Lender's participation in
such proposed Facility LC. The issuance or Modification by the LC Issuer
of any Facility LC shall, in addition to the applicable conditions
precedent set forth in Article III (the satisfaction of which the LC
Issuer shall have no duty to ascertain), be subject to the conditions
precedent that such Facility LC shall be satisfactory to the LC Issuer and
that the applicable Borrower shall have executed and delivered such
application agreement and/or such other instruments and agreements
relating to such Facility LC as the LC Issuer shall have reasonably
requested (each a "Facility LC Application"). In the event of any conflict
between the terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.
SECTION 2.16.4 LC Fees. Each Borrower shall pay to the Agent, for
the account of the Lenders ratably in accordance with their respective Pro
Rata Shares, with respect to each Facility LC issued for the account of
such Borrower, a letter of credit fee at a per annum rate equal to the LC
Fee Rate to such Borrower in effect from time to time on the average daily
undrawn stated amount under such Facility LC, such fee to be payable in
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arrears on the last day of each March, June, September and December and on
the Final Termination Date for such Borrower (and thereafter on demand).
Each Borrower shall also pay to the LC Issuer for its own account (x) a
fronting fee in an amount and at the times agreed upon between the LC
Issuer and such Borrower and (y) documentary and processing charges in
connection with the issuance or Modification of and draws under Facility
LCs in accordance with the LC Issuer's standard schedule for such charges
as in effect from time to time.
SECTION 2.16.5 Administration; Reimbursement by Lenders. Upon
receipt from the beneficiary of any Facility LC of any demand for payment
under such Facility LC, the LC Issuer shall notify the Administrative
Agent and the Administrative Agent shall promptly notify the applicable
Borrower and each Lender as to the amount to be paid by the LC Issuer as a
result of such demand and the proposed payment date (the "LC Payment
Date"). The responsibility of the LC Issuer to the applicable Borrower and
each Lender shall be only to determine that the documents (including each
demand for payment) delivered under each Facility LC in connection with
such presentment shall be in conformity in all material respects with such
Facility LC. The LC Issuer shall endeavor to exercise the same care in the
issuance and administration of the Facility LCs as it does with respect to
letters of credit in which no participations are granted, it being
understood that in the absence of any gross negligence or willful
misconduct by the LC Issuer, each Lender shall be unconditionally and
irrevocably liable, without regard to the occurrence of the Commitment
Termination Date or the Final Termination Date for the applicable
Borrower, the occurrence of any Event of Default or Unmatured Event of
Default or any condition precedent whatsoever, to reimburse the LC Issuer
on demand for (i) such Lender's Pro Rata Share of the amount of each
payment made by the LC Issuer under each Facility LC to the extent such
amount is not reimbursed by the applicable Borrower pursuant to Section
2.16.6 below, plus (ii) interest on the foregoing amount to be reimbursed
by such Lender, for each day from the date of the LC Issuer's demand for
such reimbursement (or, if such demand is made after 11:00 A.M. (Chicago
time) on such day, from the next succeeding Business Day) to the date on
which such Lender pays the amount to be reimbursed by it, at a rate of
interest per annum equal to the Federal Funds Rate for the first three
days and, thereafter, at the Base Rate.
SECTION 2.16.6 Reimbursement by Borrowers. Each Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC Issuer on or
before the applicable LC Payment Date for any amount to be paid by the LC
Issuer upon any drawing under any Facility LC issued for the account of
such Borrower, without presentment, demand, protest or other formalities
of any kind; provided that neither the applicable Borrower nor any Lender
shall hereby be precluded from asserting any claim for direct (but not
consequential) damages suffered by such Borrower or such Lender to the
extent, but only to the extent, caused by (i) the willful misconduct or
gross negligence of the LC Issuer in determining whether a request
presented under any Facility LC complied with the terms of such Facility
LC or (ii) the LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. All such amounts paid by the LC Issuer and
remaining unpaid by the applicable Borrower shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the Base
Rate plus 2%. The LC Issuer
25
will pay to each Lender ratably in accordance with its Pro Rata Share all
amounts received by it from any Borrower for application in payment, in
whole or in part, of the Reimbursement Obligation in respect of any
Facility LC issued by the LC Issuer, but only to the extent such Lender
has made payment to the LC Issuer in respect of such Facility LC pursuant
to Section 2.16.5. So long as the Commitment Termination Date has not
occurred with respect to a Borrower, but subject to the terms and
conditions of this Agreement (including the submission of a Notice of
Borrowing in compliance with Section 2.02 and the satisfaction of the
applicable conditions precedent set forth in Article III), such Borrower
may request Advances hereunder for the purpose of satisfying any
Reimbursement Obligation.
SECTION 2.16.7 Obligations Absolute. Each Borrower's obligations
under this Section 2.16 shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense
to payment which such Borrower may have against the LC Issuer, any Lender
or any beneficiary of a Facility LC. Each Borrower agrees with the LC
Issuer and the Lenders that the LC Issuer and the Lenders shall not be
responsible for, and such Borrower's Reimbursement Obligation in respect
of any Facility LC issued for its account shall not be affected by, among
other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, fraudulent or forged, or any dispute between
or among such Borrower, any of its Affiliates, the beneficiary of any
Facility LC or any financing institution or other party to whom any
Facility LC may be transferred or any claims or defenses whatsoever of
such Borrower or of any of its Affiliates against the beneficiary of any
Facility LC or any such transferee. The LC Issuer shall not be liable for
any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with
any Facility LC. Each Borrower agrees that any action taken or omitted by
the LC Issuer or any Lender under or in connection with any Facility LC
issued for the account of such Borrower and the related drafts and
documents, if done without gross negligence or willful misconduct, shall
be binding upon such Borrower and shall not put the LC Issuer or any
Lender under any liability to such Borrower. Nothing in this Section
2.16.7 is intended to limit the right of any Borrower to make a claim
against the LC Issuer for damages as contemplated by the proviso to the
first sentence of Section 2.16.6.
SECTION 2.16.8 Actions of LC Issuer. The LC Issuer shall be entitled
to rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the LC Issuer. The LC Issuer
shall be fully justified in failing or refusing to take any action under
this Agreement unless it shall first have received such advice or
concurrence of the Majority Lenders as it reasonably deems appropriate or
it shall first be indemnified to its reasonable satisfaction by the
Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.16, the LC Issuer
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement
26
in accordance with a request of the Majority Lenders, and such request and
any action taken or failure to act pursuant thereto shall be binding upon
the Lenders and any future holder of a participation in any Facility LC.
SECTION 2.16.9 Indemnification. Each Borrower hereby agrees to
indemnify and hold harmless each Lender, the LC Issuer and the Agent, and
their respective directors, officers, agents and employees, from and
against any and all claims and damages, losses, liabilities, costs or
expenses which such Lender, the LC Issuer or the Agent may incur (or which
may be claimed against such Lender, the LC Issuer or the Agent by any
Person whatsoever) by reason of or in connection with the issuance,
execution and delivery or transfer of or payment or failure to pay under
any Facility LC issued for the account of such Borrower or any actual or
proposed use of any such Facility LC, including, without limitation, any
claims, damages, losses, liabilities, costs or expenses which the LC
Issuer may incur by reason of or in connection with (i) the failure of any
other Lender to fulfill or comply with its obligations to the LC Issuer
hereunder (but nothing herein contained shall affect any right such
Borrower may have against any defaulting Lender) or (ii) by reason of or
on account of the LC Issuer issuing any such Facility LC which specifies
that the term "Beneficiary" included therein includes any successor by
operation of law of the named Beneficiary, but which Facility LC does not
require that any drawing by any such successor Beneficiary be accompanied
by a copy of a legal document, satisfactory to the LC Issuer, evidencing
the appointment of such successor Beneficiary; provided that no Borrower
shall be required to indemnify any Lender, the LC Issuer or the Agent for
any claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (x) the willful misconduct or gross
negligence of the LC Issuer in determining whether a request presented
under any Facility LC complied with the terms of such Facility LC or (y)
the LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. Nothing in this Section 2.16.9 is intended
to limit the obligations of any Borrower under any other provision of this
Agreement.
SECTION 2.16.10 Lenders' Indemnification. Each Lender shall, ratably
in accordance with its Pro Rata Share, indemnify the LC Issuer, its
affiliates and their respective directors, officers, agents and employees
(to the extent not reimbursed by the Borrower) against any cost, expense
(including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such indemnitees'
gross negligence or willful misconduct or the LC Issuer's failure to pay
under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of the Facility LC) that such
indemnitees may suffer or incur in connection with this Section 2.16 or
any action taken or omitted by such indemnitees hereunder.
SECTION 2.16.11 Rights as a Lender. In its capacity as a Lender, the
LC Issuer shall have the same rights and obligations as any other Lender.
SECTION 2.17 Extension of Commitment Termination Date. Exelon may request
an extension of the scheduled Commitment Termination Date for all Borrowers by
submitting a request for an extension to the Administrative Agent (an "Extension
Request") no more than 60
27
days prior to the scheduled Commitment Termination Date then in effect. The
Extension Request must specify the new scheduled Commitment Termination Date
requested by Exelon and the date (which must be at least 30 days after the
Extension Request is delivered to the Administrative Agent) as of which the
Lenders must respond to the Extension Request (the "Response Date"). The new
scheduled Commitment Termination Date shall be 364 days after the scheduled
Commitment Termination Date in effect at the time an Extension Request is
received, including the scheduled Commitment Termination Date as one of the days
in the calculation of the days elapsed. Promptly upon receipt of an Extension
Request, the Administrative Agent shall notify each Lender of the contents
thereof and shall request each Lender to approve such Extension Request, which
approval shall be at the sole discretion of each Lender. Each Lender approving
such Extension Request shall deliver its written consent no later than the
Response Date. If the written consent of each of the Lenders (excluding any
Person which ceases to be a Lender pursuant to Section 8.07(g)(iii)) is received
by the Administrative Agent, the new scheduled Commitment Termination Date
specified in the Extension Request shall become effective on the existing
scheduled Commitment Termination Date and the Administrative Agent shall
promptly notify each Borrower and each Lender of the new scheduled Commitment
Termination Date. If all Lenders (including any Person which becomes a Lender
pursuant to Section 8.07(g)) do not consent to an Extension Request, the
scheduled Commitment Termination Date shall not be extended pursuant to such
Extension Request.
ARTICLE III
CONDITIONS TO CREDIT EXTENSIONS
SECTION 3.01 Conditions Precedent to Initial Credit Extensions. No Lender
shall be obligated to make any Advance, and the LC Issuer shall not be obligated
to issue any Facility LC, unless the Administrative Agent shall have received
(a) evidence, satisfactory to the Administrative Agent, that the Borrowers have
paid (or will pay with the proceeds of the initial Credit Extensions) all
amounts then payable under the Existing Agreement and (b) each of the following
documents, each dated the date of the initial Credit Extension (or an earlier
date satisfactory to the Administrative Agent), in form and substance
satisfactory to the Administrative Agent and each (except for the Notes) in
sufficient copies to provide one for each Lender:
(i) The Notes payable to the order of each of the Lenders,
respectively;
(ii) Certified copies of resolutions of the Board of Directors
or equivalent managing body of each Borrower approving the
transactions contemplated by this Agreement and the Notes and of all
documents evidencing other necessary organizational action of such
Borrower with respect to this Agreement and the documents
contemplated hereby;
(iii) A certificate of the Secretary or an Assistant Secretary
of each Borrower certifying (A) the names and true signatures of the
officers of such 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
28
articles or certificate of incorporation and by-laws, or equivalent
organizational documents, of such 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 such Borrower of this Agreement and the documents contemplated
hereby;
(iv) A certificate signed by either the chief financial
officer, principal accounting officer or treasurer of each 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 Event of Default or
Unmatured Event of Default has occurred and is continuing on the
date of such certificate; and
(v) A favorable opinion of Ballard Spahr Andrews & Ingersoll
LLC, special counsel for the Borrowers, substantially in the form of
Exhibit D-1 hereto.
SECTION 3.02 Conditions Precedent to All Credit Extensions. The obligation
of each Lender to make any Advance to any Borrower and of the LC Issuer to issue
or modify any Facility LC for the account of any Borrower shall be subject to
the further conditions precedent that on the date of such Credit Extension the
following statements shall be true, and (a) the giving of the applicable Notice
of Borrowing and the acceptance by the applicable Borrower of the proceeds of
Advances pursuant thereto and (b) the request by a Borrower for the issuance or
Modification of a Facility LC shall, in each case, constitute a representation
and warranty by such Borrower that on the date of the making of such Advances or
the issuance or Modification of such Facility LC such statements are true:
(A) The representations and warranties of such Borrower
contained in Section 4.01 are correct on and as of the date of such Credit
Extension, before and after giving effect to such Credit Extension and, in
the case of the making of Advances, the application of the proceeds
therefrom, as though made on and as of such date; and
(B) No event has occurred and is continuing, or would result
from such Credit Extension or, in the case of the making of Advances, from
the application of the proceeds therefrom, that constitutes an Event of
Default or Unmatured Event of Default with respect to such Borrower.
SECTION 3.03 Additional Conditions Precedent to Initial Credit Extension
to Genco. The obligation of each Lender to make its initial Advance to Genco and
of the LC Issuer to issue any Facility LC for the account of Genco shall be
subject to the further conditions precedent that (a) Genco shall have delivered
audited financial statements to the Administrative Agent and the Lenders and (b)
100% of the Lenders shall have notified the Administrative Agent that such
audited financial statements are satisfactory in form and substance to such
Lenders.
SECTION 3.04 Additional Condition Precedent to Initial Credit Extension to
ComEd. The obligation of each Lender to make its initial Advance to ComEd and of
the LC Issuer to issue any Facility LC for the account of ComEd shall be subject
to the further condition
29
precedent that the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent and in sufficient copies to
provide one for each Lender, a favorable opinion of Sidley Austin Brown & Wood,
special counsel for ComEd, substantially in the form of Exhibit D-2 hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) Such Borrower is a corporation, limited liability company or
business trust duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization.
(b) The execution, delivery and performance by such Borrower of this
Agreement and the Notes issued by such Borrower are within such Borrower's
powers, have been duly authorized by all necessary organizational action on the
part of such Borrower, and do not and will not contravene (i) the articles or
certificate of incorporation, by-laws or the organizational documents of such
Borrower, (ii) applicable law or (iii) any contractual or legal restriction
binding on or affecting the properties of such Borrower or any of its
Subsidiaries.
(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 such Borrower of this Agreement
or the applicable Notes, except an appropriate order or orders of (i) the
Securities and Exchange Commission under the Public Utility Holding Company Act
of 1935 and (ii) in the case of ComEd, the Illinois Commerce Commission under
the Illinois Public Utilities Act, which order or orders have been duly obtained
(or, in the case of the order or orders referred to in clause (ii), will have
been obtained prior to any Credit Extension to ComEd) and are (or, in the case
of the order or orders referred to in clause (ii), will be at the time of any
Credit Extension to ComEd) (x) in full force and effect and (y) sufficient for
the purposes hereof.
(d) This Agreement is, and the applicable Notes when delivered
hereunder will be, legal, valid and binding obligations of such Borrowers,
enforceable against such Borrower in accordance with their respective terms,
except as the enforceability thereof may be limited by equitable principles or
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(e) (i) In the case of PECO, the consolidated balance sheet of PECO
and its Subsidiaries as at December 31, 2000, and the related
statements of income and retained earnings and of cash flows of PECO
and its Subsidiaries for the fiscal year then ended, certified by
Pricewaterhouse Coopers LLP, and the unaudited consolidated balance
sheet of PECO and its Subsidiaries as at September 30, 2001, and the
related unaudited statement of income for the nine-month period then
ended, copies of which have been furnished to each Lender,
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fairly present in all material respects (subject, in the case of
such balance sheet and statement of income for the period ended
September 30, 2001, to year-end adjustments) the consolidated
financial condition of PECO and its Subsidiaries as at such dates
and the consolidated results of the operations of PECO and its
Subsidiaries for the periods ended on such dates, all in accordance
with GAAP; and since September 30, 2001 there has been no Material
Adverse Change with respect to PECO.
(ii) In the case of ComEd, the consolidated balance sheet of
ComEd and its Subsidiaries as at December 31, 2000 and the related
consolidated statements of income, retained earnings and cash flows
of ComEd and its Subsidiaries for the fiscal year then ended,
certified by Pricewaterhouse Coopers LLP, and the unaudited
consolidated balance sheet of ComEd and its Subsidiaries as of
September 30, 2001 and the related unaudited statement of income for
the nine-month period then ended, copies of which have been
furnished to each Lender, fairly present in all material respects
(subject in the case of such balance sheet and statement of income
for the period ended September 30, 2001, to year-end adjustments)
the consolidated financial condition of ComEd and its Subsidiaries
as at such dates and the consolidated results of the operations of
ComEd and its Subsidiaries for the periods ended on such dates in
accordance with GAAP; and since December 31, 2000 there has been no
Material Adverse Change with respect to ComEd.
(iii) In the case of Exelon, the consolidated balance sheet of
Exelon and its Subsidiaries as at December 31, 2000 and the related
consolidated statements of income, retained earnings and cash flows
of Exelon for the fiscal year then ended, certified by
Pricewaterhouse Coopers LLP, and the unaudited consolidated balance
sheet of Exelon and its Subsidiaries as of September 30, 2001 and
the related unaudited statement of income for the nine-month period
then ended, copies of which have been furnished to each Lender,
fairly present in all material respects (subject, in the case of
such balance sheet and statement of income for the period ended
September 30, 2001, to year-end adjustments) the consolidated
financial condition of Exelon and its Subsidiaries as at such dates
and the consolidated results of the operations of Exelon and its
Subsidiaries for the periods ended on such dates in accordance with
GAAP; and since December 31, 2000 there has been no Material Adverse
Change with respect to Exelon.
(f) Except as disclosed in such Borrower's (and, in the case of
Genco, Exelon's) Annual, Quarterly or Current Reports, each as filed with the
Securities and Exchange Commission and delivered to the Lenders prior to the
later of the date of execution and delivery of this Agreement or the date of the
most recent extension of the Commitment Termination Date pursuant to Section
2.17, there is no pending or threatened action, investigation or proceeding
affecting such Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that may reasonably be anticipated to have a
Material Adverse Effect with respect to such Borrower. There is no pending or
threatened action or proceeding against such Borrower or any of its Subsidiaries
that purports to affect the legality, validity, binding effect or enforceability
against such Borrower of this Agreement or any Note issued by such Borrower.
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(g) No proceeds of any Loan to such Borrower 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.
(h) Such Borrower is not engaged 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 to such Borrower 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 such Borrower and its Subsidiaries is represented by margin stock.
(i) Such Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(j) 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
borrowing of Advances by such Borrower or the issuance or modification of any
Facility LC for the account of such Borrower, no steps have been taken to
terminate any Plan, and no contribution failure by such Borrower or any other
member of the Controlled Group has occurred with respect to any Plan. No
condition exists or event or transaction has occurred with respect to any Plan
(including any Multiemployer Plan) which might result in the incurrence by such
Borrower or any other member of the Controlled Group of any material liability,
fine or penalty.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01 Affirmative Covenants. Each Borrower agrees that so long as
any amount payable by such Borrower hereunder remains unpaid, any Facility LC
issued for the account of such Borrower remains outstanding or any Lender has
any Commitment to such Borrower hereunder, such 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) Keep Books; Existence; Maintenance of Properties; Compliance
with Laws; Insurance; Taxes.
(i) keep proper books of record and account, all in accordance
with generally accepted accounting principles in the United States,
consistently applied;
(ii) subject to Section 5.02(b), preserve and keep in full
force and effect its existence;
(iii) maintain and preserve all of its properties (except such
properties the failure of which to maintain or preserve would not
have, individually or in the aggregate, a Material Adverse Effect on
such Borrower) which are used or useful
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in the conduct of its business in good working order and condition,
ordinary wear and tear excepted;
(iv) comply in all material respects with the requirements of
all applicable laws, rules, regulations and orders (including those
of any governmental authority and including with respect to
environmental matters) to the extent the failure to so comply,
individually or in the aggregate, would have a Material Adverse
Effect on such Borrower;
(v) maintain insurance with responsible and reputable
insurance companies or associations, or self-insure, as the case may
be, in each case in such amounts and covering such contingencies,
casualties and risks as is customarily carried by or self-insured
against by companies engaged in similar businesses and owning
similar properties in the same general areas in which such Borrower
and its Principal Subsidiaries operate;
(vi) at any reasonable time and from time to time, pursuant to
prior notice delivered to such 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, such Borrower and
any of its Principal Subsidiaries and to discuss the affairs,
finances and accounts of such Borrower and any of its Principal
Subsidiaries with any of their respective officers; provided that
any non-public information (which has been identified as such by
such Borrower or the applicable Principal Subsidiary) obtained by
any Lender or any of its agents or representatives pursuant to this
subsection (vi) shall be treated confidentially by such Person;
provided, further, that such Person may disclose such information to
any other party to this Agreement, its examiners, affiliates,
outside auditors, counsel or other professional advisors in
connection with the Agreement or if otherwise required to do so by
law or regulatory process; and
(vii) use the proceeds of the Advances to it for general
purposes of such corporation, limited liability company or business
trust, as the case may be (including, without limitation, the
refinancing of its commercial paper and the making of acquisitions),
but in no event for any purpose which would be contrary to clause
(g) or clause (h) of Section 4.01.
(b) Reporting Requirements. Furnish to the Lenders:
(i) as soon as possible, and in any event within five Business
Days after the occurrence of any Event of Default or Unmatured Event
of Default with respect to such Borrower continuing on the date of
such statement, a statement of an authorized officer of such
Borrower setting forth details of such Event of Default or Unmatured
Event of Default and the action which such Borrower proposes to take
with respect thereto;
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(ii) 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 such Borrower (commencing with the quarter ending March 31,
2002), a copy of such Borrower's Quarterly Report on Form 10-Q filed
with the Securities and Exchange Commission with respect to such
quarter (or, if such Borrower is not required to file a Quarterly
Report on Form 10-Q, copies of an unaudited consolidated balance
sheet of such Borrower as of the end of such quarter and the related
consolidated statement of income of such Borrower for the portion of
such 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 such Borrower stating that
no Event of Default or Unmatured Event of Default with respect to
such Borrower has occurred and is continuing or, if any such Event
of Default or Unmatured Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action
which such Borrower proposes to take with respect thereto;
(iii) as soon as available and in any event within 105 days
after the end of each fiscal year of such Borrower, a copy of such
Borrower's Annual Report on Form 10-K filed with the Securities and
Exchange Commission with respect to such fiscal year (or, if such
Borrower is not required to file an Annual Report on Form 10-K, the
consolidated balance sheet of such Borrower and its subsidiaries as
of the last day of such fiscal year and the related consolidated
statements of income, retained earnings (if applicable) and
cashflows of such Borrower for such fiscal year, certified by
Pricewaterhouse Coopers LLP or other certified public accountants of
recognized national standing), together with a certificate of an
authorized officer of such Borrower stating that no Event of Default
or Unmatured Event of Default with respect to such Borrower has
occurred and is continuing or, if any such Event of Default or
Unmatured Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action which such
Borrower proposes to take with respect thereto;
(iv) concurrently with the delivery of the annual and
quarterly reports referred to in Sections 5.01(b)(ii) and
5.01(b)(iii), a compliance certificate in substantially the form set
forth in Exhibit E, duly completed and signed by the Chief Financial
Officer, Treasurer or an Assistant Treasurer of such Borrower;
(v) except as otherwise provided in subsections (ii) and (iii)
above, promptly after the sending or filing thereof, copies of all
reports that such Borrower sends to any of its security holders, and
copies of all Reports on Form 10-K, 10-Q or 8-K, and registration
statements and prospectuses that such Borrower or any of its
Subsidiaries 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 or dividend reinvestment plans of
such Borrower or such Subsidiary);
34
(vi) promptly upon becoming aware of the institution of any
steps by such 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 302(f) of
ERISA, or the taking of any action with respect to a Plan which
could result in the requirement that such 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 such 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 such Borrower proposes to take with respect
thereto;
(vii) promptly upon becoming aware thereof, notice of any
change in the Moody's Rating or the S&P Rating for such Borrower;
and
(viii) such other information respecting the condition,
operations, business or prospects, financial or otherwise, of such
Borrower or any of its Subsidiaries as any Lender, through the
Administrative Agent, may from time to time reasonably request.
SECTION 5.02 Negative Covenants. Each Borrower agrees that so long as any
amount payable by such Borrower hereunder remains unpaid, any Facility LC issued
for the account of such Borrower remains outstanding or any Lender has any
Commitment to such Borrower hereunder (except with respect to subsection (a),
which shall be applicable only as of the date hereof and at any time any Advance
to such Borrower or Facility LC issued for the account of such Borrower is
outstanding or is to be made or issued, as applicable), such Borrower will not,
without the written consent of the Majority Lenders:
(a) Limitation on Liens. Create, incur, assume or suffer to exist,
or, in the case of Exelon, permit any of its Material Subsidiaries to create,
incur, assume or suffer to exist, any Lien on its respective property, revenues
or assets, whether now owned or hereafter acquired except (i) Liens imposed by
law, such as carriers', warehousemen's and mechanics' Liens and other similar
Liens arising in the ordinary course of business; (ii) Liens on the capital
stock of or any other equity interest in any of its Subsidiaries (excluding, in
the case of Exelon, the stock of ComEd, PECO, Genco and any holding company for
any of the foregoing) or any such Subsidiary's assets to secure Nonrecourse
Indebtedness; (iii) 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; (iv) Liens existing on such property at the time of its
acquisition (other than any such Lien created in contemplation of such
acquisition unless permitted by the preceding clause (iii)); (v) Liens on the
property, revenues and/or assets of any Person that exist at the time such
Person becomes a Subsidiary and the continuation of such Liens in connection
with any refinancing or restructuring of the obligations secured by such Liens;
(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 granted by a Special Purpose Subsidiary to
secure Transitional Funding Instruments of
35
such Special Purpose Subsidiary; (ix) in the case of ComEd, Liens arising under
the ComEd Mortgage and "permitted liens" as defined in the ComEd Mortgage; (x)
in the case of PECO, (A) Liens granted under the PECO Mortgage and "excepted
encumbrances" as defined in the PECO Mortgage and (B) Liens securing PECO's
notes collateralized solely by mortgage bonds of PECO issued under the terms of
the PECO Mortgage; (xi) in the case of PECO, ComEd and Genco, Liens arising in
connection with sale and leaseback transactions entered into by such Borrower or
a Subsidiary thereof, but only to the extent (I) in the case of PECO or ComEd or
any Subsidiary thereof, the proceeds received from such sale shall immediately
be applied to retire mortgage bonds of PECO or ComED issued under the terms of
the PECO Mortgage or the ComEd Mortgage, as the case may be, or (II) the
aggregate purchase price of assets sold pursuant to such sale and leaseback
transactions where such proceeds are not applied as provided in clause (I) shall
not exceed, in the aggregate for PECO, ComEd, Genco and their Subsidiaries,
$1,000,000,000; and (xii) Liens, other than those described in clauses (i)
through (xi) of this subsection, granted by such Borrower or, in the case of
Exelon, any of its Material Subsidiaries in the ordinary course of business
securing Debt of such Borrower and, if applicable, such Material Subsidiaries;
provided that the aggregate amount of all Debt secured by such Liens shall not
exceed in the aggregate at any one time outstanding (I) in the case of Exelon
and its Material Subsidiaries, $100,000,000, (II) in the case of ComEd,
$50,000,000, (III) in the case of Genco, $50,000,000, and (IV) in the case of
PECO, $50,000,000.
(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 acquired) to any Person or
permit any Principal Subsidiary to do so, except that (i) any of its Principal
Subsidiaries may merge with or into or consolidate with or transfer assets to
any other Principal Subsidiary of such Borrower, (ii) any of its Principal
Subsidiaries may merge with or into or consolidate with or transfer assets to
such Borrower and (iii) such Borrower or any of its Principal Subsidiaries may
merge with or into or consolidate with or transfer assets to any other Person;
provided that, in each case, immediately thereafter in giving effect thereto, no
Event of Default or Unmatured Event of Default with respect to such Borrower
shall have occurred and be continuing and (A) in the case of any such merger,
consolidation or transfer of assets to which a Borrower is a party, either (x)
such Borrower shall be the surviving entity or (y) the surviving entity shall be
an Eligible Successor and shall have assumed all of the obligations of such
Borrower under this Agreement and the Notes issued by such Borrower and the
Facility LCs issued for the account of such Borrower pursuant to a written
instrument in form and substance satisfactory to the Administrative Agent, (B)
subject to clause (A) above, in the case of any such merger, consolidation or
transfer of assets to which any of its Principal Subsidiaries is a party, a
Principal Subsidiary of such Borrower shall be the surviving entity and (C)
subject to clause (A) above, in the case of any such merger, consolidation or
transfer of assets to which a Material Subsidiary of Exelon is a party, a
Material Subsidiary of Exelon shall be the surviving entity.
(c) Leverage Ratios. Permit its Leverage Ratio to exceed 65% at any
time.
(d) Continuation of Businesses. Engage in, or permit any of its
Subsidiaries to engage in, any line of business which is material to Exelon and
its Subsidiaries, taken as a whole, other than businesses engaged in by such
Borrower and its Subsidiaries as of the date hereof and reasonable extensions
thereof.
36
(e) Capital Structure. In the case of Exelon, fail at any time to
own, free and clear of all Liens, at least 95% of the issued and outstanding
common shares or other common ownership interests of ComEd, 100% of the issued
and outstanding common shares or other common ownership interests of PECO and
100% of the issued and outstanding membership interests of Genco (or, in any
such case, of a holding company which owns, free and clear of all Liens, at
least 95% of the issued and outstanding shares of common stock of ComEd, 100% of
the issued and outstanding common shares or other common ownership interests of
PECO or 100% of the issued and outstanding membership interests of Genco).
(f) Restrictive Agreements. In the case of Exelon, permit ComEd,
Genco or PECO (or any holding company for any of the foregoing described in the
parenthetical clause at the end of 5.02(e)) to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of such entity to
declare or pay dividends to Exelon (or, if applicable, to its holding company),
except for existing restrictions on (i) PECO relating to (A) the priority of
payments on its subordinated debentures contained in the Indenture dated as of
July 1, 1994 between PECO and First Union National Bank, as trustee, as amended
and supplemented to the date hereof, and (B) the priority payment of quarterly
dividends on its preferred stock contained in its Amended and Restated Articles
of Incorporation as in effect on the date hereof.; and (ii) ComEd in connection
with its existing Subordinated Deferrable Interest Securities.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following events shall occur
and be continuing with respect to a Borrower (any such event an "Event of
Default" with respect to such Borrower):
(a) Such Borrower shall fail to pay (i) any principal of any Advance
to such Borrower when the same becomes due and payable, (ii) any Reimbursement
Obligation of such Borrower within one Business Day after the same becomes due
and payable or (iii) any interest on any Advance to such Borrower or any other
amount payable by such Borrower under this Agreement or any Note issued by such
Borrower within three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by such Borrower herein or
by such 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) Such Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.02, Section 5.01(a)(vii) or Section
5.01(b)(i), in each case to the extent applicable to such Borrower, 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 such Borrower by the Administrative Agent
(which notice shall be given by the Administrative Agent at the written request
of any Lender); or
37
(d) Such Borrower or any Principal Subsidiary thereof shall fail to
pay any principal of or premium or interest on any Debt that is outstanding in a
principal amount in excess of $50,000,000 in the aggregate (but excluding Debt
evidenced by the Notes, Nonrecourse Indebtedness and Transitional Funding
Instruments) of such Borrower or such Principal Subsidiary (as the case may be)
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 Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt 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 Debt; or any
such Debt 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 Debt secured by equipment
leases or fuel leases of such Borrower or a Principal Subsidiary thereof 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 with respect to such Borrower; or
(e) Such Borrower or any Principal Subsidiary thereof (other than a
Special Purpose 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 such Borrower or any Principal
Subsidiary thereof (other than a Special Purpose 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, without limitation, 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 such Borrower or any Principal Subsidiary thereof
(other than a Special Purpose Subsidiary) shall take any action to authorize or
to consent to any of the actions set forth above in this subsection (e); or
(f) One or more judgments or orders for the payment of money in an
aggregate amount exceeding $50,000,000 (excluding any such judgments or orders
which are fully covered by insurance, subject to any customary deductible, and
under which the applicable insurance carrier has acknowledged such full coverage
in writing) shall be rendered against such Borrower or any Principal Subsidiary
thereof 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 might constitute grounds for the termination of any Plan or for the
appointment by the appropriate United States District Court of a trustee to
administer a Plan shall have occurred and
38
be continuing 30 days after written notice to such effect shall have been given
to such Borrower by the Administrative Agent or (ii) any Plan shall be
terminated, or (iii) a Trustee shall be appointed by an appropriate United
States District Court to administer any Plan or (iv) the PBGC shall institute
proceedings to terminate any Plan or to appoint a trustee to administer any
Plan; provided, however, that on the date of any event described in clauses (i)
through (iv) above, the Unfunded Liabilities of such Plan exceed $20,000,000; or
(h) In the case of ComEd, Exelon (or a wholly owned Subsidiary of
Exelon) shall fail to own, free and clear of all Liens, at least 95% of its
issued and outstanding common shares or other common ownership interests;
(i) In the case of PECO, Exelon (or a wholly owned Subsidiary of
Exelon) shall fail to own, free and clear of all Liens, 100% of its issued and
outstanding common shares or other common ownership interests; or
(j) In the case of Genco, Exelon (or a wholly owned Subsidiary of
Exelon) shall fail to own, free and clear of all Liens, 100% of the membership
interests of Genco;
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 such Borrower, (i)
declare the respective Commitments of the Lenders to such Borrower and the
commitment of the LC Issuer to issue Facility LCs for the account of such
Borrower to be terminated, whereupon the same shall forthwith terminate, and/or
(ii) declare the principal amount outstanding under the Notes issued by such
Borrower, all interest thereon and all other amounts payable under this
Agreement by such Borrower (including all contingent LC Obligations) to be
forthwith due and payable, whereupon the principal amount outstanding under such
Notes, 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 such Borrower;
provided, however, 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 such Borrower
and the obligation of the LC Issuer to issue Facility LCs for the account of
such Borrower shall automatically be terminated and (B) the principal amount
outstanding under the Notes issued by such Borrower, all interest thereon and
all other amounts payable by such Borrower hereunder (including all contingent
LC Obligations of such Borrower) 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 such Borrower.
ARTICLE VII
THE AGENTS
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, without limitation, enforcement or collection of
the Notes), the Administrative Agent shall not be required to exercise any
discretion
39
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 and all holders of Notes; provided, however, 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 a Borrower pursuant to the
terms of this Agreement.
SECTION 7.02 Agents' 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 limitation of the generality of the foregoing: (i)
the Administrative Agent may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender which is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii) the
Administrative Agent may consult with legal counsel (including counsel for a
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
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; (iv) 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 any Borrower or to inspect the
property (including the books and records) of any Borrower; (v) 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 (vi) 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 telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03 Agents and Affiliates. With respect to its Commitment,
Advances and Notes, Bank One shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not an
Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Bank One in its individual capacity. Bank One 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, any Borrower,
any subsidiary of any Borrower and any Person who may do business with or own
securities of any Borrower or any such subsidiary, all as if it were not an
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
40
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 agree to indemnify each Agent
(to the extent not reimbursed by a 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 any such Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by any such 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 such Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse each such Agent promptly upon demand for its Pro Rata
Share of any out-of-pocket expenses (including reasonable counsel fees) incurred
by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
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 a Borrower but for which such Agent is not
reimbursed by such 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
Borrowers 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" and having a combined capital and surplus of
at least $150,000,000. 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 Event of Default or Unmatured 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 Borrowers, which consent shall not be unreasonably withheld or
delayed.
SECTION 7.07 Co-Documentation Agents, Co-Syndication Agents and Lead
Arranger. The titles "Co-Documentation Agent," "Co-Syndication Agent" and "Lead
Arranger and Sole Book Runner" are purely honorific, and no Person designated as
a "Co-Documentation Agent," a "Co-Syndication Agent" or the "Lead Arranger and
Sole Book Runner" shall have any duties or responsibilities in such capacity.
41
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders (other than any Lender that is a Borrower
or an Affiliate of a Borrower), do any of the following: (a) waive any of the
conditions specified in Section 3.01, 3.02 or 3.03, (b) increase or extend the
Commitments of the Lenders, increase any Borrower's Sublimit to an amount
greater than the amount specified in Section 2.04(c)(ii)(B) or subject the
Lenders to any additional obligations, (c) reduce the principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, (d) postpone any
date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, or (f) amend this Section 8.01; provided, further, that
(i) 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 or any Note; and (ii) no amendment, waiver or consent shall, unless in
writing and signed by the LC Issuer, in addition to the Lenders required above
to take such action, affect the rights or duties of the LC Issuer under this
Agreement.
SECTION 8.02 Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic, telex or
cable communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to any Borrower, at 10 S. Dearborn, 37th Floor, Chicago, IL 60603,
Attention: J. Barry Mitchell, Telecopy: (312) 394-5440; if to any Lender listed
on the signature pages hereof, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Administrative Agent, at its address at 1 Bank One Plaza,
Mail Suite 0634, 1FPN-10, Chicago, Illinois 60670, Attention: Mr. Ron Cromey,
Telecopy: (312) 732-4840 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, when mailed, telecopied, telegraphed, telexed
or cabled, be effective when deposited in the mails, telecopied, delivered to
the telegraph company, confirmed by telex answerback or delivered to the cable
company, respectively, 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,
the LC Issuer or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note 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.
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SECTION 8.04 Costs and Expenses; Indemnification. (a) Each Borrower
severally agrees to pay on demand all costs and expenses incurred by the
Administrative Agent, the LC Issuer and the Lead Arranger in connection with the
preparation, execution, delivery, administration, syndication, modification and
amendment of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees, internal charges
and out-of-pocket expenses of counsel (including, without limitation, in-house
counsel) for the Administrative Agent, the LC issuer and the Lead Arranger with
respect thereto and with respect to advising the Administrative Agent, the LC
Issuer and the Lead Arranger as to their respective rights and responsibilities
under this Agreement, in each case to the extent attributable to such Borrower;
it being understood that to the extent any such costs and expenses are not
attributable to a particular Borrower, each Borrower shall pay its proportionate
share thereof according to the Borrowers' respective Sublimits at the time such
costs and expenses were incurred. Each Borrower further severally agrees to pay
on demand all costs and expenses, if any (including, without limitation, counsel
fees and expenses of outside counsel and of internal counsel), incurred by the
Agent, the LC Issuer or any Lender in connection with the collection and
enforcement (whether through negotiations, legal proceedings or otherwise) of
such Borrower's obligations this Agreement, the Notes issued by such Borrower
and the other documents to be delivered by such Borrower hereunder, including,
without limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 8.04(a), in each case to the extent
attributable to such Borrower; it being understood that to the extent any such
costs and expenses are not attributable to a particular Borrower, each Borrower
shall pay its proportionate share thereof according to the Borrowers' respective
Sublimits at the time such costs and expenses were incurred.
(b) If any payment of principal of, or any conversion of, any
Eurodollar Rate 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 Notes pursuant to
Section 6.01 or for any other reason, the applicable 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 losses, costs or expenses which it may
reasonably incur as a result of such payment or conversion, including, without
limitation, 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) Each Borrower hereby severally agrees to indemnify and hold each
Lender, the LC Issuer, each Agent and each of their respective Affiliates,
officers, directors and employees (each, an "Indemnified Person") harmless from
and against any and all claims, damages, losses, liabilities, costs or expenses
(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, the
Notes or the transactions contemplated thereby, or the use by such Borrowers or
any of its Subsidiaries of the proceeds of any Advance to such Borrower, in each
case to the extent such claims damages, losses, liabilities, costs or expenses
are attributable to such Borrower, it being understood that to the extent any
such claims, damages, losses, liabilities, costs or expenses are not
attributable to a particular Borrower, each Borrower shall pay its proportionate
share thereof according to the Borrowers'
43
respective Sublimits at the time such claims, damages, losses, liabilities,
costs or expenses arose; provided, however, that no Borrower shall be liable for
any portion of such claims, damages, losses, liabilities, costs or expenses
resulting from such Indemnified Person's gross negligence or willful misconduct.
Each Borrower's obligations under this Section 8.04(c) shall survive the
repayment of all amounts owing by such Borrower to the Lenders and the
Administrative Agent under this Agreement and the Notes issued by such Borrower
and the termination of the Commitments to such Borrower. If and to the extent
that the obligations of a Borrower under this Section 8.04(c) are unenforceable
for any reason, such Borrower agrees to make the maximum contribution to the
payment and satisfaction thereof which is permissible under applicable law.
SECTION 8.05 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default with respect to a Borrower 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 Notes issued by such
Borrower due and payable pursuant to the provisions of Section 6.01, each Lender
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of such
Borrower against any and all of the obligations of such Borrower now or
hereafter existing under this Agreement and any Note of such Borrower held by
such Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the applicable Borrower 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. The rights
of each Lender under this Section 8.05 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender may have.
SECTION 8.06 Binding Effect. This Agreement shall become effective when
counterparts hereof shall have been executed by the Borrowers and the Agents and
when the Administrative Agent shall have been notified by each Lender that such
Lender has executed a counterpart hereof and thereafter shall be binding upon
and inure to the benefit of the Borrowers, the Agents and each Lender and their
respective successors and assigns, provided that (except as permitted by Section
5.02(b)(iii)) no Borrower shall 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 Exelon, the LC Issuer and the Administrative Agent
(which consents shall not be unreasonably withheld or delayed), and if demanded
by a Borrower pursuant to subsection (g) hereof shall to the extent required by
such subsection (g), assign to one or more banks or other entities all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it, its
participation in Facility LCs and the Note or Notes held by it); provided,
however, 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 Acceptance with respect to such assignment) shall in no event be
less than $10,000,000 or, if less, the entire amount of such Lender's
Commitment, and shall be an integral multiple of
44
$1,000,000 or such Lender's entire Commitment, (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 Acceptance, together with any Note
or Notes subject to such assignment and a processing and recordation fee of
$4,000 (which shall be payable by one or more of the parties to the Assignment
and Acceptance, and not by any Borrower, and shall not be payable if the
assignee is a Federal Reserve Bank), and (v) the consent of Exelon shall not be
required after the occurrence and during the continuance of any Event of
Default. Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance, (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
Acceptance, have the rights 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 Acceptance,
relinquish its rights and be released from its obligations under this Agreement
and, in the case of an Assignment and Acceptance 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 Exelon, the LC Issuer 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 and (B) any Lender may at any time, without the
consent of Exelon, the LC Issuer or the Administrative Agent, and without any
requirement to have an Assignment and Acceptance executed, assign all or any
part of its rights under this Agreement and its Notes to a Federal Reserve Bank,
provided that any such assignment does not release the transferor Lender from
any of its obligations hereunder.
(b) By executing and delivering an Assignment and Acceptance, 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 Acceptance, 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 any
Borrower or the performance or observance by any 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 information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (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
45
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 Acceptance 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 by each Borrower 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 each Borrower, the Administrative Agent and the Lenders may
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 any 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 Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with all Notes subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrowers. Within five Business Days
after its receipt of such notice, each Borrower, at its own expense, shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note issued by such Borrower a new Note to the order of such Eligible Assignee
in an amount equal to the product of the Commitment Amount assumed by such
Eligible Assignee pursuant to such Assignment and Acceptance multiplied by the
percentage which such Borrower's Sublimit is of the aggregate amount of the
Commitment Amounts (the "Sublimit Percentage") and, if the assigning Lender has
retained a Commitment hereunder, a new Note to the order of the assigning Lender
in an amount equal to the product of the Commitment Amount of such assigning
Lender after giving effect to such assignment multiplied by the Sublimit
Percentage. Each such new Note or Notes shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or
other entities (each, a "Participant") in or to all or a portion of its rights
and/or obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it, its participation in
Facility LCs and the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the Borrowers, 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 and (v) such Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of this Agreement or the Note or Notes held by such
Lender, other than any such amendment, modification or waiver with respect to
any Advance or Commitment in which such Participant has an interest that
forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Advance or Commitment, postpones any date fixed
for any regularly scheduled payment of principal of, or interest or fees on, any
such Advance or Commitment,
46
extends any Commitment, releases any guarantor of any such Advance or releases
any substantial portion of collateral, if any, securing any such Advance.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrowers received by it from such Lender (subject to customary exceptions
regarding regulatory requirements, compliance with legal process and other
requirements of law).
(g) If (i) any Lender shall make demand for payment under Section
2.11(a), 2.11(b) or 2.14, or (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 Eurodollar Rate Advances or (iii)
shall fail to consent to, or shall revoke its consent to, an extension of the
scheduled Commitment Termination Date pursuant to Section 2.17, then (in the
case of clause (i)) within 60 days after such demand (if, but only if, such
payment demanded under Section 2.11(a), 2.11(b) or 2.14 has been made by the
applicable Borrower), or (in the case of clause (ii)) within 60 days after such
notice (if such suspension is still in effect), or (in the case of clause (iii))
no later than five days prior to the then effective scheduled Commitment
Termination Date, as the case may be, the Borrowers may demand that such Lender
assign in accordance with this Section 8.07 to one or more Eligible Assignees
designated by the Borrowers and reasonably acceptable to the Administrative
Agent all (but not less than all) of such Lender's Commitment, the Advances
owing to it and its participation in the Facility LCs within the next succeeding
30 days (in the case of clause (i) or clause (ii)), or within the next
succeeding five days (in the case of clauses (iii)). If any such Eligible
Assignee designated by the Borrowers shall fail to consummate such assignment on
terms acceptable to such Lender, or if the Borrowers shall fail to designate any
such Eligible Assignee for all of such Lender's Commitment, Advances and
participation in Facility LCs, 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.
(h) 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 Borrowers, the option to provide to any
Borrower all or any part of any Advance that such Granting Bank would otherwise
be obligated to make to such Borrower 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
47
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 Advances to the Granting Bank or
to any financial institutions (consented to by such Borrower and Administrative
Agent, neither of 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(g) 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.
SECTION 8.08 Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA.
SECTION 8.09 Consent to Jurisdiction; Certain Waivers. (a) THE BORROWERS
HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
COMMONWEALTH OF PENNSYLVANIA AND ANY UNITED STATES DISTRICT COURT SITTING IN THE
COMMONWEALTH OF PENNSYLVANIA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE NOTES AND THE BORROWERS HEREBY IRREVOCABLY
AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY OBJECTION THEY 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 ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
(b) 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 OR THE NOTES ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.
SECTION 8.10 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.
48
SECTION 8.11 Liability Several. No Borrower shall be liable for the
obligations of any other Borrower hereunder.
SECTION 8.12 Termination of Existing Agreement; Existing Letters of
Credit. Exelon, ComEd, PECO, the Lenders which are parties to the Existing
Agreement (which Lenders constitute the "Majority Lenders" as defined in the
Existing Agreement) and Bank One, as Administrative Agent under the Existing
Agreement, agree that, concurrently with the making of the initial Loans
hereunder, (a) the commitments under the Existing Agreement shall terminate and
be of no further force or effect (without regard to any requirement in Section
2.04 of the Existing Agreement for prior notice of termination of the
commitments thereunder), (b) the "Facility LCs" issued under the Existing
Agreement for the account of Exelon and PECO (the "Existing Letters of Credit")
shall be deemed to be Facility LCs hereunder and (c) the "Facility LCs" issued
under the Existing Agreement for the account of ComEd (the "ComEd Letters of
Credit") shall be deemed to have been issued by Bank One for its own account.
The parties hereto agree that (i) concurrently with the making of the initial
Loans hereunder, the Existing Letters of Credit shall be deemed to be Facility
LCs hereunder as if the Existing Letters of Credit were issued hereunder on the
Closing Date and (ii) on the first date on which all conditions precedent to the
initial Credit Extension to ComEd (including the condition precedent set forth
in Section 3.04) have been satisfied and no Event of Default or Unmatured Event
of Default exists (and subject to availability under the ComEd Sublimit), the
ComEd Letters of Credit shall be deemed to be Facility LCs hereunder as if the
ComEd Letters of Credit had been issued hereunder on such date.
[Remainder of the page intentionally left blank]
49
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
EXELON CORPORATION
By: ____________________________________
J. Barry Mitchell
Vice President & Treasurer
COMMONWEALTH EDISON COMPANY
By: ____________________________________
J. Barry Mitchell
Vice President & Treasurer
PECO ENERGY COMPANY
By: ____________________________________
J. Barry Mitchell
Vice President & Treasurer
EXELON GENERATION COMPANY LLC
By: ____________________________________
J. Barry Mitchell
Vice President & Treasurer
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-1
THE LENDERS
COMMITMENT AMOUNT
$113,500,000 BANK ONE, NA (Main Office Chicago),
as Administrative Agent, as LC Issuer
and as a Lender
By: ____________________________________
Name: Madeline Pember
Title: Authorized Agent
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-2
COMMITMENT AMOUNT
$113,500,000 BARCLAYS BANK PLC,
as Co-Documentation Agent and as a Lender
By: _____________________________________
Name: _______________________________
Title: ______________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-3
COMMITMENT AMOUNT
$113,500,000 FIRST UNION NATIONAL BANK,
as Co-Syndication Agent and as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-4
COMMITMENT AMOUNT
$113,500,000 CITIBANK, N.A., as Co-Syndication Agent
and as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-5
COMMITMENT AMOUNT
$113,500,000 ABN AMRO BANK N.V., as Co-Documentation
Agent and as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-6
COMMITMENT AMOUNT
$113,500,000 THE BANK OF NOVA SCOTIA, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-7
COMMITMENT AMOUNT
$57,000,000 THE BANK OF NEW YORK, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-8
COMMITMENT AMOUNT
$57,000,000 MELLON BANK, N.A., as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-9
COMMITMENT AMOUNT
$75,000,000 BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-10
COMMITMENT AMOUNT
$113,500,000 JPMORGAN CHASE BANK, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-11
COMMITMENT AMOUNT
$113,500,000 BNP PARIBAS, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-12
COMMITMENT AMOUNT
$57,000,000 THE NORTHERN TRUST COMPANY, as a
Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-13
COMMITMENT AMOUNT
$112,500,000 BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
By: ____________________________________
Name: ______________________________
Title: _____________________________
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-14
COMMITMENT AMOUNT
$114,000,000 AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-15
COMMITMENT AMOUNT
$62,500,000 SUMITOMO MITSUI BANKING
CORPORATION, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-16
COMMITMENT AMOUNT
$57,000,000 DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: ____________________________________
Name: ______________________________
Title: _____________________________
This is a signature page to the 364-Day Credit Agreement dated as of December
12, 2001 among Exelon Corporation, Commonwealth Edison Company, Exelon
Generation LLC and PECO Energy Company as Borrowers, various financial
institutions, as Lenders, Bank One, NA, as Administrative Agent, ABN AMRO Bank,
N.V. and Barclays Bank plc, as Co-Documentation Agents, and Citibank, N.A. and
First Union National Bank, as Co-Syndication Agents.
S-17
SCHEDULE I
364-Day Credit Agreement dated as of December 12, 2001, among Exelon
Corporation, Commonwealth Edison Company, Exelon Generation Company, LLC and
PECO Energy Company, as Borrowers, various financial institutions, as Lenders,
Bank One, NA, as Administrative Agent, ABN AMRO Bank, N.V. and Barclays Bank
plc, as Co-Documentation Agents, and Citibank, N.A. and First Union National
Bank, as Co-Syndication Agents.
Eurodollar
Name of Lender Domestic Lending Office Lending Office
- -------------- ----------------------- --------------
Bank One, NA 1 Bank One Plaza Same
Mail Suite 0634, 1FNP-10
Chicago, IL 60670
Attn: Gwendolyn Watson
Phone: (312) 732-4509
Fax: (312) 732-4840
Citibank, N.A. 399 Park Avenue Same
New York, NY 10043
Attn: Robert J. Harrity, Jr.
Phone: (212) 816-8554
Fax: (212) 816-8098
First Union National Bank 1 First Union Center Same
301 S. College St.
Charlotte, NC 28288
Attn: Robert Wetteroff
Phone: (704) 374-6221
Fax: (704) 374-6249
ABN AMRO Bank N.V. 208 South LaSalle Street Same
Suite 1500
Chicago, IL 60604-1003
Attn: Ken Keck
Phone: (312) 992-5110
Fax: (312) 992-5111
Barclays Bank plc 222 Broadway, 8th Floor Same
New York, NY 10038
Attn: Sydney Dennis
Phone: (212) 412-2470
Fax: (212) 412-7511
The Bank of New York One Wall St., 19th Floor Same
New York, NY 10286
Attn: John Watt
Phone: (212) 635-7533
Fax: (212) 635-7923
Eurodollar
Name of Lender Domestic Lending Office Lending Office
- -------------- ----------------------- --------------
Mellon Bank, N.A. One Mellon Bank Center Same
Room 4530
Pittsburgh, PA 15258-0001
Attn: Richard A. Matthews
Phone: (412) 234-9759
Fax: (412) 236-1840
Bayerische Landesbank 560 Lexington Ave, 17th Floor Same
Girozentrale, Cayman New York, NY 10022
Islands Branch Attn: Sean O'Sullivan
Phone: (212) 310-9913
Fax: (212) 310-9868
JPMorgan Chase Bank 270 Park Avenue Same
New York, NY 10017
Attn: Peter Ling
Phone: (212) 270-4676
Fax: (212) 270-3089
Australia and New Zealand 1177 Avenue of the Americas Same
Banking Group Limited 6th Floor
New York, NY 10036
Attn: Arlene Esin
Phone: (212) 801-9827
Fax: (212) 536-9278
The Northern Trust Company 50 S. LaSalle St. Same
Chicago, IL 60675
Attn: Nicole Boehm
Phone: (312) 444-3640
Fax: (312) 630-6062
The Bank of Nova Scotia 600 Peachtree Street, Same
Suite 2700
Atlanta, GA 30308
Attn: John Malloy
Phone: (312) 201-4111
Fax: (312) 201-4108
BNP Paribas 787 Seventh Avenue, Same
31st Floor
New York, NY 10019
Attn: Sean Finnegan
Phone: (212) 841-2310
Fax: (212) 841-2203
Eurodollar
Name of Lender Domestic Lending Office Lending Office
- -------------- ----------------------- --------------
Bayerische Hypo- und 150 East 42nd Street Same
Vereinsbank AG, New New York, NY 10017
York Branch Attn: William Hunter
Phone: (212) 672-5340
Fax: (212) 672-5530
Sumitomo Mitsui Banking 277 Park Ave. Same
Corporation New York, NY 10172
Attn: David Buck
Phone: (212) 224-4168
Fax: (212) 224-4042
Dresdner Bank AG 75 Wall St., 25th Floor Same
New York, NY 10005-2889
Attn: Fred C. Thurston
Phone: (212) 429-2029
Fax: (212) 429-2192
SCHEDULE II
PRICING SCHEDULE
The "Applicable Margin," the "Facility Fee Rate" the "Utilization Fee
Rate" and the "LC Fee Rate" for any day are the respective percentages set forth
below in the applicable row under the column corresponding to the Status that
exists on such day:
- --------------------------------------------------------------------------------
Applicable Margin
Status and LC Fee Rate Facility Fee Rate Utilization Fee Rate
- --------------------------------------------------------------------------------
Level I 0.400% 0.100% 0.100%
- --------------------------------------------------------------------------------
Level II 0.500% 0.125% 0.125%
- --------------------------------------------------------------------------------
Level III 0.600% 0.150% 0.125%
- --------------------------------------------------------------------------------
Level IV 0.825% 0.175% 0.125%
- --------------------------------------------------------------------------------
Level V 0.925% 0.200% 0.250%
- --------------------------------------------------------------------------------
The Applicable Margin, the Facility Fee Rate, the Utilization Fee Rate and
the LC Fee Rate shall be determined separately for each Borrower in accordance
with the foregoing table based on the Status for such Borrower. The Status in
effect for any Borrower on any date for the purposes of this Pricing Schedule is
based on the Moody's Rating and the S&P Rating in effect at the close of
business on such date.
For the purposes of the foregoing (but subject to the final paragraph of
this Pricing Schedule):
"Level I Status" exists at any date for a Borrower if, on such date, such
Borrower's Moody's Rating is A3 or better or such Borrower's S&P Rating is A- or
better.
"Level II Status" exists at any date for a Borrower if, on such date, (i)
Level I Status does not exist for such Borrower and (ii) such Borrower's Moody's
Rating is Baa1 or better or such Borrower's S&P Rating is BBB+ or better.
"Level III Status" exists at any date for a Borrower if, on such date, (i)
neither Level I Status nor Level II Status exists for such Borrower and (ii)
such Borrower's Moody's Rating is Baa2 or better or such Borrower's S&P Rating
is BBB or better.
"Level IV Status" exists at any date if, on such date, (i) none of Level I
Status, Level II Status or Level III Status exists for such Borrower and (ii)
such Borrower's Moody's Rating is Baa3 or better or such Borrower's S&P Rating
is BBB- or better.
"Level V Status" exists at any date for a Borrower if, on such date, none
of Level I Status, Level II Status, Level III Status or Level IV Status exists
for such Borrower.
"Status" means Level I Status, Level II Status, Level III Status, Level IV
Status or Level V Status.
If the S&P Rating and the Moody's Rating for a Borrower create a split-rated
situation and the ratings differential is one level, the higher rating will
apply. If the differential is two levels or more, the intermediate rating at the
midpoint will apply. If there is no midpoint, the higher of the two intermediate
ratings will apply. If a Borrower has no Moody's Rating or no S&P Rating, Level
V Status shall exist for such Borrower.
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.................................. 1
Section 1.01 Certain Defined Terms.............................. 1
Section 1.02 Computation of Time Periods........................ 12
Section 1.03 Accounting Principles.............................. 12
Section 1.04 Section References................................. 12
ARTICLE II AMOUNTS AND TERMS OF THE COMMITMENTS............................. 12
Section 2.01 Commitments........................................ 12
Section 2.02 Procedures for Advances; Limitations on Borrowings. 13
Section 2.03 Facility and Utilization Fees...................... 14
Section 2.04 Reduction of Commitment Amounts; Adjustment of
Sublimits.......................................... 14
Section 2.05 Repayment of Advances.............................. 15
Section 2.06 Interest on Advances............................... 15
Section 2.07 Additional Interest on Eurodollar Advances......... 16
Section 2.08 Interest Rate Determination........................ 16
Section 2.09 Continuation and Conversion of Advances............ 17
Section 2.10 Prepayments........................................ 17
Section 2.11 Increased Costs.................................... 18
Section 2.12 Illegality......................................... 19
Section 2.13 Payments and Computations.......................... 20
Section 2.14 Taxes.............................................. 21
Section 2.15 Sharing of Payments, Etc........................... 23
Section 2.16 Facility LCs....................................... 24
Section 2.17 Extension of Commitment Termination Date........... 27
ARTICLE III CONDITIONS TO CREDIT EXTENSIONS................................. 28
Section 3.01 Conditions Precedent to Initial Credit Extensions.. 28
Section 3.02 Conditions Precedent to All Credit Extensions...... 29
Section 3.03 Additional Conditions Precedent to Initial Credit
Extension to Genco................................. 29
Section 3.04 Additional Condition Precedent to Initial Credit
Extension to ComEd................................. 29
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................... 30
Section 4.01 Representations and Warranties of the Borrowers.... 30
ARTICLE V COVENANTS OF THE BORROWERS........................................ 32
Section 5.01 Affirmative Covenants.............................. 32
Section 5.02 Negative Covenants................................. 35
ARTICLE VI EVENTS OF DEFAULT................................................ 37
Section 6.01 Events of Default.................................. 37
ARTICLE VII THE AGENTS...................................................... 39
Section 7.01 Authorization and Action........................... 39
Section 7.02 Agents' Reliance, Etc.............................. 40
Section 7.03 Agents and Affiliates.............................. 40
Section 7.04 Lender Credit Decision............................. 40
Section 7.05 Indemnification.................................... 41
Section 7.06 Successor Administrative Agent..................... 41
Section 7.07 Co-Documentation Agents, Co-Syndication Agents
and Lead Arranger.................................. 41
ARTICLE VIII MISCELLANEOUS.................................................. 42
Section 8.01 Amendments, Etc.................................... 42
Section 8.02 Notices, Etc....................................... 42
Section 8.03 No Waiver; Remedies................................ 42
Section 8.04 Costs and Expenses; Indemnification................ 43
Section 8.05 Right of Set-off................................... 44
Section 8.06 Binding Effect..................................... 44
Section 8.07 Assignments and Participations..................... 44
Section 8.08 Governing Law...................................... 48
Section 8.09 Consent to Jurisdiction; Certain Waivers........... 48
Section 8.10 Execution in Counterparts; Integration............. 48
Section 8.11 Liability Several.................................. 49
Section 8.12 Termination of Existing Agreement.................. 49
Schedule I List of Applicable Lending Offices
Schedule II Pricing Schedule
Exhibit A Form of Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Assignment and Acceptance
Exhibit D-1 Form of Opinion of Special Counsel for the Borrowers
Exhibit D-2 Form of Opinion of Special Counsel for ComEd
Exhibit E Form of Annual and Quarterly Compliance Certificate