$2,000,000,000
364-DAY CREDIT AGREEMENT
dated as of December 19, 2000
among
EXELON CORPORATION,
COMMONWEALTH EDISON COMPANY
and
PECO ENERGY COMPANY
as Borrowers
VARIOUS FINANCIAL INSTITUTIONS
as Lenders
BANK ONE, NA
as Administrative Agent
CREDIT SUISSE FIRST BOSTON
and
FIRST UNION NATIONAL BANK
as Documentation Agents
and
CITIBANK, N.A.
as Syndication Agent
BANC ONE CAPITAL MARKETS, INC.
Lead Arranger and Sole Book Runner
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.................................1
SECTION 1.01. Certain Defined Terms....................................1
SECTION 1.02. Computation of Time Periods.............................13
SECTION 1.03. Accounting Principles...................................13
ARTICLE II AMOUNTS AND TERMS OF THE COMMITMENTS............................13
SECTION 2.01. Commitments.............................................13
SECTION 2.02. Procedures for Advances.................................14
SECTION 2.03. Facility and Utilization Fees...........................15
SECTION 2.04. Reduction of Commitment Amounts; Adjustment of
Sublimits...............................................16
SECTION 2.05. Repayment of Advances...................................16
SECTION 2.06. Interest on Advances....................................16
SECTION 2.07. Additional Interest on Eurodollar Advances..............17
SECTION 2.08. Interest Rate Determination.............................17
SECTION 2.09. Continuation and Conversion of Advances.................18
SECTION 2.10. Prepayments.............................................19
SECTION 2.11. Increased Costs.........................................19
SECTION 2.12. Illegality..............................................20
SECTION 2.13. Payments and Computations...............................21
SECTION 2.14. Taxes...................................................22
SECTION 2.15. Sharing of Payments, Etc................................25
SECTION 2.16. Facility LCs............................................25
SECTION 2.16.1. Issuance............................................25
SECTION 2.16.2. Participations......................................25
SECTION 2.16.3. Notice..............................................26
SECTION 2.16.4. LC Fees.............................................26
SECTION 2.16.5. Administration; Reimbursement by Borrowers..........26
SECTION 2.16.6. Reimbursement by Borrowers..........................27
SECTION 2.16.7. Obligations Absolute................................28
SECTION 2.16.8. Actions of LC Issuer................................28
ii
SECTION 2.16.9. Indemnification.....................................28
SECTION 2.16.10. Lenders' Indemnification............................29
SECTION 2.16.11. Rights as a Lender .................................29
SECTION 2.17. Extension of Termination Date...........................29
ARTICLE III CONDITIONS TO CREDIT EXTENSIONS.................................30
SECTION 3.01. Conditions Precedent to Initial Credit Extensions.......30
SECTION 3.02. Conditions Precedent to All Credit Extensions...........31
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................31
SECTION 4.01. Representations and Warranties of the Borrowers.........31
ARTICLE V COVENANTS OF THE BORROWERS......................................34
SECTION 5.01. Affirmative Covenants...................................34
SECTION 5.02. Negative Covenants......................................36
ARTICLE VI EVENTS OF DEFAULT...............................................39
SECTION 6.01. Events of Default.......................................39
ARTICLE VII THE AGENTS......................................................41
SECTION 7.01. Authorization and Action................................41
SECTION 7.02. Agents' Reliance, Etc...................................41
SECTION 7.03. Agents and Affiliates...................................42
SECTION 7.04. Lender Credit Decision..................................42
SECTION 7.05. Indemnification.........................................42
SECTION 7.06. Successor Administrative Agent..........................43
SECTION 7.07. Documentation Agents, Syndication Agent and Lead
Arranger................................................43
ARTICLE VIII MISCELLANEOUS...................................................43
SECTION 8.01. Amendments, Etc.........................................43
SECTION 8.02. Notices, Etc............................................44
SECTION 8.03. No Waiver; Remedies.....................................44
SECTION 8.04. Costs and Expenses; Indemnification.....................44
SECTION 8.05. Right of Set-off........................................46
SECTION 8.06. Binding Effect..........................................46
SECTION 8.07. Assignments and Participations..........................46
iii
SECTION 8.08. Governing Law...........................................50
SECTION 8.09. Consent to Jurisdiction.................................50
SECTION 8.10. Execution in Counterparts; Integration..................50
SECTION 8.11. Liability Several.......................................51
SECTION 8.12. Termination of Existing Agreements......................51
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 Exelon and PECO
Exhibit D-2 Form of Opinion of Special Counsel for ComEd
Exhibit E Form of Annual and Quarterly Compliance Certificate
iv
364-DAY CREDIT AGREEMENT
dated as of December 19, 2000
EXELON CORPORATION, COMMONWEALTH EDISON COMPANY, PECO ENERGY COMPANY, the
banks listed on the signature pages hereof, BANK ONE, NA, as Administrative
Agent, CREDIT SUISSE FIRST BOSTON and FIRST UNION NATIONAL BANK, as
Documentation Agents, and CITIBANK, N.A., as Syndication Agent, 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 Article VII.
"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 Documentation Agent and
the Syndication Agent; 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.
1
"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:
(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).
"Borrower" means each of Exelon, ComEd and PECO.
"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.
"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.
"ComEd" means Commonwealth Edison Company, an Illinois corporation, or
any Eligible Successor thereof.
"ComEd Sublimit" means $200,000,000, subject to adjustment as provided
in Section 2.04(c).
2
"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, (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 PECO's audited balance sheet for
December 31, 1999).
"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 PECO's audited balance sheet for December 31, 1999).
"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.
3
"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 instrument, (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.
"Documentation Agent" means each of Credit Suisse First Boston and
First Union National Bank, in its capacity as a documentation agent
hereunder.
"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 (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
4
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 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).
5
"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.
"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 $1,000,000,000, subject to adjustment as
provided in Section 2.04(c).
"Existing Agreements" means (i) the 364-Day Credit Agreement dated as
of September 15, 1999 among PECO, various financial institutions, Citibank,
N.A., as documentation agent, and Bank One (then known as The First
National Bank of Chicago), as Administrative Agent, as amended prior to the
Closing Date; and (ii) the 364-Day Credit Agreement dated as of December
17, 1999 among ComEd, various financial institutions and Citibank, N.A., as
Administrative Agent, as amended prior to the Closing Date; and (iii) the
3-Year Credit Agreement dated as of December 17, 1999 among ComEd, various
financial institutions and Citibank, N.A., 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
6
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by
it.
"GAAP" - see Section 1.03.
"Genco" means Exelon Generation Company, LLC or any other entity to
which all or any substantial portion of the electric generating assets of
ComEd or PECO is transferred (directly or indirectly).
"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 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 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, and
(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.
"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.
7
"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 $200,000,000.
"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).
"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 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
8
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 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.
9
"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 $800,000,000, 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.
"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 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 any 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
10
amount of the Commitment Amounts (plus, after the Commitments have
terminated with respect to any Borrower, the principal amount of all
outstanding Advances to any Borrower plus all LC Obligations of such
Borrower).
"Reference Banks" means Bank One, Citibank, N.A. and Credit Suisse
First Boston.
"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.
"SPC" - see Section 8.07(h).
"Special Purpose Subsidiary" means a direct or indirect wholly owned
corporate 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
11
complies with the requirements customarily imposed on bankruptcy-remote
corporations in receivables securitizations.
"Sublimit" means the PECO Sublimit, the Exelon Sublimit or the ComEd
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 "ComEd-Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trusts" or "Company-Obligated Mandatorily Redeemable Preferred
Securities of a Partnership."
"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).
"Syndication Agent" means Citibank, N.A. in its capacity as
syndication agent hereunder.
"Taxes" - see Section 2.14.
"Termination Date" means, with respect to any Borrower, the earlier of
(i) December 18, 2001 or such later date to which the scheduled 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.
"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
12
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 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.
"Unicom" means Unicom Corporation, an Illinois corporation which was
merged with and into Exelon on October 16, 2000.
"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. 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 PECO's
audited consolidated financial statements as of December 31, 1999 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, 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.
13
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 period from the date hereof to the 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; and (vi) the LC Obligations of all Borrowers
collectively shall at any time not exceed $200,000,000. Within the foregoing
limits, each Borrower may from time to time borrow, prepay pursuant to Section
2.10 and reborrow hereunder prior to the 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) 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
14
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 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 in an
amount equal to the Facility Fee Rate for such Borrower multiplied by such
Borrower's Sublimit (or, after termination of the Commitments, the principal
amount of all outstanding Advances to such Borrower), payable on the last day of
each March, June, September and December and on the 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
15
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 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 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 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 $100,000,000
(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 $100,000,000);
(B) no Sublimit shall exceed $1,000,000,000; (C) the Outstanding Credit
Extension to Exelon shall not exceed the Exelon Sublimit; (D) the Outstanding
Credit Extension to ComEd shall not exceed the ComEd Sublimit; and (E) the
Outstanding Credit Extension 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 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,
16
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.
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).
17
(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 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
18
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 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
19
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 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 issues for the account of such Borrowers 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
20
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 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 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
21
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.
(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,
22
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.
(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.
23
(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 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
24
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 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 Termination Date for such
25
Borrower. No Facility LC shall have an expiry date later than the fifth
Business Day prior to the scheduled Termination Date for the applicable
Borrower.
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
arrears on the last day of each March, June, September and December and on
the 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.
26
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 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 amounts 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 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. Subject to the terms and
conditions of this Agreement (including the submission of a Notice of
Borrowing in compliance with Section 2.02 and
27
the satisfaction of the applicable conditions precedent set forth in
Article III), a 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 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.
28
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 Termination Date. Exelon may request an
extension of the scheduled Termination Date for all Borrowers by submitting a
request for an extension to the Administrative Agent (an "Extension Request") no
more than 60 days prior to the scheduled Termination Date then in effect. The
Extension Request must specify the new scheduled
29
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 Termination Date shall be 364 days after the scheduled
Termination Date in effect at the time an Extension Request is received,
including the scheduled 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 Termination Date specified in the Extension Request
shall become effective on the existing scheduled Termination Date and the
Administrative Agent shall promptly notify each Borrower and each Lender of the
new scheduled 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 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 each of the Existing Agreements 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
30
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) Favorable opinions of Ballard Spahr Andrews & Ingersoll LLC,
special counsel for the Borrowers, and Sidley & Austin, special
counsel for ComEd, substantially in the form of Exhibits D-1 and D-2
hereto, respectively.
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 (i) the giving of the applicable Notice
of Borrowing and the acceptance by the applicable Borrower of the proceeds of
Advances pursuant thereto and (ii) 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.
31
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 the Securities
and Exchange Commission under the Public Utility Holding Company Act of 1935,
which order or orders have been duly obtained and are (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 such
Borrower and its Subsidiaries as at December 31, 1999, and the related
statements of income and retained earnings and of cash flows of such Borrower
and its Subsidiaries for the fiscal year then ended, certified by
Pricewaterhouse Coopers LLP, and the unaudited consolidated balance sheet of
such Borrower and its Subsidiaries as at September 30, 2000, and the related
unaudited statements 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 sheets and statements of income
for the period ended June 30, 2000, to year-end adjustments) the consolidated
financial condition of such Borrower and its Subsidiaries as at such dates and
the consolidated results of the operations of such Borrower and its Subsidiaries
for the periods ended on such dates, all in accordance with GAAP; and since
September 30, 2000 there has been no Material Adverse Change with respect to
PECO.
32
(ii) In the case of ComEd, the consolidated balance sheet of such Borrower
and its Subsidiaries as at September 30, 2000 and the related consolidated
statements of income, retained earnings and cash flows of such Borrower for the
nine months then ended, together with the report thereon of Arthur Andersen LLP
included in such Borrower's Quarterly Report on Form 10-Q for the fiscal quarter
then ended, copies of which have been furnished to each Lender, fairly present
in all material respects (subject to year-end adjustments) the consolidated
financial condition of such Borrower and its Subsidiaries as at such date and
the consolidated results of the operations of such Borrower and its Subsidiaries
for the period ended on such date in accordance with GAAP; and since September
30, 2000 there has been no Material Adverse Change with respect to ComEd.
(iii) In the case of Exelon, the unaudited pro forma combined condensed
financial data set forth in Exelon's Form 8-K/A filed on November 15,2000, which
reflect the acquisition of Unicom by PECO under the purchase method of
accounting, fairly present the pro forma financial condition of Exelon as at
December 31, 1999 and as at and for the nine months ended September 30, 2000 (in
each case giving effect to the purchase of Unicom by PECO); and since September
30, 2000, there has been no Material Adverse Change with respect to Exelon.
(f) Except as disclosed in such Borrower'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
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.
(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.
33
(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;
(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 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 either 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
34
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;
(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, 2001), a
copy of such Borrower's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission with respect to such quarter,
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
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;
35
(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, 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 Event of Default or
Unmatured Event of Default with respect to such Borrower 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);
(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.
36
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; (viii) Liens granted by a Special Purpose Subsidiary to
secure Transitional Funding Instruments of 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, (B) Liens securing PECO's notes collateralized solely by mortgage
bonds of PECO issued under the terms of the PECO Mortgage, and (C) Liens arising
in connection with sale and leaseback transactions entered into by PECO or a
Subsidiary thereof, but only to the extent (I) the proceeds received by PECO or
such Subsidiary from such sale shall immediately be applied to retire mortgage
bonds of PECO issued under the terms of the PECO Mortgage, or (II) the aggregate
purchase price of assets sold pursuant to such sale and leaseback transactions
where such proceeds are not so applied shall not exceed $1,000,000,000; and (xi)
Liens, other than those described in clauses (i) through (x) 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, $50,000,000, (II) in the case of ComEd, $50,000,000, and (III) in
the case of PECO, $50,000,000.
37
(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 this 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 material line of business other than businesses
engaged in by such Borrower and its Subsidiaries as of the date hereof and
reasonable extensions thereof.
(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 and 100% of the issued and
outstanding common shares or other common ownership interests of PECO (or 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 and 100% of the issued
and outstanding common shares or other common ownership interests of PECO); or
fail, at any time after the date on which ComEd and/or PECO transfers any
substantial part of its generating assets to Genco, to own, free and clear of
all Liens, 100% of the issued and outstanding common shares or other common
ownership interests of Genco (or of a holding company which owns, free and clear
of all Liens, 100% of the issued and outstanding common shares or other common
ownership interests of Genco).
(f) Restrictive Agreements. In the case of Exelon, permit either PECO
or ComEd 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 either PECO or ComEd to declare or pay dividends
to Exelon, except for existing restrictions on PECO relating to (i) the priority
of payments on its subordinated debentures contained in the Indenture dated as
38
of July 1, 1994 between PECO and First Union National Bank, as trustee, as
amended and supplemented to the date hereof, and (ii) 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.
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
(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
39
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 a 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 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
40
(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; or
(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;
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 actual or deemed entry of an order
for relief with respect to any Borrower or any Principal Subsidiary thereof
under the Federal Bankruptcy Code, (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 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
41
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 upon the
Administrative Agent or any other Lender and based on such documents and
42
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. Documentation Agents, Syndication Agent and Lead Arranger.
The titles "Documentation Agent," "Syndication Agent" and "Lead Arranger and
Sole Book Runner" are purely honorific, and no Person designated as a
"Documentation Agent," the "Syndication
43
Agent" or the "Lead Arranger and Sole Book Runner" shall have any duties or
responsibilities in such capacity.
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 or 3.02, (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)(iii) 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) 394-2867; 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.
44
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.
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,
45
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' 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.
46
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 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 $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, 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, 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
47
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 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 Registers 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
48
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, 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 Terminated 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 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
49
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 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. THE BORROWERS HEREBY IRREVOCABLY
SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF
PENNSYLVANIA AND ANY UNITED STATES
50
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.
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.
SECTION 8.11. Liability Several No Borrower shall be liable for the
obligations of any other Borrower hereunder.
SECTION 8.12. Termination of Existing Agreements. (a) PECO and the Lenders
which are parties to the Credit Agreement specified in clause (i) of the
definition of Existing Agreements (which Lenders constitute the "Majority
Lenders" as defined in such Credit Agreement) agree that, concurrently with the
making of the initial Credit Extension hereunder (and without regard to any
requirement in Section 2.04 of such Credit Agreement for prior notice of
termination of the commitments thereunder), the commitments under such Credit
Agreement shall terminate and be of no further force or effect.
(b) ComEd and the Lenders which are parties to each of the Credit
Agreements specified in clauses (ii) and (iii) of the definition of Existing
Agreements (which Lenders constitute the "Majority Lenders" as defined in each
such Credit Agreement) agree that, concurrently with the making of the initial
Credit Extension hereunder (and without regard to any requirement in either such
Credit Agreement for prior notice of termination of the commitments thereunder),
the commitments under each such Credit Agreement shall terminate and be of no
further force or effect.
[Remainder of the page intentionally left blank]
51
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 /s/ J. Barry Mitchell
---------------------
Name J. Barry Mitchell
Title: Vice President
Finance & Treasurer
COMMONWEALTH EDISON COMPANY
By /s/ J. Barry Mitchell
---------------------
Name: J. Barry Mitchell
Title: Vice President
Finance & Treasurer
PECO ENERGY COMPANY
By /s/ J. Barry Mitchell
---------------------
Name: J. Barry Mitchell
Title: Vice President
Finance & Treasurer
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
THE LENDERS
Commitment Amount
$182,500,000 BANK ONE, NA, as Administrative Agent, as LC
Issuer and as a Lender
By /s/ Kenneth J. Bauer
--------------------
Name: Kenneth J. Bauer
Title: Authorized Agent
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$182,500,000 CREDIT SUISSE FIRST BOSTON, as
Documentation Agent and as a Lender
By /s/ Andrea E. Shkane
--------------------
Name: Andrea E. Shkane
Title: Vice President
By /s/ Jay Chall
-------------
Name: Jay Chall
Title: Director
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$182,500,000 FIRST UNION NATIONAL BANK, as
Documentation Agent and as a Lender
By /s/ Joe K. Dancy
----------------
Name: Joe K. Dancy
Title: Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$182,500,000 CITIBANK, N.A., as Syndication Agent and
as a Lender
By /s/ Robert J. Harrity
----------------------
Name: Robert J. Harrity, Jr.
Title: Managing Director
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$140,000,000 ABN AMRO BANK N.V., as a Lender
By /s/ Mark R. Lasek
---------------------------------
Name: Mark R. Lasek
Title: Senior Vice President &
Managing Director
By /s/ Sonny K. Tran
------------------
Name: Sonny K. Tran
Title: Assistant Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent
Commitment Amount
$ 140,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By /s/ Walter R. Wolf
--------------------
Name: Walter R. Wolf
Title: Joint General Manager
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent
Commitment Amount
$ 140,000,000 BARCLAYS BANK, PLC, as a Lender
By /s/ Sydney G. Dennis
--------------------
Name: Sydney G. Dennis
Title: Director
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent
Commitment Amount
$ 140,000,000 THE BANK OF NEW YORK, as a Lender
By /s/ John N. Watt
----------------
Name: John N. Watt
Title: Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent
Commitment Amount
$100,000,000 MELLON BANK, N.A., as a Lender
By /s/ Richard A. Matthews
-----------------------
Name: Richard A. Matthews
Title: Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent
Commitment Amount
$100,000,000 BAYERISCHE LANDESBANK
GIROZENTRALE, as a Lender
By /s/ Sean O'Sullivan
-------------------
Name: Sean O'Sullivan
Title: Vice President
By /s/ Hereward Drummond
---------------------
Name: Hereward Drummond
Title: Senior Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent
Commitment Amount
$100,000,000 THE CHASE MANHATTAN BANK, as a Lender
By /s/ Thomas L. Casey
-------------------
Name: Thomas L. Casey
Title: Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent
Commitment Amount
$100,000,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, as a Lender
By /s/ Duncan M. Robertson
---------------------------------
Name: Duncan M. Robertson
Title: Director
By /s/ Walter T. Duffy III
---------------------------------
Name: Walter T. Duffy III
Title: Associate Director
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$75,000,000 THE NORTHERN TRUST COMPANY, as a
Lender
By /s/ Nicole D. Boehm
---------------------------------
Name: Nicole D. Boehm
Title: Senior Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$50,000,000 TORONTO DOMINION (TEXAS), INC.,
Lender
By /s/ Debbie A. Greene
---------------------------------
Name: Debbie A. Green
Title: Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$50,000,000 UNION BANK OF CALIFORNIA, N.A., as a
Lender
By /s/ Robert J. Cole
------------------------------------------
Name: Robert J. Cole
Title: Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$50,000,000 LEHMAN COMMERCIAL PAPER, INC., as a
Lender
By /s/ Michele Swanson
---------------------------------
Name: Michele Swanson
Title: Authorized Signatory
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$35,000,000 COMMERCE BANK, N.A., as a Lender
By /s/ Kurt J. Fuoti
---------------------------------
Name: Kurt J. Fuoti
Title: Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$25,000,000 THE SUMITOMO BANK, LTD., as a
Lender
By /s/ John H. Kemper
---------------------------------
Name: John H. Kemper
Title: Senior Vice President
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
Commitment Amount
$25,000,000 MERRILL LYNCH BANK USA, as a
Lender
By /s/ Raymond J. Dardano
---------------------------------
Name: Raymond J. Dardano
Title: Senior Credit Officer
This is a signature page to the 364-Day Credit Agreement dated as of December
19, 2000 among Exelon Corporation, Commonwealth Edison Company and PECO Energy
Company as Borrowers, various financial institutions, as Lenders, Bank One, NA,
as Administrative Agent, Credit Suisse First Boston and First Union National
Bank, as Documentation Agents, and Citibank, N.A., as Syndication Agent.
SCHEDULE I
364-Day Credit Agreement dated as of December 19, 2000, among Exelon
Corporation, Commonwealth Edison Company and PECO Energy Company, as Borrowers,
various financial institutions, as Lenders, Bank One, NA, as Administrative
Agent, Credit Suisse First Boston and First Union National Bank, as
Documentation Agents, and Citibank, N.A., as Syndication Agent.
Domestic Eurodollar
Name of Lender 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
4th Floor
New York, NY 10022
Attn: Robert J. Harrity, Jr.
Phone: (212) 559-6482
Fax: (212) 793-6130
Credit Suisse First Boston 11 Madison Ave. Same
New York, NY 10010-3629
Attn: Andrea E. Shkane
Phone: (212) 325-6513
Fax: (212) 325-8320
First Union National Bank 1 First Union Center Same
301 S. College St.
Charlotte, NC 28288
Attn: Brian Tate
Phone: (704) 383-5010
Fax: (704) 383-6670
Industrial Bank of Japan,
Limited 227 W. Monroe St., Suite 2600 Same
Chicago, IL 60606
Attn: Bruce Davis
Phone: (312) 855-8484
Fax: (312) 855-8200
Domestic Eurodollar
Name of Lender Lending Office Lending Office
-------------- -------------- --------------
Barclays Bank, Plc 222 Broadway, 11th Floor Same
New York, NY 10038
Attn: Sydney Dennis
Phone: (212) 412-2470
Fax: (212) 412-7575
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
Mellon Bank, N.A. One Mellon Bank Center Same
Pittsburgh, PA 15258
Attn: Richard A. Matthews
Phone: (412) 236-1203
Fax: (412) 234-0847
Barerische Landesbank
Girozentrale 560 Lexington Ave, 17th Floor Same
New York, NY 10022
Attn: Sean O'Sullivan
Phone: (212) 310-9913
Fax: (212) 310-9868
The Chase Manhattan Bank 270 Park Avenue, 5th Floor Same
New York, NY 10017
Attn: Tom Casey
Phone: (212) 270-5305
Fax: (212) 270-3089
Westdeutsche Landesbank
Girozentrale 1211 Avenue of the Americas Same
New York, NY 10036
Attn: Monika Kump
Phone: (212) 852-6132
Fax: (212) 852-6148
The Northern Trust Company 50 S. LaSalle St. Same
Chicago, IL 60675
Attn: Nicole Boehm
Phone: (312) 444-3640
Fax: (312) 630-6062
Domestic Eurodollar
Name of Lender Lending Office Lending Office
-------------- -------------- --------------
Toronto Dominion Bank 909 Fannin St., 17th Floor Same
Houston, TX 77010
Attn: Jim Bridwell
Phone: (713) 653-8265
Fax: (713) 653-9951
Union Bank of
California, N.A. 445 S. Figueroa St., 15th Floor Same
Los Angeles, CA 90071
Attn: Robert Olson
Phone: (213) 236-7407
Fax: (213) 236-4096
Lehman Commercial Paper Inc. 3 World Financial Center Same
New York, NY 10285
Attn: Michelle Swanson
Phone: (212) 526-0330
Fax: (212) 526-1553
Commerce Bank, N.A. 3220 Tillman Dr., Suite 407 Same
Bensaem, PA 19020
Attn: Kurt Fuoti
Phone: (215) 604-6203
Fax: (215) 604-6211
The Sumitomo Bank, Ltd. 277 Park Ave. Same
New York, NY 10172
Courtney Whitlock
Phone: (212) 224-4083
Fax: (212) 224-5197
Merrill Lynch Bank USA 18 W. South Temple Same
Suite 300
Salt Lake City, UT 84104
Attn: Butch Alder
Phone: (801) 526-8324
Fax: (801) 521-6466
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 and LC Facility
Status Fee Rate 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 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.*
2