400,000,000 AMENDED AND RESTATED CREDIT AGREEMENT BY AND AMONG PEPCO HOLDINGS, INC. as Borrower and THE LENDERS PARTY HERETO and BANK OF AMERICA, N.A. as Administrative Agent and Swingline Lender BANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger...
$400,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
BY AND
AMONG
PEPCO
HOLDINGS, INC.
as
Borrower
and
THE
LENDERS PARTY HERETO
and
BANK OF
AMERICA, N.A.
as
Administrative Agent and Swingline Lender
BANC OF
AMERICA SECURITIES LLC,
as Sole
Lead Arranger and Sole Book Runner
KEYBANK
NATIONAL ASSOCIATION
JPMORGAN
CHASE BANK, N.A.
SUNTRUST
BANK
THE BANK
OF NOVA SCOTIA
XXXXXX
XXXXXXX BANK, N.A.
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
XXXXX
FARGO BANK, N.A.
MANUFACTURERS
AND TRADERS TRUST COMPANY
as
Co-Documentation Agents
Dated as
of October 16, 2009
TABLE
OF CONTENTS
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Page
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ARTICLE
I
DEFINITIONS
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1
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1.1
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Definitions
|
1
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1.2
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Interpretation
|
13
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1.3
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Accounting
|
13
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ARTICLE
II THE
LOANS
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13
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2.1
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Commitments
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13
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2.2
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Intentionally
Omitted
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15
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2.3
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Required
Payments;
Termination
|
15
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2.4
|
Intentionally
Omitted
|
15
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2.5
|
Ratable
Loans
|
15
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2.6
|
Types
of
Advances
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15
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2.7
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Commitment
Fee; Reductions in Aggregate
Commitment
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16
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2.8
|
Minimum
Amount of Each
Advance
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16
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2.9
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Prepayments
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16
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2.10
|
Method
of Selecting Types and Interest Periods for New
Advances
|
16
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2.11
|
Conversion
and Continuation of Outstanding
Advances
|
17
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2.12
|
Changes
in Interest Rate,
etc.
|
18
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2.13
|
Rates
Applicable After
Default
|
18
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2.14
|
Method
of
Payment
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18
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2.15
|
Evidence
of
Indebtedness
|
18
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2.16
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Telephonic
Notices
|
19
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2.17
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Interest
Payment Dates; Interest and Fee
Basis
|
19
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2.18
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Notification
of Advances, Interest Rates, Prepayments and Commitment
Reductions
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19
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2.19
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Lending
Installations
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20
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2.20
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Non-Receipt
of Funds by the
Agent
|
20
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ARTICLE
III YIELD PROTECTION;
TAXES
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20
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3.1
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Yield
Protection
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20
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3.2
|
Changes
in Capital Adequacy
Regulations
|
21
|
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3.3
|
Availability
of Types of
Advances
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21
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3.4
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Funding
Indemnification
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21
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3.5
|
Taxes
|
22
|
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3.6
|
Mitigation
of Circumstances; Lender Statements; Survival of Indemnity
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23
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3.7
|
Replacement
of
Lender
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24
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ARTICLE
IV CONDITIONS
PRECEDENT
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24
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4.1
|
Conditions
Precedent to Amendment and Restatement of Existing Credit
Agreement
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24
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4.2
|
Each
Credit
Extension
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25
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ARTICLE
V REPRESENTATIONS AND
WARRANTIES
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25
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5.1
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Existence
and
Standing
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25
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5.2
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Authorization
and
Validity
|
26
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5.3
|
No
Conflict; Government
Consent
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26
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5.4
|
Financial
Statements
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26
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5.5
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No
Material Adverse
Change
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26
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5.6
|
Taxes
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26
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5.7
|
Litigation
and Contingent
Obligations
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26
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5.8
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Significant
Subsidiaries
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27
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5.9
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ERISA
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27
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5.10
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Accuracy
of
Information
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27
|
i
5.11
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Regulation
U
|
27
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5.12
|
Material
Agreements
|
27
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5.13
|
Compliance
With
Laws
|
27
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5.14
|
Plan
Assets; Prohibited
Transactions
|
27
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5.15
|
Environmental
Matters
|
27
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5.16
|
Investment
Company
Act
|
28
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5.17
|
Insurance
|
28
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5.18
|
No
Default
|
28
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5.19
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Ownership
of
Properties
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28
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5.20
|
OFAC
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28
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ARTICLE
VI
COVENANTS
|
28
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6.1
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Financial
Reporting
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28
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6.2
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Use
of
Proceeds
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30
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6.3
|
Notice
of Default/Rating
Change
|
30
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6.4
|
Conduct
of
Business
|
30
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6.5
|
Taxes
|
30
|
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6.6
|
Insurance
|
30
|
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6.7
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Compliance
with
Laws
|
31
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6.8
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Maintenance
of
Properties
|
31
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6.9
|
Inspection
|
31
|
|
6.10
|
Merger
|
31
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6.11
|
Sales
of
Assets
|
31
|
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6.12
|
Liens
|
32
|
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6.13
|
Leverage
Ratio
|
34
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ARTICLE
VII
DEFAULTS
|
34
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7.2
|
Nonpayment
|
34
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7.3
|
Certain
Covenant
Breaches
|
34
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7.4
|
Other
Breaches
|
34
|
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7.5
|
Cross
Default
|
34
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7.6
|
Voluntary
Bankruptcy,
etc.
|
35
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7.7
|
Involuntary
Bankruptcy,
etc.
|
35
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7.8
|
Seizure
of Property,
etc.
|
35
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7.9
|
Judgments
|
35
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7.10
|
ERISA
|
35
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7.11
|
Unenforceability
of Loan
Documents
|
36
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7.12
|
Change
in
Control
|
36
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ARTICLE
VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
|
36
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8.1
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Acceleration
|
36
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8.2
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Amendments
|
36
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8.3
|
Preservation
of
Rights
|
37
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ARTICLE
IX GENERAL
PROVISIONS
|
37
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9.1
|
Survival
of
Representations
|
37
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9.2
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Governmental
Regulation
|
37
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9.3
|
Headings
|
37
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9.4
|
Entire
Agreement
|
37
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9.5
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Several
Obligations; Benefits of this
Agreement
|
37
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9.6
|
Expenses;
Indemnification
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38
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9.7
|
Numbers
of
Documents
|
38
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9.8
|
Disclosure
|
38
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9.9
|
Severability
of
Provisions
|
38
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9.10
|
Nonliability
of
Lenders
|
38
|
ii
9.11
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Limited
Disclosure
|
39
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9.12
|
Nonreliance
|
39
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|
9.13
|
USA PATRIOT ACT
NOTIFICATION
|
39
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9.14
|
Interest Rate
Limitation
|
40
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9.15
|
Amendment and
Restatement; No Novation
|
40
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ARTICLE X THE
AGENT
|
40
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10.1
|
Appointment; Nature
of Relationship
|
40
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10.2
|
Powers
|
41
|
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10.3
|
General
Immunity
|
41
|
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10.4
|
No Responsibility
for Loans Recitals etc.
|
41
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10.5
|
Action on
Instructions of Lenders
|
41
|
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10.6
|
Employment of Agents
and Counsel
|
41
|
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10.7
|
Reliance on
Documents; Counsel
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42
|
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10.8
|
Agent’s
Reimbursement and Indemnification
|
42
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10.9
|
Notice of
Default
|
42
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10.10
|
Rights as a
Lender
|
42
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10.11
|
Lender Credit
Decision
|
42
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10.12
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Successor Agent
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43
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10.13
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Agent’s Fee
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43
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10.14
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Delegation to
Affiliates
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43
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10.15
|
Other Agents
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44
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ARTICLE XI SETOFF;
RATABLE PAYMENTS
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44
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11.1
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Setoff
|
44
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11.2
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Ratable
Payments
|
44
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11.3
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Payments Set
Aside
|
44
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ARTICLE
XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
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45
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12.1
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Successors and
Assigns
|
45
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12.2
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Participations
|
45
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12.3
|
Assignments
|
46
|
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12.4
|
Dissemination of
Information
|
47
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12.5
|
Grant of Funding
Option to SPC
|
47
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12.6
|
Tax Treatment
|
47
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ARTICLE
XIII
NOTICES
|
47
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13.1
|
Notices
|
47
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ARTICLE
XIV
COUNTERPARTS
|
49
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ARTICLE
XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL
|
49
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15.1
|
CHOICE OF LAW
|
49
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15.2
|
CONSENT TO
JURISDICTION
|
49
|
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15.3
|
WAIVER OF JURY
TRIAL; SERVICE OF PROCESS
|
49
|
iii
EXHIBITS
|
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EXHIBIT
A
|
COMPLIANCE
CERTIFICATE
|
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EXHIBIT
B
|
ASSIGNMENT
AGREEMENT
|
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EXHIBIT
C
|
NOTE
|
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SCHEDULES
|
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SCHEDULE
1
|
PRICING
SCHEDULE
|
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SCHEDULE
2
|
COMMITMENTS
AND PRO RATA SHARES
|
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SCHEDULE
3
|
SIGNIFICANT
SUBSIDIARIES
|
|
SCHEDULE
4
|
LIENS
|
iv
AMENDED
AND RESTATED CREDIT AGREEMENT
This
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 16, 2009, is by
and among Pepco Holdings, Inc. (the “Borrower”), the Lenders (defined herein)
and Bank of America N.A., as administrative agent.
WHEREAS,
the Borrower is party to that certain Credit Agreement, dated as of
November 7, 2008 (the “Existing
Credit Agreement”), by and among the Borrower, the lenders party thereto
and Bank of America, N.A., as administrative agent and swingline
lender.
WHEREAS,
the Borrower has requested, and the Lenders have agreed, to amend and restate
the Existing Credit Agreement on the terms and conditions of this
Agreement.
ARTICLE
I
“ACE”
means Atlantic City Electric Company.
“Additional
Board Authorization” means a copy, certified by the Secretary or
Assistant Secretary of Borrower, of an extract of resolutions of Borrower’s
Board of Directors, or an authorized committee thereof, authorizing the
incurrence by Borrower of Floating Rate Loans and Eurodollar Loans bearing
interest at a rate up to the highest rate contemplated by this
Agreement.
“Administrative
Questionnaire” means an administrative questionnaire, substantially in
the form supplied by the Agent, completed by a Lender and furnished to the Agent
in connection with this Agreement.
“Advance”
means a borrowing hereunder (i) made by the Lenders on the same Borrowing Date
or (ii) converted or continued by the Lenders on the same date of conversion or
continuation, consisting, in either case, of the aggregate amount of the several
Revolving Loans of the same Type and, in the case of Eurodollar Loans, for the
same Interest Period. “Advance”
shall include the borrowing of Swingline Loans.
“Affected
Lender” is defined in Section
3.7.
“Affiliate”
of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the
management
or policies of the controlled Person, whether through ownership of stock, by
contract or otherwise. For purposes of Section
5.20, no person shall be an “Affiliate” of Borrower solely by reason of
owning less than a majority of any class of voting securities of
Borrower.
“Agent”
means Bank of America in its capacity as contractual representative of the
Lenders pursuant to Article
X, and not in its individual capacity as a Lender, and any successor
Agent appointed pursuant to Article
X.
“Aggregate
Commitment” means the aggregate of the Commitments of all the Lenders,
(a) as increased from time to time pursuant to Section 2.2
or (b) as reduced from time to time pursuant to the terms hereof.
“Agreement”
means this Credit Agreement as amended, restated, supplemented or otherwise
modified from time to time.
“Agreement
Accounting Principles” means generally accepted accounting principles as
in effect from time to time, applied, with respect to Borrower, in a manner
consistent with that used in preparing Borrower’s financial statements referred
to in Section
5.4.
“Alternate
Base Rate” means, for any day, a rate of interest per annum equal to (a)
the highest of (i) the Prime Rate for such day, (ii) the sum of the Federal
Funds Effective Rate for such day plus 0.5% and (iii) the Eurodollar Base Rate
plus 1.0% plus
(b) the Applicable Margin.
“Applicable
Governmental Authorities” means, with respect to Borrower, the SEC or any
other federal or state governmental authority that has the power to regulate the
amount, terms or conditions of short-term debt of Borrower.
“Applicable
Margin” means, with respect to Eurodollar Advances or Floating Rate
Advances, as applicable, to Borrower at any time, the percentage rate per annum
which is applicable at such time with respect to Eurodollar Advances or Floating
Rate Advances, as applicable, to Borrower in accordance with the provisions of
the Pricing
Schedule.
“Arranger”
means Banc of America Securities LLC and its successors, in its capacity as sole
lead arranger and book runner.
“Assignment
Agreement” means an agreement substantially in the form of Exhibit
B.
“Authorized
Officer” means any of the President, any Senior Vice President, any Vice
President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer
of Borrower, acting singly. Any document delivered hereunder that is
signed by an Authorized Officer shall be conclusively presumed to have been
authorized by all necessary corporate and/or other action on the part of the
Borrower and such Authorized Officer shall be conclusively presumed to have
acted on behalf of the Borrower.
“Bank
of America” means Bank of America, N.A., a national banking association,
and its successors.
“Borrower”
is defined in the preamble.
“Borrowing
Date” means a date on which an Advance is made hereunder.
“Borrowing
Notice” is defined in Section
2.10.
2
“Business
Day” means (i) with respect to any borrowing, payment or rate selection
of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks
generally are open in New York, New York for the conduct of substantially all of
their commercial lending activities, interbank wire transfers can be made on the
Fedwire system and dealings in United States dollars are carried on in the
London interbank market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in New York, New York for
the conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.
“Capitalized
Lease” of a Person means any lease of Property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
“Capitalized
Lease Obligations” of a Person means the amount of the obligations of
such Person under Capitalized Leases which would be shown as a liability on a
balance sheet of such Person prepared in accordance with Agreement Accounting
Principles.
“Change
in Control” means an event or series of events by which (a) any Person,
or two or more Persons acting in concert, acquire beneficial ownership (within
the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934)
of 30% or more (by number of votes) of the outstanding shares of Voting Stock of
Borrower; or (b) individuals who on the Closing Date were directors of Borrower
(the “Approved
Directors”) shall cease for any reason to constitute a majority of the
board of directors of Borrower; provided
that any individual becoming a member of such board of directors subsequent to
such date whose election or nomination for election by Borrower’s shareholders
was approved by a majority of the Approved Directors shall be deemed to be an
Approved Director, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more
directors by any Person, or two or more Persons acting in concert, other than a
solicitation for the election of one or more directors by or on behalf of the
board of directors.
“Closing
Date” means the date hereof.
“Code”
means the Internal Revenue Code of 1986.
“Commitment”
means, for each Lender, the obligation of such Lender to make Revolving Loans
and to participate in Swingline Loans, in an aggregate amount not exceeding the
amount set forth on Schedule
2 or as set forth in any Assignment Agreement relating to any assignment
that has become effective pursuant to Section
12.3(b), as such amount may be modified from time to time pursuant to the
terms hereof.
“Commitment
Fee Rate” means, at any time, the “Commitment
Fee Rate” applicable at such time in accordance with the provisions of
the Pricing
Schedule.
“Contingent
Obligation” of a Person means any agreement, undertaking or arrangement
by which such Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes or is
contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including any comfort letter, operating agreement, take or pay
contract, application for a letter of credit or the obligations of any such
Person as general partner of a partnership with respect to the liabilities of
such partnership; provided
that Contingent Obligations shall not include endorsements of instruments for
deposit or collection in the
3
ordinary
course of business. The amount of any Contingent Obligation shall be
deemed equal to the stated or determinable amount of the primary obligation of
such other Person or, if such amount is not stated or is indeterminable, the
maximum reasonably anticipated liability of such Person in respect
thereof.
“Controlled
Group” means all members of a controlled group of corporations or other
business entities and all trades or businesses (whether or not incorporated)
under common control which, together with Borrower or any of its Subsidiaries,
are treated as a single employer under Section 414 of the Code.
“Conversion/Continuation
Notice” is defined in Section
2.11.
“Credit
Extension” means the making of an Advance.
“Default”
means an event described in Article
VII.
“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of the
Loans or participations in Swingline Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder, (b)
has otherwise failed to pay over to the Agent or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date
when due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency
proceeding.
“DPL”
means Delmarva Power & Light Company.
“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (i) the protection of
the environment, (ii) the effect of the environment on human health, (iii)
emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land, or (iv) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“Eurodollar
Advance” means an Advance which, except as otherwise provided in Section
2.13, bears interest at the applicable Eurodollar Rate or, if such
Advance is a Swingline Loan, the Eurodollar Market Index Rate.
“Eurodollar
Base Rate” means:
(a) for
any interest rate calculation with respect to a Eurodollar Advance for the
relevant Interest Period, the applicable British Bankers’ Association Interest
Settlement Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as
of 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, provided
that (i) if Reuters Screen FRBD is not available to the Agent for any reason,
the applicable Eurodollar Base Rate for the relevant Interest Period shall
instead be the applicable British Bankers’ Association Interest Settlement Rate
for deposits in U.S. dollars as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, and having a maturity equal to
such Interest Period, and (ii) if no such British Bankers’ Association
Interest
4
Settlement
Rate is available to the Agent, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the rate determined by the Agent to be
the rate at which Bank of America or one of its Affiliate banks offers to place
deposits in U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, in the approximate amount of Bank of America’s
relevant Eurodollar Loan and having a maturity equal to such Interest Period;
and
(b) for
any interest rate calculation with respect to a Floating Rate Advance, the rate
per annum equal to the British Bankers’ Association Interest Settlement Rate for
deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m.
(London time) two Business Days prior to the date of determination, and having a
term equal to one month commencing that day, provided
that
(i) if Reuters Screen FRBD is not available to the Agent for any reason, the
applicable Eurodollar Base Rate shall instead be the applicable British Bankers’
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two Business Days prior to the date of determination, and having a
term equal to one month commencing that day, and (ii) if no such British
Bankers’ Association Interest Settlement Rate is available to the Agent, the
applicable Eurodollar Base Rate shall instead be the rate determined by the
Agent to be the rate at which Bank of America or one of its Affiliate banks
offers to place deposits in U.S. dollars with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the date of determination, in the approximate amount of Bank of
America’s relevant Floating Rate Loan and having a term equal to one month
commencing on that day.
“Eurodollar
Loan” means a Loan which, except as otherwise provided in Section
2.13, bears interest at the applicable Eurodollar Rate or, if such Loan
is a Swingline Loan, the Eurodollar Market Index Rate.
“Eurodollar
Market Index Rate” means, with respect to a Swingline Loan, for any day,
the sum of (i) the quotient of (a) the Eurodollar Base Rate on such day for an
Interest Period of one (1) month, divided
by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Interest Period, plus
(ii) the Applicable Margin.
“Eurodollar
Rate” means, with respect to a Eurodollar Advance (other than a Swingline
Loan) for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus
(ii) the Applicable Margin.
“Excluded
Taxes” means, in the case of each Lender or applicable Lending
Installation, the Swingline Lender and the Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender, the Swingline Lender or the Agent is incorporated or
organized or (ii) the jurisdiction in which such Lender’s, the Swingline
Lender’s or the Agent’s principal executive office or such Lender’s applicable
Lending Installation is located.
“Existing
Credit Agreement” has the meaning provided in the Recitals to this
Agreement.
“Facility
Termination Date” means October 15, 2010 or any earlier date on which the
Aggregate Commitment is reduced to zero or the obligations of the Lenders to
make Credit Extensions to Borrower is terminated pursuant to Section
8.1.
5
“Federal
Funds Effective Rate” means, for any day, an interest rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. on such
day on such transactions received by the Agent from three Federal funds brokers
of recognized standing selected by the Agent in its sole
discretion.
“FERC”
means the Federal Energy Regulatory Commission.
“Floating
Rate Advance” means an Advance which, except as otherwise provided in
Section
2.13, bears interest at the Alternate Base Rate.
“Floating
Rate Loan” means a Loan which, except as otherwise provided in Section
2.13, bears interest at the Alternate Base Rate.
“FRB”
means the Board of Governors of the Federal Reserve System and any successor
thereto.
“Granting
Lender” is defined in Section
12.5.
“Hybrid
Securities” means any trust preferred securities, or deferrable interest
subordinated debt with a maturity of at least 20 years, which provides for the
optional or mandatory deferral of interest or distributions, issued by Borrower,
or any business trusts, limited liability companies, limited partnerships or
similar entities (i) substantially all of the common equity, general partner or
similar interest of which are owned (either directly or indirectly through one
or more wholly owned Subsidiaries) at all times by Borrower or any of its
Subsidiaries, (ii) that have been formed for the purpose of issuing hybrid
securities or deferrable interest subordinated debt, and (iii) substantially all
the assets of which consist of (A) subordinated debt of Borrower or a Subsidiary
of Borrower, and (B) payments made from time to time on the subordinated
debt.
“Impacted
Lender” means any Lender as to which (a) Agent has a good faith belief
that the Lender has defaulted in fulfilling its obligations under one or more
other syndicated credit facilities or (b) an entity that controls the Lender has
been deemed insolvent or become subject to a bankruptcy or other similar
proceeding.
“Increase
Notice” is defined in Section
2.2.
“Indebtedness”
of a Person means, without duplication, such Person’s (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person’s business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, bonds, debentures,
acceptances or similar instruments, (v) obligations of such Person to purchase
accounts, securities or other Property arising out of or in connection with the
sale of the same or substantially similar accounts, securities or Property, (vi)
Capitalized Lease Obligations, (vii) net liabilities under interest rate swap,
exchange or cap agreements, obligations or other liabilities with respect to
accounts or notes, (viii) obligations under any Synthetic Lease which, if such
Synthetic Lease were accounted for as a Capitalized Lease, would appear on a
balance sheet of such Person, (ix) unpaid reimbursement obligations in respect
of letters of credit issued for the account of such Person and (x) Contingent
Obligations in respect of Indebtedness of the types described
above.
6
“Intangible
Transition Property” means assets described as “bondable
transition property” in the New Jersey Transition Bond
Statute.
“Interest
Period” means, with respect to a Eurodollar Advance (other than a
Swingline Loan), a period of one, two, three or six months commencing on a
Business Day selected by Borrower for an Advance pursuant to this Agreement;
provided, that with respect to any period during the period commencing August
15, 2010 and ending on the Facility Termination Date, Borrower may select a
period of one or two weeks, if available, commencing on a Business Day selected
by Borrower for an Advance pursuant to this Agreement. Such Interest
Period shall end on the day which corresponds numerically to such date one, two,
three or six months thereafter, provided
that if there is no such numerically corresponding day in such next, second,
third or sixth succeeding month, such Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding
month. If an Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next succeeding
Business Day, provided
that if said next succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business
Day. Borrower may not select an Interest Period which ends after the
scheduled Facility Termination Date.
“Lenders”
means each of the Persons identified as a “Lender” on the signature pages hereto
and their successors and assigns and, as the context requires, the Swingline
Lender.
“Lending
Installation” means, with respect to a Lender, the office, branch,
subsidiary or affiliate of such Lender specified as such in its Administrative
Questionnaire or otherwise selected by such Lender pursuant to Section
2.19.
“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement, but excluding the interest
of a lessor under any operating lease).
“Loans”
means the collective reference to the Revolving Loans and the Swingline
Loans.
“Loan
Documents” means this Agreement and the Notes.
“Material
Adverse Effect” means, with respect to Borrower, a material adverse
effect on (i) the business, Property, financial condition or results of
operations of Borrower and its Subsidiaries taken as a whole, (ii) the ability
of Borrower to perform its obligations under the Loan Documents or (iii) the
validity or enforceability of any of the Loan Documents or the rights or
remedies of the Agent, the Swingline Lender or the Lenders against Borrower
thereunder; provided
that in no event shall any Permitted PEPCO Asset Sale, Permitted ACE Asset Sale,
Permitted PHI Asset Sale, or Permitted DPL Asset Sale, individually or in the
aggregate, be deemed to cause or result in a Material Adverse
Effect.
“Material
Indebtedness” is defined in Section
7.5.
“Maturity
Date” means, the Facility Termination Date or such earlier date on which
the Obligations of Borrower become due and payable pursuant to Section
8.1.
“Moody’s”
means Xxxxx’x Investors Service, Inc.
7
“Multiemployer
Plan” means a Plan maintained pursuant to a collective bargaining
agreement or any other arrangement to which Borrower or any other member of the
Controlled Group is a party to which more than one employer is obligated to make
contributions.
“Net
Worth” means, at any time, the sum, without duplication, at such time of
(a) Borrower’s stockholders’ equity plus (b) all Preferred Stock of Borrower
(excluding any Preferred Stock which is mandatorily redeemable on or prior to
the scheduled Facility Termination Date).
“New
Jersey Transition Bond Statute” means the New Jersey Electric Discount
and Energy Corporation Act as in effect on the date hereof.
“Nonrecourse
Indebtedness” means, with respect to Borrower, Indebtedness of Borrower
or any Subsidiary of Borrower (excluding Nonrecourse Transition Bond Debt)
secured by a Lien on the Property of Borrower or such Subsidiary, as the case
may be, the sole recourse for the payment of which is such Property and where
neither Borrower nor any of its Subsidiaries is liable for any deficiency after
the application of the proceeds of such Property.
“Nonrecourse
Transition Bond Debt” means obligations evidenced by Transition Bonds
rated investment grade or better by S&P or Moody’s, representing a
securitization of Intangible Transition Property as to which obligations
Borrower or any Subsidiary of Borrower (other than a Special Purpose Subsidiary)
has no direct or indirect liability (whether as primary obligor, guarantor,
surety, provider of collateral security, through a put option, asset repurchase
agreement, capital maintenance agreement or debt subordination agreement, or
through any other right or arrangement of any nature providing direct or
indirect assurance of payment or performance of any such obligation in whole or
in part), except for liability to repurchase Intangible Transition Property
conveyed to the securitization vehicle, on terms and conditions customary in
receivables securitizations, in the event such Intangible Transition Property
violates representations and warranties of scope customary in receivables
securitizations.
“Non-U.S.
Lender” is defined in Section
3.5(d).
“Note”
means any promissory note substantially in the form of Exhibit
C issued at the request of a Lender or the Swingline Lender pursuant to
Section
2.15.
“Obligations”
means all unpaid principal of the Loans, all accrued and unpaid interest on such
Loans, all accrued and unpaid fees payable by Borrower and all expenses,
reimbursements, indemnities and other obligations payable by Borrower to the
Agent, the Swingline Lender, any other Lender or any other Indemnified Party
arising under any Loan Document.
“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
“Other
Taxes” is defined in Section
3.5(b).
“Outstanding
Credit Extensions” means, with respect to Borrower, the sum of the
aggregate principal amount of all outstanding Loans to Borrower.
“Participants”
is defined in Section
12.2(a).
“Payment
Date” means the last Business Day of each March, June, September and
December.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor
thereto.
8
“PCI”
means Potomac Capital Investment Corporation.
“PEPCO”
means Potomac Electric Power Company.
“Permitted
ACE Asset Sale” means the sale of the capital stock or assets of any
Subsidiary of ACE other than a Significant Subsidiary of ACE, provided
that the fair market value of all such sales shall not exceed $10,000,000 in the
aggregate during the term of this Agreement.
“Permitted
ACE Liens” means the Lien of the Mortgage and Deed of Trust dated January
15, 1937 between ACE and The Bank of New York Mellon.
“Permitted
DPL Asset Sale” means the sale of the capital stock or assets of any
Subsidiary of DPL other than a Significant Subsidiary of DPL, provided
that the fair market value of all such sales shall not exceed $10,000,000 in the
aggregate during the term of this Agreement.
“Permitted
DPL Liens” means the Lien of the Mortgage and Deed of Trust dated October
1, 1943 between DPL and The Bank of New York Mellon (as successor in interest to
The Chase Manhattan Bank), as trustee.
“Permitted
PEPCO Asset Sale” means the sale of the capital stock or assets of any
Subsidiary of PEPCO other than a Significant Subsidiary of PEPCO, provided
that the fair market value of all such sales shall not exceed $10,000,000 in the
aggregate during the term of this Agreement.
“Permitted
PEPCO Liens” means (a) the Lien of the Mortgage and Deed of Trust dated
July 1, 1936 from PEPCO to The Bank of New York Mellon; and (b) the Lien created
by the $152,000,000 sale/leaseback on November 30, 1994 of PEPCO’s control
center.
“Permitted
PHI Asset Sale” means the sale of (a) the centralized steam and chilled
water production facility located on an approximately three-quarter acre site on
the northeastern corner of the intersection of Atlantic and Ohio Avenues in
Atlantic City, New Jersey and related distribution facilities; (b) ownership
interests in cross-border leveraged leases and related assets owned by PCI and
its Subsidiaries in an aggregate amount not exceeding a book value of
$200,000,000; and (c) the retail energy supply business of Pepco Energy
Services, Inc.
“Permitted
PHI Liens” means (a) Liens on assets of Conectiv Energy Supply, Inc. or
any other Subsidiary of Borrower (other than ACE, DPL or PEPCO or any Subsidiary
thereof) which is engaged primarily in the energy trading business (a “Trading
Subsidiary”) to secure obligations arising under energy trading
agreements entered into in the ordinary course of business consistent with the
past practice of DPL prior to September of 1999 and Liens on cash collateral to
secure guaranties by Borrower of the obligations of any Trading Subsidiary under
such energy trading agreements, provided
that the aggregate amount of all such cash collateral granted by Borrower shall
not at any time exceed $100,000,000; (b) Liens on the interests of (i)
Pepco Energy Services, Inc., or any other Subsidiary of Borrower (other than
ACE, DPL or PEPCO or any Subsidiary thereof) which may hereafter own the stock
of CTS (the “CTS
Parent”), in the capital stock of Conectiv Thermal Systems, Inc. (“CTS”),
(ii) CTS in Atlantic Jersey Thermal Systems, Inc. (“AJTS”),
Thermal Energy Limited Partnership I (“TELP
I”) and ATS Operating Services, Inc. and (iii) AJTS in TELP I, in each
case securing Indebtedness of CTS for which neither Borrower nor any of its
Subsidiaries (other than CTS and its Subsidiaries and, solely with respect to
the pledge of its interest in the capital stock of CTS, the CTS Parent) has any
liability (contingent or otherwise); (c) Liens granted by a bankruptcy remote
Subsidiary (the “SPV”)
of Borrower to facilitate a structured financing in an amount not exceeding
$200,000,000; (d) Liens on the stock or assets of one or more Subsidiaries of
Borrower, other than ACE, DPL or PEPCO, in favor of the SPV; and (e) Liens
on
9
the
assets of Conectiv Energy Holding Company or its Subsidiaries, provided
that the aggregate principal amount of the Indebtedness secured by the Liens
contemplated by this clause (e) shall not exceed $400,000,000.
“Person”
means any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
“Plan”
means an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 430 of the Code as to
which Borrower or any other member of the Controlled Group may have any
liability.
“Preferred
Stock” means, with respect to any Person, equity interests issued by such
Person that are entitled to a preference or priority over any other equity
interests issued by such Person upon any distribution of such Person’s property
and assets, whether by dividend or upon liquidation.
“Pricing
Schedule” means Schedule
1 hereto.
“Prime
Rate” means a rate per annum equal to the prime rate of interest publicly
announced by Bank of America, from time to time, changing when and as such prime
rate changes. The Prime Rate is an index or base rate and shall not
necessarily be the lowest or best rate charged to its customers or other
banks.
“Property”
of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.
“Pro
Rata Share” means, with respect to any Lender, the percentage which such
Lender’s Commitment constitutes of the Aggregate Commitment (and/or, to the
extent the Commitments have terminated, the percentage which such Lender’s
Revolving Loans and participation in Swingline Loans constitutes of the
aggregate principal amount of all Loans). The initial Pro Rata Share
of each Lender is set forth on Schedule
2, or in the Assignment Agreement pursuant to which such Lender becomes a
party hereto, as applicable.
“Public
Reports” means Borrower’s (i) annual report on Form 10-K for the year
ended December 31, 2008, (ii) quarterly report on Form 10-Q for the quarters
ending March 31, 2009 and June 30, 2009, (iii) current report filed on Form 8-K
on August 6, 2009 and (iv) current report filed on Form 8-K on August 10,
2009.
“Purchasers”
is defined in Section
12.3(a).
“Register”
is defined in Section
12.3(c).
“Reportable
Event” means a reportable event, as defined in Section 4043 of ERISA,
with respect to a Plan, excluding, however, such events as to which the PBGC has
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 of Section 302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
“Requested
Commitment Increase” is defined in Section
2.2.
10
“Required
Lenders” means Lenders in the aggregate having more than 50% of the
Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding more than 50% of the aggregate unpaid principal
amount of the Outstanding Credit Extensions to the Borrower.
“Reserve
Requirement” means, with respect to an Interest Period, the maximum
aggregate reserve requirement (including all basic, supplemental, marginal and
other reserves) which is imposed under Regulation D of the FRB on Eurocurrency
liabilities.
“Revolving
Loan” means, with respect to a Lender, any revolving loan made by such
Lender pursuant to Article
II (or any conversion or continuation thereof), but excluding any
Swingline Loan.
“S&P”
means Standard and Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.
“SEC”
means the Securities and Exchange Commission.
“Securitization
Transaction” means any sale, assignment or other transfer by Borrower or
a Subsidiary thereof of accounts receivable or other payment obligations owing
to Borrower or such Subsidiary or any interest in any of the foregoing, together
in each case with any collections and other proceeds thereof, any collection or
deposit accounts related thereto, and any collateral, guaranties or other
property or claims in favor of Borrower or such Subsidiary supporting or
securing payment by the obligor thereon of, or otherwise related to, any such
receivables.
“Significant
Subsidiary” means, with respect to Borrower, a “significant
subsidiary” (as defined in Regulation S-X of the SEC as in effect on the
date of this Agreement) of Borrower; provided that each of PEPCO, DPL and ACE
shall at all times be a Significant Subsidiary of Borrower.
“Single
Employer Plan” means a Plan maintained by Borrower or any member of the
Controlled Group for employees of Borrower or any member of the Controlled
Group.
“SPC”
is defined in Section
12.5.
“Special
Purpose Subsidiary” means a direct or indirect wholly owned corporate
Subsidiary of ACE, substantially all of the assets of which are Intangible
Transition Property and proceeds thereof, formed solely for the purpose of
holding such assets and issuing Transition Bonds and, which complies with the
requirements customarily imposed on bankruptcy-remote corporations in
receivables securitizations.
“SPV”
is defined in the definition of Permitted PHI Liens.
“Subsidiary”
of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any
partnership, limited liability company, association, business trust, joint
venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled.
“Substantial
Portion” means, at any time with respect to the Property of any Person,
Property which represents more than 10% of the consolidated assets of such
Person and its Subsidiaries as shown
11
in the
consolidated financial statements of such Person and its Subsidiaries as of the
last day of the preceding fiscal year of such Person.
“Swingline
Lender” means Bank of America in its capacity as swingline lender
hereunder.
“Swingline
Loan” means any swingline loan made by the Swingline Lender to Borrower
pursuant to Section
2.1(b).
“Swingline
Sublimit” means an amount equal to 10% of the Aggregate
Commitment. The Swingline Sublimit is part of, and not in addition
to, the Aggregate Commitment.
“Synthetic
Lease” means (a) a so-called synthetic, off-balance sheet or tax
retention lease or (b) any other agreement pursuant to which a Person obtains
the use or possession of property and which creates obligations that do not
appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as indebtedness of such Person
(without regard to accounting treatment).
“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing which arise from or relate to any payment made hereunder or under any
Note, but excluding Excluded Taxes and Other Taxes.
“Total
Capitalization” means, at any time, the sum of the Total Indebtedness of
Borrower plus the Net Worth of Borrower, each calculated at such
time.
“Total
Indebtedness” means, at any time, all Indebtedness of Borrower and its
Subsidiaries at such time determined on a consolidated basis in accordance with
Agreement Accounting Principles, excluding,
to the extent otherwise included in Indebtedness of Borrower or any of its
Subsidiaries, (a) any Nonrecourse Transition Bond Debt; (b) to the extent it
constitutes Nonrecourse Indebtedness, any Indebtedness secured by liens
described in clause
(e) of the definition of Permitted PHI Liens; (c) any other Nonrecourse
Indebtedness of Borrower and its Subsidiaries (excluding ACE, DPL and PEPCO and
their Subsidiaries) to the extent that the aggregate amount of such Nonrecourse
Indebtedness does not exceed $200,000,000; and (d) all Indebtedness of PCI and,
without duplication, of Borrower the proceeds of which were used to make loans
or advances to PCI, in an aggregate amount not exceeding the lesser of (i) the
fair market value of the equity collateral accounts in PCI’s energy leveraged
lease portfolio or (ii) $700,000,000.
“Transferee”
is defined in Section
12.4.
“Transition
Bonds” means bonds described as “transition
bonds” in the New Jersey Transition Bond Statute.
“Type”
means, with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance.
“Unmatured
Default” means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.
“Voting
Stock” means, with respect to any Person, voting stock of any class or
kind ordinarily having the power to vote for the election of directors, managers
or other voting members of the governing body of such Person.
12
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of such terms.
(b) Article,
Section,
Schedule
and Exhibit
references are to this Agreement unless otherwise specified.
(c) The
term “including”
is not limiting and means “including
without limitation.”
(d) In
the computation of periods of time from a specified date to a later specified
date, the word “from”
means “from
and including”; the words “to”
and “until”
each mean “to
but excluding”, and the word “through”
means “to
and including.”
(e) Unless
otherwise expressly provided herein, (i) references to agreements (including
this Agreement) and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of this
Agreement; and (ii) references to any statute or regulation are to be construed
as including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such statute or
regulation.
(f) Unless
otherwise expressly provided herein, references herein shall be references to
Eastern time (daylight or standard as applicable).
(a) Except
as provided to the contrary herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles, except that any calculation or
determination which is to be made on a consolidated basis shall be made for
Borrower and all of its Subsidiaries, including those Subsidiaries of Borrower,
if any, which are unconsolidated on Borrower’s audited financial
statements.
(b) If
at any time any change in Agreement Accounting Principles would affect the
computation of any financial ratio or requirement set forth herein with respect
to Borrower and either Borrower or the Required Lenders shall so request, the
Agent, the Lenders and Borrower shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such
change in Agreement Accounting Principles (subject to the approval of the
Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with Agreement Accounting Principles as in effect prior
to such change and (ii) Borrower shall provide to the Agent and the Lenders
financial statements and other documents required under this Agreement setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in Agreement Accounting
Principles.
ARTICLE
II
13
Lender’s
Commitment; provided
that,
after giving effect to any Credit Extension hereunder, (i) the aggregate
principal amount of all Revolving Loans by such Lender to Borrower plus
such Lender’s Pro Rata Share of the aggregate principal amount of all Swingline
Loans to Borrower shall not exceed such Lender’s Commitment and (ii) the
Outstanding Credit Extensions to Borrower shall not at any time exceed the
Aggregate Commitment. Within the foregoing limits, Borrower may from
time to time borrow, prepay pursuant to Section
2.9 and reborrow hereunder prior to the Facility Termination
Date.
(i) Subject
to the terms and conditions set forth in this Agreement, the Swingline Lender
may, in its discretion and in reliance upon the agreements of the other Lenders
set forth in this Section
2.01(b) make Swingline Loans to Borrower from time to time from the
Closing Date through, but not including, the Facility Termination Date; provided,
that (i)
the aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested), shall not exceed the Swingline Sublimit and
(ii) the aggregate principal amount of all Revolving Loans by such Lender to
Borrower plus
such Lender’s Pro Rata Share of the aggregate principal amount of all Swingline
Loans to Borrower shall not exceed such Lender’s Commitment; provided,
further,
that,
subject to Section
2.1(b)(ii), Borrower shall not use the proceeds of any Swingline Loan to
refinance any outstanding Swingline Loan. To request a Swingline
Loan, Borrower shall notify the Agent in accordance with Section
2.10 hereof. Borrower shall be entitled to borrow, repay and
reborrow Swingline Loans in accordance with the terms and subject to the
conditions of this Agreement.
(ii) The
Swingline Lender may, at any time and from time to time, give written notice to
the Agent (a “Swingline
Borrowing Notice”), on behalf of Borrower (and Borrower hereby
irrevocably authorizes and directs the Swingline Lender to act on its behalf),
requesting that the Lenders (including the Swingline Lender) make Revolving
Loans to Borrower in an amount equal to the unpaid principal amount of any
Swingline Loan. The Swingline Borrowing Notice shall include the information
with respect to each Revolving Loan set forth in Section
2.10. The Swingline Lender shall provide a copy of any such
notice to Borrower. Each Lender shall make a Revolving Loan in same
day funds in an amount equal to its respective Pro Rata Share of Revolving Loans
as required to repay the Swingline Loan outstanding to the Swingline Lender
promptly upon receipt of a Swingline Borrowing Notice but in no event later than
1:00 p.m. on the next succeeding Business Day after such Swingline Borrowing
Notice is received. On the date of such Revolving Loan, the Swingline
Loan (including the Swingline Lender’s Pro Rata Share thereof, in its capacity
as a Lender) shall be deemed to be repaid with the proceeds thereof and shall
thereafter be reflected as a Revolving Loan on the books and records of the
Agent. No Lender’s obligation to fund its respective Pro Rata Share
of a Swingline Loan shall be affected by any other Lender’s failure to fund its
Pro Rata Share of any Swingline Loan, nor shall any Lender’s Pro Rata Share be
increased as a result of any such failure of any other Lender to fund its Pro
Rata Share of any Swingline Loan.
(iii) If
not repaid earlier, Borrower shall pay to the Swingline Lender the amount of
each Swingline Loan within seven days of receipt of such Swingline
Loan. If any portion of any such amount paid to the Swingline Lender
shall be recovered by or on behalf of Borrower from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Lenders in accordance with their respective Pro Rata Share
(unless the amounts so recovered by or on behalf of Borrower pertain to a
Swingline Loan extended after the occurrence and during the continuance of a
Default of which the Agent has received notice in the manner required pursuant
to Section
10.9 and which such Event of Default has not been waived pursuant to the
terms hereof). If any payment received by the Swingline Lender
under
14
any of
the circumstances described in Section
11.3 (including pursuant to any settlement entered into by the Swingline
Lender in its discretion), each Lender shall pay to the Swingline Lender its Pro
Rata Share thereof on demand of the Agent, plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Effective
Rate. The Agent will make such demand upon the request of the
Swingline Lender. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this
Agreement.
(iv) Each
Lender acknowledges and agrees that its obligation to repay Swingline Loans in
accordance with the terms of this Section is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without
limitation, non-satisfaction of the conditions set forth in Article
IV. Further, each Lender agrees and acknowledges that if prior
to the repayment of any outstanding Swingline Loans pursuant to this Section,
one of the events described in Section
7.6 or 7.7
shall have occurred, or if a Revolving Loan may not be (as determined in the
reasonable discretion of the Agent), or is not, made in accordance with the
foregoing provisions, each Lender will, on the date the applicable Revolving
Loan would have been made, purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share of the aggregate amount
of such Swingline Loan. Each Lender will immediately transfer to the
Swingline Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swingline Lender will deliver to such
Lender a certificate evidencing such participation dated the date of receipt of
such funds and for such amount, such certificate to be conclusive absent
manifest error. Whenever, at any time after the Swingline Lender has
received from any Lender such Lender’s participating interest in a Swingline
Loan, the Swingline Lender receives any payment on account thereof, the
Swingline Lender will distribute to such Lender (including pursuant to a
participation made by the Swingline Lender) its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was outstanding
and funded).
(v) The
Swingline Lender shall be responsible for invoicing the Borrower for interest on
the Swingline Loans. Until each Lender funds its Revolving Loans or
participations pursuant to this Section
2.1(b) to refinance such Lender’s Pro Rata Share of any Swingline Loan,
interest in respect of such Pro Rata Share shall be solely for the account of
the Swingline Lender.
(vi) The
Borrower shall make all payments of principal and interest in respect of the
Swingline Loans directly to the Swingline Lender.
15
(a) Borrower
agrees to pay to the Agent for the account of the Lenders according to their Pro
Rata Shares a commitment fee at a per annum rate equal to the Commitment Fee
Rate on the average daily unused portion of the Aggregate
Commitment. Commitment fees payable by Borrower shall accrue from the
Closing Date to the Facility Termination Date (or, if later, to the date all of
Borrower’s Obligations have been paid in full) and shall be payable on each
Payment Date and on the Facility Termination Date (and, if applicable,
thereafter on demand). For purposes of clarification, Swingline Loans
shall not be considered outstanding for purposes of determining the unused
portion of the Aggregate Commitment in calculating commitment fees.
(b) Borrower
may permanently reduce the Aggregate Commitment ratably among the Lenders in
accordance with their Pro Rata Shares, and in integral multiples of $10,000,000,
upon at least five Business Days’ written notice to the Agent, which notice
shall specify the amount of any such reduction, provided
that the Aggregate Commitment may not be reduced below the amount of the
Outstanding Credit Extensions on the date of such notice. All fees in
respect of the Aggregate Commitment accrued until the effective date of any
termination of the Aggregate Commitment shall be paid on the effective date of
such termination.
16
notice (a
“Borrowing Notice”) not later than 11:00 a.m. on the Borrowing Date of each
Floating Rate Advance and each Swingline Loan and three Business Days before the
Borrowing Date for each Eurodollar Advance (other than a Swingline Loan),
specifying:
(i) the
Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the
aggregate amount of such Advance,
(iii) the
Type of Advance selected, and
(iv) in
the case of each Eurodollar Advance (other than a Swingline Loan), the Interest
Period applicable thereto.
Not later
than 1:00 p.m. on each Borrowing Date for each Revolving Loan, each Lender shall
make available its Revolving Loan or Revolving Loans in funds immediately
available to the Agent at its address specified pursuant to Article
XIII. The Agent will promptly make the funds so received from
the Lenders available to Borrower at the Agent’s aforesaid
address. Not later than 1:00 p.m. on each Borrowing Date for each
Swingline Loan, the Swingline Lender shall make available its Swingline Loan in
funds immediately available to Borrower at the Agent’s aforesaid
address. If the Borrower fails to specify a Type of Advance in a
Borrowing Notice, then the applicable Advance shall be made as a Floating Rate
Advance; provided,
however,
if the Borrower cannot satisfy the conditions precedent set forth in Section
4.2(v), such applicable Advance shall be made as a Eurodollar Advance with an
Interest Period of one month. If the Borrower requests a Eurodollar
Advance but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.
(i) the
requested date, which shall be a Business Day, of such conversion or
continuation,
(ii) the
aggregate amount and Type of the Advance which is to be converted or continued,
and
(iii) the
amount of such Advance which is to be converted into or continued as a
Eurodollar Advance and the duration of the Interest Period applicable
thereto.
17
After
giving effect to all Advances, all conversions and all continuations, there
shall be no more than 8 Interest Periods in effect with respect to all
Loans.
(a) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of Borrower to such Lender resulting from
each Loan made by such Lender to Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
18
(b) The
Agent shall also maintain accounts in which it will record (i) the amount of
each Loan to Borrower made hereunder, the Type thereof and the Interest Period
with respect thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from Borrower to each Lender hereunder, and
(iii) the amount of any sum received by the Agent hereunder from Borrower and
each Lender’s share thereof.
(c) The
entries maintained in the accounts maintained pursuant to clauses
(a) and (b)
above shall be prima facie evidence of the existence and amounts of the
Obligations therein recorded; provided
that the failure of the Agent or any Lender to maintain such accounts or any
error therein shall not in any manner affect the obligation of Borrower to repay
the Obligations in accordance with their terms.
(d) Any
Lender may request that its Loans to Borrower be evidenced by a
Note. In such event, Borrower shall prepare, execute and deliver to
such Lender a Note payable to the order of such Lender. Thereafter,
the Loans evidenced by such Note and interest thereon shall at all times
(including after any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order of the
payee named therein or any assignee pursuant to Section
12.3, except to the extent that any such Lender or assignee subsequently
returns any such Note for cancellation and requests that such Loans once again
be evidenced as described in clauses
(a) and (b)
above.
19
notice of
reduction in the Aggregate Commitment, Swingline Borrowing Notice, Borrowing
Notice, Conversion/Continuation Notice, notice of repayment and Increase Notice
received by the Agent hereunder. The Agent will notify each Lender of
the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
ARTICLE
III
(i) subjects
the Swingline Lender, any other Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other than with respect
to Excluded Taxes) to the Swingline Lender or any Lender in respect of its
Eurodollar Loans, or
(ii) imposes
or increases or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, the Swingline Lender, any other Lender or
any applicable Lending Installation (other than reserves and assessments taken
into account in determining the interest rate applicable to Eurodollar
Advances), or
(iii) imposes
any other condition the result of which is to increase the cost to the Swingline
Lender, any other Lender or any applicable Lending Installation of making,
funding or
20
maintaining
its Eurodollar Loans or reduces any amount receivable by the Swingline Lender,
any other Lender or any applicable Lending Installation in connection with its
Eurodollar Loans, or requires the Swingline Lender, any other Lender or any
applicable Lending Installation to make any payment calculated by reference to
the amount of Eurodollar Loans held or interest received by it, in each case by
an amount deemed material by such Lender, and the result of any of the foregoing
is to increase the cost to the Swingline Lender, such other Lender or such
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by the Swingline Lender, such other
Lender or such applicable Lending Installation in connection with its Eurodollar
Loans or Commitment, then, within 15 days of demand by the Swingline Lender or
such other Lender, Borrower shall pay the Swingline Lender or such other Lender
such additional amount or amounts as will compensate the Swingline Lender or
such Lender for such increased cost or reduction in amount
received.
21
made on
the date specified by Borrower for any reason other than default by the Lenders,
Borrower shall indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including any loss or cost in liquidating or employing
deposits acquired to fund or maintain such Eurodollar Advance.
(a) All
payments by Borrower to or for the account of the Swingline Lender, any other
Lender or the Agent hereunder or under any Note shall be made free and clear of
and without deduction for any and all Taxes. If Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to the Swingline Lender, any other Lender or the Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section
3.5), the Swingline Lender, such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such deductions, (iii) Borrower
shall pay the full amount deducted to the relevant authority in accordance with
applicable law and (iv) Borrower shall furnish to the Agent the original copy of
a receipt evidencing payment thereof within 30 days after such payment is
made.
(b) In
addition, Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar
levies which arise from any payment made by it hereunder or under any Note or
from its execution or delivery of, or otherwise attributable to Borrower in
connection with, this Agreement or any Note (“Other
Taxes”).
(c) Borrower
hereby agrees to indemnify the Swingline Lender, each other Lender and the Agent
for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed on amounts payable under this Section
3.5) paid by the Swingline Lender, such Lender or the Agent and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. Payments due under this indemnification shall be
made within 30 days of the date the Swingline Lender, such Lender or the Agent
makes demand therefor pursuant to Section
3.6.
(c) Each
Lender that is not incorporated under the laws of the United States of America
or a state thereof (each a “Non-U.S.
Lender”) agrees that it will, not less than ten Business Days after the
date of this Agreement, (i) deliver to Borrower and the Agent two duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI
certifying in either case that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, and (ii) deliver to Borrower and the Agent a United States
Internal Revenue Form W-8BEN or W-9, as the case may be, and certify that it is
entitled to an exemption from United States backup withholding
tax. Each Non-U.S. Lender further undertakes to deliver to Borrower
and the Agent (x) renewals or additional copies of such form (or any successor
form) on or before the date that such form expires or becomes obsolete, and (y)
after the occurrence of any event requiring a change in the most recent forms so
delivered by it, such additional forms or amendments thereto as may be
reasonably requested by Borrower or the Agent. All forms or
amendments described in the preceding sentence shall certify that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event
(including any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such Lender
advises Borrower and the Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal income
tax.
(e) For
any period during which a Non-U.S. Lender has failed to provide Borrower with an
appropriate form pursuant to clause
(d) above (unless such failure is due to a change in treaty, law
or
22
regulation,
or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form
originally was required to be provided), Borrower shall not be required to
increase any amount payable to such Non-U.S. Lender pursuant to Section
3.5(a)(i) or to otherwise indemnify such Lender under this Section
3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause
(d) above, Borrower shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such
Taxes.
(f) Any
Lender that is entitled to an exemption from or reduction of withholding tax
with respect to payments under this Agreement or any Note pursuant to the law of
any relevant jurisdiction or any treaty shall deliver to Borrower (with a copy
to the Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate.
(g) If
the U.S. Internal Revenue Service or any other governmental authority of the
United States or any other country or any political subdivision thereof asserts
a claim that the Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not delivered or
properly completed, because such Lender failed to notify the Agent of a change
in circumstances which rendered its exemption from withholding ineffective, or
for any other reason), such Lender shall indemnify the Agent fully for all
amounts paid, directly or indirectly, by the Agent as tax, withholding therefor,
or otherwise, including penalties and interest, and including taxes imposed by
any jurisdiction on amounts payable to the Agent under this subsection, together
with all costs and expenses related thereto (including attorneys fees and time
charges of attorneys for the Agent, which attorneys may be employees of the
Agent). The obligations of the Lenders under this Section
3.5(g) shall survive the payment of the Obligations and termination of
this Agreement.
23
will
entitle such Lender to compensation from Borrower pursuant to Section 3.1, 3.2
or 3.5 within 60 days after such Lender obtains knowledge of such event or
circumstance, then Borrower will not be responsible for any such compensation
arising prior to the 60th day before Borrower receives notice from such Lender
of such event or circumstance. The obligations of Borrower under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE
IV
4.1 Conditions
Precedent to Amendment and Restatement of Existing Credit
Agreement. The effectiveness of this Agreement is subject to
the conditions precedent that the Agent has received (a) evidence, reasonably
satisfactory to the Agent, that all fees and (to the extent billed) expenses
which are payable on or before the date hereof to the Arranger, the Agent or any
Lender hereunder or in connection herewith have been (or concurrently with the
execution of this Agreement by the parties will be) paid in full; and (b) each
of the following documents (with sufficient copies for each
Lender):
(i) A
copy of each of the certificate of incorporation, together with all amendments
thereto, and the bylaws of Borrower, certified by the Secretary or Assistant
Secretary of Borrower.
(ii) An
incumbency certificate from Borrower, executed by the Secretary or Assistant
Secretary of Borrower, which shall identify by name and title and bear the
signatures of the officers of Borrower authorized to sign this Agreement, any
Notes and any Borrowing Notice, upon which certificate the Agent shall be
entitled to rely until informed of any change in writing by
Borrower.
(iii) A
copy of a certificate of good standing of Borrower, certified by the appropriate
governmental officer in the jurisdiction of incorporation of
Borrower.
(iv) A
copy, certified by the Secretary or Assistant Secretary of Borrower, of
resolutions of Borrower’s Board of Directors authorizing the execution, delivery
and performance of the Loan Documents.
(v) A
certificate, signed by an Authorized Officer of Borrower, stating that on the
Closing Date, no Default or Unmatured Default has occurred and is continuing
with respect to Borrower.
24
(vi) Any
Notes requested by a Lender pursuant to Section
2.15 payable to the order of such requesting Lender.
(vii) Copies
of all governmental approvals, if any, necessary for Borrower to enter into the
Loan Documents and to obtain Credit Extensions hereunder.
(viii) Such
other documents as any Lender or its counsel may reasonably request, including,
without limitation, opinions of legal counsel to the Borrower, addressed to the
Agent and each Lender, dated as of the Closing Date, in form and substance
reasonably satisfactory to the Agent.
(i) No
Default or Unmatured Default exists or will result from such Credit
Extension.
(ii) The
representations and warranties of Borrower contained in Article
V, (with the exception of the representations and warranties contained in
Sections
5.5, 5.7.
and 5.15
which shall only be made as of the Closing Date), are true and correct in all
material respects as of the date of such Credit Extension except to the extent
any such representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been true and
correct in all material respects on and as of such earlier date.
(iii) After
giving effect to such Credit Extension, Borrower’s Outstanding Credit Extensions
will not exceed Borrower’s borrowing authority as allowed by Applicable
Governmental Authorities.
(iv) All
legal matters incident to the making of such Credit Extension shall be
reasonably satisfactory to the Lenders and their counsel.
(v) If
the Credit Extension is for a Floating Rate Advance, the Agent has received
(with sufficient copies for each Lender) the Additional Board
Authorization.
Each
request for a Credit Extension by Borrower shall constitute a representation and
warranty by Borrower that the conditions contained in Sections
4.2(i), (ii)
and (iii)
have been satisfied. Any Lender may require a duly completed
compliance certificate in substantially the form of Exhibit
A from Borrower as a condition to the making of a Credit
Extension.
ARTICLE
V
Borrower
represents and warrants to the Lenders that:
25
26
making of
any Loans. Other than any liability incident to any litigation,
arbitration or proceeding which could not reasonably be expected to have a
Material Adverse Effect, Borrower has no material Contingent Obligations not
provided for or disclosed in the Public Reports.
27
environment,
which noncompliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
5.20 OFAC. None of
Borrower, any Subsidiary of Borrower or any Affiliate of Borrower: (i) is a
person named on the list of Specially Designated Nationals or Blocked Persons
maintained by the U.S. Department of the Treasury’s Office of Foreign Assets
Control available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/xxxxx.xxxx, or as otherwise
published from time to time; or (ii) is (A) an agency of the government of a
country, (B) an organization controlled by a country, or (C) a person resident
in a country that is subject to a sanctions program identified on the list
maintained by OFAC and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx, or as
otherwise published from time to time, as such program may be applicable to such
agency, organization or person; or (iii) derives more than 10% of its assets or
operating income from investments in or transactions with any such country,
agency, organization or person; and (iv) none of the proceeds from the Loans
will be used to finance any operations, investments or activities in, or make
any payments to, any such country, agency, organization, or
person.
ARTICLE
VI
During
the term of this Agreement, unless the Required Lenders shall otherwise consent
in writing:
(i) Within
100 days after the close of its fiscal year, an audit report, which shall be
without a “going
concern” or similar qualification or exception and without any
qualification as to the scope of the audit, issued by independent certified
public accountants of recognized national standing and reasonably acceptable to
the Agent, prepared in accordance with Agreement Accounting Principles on a
consolidated and consolidating basis (consolidating statements need not be
certified by such accountants) for itself and its Subsidiaries,
including
28
balance
sheets as of the end of such period, related profit and loss and reconciliation
of surplus statements, and a statement of cash flows, accompanied by (a) any
management letter prepared by said accountants, and (b) a certificate of said
accountants that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default
or Unmatured Default with respect to Borrower, or if, in the opinion of such
accountants, any such Default or Unmatured Default shall exist, stating the
nature and status thereof; provided
that if Borrower is then a “registrant” within the meaning of Rule 1-01 of
Regulation S-X of the SEC and required to file a report on Form 10-K with the
SEC, a copy of Borrower’s annual report on Form 10-K (excluding the exhibits
thereto, unless such exhibits are requested under clause
(viii) of this Section) or any successor form and a manually executed
copy of the accompanying report of Borrower’s independent public accountant, as
filed with the SEC, shall satisfy the requirements of this clause
(i);
(ii) Within
60 days after the close of the first three quarterly periods of each of
Borrower’s fiscal years commencing during the term of this Agreement, for itself
and its Subsidiaries, either (i) consolidated and consolidating unaudited
balance sheets as at the close of each such period and consolidated and
consolidating profit and loss and reconciliation of surplus statements and a
statement of cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its chief financial officer or (ii) if
Borrower is then a “registrant” within the meaning of Rule 1-01 of Regulation
S-X of the SEC and required to file a report on Form 10-Q with the SEC, a copy
of Borrower’s report on Form 10-Q for such quarterly period, excluding the
exhibits thereto, unless such exhibits are requested under clause
(viii) of this Section.
(iii) Together
with the financial statements (or reports) required under Sections
6.1(i) and (ii),
a compliance certificate in substantially the form of Exhibit
A signed by an Authorized Officer of Borrower showing the calculations
necessary to determine Borrower’s compliance with Section
6.13 of this Agreement and stating that, to the knowledge of such
officer, no Default or Unmatured Default with respect to Borrower exists, or if
any such Default or Unmatured Default exists, stating the nature and status
thereof.
(iv) As
soon as possible and in any event within 30 days after receipt by Borrower, a
copy of (a) any notice or claim to the effect that Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the release by
Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health or safety law or
regulation by Borrower or any of its Subsidiaries, which, in either case, could
be reasonably expected to have a Material Adverse Effect.
(v) Promptly
upon Borrower’s furnishing thereof to its shareholders generally, copies of all
financial statements, reports and proxy statements so furnished.
(vi) Promptly
upon the filing thereof, copies of all registration statements and annual,
quarterly, monthly or other regular reports which Borrower or any of its
Subsidiaries files with the SEC.
(vii) As
soon as Borrower obtains knowledge of an actual Change in Control or publicly
disclosed prospective Change in Control, written notice of same, including the
anticipated or actual date of and all other publicly disclosed material terms
and conditions surrounding such proposed or actual Change in
Control.
29
(viii) Such
other information (including nonfinancial information) as the Agent or any
Lender may from time to time reasonably request.
Documents
required to be delivered pursuant to clause
(i), (ii),
(v)
or (vi)
above may be delivered electronically and, if so delivered, shall be deemed to
have been delivered on the date (i) on which Borrower posts such documents, or
provides a link thereto, on a website on the internet at a website address
previously specified to the Agent and the Lenders; or (ii) on which such
documents are posted on Borrower’s behalf on IntraLinks or another relevant
website, if any, to which each of the Agent and each Lender has access; provided
that (i) upon request of the Agent or any Lender, Borrower shall deliver paper
copies of such documents to the Agent or such Lender (until a written request to
cease delivering paper copies is given by the Agent or such Lender) and (ii)
Borrower shall notify (which may be by facsimile or electronic mail) the Agent
and each Lender of the posting of any documents. The Agent shall have
no obligation to request the delivery of, or to maintain copies of, the
documents referred to above or to monitor compliance by Borrower with any such
request for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
30
(i) Any
Subsidiary of Borrower may sell, transfer or assign any of its assets to
Borrower or another Subsidiary of Borrower.
(ii) The
sale, assignment or other transfer of accounts receivable or other rights to
payment pursuant to any Securitization Transaction.
(iii) So
long as, at the time thereof and immediately after giving effect thereto, no
Default or Unmatured Default exists:
(1) Any
Permitted PHI Asset Sale;
(2) Any
Permitted ACE Asset Sale;
(3) Any
Permitted DPL Asset Sale;
(4) Any
Permitted PEPCO Asset Sale; and
31
(5) The
sale of Intangible Transition Property to a Special Purpose Subsidiary in
connection with such Special Purpose Subsidiary’s issuance of Nonrecourse
Transition Bond Debt.
(iv) Borrower
and its Subsidiaries may sell or otherwise dispose of assets so long as the
aggregate book value of all assets sold or otherwise disposed of in any fiscal
year of Borrower (other than assets sold or otherwise disposed of in the
ordinary course of business or pursuant to clauses (i) through (iii) above) does
not exceed a Substantial Portion of the Property of Borrower.
(i) Liens
for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves in accordance with
Agreement Accounting Principles shall have been set aside on its
books.
(ii) Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other
similar liens arising in the ordinary course of business which secure payment of
obligations not more than 90 days past due or which are being contested in good
faith by appropriate proceedings and for which adequate reserves shall have been
set aside on its books.
(iii) Liens
arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation.
(iv) Utility
easements, building restrictions, zoning laws or ordinances and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of Borrower and its Significant
Subsidiaries.
(v) Liens
existing on the date hereof and described in Schedule
4 (including Liens on after-acquired property arising under agreements
described in Schedule
4 as such agreements are in effect on the date hereof).
(vi) Judgment
Liens which secure payment of legal obligations that would not constitute a
Default with respect to Borrower under Article
VII.
(vii) Liens
on Property acquired by Borrower or a Significant Subsidiary after the date
hereof, existing on such Property at the time of acquisition thereof (and not
created in anticipation thereof), provided
that in any such case no such Lien shall extend to or cover any other Property
of Borrower or such Significant Subsidiary, as the case may be.
(viii) Deposits
and/or similar arrangements to secure the performance of bids, fuel procurement
contracts or other trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business by
Borrower or any of its Significant Subsidiaries.
32
(ix) Liens
on assets of Borrower and its Significant Subsidiaries arising out of
obligations or duties to any municipality or public authority with respect to
any franchise, grant, license, permit or certificate.
(x) Rights
reserved to or vested in any municipality or public authority to control or
regulate any property or asset of Borrower or any of its Significant
Subsidiaries or to use such property or asset in a manner which does not
materially impair the use of such property or asset for the purposes for which
it is held by Borrower or such Significant Subsidiary.
(xi) Irregularities
in or deficiencies of title to any Property which do not materially affect the
use of such property by Borrower or any of its Significant Subsidiaries in the
normal course of its business.
(xii) Liens
securing Indebtedness of Borrower and its Subsidiaries incurred to finance the
acquisition of fixed or capital assets, provided
that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such Indebtedness,
(iii) the principal amount of Indebtedness secured thereby is not increased and
(iv) the principal amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the original purchase price of such property at the time it
was acquired.
(xiii) Any
Lien on any property or asset of any corporation or other entity existing at the
time such corporation or entity is acquired, merged or consolidated or
amalgamated with or into Borrower or any Significant Subsidiary thereof and not
created in contemplation of such event.
(xiv) Liens
arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by Section
6.12 (v), (vii),
(xii)
or (xiii),
provided that such Indebtedness is not increased and is not secured by any
additional assets.
(xv) Rights
of lessees arising under leases entered into by Borrower or any of its
Significant Subsidiaries as lessor, in the ordinary course of
business.
(xvi) Permitted
PEPCO Liens.
(xvii) Permitted
DPL Liens.
(xviii) Permitted
ACE Liens.
(xix) Permitted
PHI Liens.
(xx) Purchase
money mortgages or other purchase money liens or conditional sale,
lease-purchase or other title retention agreements upon or in respect of
property acquired or leased for use in the ordinary course of its business by
Borrower or any of its Significant Subsidiaries.
(xxi) Liens
granted by a Special Purpose Subsidiary to secure Nonrecourse Transition Bond
Debt of such Special Purpose Subsidiary.
(xxii) Liens,
in addition to those permitted by clauses
(i) through (xxi),
granted by Borrower and its Subsidiaries (other than ACE, DPL or PEPCO and their
Subsidiaries) to secure
33
Nonrecourse
Indebtedness incurred after the date hereof, provided
that the aggregate amount of all Indebtedness secured by such Liens shall not at
any time exceed $200,000,000.
(xxiii) Liens,
if any, in favor of the Swingline Lender to cash collateralize or otherwise
secure the obligations of a Defaulting Lender or an Impacted Lender to fund risk
participations hereunder.
(xxiv) Other
Liens, in addition to those permitted by clauses
(i) through (xxiii),
securing Indebtedness or arising in connection with Securitization Transactions,
provided
that the sum (without duplication) of all such Indebtedness, plus the aggregate
investment or claim held at any time by all purchasers, assignees or other
transferees of (or of interests in) receivables and other rights to payment in
all Securitization Transactions (excluding any Nonrecourse Transition Bond
Debt), shall not at any time exceed $700,000,000 for Borrower and its
Significant Subsidiaries.
ARTICLE
VII
The
occurrence of any one or more of the following events shall constitute a Default
with respect to Borrower:
34
exist,
the effect of which default or event is to cause, or to permit the holder or
holders of such Material Indebtedness to cause, such Material Indebtedness to
become due prior to its stated maturity; or any Material Indebtedness of
Borrower or any of its Significant Subsidiaries shall be declared to be due and
payable or required to be prepaid or repurchased (other than by a regularly
scheduled payment) prior to the stated maturity thereof; or Borrower or any of
its Significant Subsidiaries shall not pay, or admit in writing its inability to
pay, its debts generally as they become due.
35
member of
the Controlled Group shall incur any liability in connection with a withdrawal
from, or the insolvency or reorganization of, a Multiemployer Plan; and in each
case referred to in clauses (i) through (v) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect.
ARTICLE
VIII
If,
within 30 days after termination of the obligations of the Lenders to make
Credit Extensions to Borrower hereunder or acceleration of the maturity of the
Obligations as a result of any Default (other than any Default as described in
Section
7.6 or 7.7)
and before any judgment or decree for the payment of the Obligations due shall
have been obtained or entered, the Required Lenders (in their sole discretion)
shall so direct, the Agent shall, by notice to Borrower, rescind and annul such
termination and/or acceleration.
(a) Extend
the final maturity of any Loan or the Facility Termination Date or forgive all
or any portion of the principal amount of any Loans or reduce the rate or extend
the time of payment of interest thereon or on any commitment fees.
(b) Reduce
the percentage specified in the definition of Required Lenders.
(c) Other
than as provided in Section
2.2, increase the amount of the Commitment of any Lender hereunder or
permit Borrower to assign its rights under this Agreement.
36
(d) Amend
this Section
8.2.
No
amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. No amendment of
this Agreement relating to the Swingline Lender shall be effective without the
written consent of the Swingline Lender. The Agent may waive payment
of the fee required under Section
12.3(b) without obtaining the consent of any other party to this
Agreement.
ARTICLE
IX
37
(a) Borrower
shall reimburse the Agent and the Arranger for all reasonable costs, internal
charges and out of pocket expenses including reasonable expenses of and fees for
attorneys for the Agent and the Arranger who are employees of the Agent or the
Arranger and of a single outside counsel for all of the Agent and the Arranger
paid or incurred by the Agent or the Arranger in connection with the
preparation, negotiation, execution, delivery, syndication, review, amendment,
modification and administration of the Loan Documents. Borrower
agrees to reimburse the Agent, the Arranger and the Lenders for (i) all
reasonable costs, internal charges and out of pocket expenses (including
reasonable attorneys’ fees and time charges of attorneys for the Agent, the
Arranger and the Lenders, which attorneys may be employees of the Agent, the
Arranger or a Lender) paid or incurred by the Agent, the Arranger or any Lender
in connection with the collection and enforcement of the Obligations of Borrower
under the Loan Documents (including in any “work-out” or restructuring of the
Obligations resulting from the occurrence of a Default) and (ii) any civil
penalty or fine assessed by OFAC against, and all reasonable costs and expenses
(including reasonable counsel fees and disbursements) incurred in connection
with defense thereof, by the Agent or any Lender as a result of conduct by
Borrower that violates a sanction enforced by OFAC.
(b) Borrower
agrees to indemnify the Agent, the Arranger, each Lender, their respective
affiliates, and each of the directors, officers and employees of the foregoing
Persons (each such Person an “Indemnified
Party” and collectively, the “Indemnified
Parties”) against all losses, claims, damages, penalties, judgments,
liabilities and reasonable expenses (including all reasonable expenses of
litigation or preparation therefor whether or not any Indemnified Party is a
party thereto) which any of them may pay or incur arising out of or relating to
this Agreement, the other Loan Documents, the transactions contemplated hereby,
or the direct or indirect application or proposed application of the proceeds of
any Credit Extension hereunder, except to the extent that they are determined in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Indemnified
Party seeking indemnification. The obligations of Borrower under this
Section
9.6 shall survive the termination of this Agreement.
38
and (b)
none of the Agent, the Arranger or any Lender shall have liability to Borrower
(whether sounding in tort, contract or otherwise) for losses suffered by
Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. No
Indemnified Party shall have any liability with respect to, and Borrower hereby
waives, releases and agrees not to xxx for, any special, indirect or
consequential damages suffered by Borrower in connection with, arising out of,
or in any way related to the Loan Documents or the transactions contemplated
thereby.
(a) None
of the Agent, the Swingline Lender nor any other Lender shall disclose to any
Person any Specified Information (as defined below) except to its, and its
Affiliates’, officers, employees, agents, accountants, legal counsel, advisors
and other representatives who have a need to know such Specified Information in
connection with this Agreement or the transactions contemplated
hereby. “Specified
Information” means information that Borrower has furnished or in the
future furnishes to the Agent, the Swingline Lender or any other Lender in
confidence, but does not include any such information that (i) is published in a
source or otherwise becomes generally available to the public (other than
through the actions of the Agent, the Swingline Lender, any other Lender or any
of their Affiliates, officers, employees, agents, accountants, legal counsel,
advisors and other representatives in violation of this Agreement) or that is or
becomes available to the Agent, the Swingline Lender or such other Lender from a
source other than Borrower, (ii) without duplication with clause (i)
above, is otherwise a matter of general public knowledge, (iii) that is required
to be disclosed by law, regulation or judicial order (including pursuant to the
Code), (iv) that is requested by any regulatory body with jurisdiction over the
Agent, the Swingline Lender or any other Lender, (v) that is disclosed to legal
counsel, accountants and other professional advisors to the Agent, the Swingline
Lender or such other Lender, in connection with the exercise of any right or
remedy hereunder or under any Note or any suit or other litigation or proceeding
relating to this Agreement or any Note or to a rating agency if required by such
agency in connection with a rating relating to Credit Extensions hereunder, (vi)
that is disclosed to assignees or participants or potential assignees or
participants who agree to be bound by the provisions of this Section
9.11 or (vii) that is disclosed to any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to Borrower and
its obligations who agrees to be bound by the provisions of this Section
9.11.
(b) The
provisions of this Section
9.11 supersede any confidentiality obligations of any Lender, the
Swingline Lender or the Agent relating to this Agreement or the transactions
contemplated hereby under any agreement between Borrower and any such
party.
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government
fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify and record information
that identifies each person or entity that opens an account, including any
deposit account, treasury management account, loan, other extension of credit or
other financial services product. What this means for
Borrower: When a borrower
39
opens an
account, if such borrower is an individual, the Agent and the Lenders will ask
for such borrower’s name, residential address, tax identification number, date
of birth and other information that will allow the Agent and the Lenders to
identify such borrower, and, if a borrower is not an individual, the Agent and
the Lenders will ask for such borrower’s name, tax identification number,
business address and other information that will allow the Agent and the Lenders
to identify such borrower. The Agent and the Lenders may also ask, if
a borrower is an individual, to see such borrower’s driver’s license or other
identifying documents, and, if the borrower is not an individual, to see the
borrower’s legal organizational documents or other identifying
documents.
ARTICLE
40
independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender hereby waives.
41
the Agent
and the Lenders and all matters pertaining to the Agent’s duties hereunder and
under any other Loan Document.
42
partners,
directors, officers, employees, agents, trustees and advisors and based on the
financial statements prepared by Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, the Arranger, any other Lender or any of
their respective Affiliates, partners, directors, officers, employees, agents,
trustees and advisors 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 and the other Loan
Documents.
43
be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and
X.
ARTICLE
XI
44
time in
effect. The obligations of the Lenders under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.
ARTICLE
XII
45
Documents
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided
that each Lender shall retain the right of setoff provided in Section
11.1 with respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section
11.1, agrees to share with each Lender, any amount received pursuant to
the exercise of its right of setoff, such amounts to be shared in accordance
with Section
11.2 as if each Participant were a Lender.
46
be
available for inspection by Borrower and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
ARTICLE
XIII
(a) Except
as otherwise permitted by Section 2.16, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission or electronic mail or posting on a website) and shall, subject to
the last paragraph of Section 6.1, be given to such party at (i) in the case of
Borrower or the Agent, its address, facsimile number or electronic mail address
set forth below or such other address, facsimile number or electronic mail
address as it may hereafter specify for such purpose by notice to the other
parties hereto; and (ii) in the case of any Lender, at the address, facsimile
number or electronic mail address set forth on Schedule 2 or such other address,
facsimile
47
number or
electronic mail address as such Lender may hereafter specify for such purpose by
notice to Borrower and the Agent. Subject to the last paragraph of
Section 6.1, each such notice, request or other communication shall be effective
(i) if given by facsimile transmission, when transmitted to the facsimile number
specified pursuant to this Section and confirmation of receipt is received, (ii)
if given by mail, three Business Days after such communication is deposited in
the mails with first class postage prepaid, addressed as aforesaid, or (iii) if
given by any other means, when delivered (or, in the case of electronic mail,
received) at the address specified pursuant to this Section; provided that
notices to the Agent under Article II shall not be effective until
received.
(b) Notices
to any party shall be sent to it at the following addresses, or any other
address as to which all the other parties are notified in writing.
If
to Borrower:
|
Pepco
Holdings, Inc.
000
Xxxxx Xxxxxx XX
Xxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attention: Xxxxx
X. XxXxxxx
Telephone: (000)
000-0000
Fax: (000)
000-0000
E-mail:
xxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
|
|
If
to Agent:
|
For
Borrowings/Requests for Credit Extensions and
Repayments:
|
|
Xxxxx
X. Xxxxxxx, Credit Services Representative
Bank
of America, N.A.
One
Independence Center
000
X. Xxxxx Xxxxxx
Mail
Code: NC1-001-04-39
Xxxxxxxxx,
XX 00000-0000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Electronic
Mail: xxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
|
||
Wire
Instructions:
Bank
of America, New York, N.Y.
ABA
# 000000000
Account
# 1366212250600
Attn:
Corporate Credit Services
Reference:
Pepco Holdings Inc.
|
||
For
Financial Reporting Requirements, Bank Group
Communications:
|
||
Xxxxxxx
X. Xxxxxxx, Agency Management Officer
Bank
of America, N.A.
000
Xxxxx XxXxxxx Xxxxxx
Mail
Code: IL1-231-10-41
Xxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Electronic
Mail: xxxxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
|
48
ARTICLE
XIV
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it shall have been executed by the Agent and
when the Agent shall have received counterparts that, when taken together, bear
the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement, or any amendment of
or waiver or consent under this Agreement, by telecopy or other electronic
imaging means shall be effective as delivery of a manually executed counterpart
of this Agreement.
ARTICLE
XV
15.1 CHOICE
OF LAW. THE LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING SECTIONS 5.1401 AND 5.1402 OF THE GENERAL
OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF) OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE
TO NATIONAL BANKS.
(a) BORROWER,
THE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
(b) BORROWER,
THE AGENT AND THE LENDERS IRREVOCABLY CONSENT TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION
13.1; PROVIDED THAT SUCH SERVICE OF PROCESS SHALL NOT BE EFFECTIVE UNTIL
ACTUALLY RECEIVED. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
[Signatures
Follow]
49
|
PEPCO
HOLDINGS, INC.
|
|
By:
|
/s/
XXXXX X. XxXXXXX
|
|
Name:
|
Xxxxx
X. XxXxxxx
|
|
Title:
|
Vice
President and Treasurer
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
0000
|
XXXX
XX XXXXXXX, X.X.,
as
Agent
|
|
By:
|
/s/
XXXXXXX X. XXXXXXX
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
Title:
|
Assistant
Vice President
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
0000
|
XXXX
XX XXXXXXX, X.X.,
as
a Lender
|
|
By:
|
/s/
XXXX X. XXXXXXXX
|
|
Name:
|
Xxxx
X. Xxxxxxxx
|
|
Title:
|
Vice
President
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
2009
|
JPMORGAN
CHASE BANK, N.A.,
as
a Lender
|
|
By:
|
/s/
XXXXX X. XXXXX
|
|
Name:
|
Xxxxx
X. Xxxxx
|
|
Title:
|
Vice
President
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
2009
|
KEYBANK
NATIONAL ASSOCIATION,
as
a Lender
|
|
By:
|
/s/
XXXXXXX X. XXXXXX
|
|
Name:
|
Xxxxxxx
X. Xxxxxx
|
|
Title:
|
Senior
Vice President
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
2009
|
SUNTRUST
BANK,
as
a Lender
|
|
By:
|
/s/
XXXXXX XXXXXXX
|
|
Name:
|
Xxxxxx
Xxxxxxx
|
|
Title:
|
Director
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
2009
|
XXXXXX
XXXXXXX BANK, N.A.,
as
a Lender
|
|
By:
|
/s/
XXXX XXXXXX
|
|
Name:
|
Xxxx
Xxxxxx
|
|
Title:
|
Authorized
Signatory
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
2009
|
CREDIT
SUISSE, Cayman Islands Branch,
as
a Lender
|
|
By:
|
/s/
XXXXXXX XXXXXXXXXXX
|
|
Name:
|
Xxxxxxx
Xxxxxxxxxxx
|
|
Title:
|
Vice
President
|
|
By:
|
/s/
KEVNI BUDDHDEW
|
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
Title:
|
Associate
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
2009
|
XXXXX
FARGO BANK, N.A.,
as
a Lender
|
|
By:
|
/s/
XXXXXXX X. XXXXXXXX
|
|
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
|
Title:
|
Senior
Vice President
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
0000
|
XXX
XXXX XX XXXX XXXXXX,
as
a Lender
|
|
By:
|
/s/
XXXXX XXXXXX
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
Title:
|
Managing
Director
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
2009
|
MANUFACTURERS
AND TRADERS TRUST
COMPANY,
as a Lender
|
|
By:
|
/s/
XXXXXXX X. XXXXXXX
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
Title:
|
Bank
Officer
|
PEPCO
HOLDINGS, INC.
AMENDED
AND RESTATED CREDIT AGREEMENT
OCTOBER
2009
SCHEDULE
1
PRICING
SCHEDULE
Level
I Status
|
Level
II status
|
Level
III
Status
|
|
Applicable
Margin
|
2.50%
|
3.00%
|
3.50%
|
Commitment
Fee Rate
|
0.50%
|
0.625%
|
0.75%
|
For the
purposes of this Schedule, the following terms have the following meanings,
subject to the other provisions of this Schedule:
“Level
I Rating” means, on any date, Borrower’s Xxxxx’x Rating is Baa2 or
better, Borrower’s S&P Rating is BBB or better or Borrower’s Fitch Rating is
BBB or better.
“Level
I Status” exists with respect to Borrower on any date if, on such date,
Borrower has qualified for a Level I Rating in accordance with the terms and
provisions of this Schedule
1.
“Level
II Rating” means, on any date, (i) Borrower has not qualified for Level I
Status and (ii) Borrower’s Xxxxx’x Rating is Baa3, Borrower’s S&P Rating is
BBB- or Borrower’s Fitch Rating is BBB-.
“Level
II Status” exists with respect to Borrower on any date if, on such date,
Borrower has qualified for a Level II Rating in accordance with the terms and
provisions of this Schedule
1.
“Level
III Rating” means, on any date, Borrower has not qualified for Level I
Status or Level II Status.
“Level
III Status” exists with respect to Borrower on any date if, on such date,
Borrower has qualified for a Level III Rating in accordance with the terms and
provisions of this Schedule
1.
“Fitch
Rating” means, at any time, the ratings issued by Fitch Ratings and then
in effect with respect to Borrower’s unsecured long-term debt securities without
third-party credit enhancement.
“Xxxxx’x
Rating” means, at any time, the rating issued by Xxxxx’x and then in
effect with respect to Borrower’s senior unsecured long term debt securities
without third party credit enhancement.
“Rating”
means the Fitch Rating, the Xxxxx’x Rating or the S&P Rating.
“Rating
Agency” shall mean Fitch, Xxxxx’x or S&P.
“Rating
Levels” means the Level I Rating, the Level II Rating and the Level III
Rating; “Rating
Level” means any one of the foregoing, as applicable.
“S&P
Rating” means, at any time, the rating issued by S&P and then in
effect with respect to Borrower’s senior unsecured long term debt securities
without third party credit enhancement.
“Status”
means Level I Status, Level II Status or Level III Status.
The
Applicable Margin and the Commitment Fee Rate shall be determined in accordance
with the above based on Borrower’s Status as determined from its then current
Rating Level.
If all
three (3) Ratings fall in the same Rating Level, the Applicable Margin and the
Commitment Fee Rate shall be based upon the Rating Level indicated by such
Ratings. If Borrower is split-rated and all three (3) Ratings fall in
different Rating Levels, the Applicable Margin and the Commitment Fee Rate shall
be based upon the Rating Level indicated by the middle Rating. If
Borrower is split-rated and two (2) of the Ratings fall in the same Rating
Level, (the “Majority
Level”) and the third Rating is in a different Rating Level, the
Applicable Margin and the Commitment Fee Rate shall be based upon the Majority
Level. In the event that Borrower shall maintain Ratings from only
two (2) of Xxxxx’x, S&P and Fitch and there is a split-rating, the
Applicable Margin and the Commitment Fee Rate shall be based upon the higher
Rating Level (i.e. lower pricing). In the event that Borrower shall
maintain only one (1) Rating or no Rating, the Applicable Margin and the
Commitment Fee Rate shall be based upon a Level III Rating.
Any
change in the Applicable Margin by reason of a change in the Xxxxx’x Rating, the
S&P Rating or the Fitch Rating shall become effective on the date of
announcement or publication by the respective Rating Agency of a change in such
Rating or, in the absence of such announcement or publication, on the effective
date of such changed Rating. For purposes of this Schedule
1, the Xxxxx’x Rating, the S&P Rating and the Fitch Rating in effect
for Borrower on any date are that in effect at the close of business on such
date.
SCHEDULE
2
COMMITMENTS
AND PRO RATA SHARES
Lender
|
Amount
of
Commitment
|
Pro
Rata Share
|
||
Bank
of America, N.A.
|
$50,000,000
|
12.500000000%
|
||
JPMorgan
Chase Bank, N.A.
|
$48,000,000
|
12.000000000%
|
||
The
Bank of Nova Scotia
|
$48,000,000
|
12.000000000%
|
||
KeyBank
National Association
|
$48,000,000
|
12.000000000%
|
||
SunTrust
Bank
|
$48,000,000
|
12.000000000%
|
||
Xxxxx
Fargo Bank, N.A.
|
$46,000,000
|
11.500000000%
|
||
Xxxxxx
Xxxxxxx Bank, N.A.
|
$46,000,000
|
11.500000000%
|
||
Credit
Suisse, Cayman Islands Branch
|
$46,000,000
|
11.500000000%
|
||
Manufacturers
and Traders Trust Company
|
$20,000,000
|
5.000000000%
|
||
TOTAL:
|
$400,000,000
|
100%
|
SCHEDULE
3
SIGNIFICANT
SUBSIDIARIES
Name
of Company Controlled
|
Owned
By
|
Percent
Ownership
|
||
Potomac
Electric Power Company
(a
D.C. and Virginia corporation)
|
Pepco
Holdings, Inc.
|
100%
|
||
Conectiv
(a
Delaware corporation)
|
Pepco
Holdings, Inc.
|
100%
|
||
Delmarva
Power & Light Company
(a
Delaware and Virginia corporation)
|
Conectiv
|
100%
|
||
Atlantic
City Electric Company
(a
New Jersey corporation)
|
Conectiv
|
100%
|
||
Conectiv
Energy Holding Company
(a
Delaware corporation)
|
Conectiv
|
100%
|
||
Conectiv
Delmarva Generation, Inc.
(a
Delaware corporation)
|
Conectiv
Energy Holding Company
|
100%
|
||
ACE
REIT, Inc.
|
Conectiv
Energy Holding Company
|
100%
|
||
Potomac
Capital Investment Corp
(a
Delaware corporation)
|
Pepco
Holdings, Inc.
|
100%
|
||
Conectiv
Energy Supply, Inc.
(a
Delaware corporation)
|
Conectiv
Energy Holding Company
|
100%
|
||
Pepco
Energy Services, Inc.
|
Pepco
Holdings, Inc.
|
100%
|
SCHEDULE
4
LIENS
Incurred
By
|
Owed
To
|
Property
Encumbered
|
Maturity
|
Amount
of
Indebtedness
|
Potomac
Electric Power Co.
|
GE
Bankers Leasing
|
Vehicles,
Office Equip., Computers
|
Master
Agreement
|
$7,476,213 (1)
|
PHI
Service Company
|
GE
Bankers Leasing
|
Office
Equip., Computers
|
Master
Agreement
|
$7,025,115 (1)
|
Atlantic
City Electric Co.
|
GE
Bankers Leasing
|
Vehicles,
Office Equip., Computers
|
Master
Agreement
|
$7,666,484 (1)
|
Delmarva
Power & Light Co.
|
GE
Bankers Leasing
|
Vehicles,
Office Equip., Computers
|
Master
Agreement
|
$12,131,409 (1)
|
Potomac
Electric Power Co.
|
BOA
Leasing
|
Vehicles,
Office Equip., Computers
|
Master
Agreement
|
$3,478,469 (1)
|
PHI
Service Company
|
BOA
Leasing
|
Office
Equip., Computers
|
Master
Agreement
|
$5,669,020 (1)
|
Atlantic
City Electric Co.
|
BOA
Leasing
|
Vehicles,
Office Equip., Computers
|
Master
Agreement
|
$1,831,785 (1)
|
Delmarva
Power & Light Co.
|
BOA
Leasing
|
Vehicles,
Office Equip., Computers
|
Master
Agreement
|
$5,521,804 (1)
|
Potomac
Electric Power Co.
(Pepco
Energy Services)
|
Xxxxxx
Xxxxxxxxx
Pepco
Funding Corp.
|
Contract
Payments Receivable
|
Master
Agreement
|
$1,200,913 (1)
|
Potomac
Electric Power Co.
(Pepco
Energy Services)
|
Citizen
Leasing Corp.
|
Contract
Payments Receivable
|
Master
Agreement
|
$7,235,177 (1)
|
Potomac
Electric Power Co.
(Pepco
Energy Services)
|
National
City Commercial Capital
|
Contract
Payments Receivable
|
Master
Agreement
|
$11,021,712 (1)
|
(1) The
amount of this lien fluctuates with the amount of accounts receivable
created by this program. The amount listed is as of August 31,
2009.
|
EXHIBIT
A
COMPLIANCE
CERTIFICATE
To:
|
The
Agent and the Lenders under the
Credit
Agreement referred to below
|
This
Compliance Certificate is furnished pursuant to that certain Amended and
Restated Credit Agreement dated as of October 16, 2009 (as amended, restated or
otherwise modified from time to time, the “Credit
Agreement”) among Pepco Holdings, Inc. (“Borrower”),
the Lenders from time to time party thereto and Bank of America, N.A., as
Agent. Unless otherwise defined herein, capitalized terms used in
this Compliance Certificate have the respective meanings ascribed thereto in the
Credit Agreement.
THE
UNDERSIGNED HEREBY CERTIFIES THAT:
1. I
am the duly elected _________of Borrower.
2. I
have reviewed the terms of the Credit Agreement and I have made, or have caused
to be made under my supervision, a detailed review of the transactions and
conditions of Borrower and its Subsidiaries during the accounting period covered
by the attached financial statements.
3. The
examinations described in paragraph
2 did not disclose, and I have no knowledge of, the existence of any
condition or event which constitutes a Default or Unmatured Default with respect
to Borrower during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Compliance Certificate,
except as set forth below:
[Describe
any exceptions by listing, in detail, the nature of the condition or event, the
period during which it has existed and the action taken or proposed to be taken
with respect to each such condition or event.]
4. Schedule
1 attached hereto sets forth true and accurate computations of certain
covenant ratios in the Credit Agreement which are applicable to
Borrower.
The
foregoing certifications, together with the computations set forth in Schedule
1 hereto and the financial statements delivered with this Compliance
Certificate in support hereof, are made and delivered this ___ day of ________,
20__.
SCHEDULE
1 TO COMPLIANCE CERTIFICATE
Compliance
as of _________ with
provisions
of Section
6.13 of
the
Credit Agreement
[INSERT
FORMULA FOR CALCULATION]
EXHIBIT
B
ASSIGNMENT
AGREEMENT
This
Assignment Agreement (this “Assignment
Agreement”) is dated as of the Effective Date set forth below and is
entered into by and between [Insert name of Assignor] (the “Assignor”)
and [Insert name of Assignee] (the “Assignee”). Capitalized
terms used but not defined herein have the meanings provided in the Credit
Agreement identified below, receipt of a copy of which is hereby acknowledged by
the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment Agreement as if set forth herein in
full.
For an
agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Agent as
contemplated below (i) all of the Assignor’s rights and obligations as a
Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including,
without limitation, the Swingline Loans included in such facilities) and
(ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to
the Assignor and, except as expressly provided in this Assignment Agreement,
without representation or warranty by the Assignor.
1.
|
Assignor:
|
||
2.
|
Assignee:
|
[and
is an
|
|
Affiliate
of [identify Lender]]
|
|||
3.
|
Borrower:
|
Pepco
Holdings, Inc., a Delaware corporation
|
|
4.
|
Agent:
|
Bank
of America, N.A., as the administrative agent under the
Credit Agreement
|
|
5.
|
Credit
Agreement:
|
Amended
and Restated Credit Agreement dated as of October 16, 2009 (as
amended, modified, supplemented or extended from time to time, the “Credit
Agreement”) among the Borrower, the Lenders from time to time party
thereto and Bank of America, N.A., as Agent and Swingline
Lender.
|
6.
|
Assigned
Interest:
|
Aggregate
Amount of Commitment/Loans
for
all Lenders
|
Amount
of
Commitment/Loans
Assigned1
|
Pro Rata Share of
Commitment/Loans2
|
7.
|
Trade
Date:
|
||
8.
|
Effective
Date:
|
The terms
set forth in this Assignment Agreement are hereby agreed to:
ASSIGNOR:
|
[NAME
OF ASSIGNOR]
|
|
By:
|
||
Name:
|
||
Title:
|
||
ASSIGNEE:
|
[NAME
OF ASSIGNEE]
|
|
By:
|
||
Name:
|
||
Title:
|
2 Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
Lenders thereunder.
[Consented
to and]3 Accepted:
|
|
BANK
OF AMERICA, N.A.,
as
Agent
|
|
By:
|
|
Name:
|
|
Title:
|
|
[Consented
to]4:
|
|
PEPCO
HOLDINGS, INC.,
a
Delaware corporation
|
|
By:
|
|
Name:
|
|
Title:
|
|
[Consented to:] 5
|
|
BANK
OF AMERICA, N.A.,
as
Swingline Lender
|
|
By:
|
|
Name:
|
|
Title:
|
|
5 To be
added only if the consent of the Swingline Lender is required by the terms of
the Credit Agreement.
Annex
1 to Assignment Agreement
STANDARD
TERMS AND CONDITIONS
1. Representations
and Warranties.
1.1. Assignor. The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment Agreement and to consummate the transactions contemplated hereby; and
(b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
Agreement and to consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets the requirements to be an
assignee under Section
12.3(a) of the Credit Agreement (subject to such consents, if any, as may
be required under Section
12.3(a) of the Credit Agreement), (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to
decisions to acquire assets of the type represented by the Assigned Interest and
either it, or the Person exercising discretion in making its decision to acquire
the Assigned Interest, is experienced in acquiring assets of such type, (v) it
has received a copy of the Credit Agreement, and has received or has been
accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section
6.1 thereof, as applicable, and such other documents and information as
it deems appropriate to make its own credit analysis and decision to enter into
this Assignment Agreement and to purchase the Assigned Interest, (vi) it has,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment Agreement and to
purchase the Assigned Interest, (vii) if applicable, attached hereto are the
forms prescribed by the Internal Revenue Service of the United States certifying
that the Assignee is entitled to receive payments under the Loan Documents
without deduction or withholding of any United States federal income taxes and
(viii) none of the funds, monies, assets or other consideration being used to
make the purchase and assumption hereunder are “plan assets” as defined under
ERISA and that its rights, benefits and interests in and under the Loan
Documents will not be “plan assets” under ERISA; and (b) agrees that (i) it
will, independently and without reliance on the Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender. The Assignee hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Loan Documents as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto.
2. Payments. From
and after the Effective Date, the Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.
3. General
Provisions. This Assignment Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and
assigns. This Assignment Agreement may be executed in any
number of counterparts, all of which taken together shall constitute
one agreement, and any of the parties hereto may execute this Assignment
Agreement by signing any such counterpart. Delivery of an executed
counterpart of a signature page of this Assignment Agreement by telecopy or
other electronic imaging means shall be effective as delivery of a manually
executed counterpart of this Assignment Agreement. This Assignment
Agreement shall be construed in accordance with the internal laws (including
Sections 5.1401 and 5.1402 of the General Obligations Law, but otherwise without
regard to the conflict of laws provisions thereof) of the State of New York, but
giving effect to all federal laws applicable to national banks.
EXHIBIT
C
NOTE
[Date]
Pepco
Holdings, Inc. (the “Borrower”)
promises to pay to ________________ (the “Lender”)
the aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to the Credit Agreement (as defined below), at the office of
the Agent, together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Credit Agreement. The
Borrower shall pay the principal of and accrued and unpaid interest on the Loans
in full on the Facility Termination Date.
The
Lender shall, and is hereby authorized to, record on the schedule attached
hereto, or to otherwise record in accordance with its usual practice, the date
and amount of each Loan and the date and amount of each principal payment
hereunder.
This Note
is one of the Notes issued pursuant to, and is entitled to the benefits of, that
certain Amended and Restated Credit Agreement dated as of October 16, 2009 (as
amended or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, the lenders party thereto, including the
Lender, and Bank of America, N.A., as Agent, to which Credit Agreement reference
is hereby made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them in the
Credit Agreement.
All
payments hereunder shall be made in lawful money of the United States of America
and in immediately available funds.
THIS NOTE
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING SECTIONS
5.1401 AND 5.1402 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF) OF THE STATE OF NEW YORK, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
PEPCO
HOLDINGS, INC.
|
|||
By:
|
|||
Print
Name:
|
|||
Title:
|
SCHEDULE
OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF
PEPCO HOLDINGS, INC.
DATED
____________________
Date
|
Principal
Amount of Loan
|
Maturity
of Interest Period
|
Principal
Amount Paid
|
Unpaid
Balance
|