AMENDMENT NO. 3 TO CREDIT AGREEMENT
Exhibit 99.1
EXECUTION VERSION
AMENDMENT NO. 3 TO CREDIT AGREEMENT
This Amendment No. 3 to Credit Agreement (this “Amendment”) is entered into as of August 10, 2013 by and among Exelon Corporation (the “Borrower”), JPMorgan Chase Bank, N.A., individually and as administrative agent (the “Administrative Agent”), and the other financial institutions signatory hereto (the “Lenders”).
RECITALS
A. The Borrower, the Administrative Agent and the Lenders are party to that certain Credit Agreement dated as of March 23, 2011 (as amended, restated or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise specified herein, capitalized terms used in this Amendment shall have the meanings ascribed to them by the Credit Agreement.
B. The Borrower, the Administrative Agent and the undersigned Lenders wish to amend the Credit Agreement on the terms and conditions set forth below.
Now, therefore, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1. Amendments. Upon the “Third Amendment Effective Date” (as defined below), the Credit Agreement shall be amended as follows:
(a) Addition of Definitions. Section 1.01 of the Credit Agreement shall be amended by adding the following new definitions in the appropriate alphabetical order:
“Extension Date” means August 10, 2012.
“Like-Kind Exchange Matter” means the IRS’s challenge to the position taken by the Borrower on its 1999 federal income tax return with respect to the sale of ComEd’s fossil generating assets and the use of certain of the sale proceeds in a like-kind exchange transaction.
(b) Amendment to Definitions. Section 1.01 of the Credit Agreement is hereby amended by amending and restating the following defined terms in their entirety to read as follows:
“Interest Expense” means, for any period, “interest expense” as shown on a consolidated statement of income of the Borrower for such period prepared in accordance with GAAP, excluding any non-cash interest expense recorded as “interest expense” on a consolidated statement of income of the Borrower in connection with the Like-Kind Exchange Matter.
“Net Cash Flows From Operating Activities” means, for any period, “Net Cash Flows provided by Operating Activities” as shown on a consolidated statement of cash flows of the Borrower for such period prepared in accordance with GAAP, excluding any “Changes in assets and liabilities” (as shown on such statement of cash flows) taken into account in determining such Net Cash Flows provided by Operating Activities (except for any non-cash changes in assets and liabilities recorded by the Borrower in connection with the Like-Kind Exchange Matter).
(c) Amendment to Section 2.17.1. Section 2.17.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
SECTION 2.17.1 Extension Requests. The Borrower may, not more than two (2) times, by notice to the Administrative Agent (which shall promptly notify each Lender) not earlier than 60 and not later than 30 days prior to any anniversary of the Extension Date (each, an “Anniversary Date”), request that each Lender extend such Lender’s scheduled Termination Date then in effect (the “Existing Termination Date”) for an additional year from the Existing Termination Date, it being understood that the Termination Date shall not be later than the seventh anniversary of the Extension Date as a result of any such request.
2. Representations and Warranties of the Borrower. The Borrower represents and warrants that:
(a) The execution, delivery and performance by the Borrower of this Amendment are within the Borrower’s powers, have been duly authorized by all necessary organizational action on the part of the Borrower, and do not and will not contravene (i) the organizational documents of the Borrower, (ii) applicable law or (iii) any contractual or legal restriction binding on or affecting the properties of the Borrower or any Subsidiary.
(b) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Amendment, except any order that has been duly obtained and is (i) in full force and effect and (ii) sufficient for the purposes hereof.
(c) This Amendment has been duly executed by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as the enforceability thereof may be limited by equitable principles or bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally.
(d) Each of the representations and warranties contained in the Credit Agreement is true and correct on and as of the date hereof as if made on the date hereof.
(e) No Unmatured Event of Default or Event of Default has occurred and is continuing.
3. Effectiveness. This Amendment shall become effective as of the date first set forth above (the “Third Amendment Effective Date”) upon the execution and delivery hereof by the Borrower, the Administrative Agent and the Majority Lenders (without respect to whether it has been executed and delivered by all the Lenders).
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended and supplemented hereby, the Credit Agreement shall remain in full force and effect to the extent in effect immediately prior to this Amendment and is hereby ratified and confirmed.
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(b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent, the Borrower or any Lender under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement, except as specifically set forth herein. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference to the Credit Agreement as amended and supplemented hereby.
(c) The provisions set forth in Sections 8.04, 8.09, 8.10 and 8.13 of the Credit Agreement are hereby incorporated into this Amendment mutatis mutandis.
5. Costs and Expenses. The Borrower hereby affirms its obligation under Section 8.04 of the Credit Agreement to reimburse the Administrative Agent for all reasonable out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment, including but not limited to the reasonable fees, charges and disbursements of attorneys for the Administrative Agent with respect thereto.
6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
7. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Amendment. Delivery of an executed counterpart hereof, or a signature page hereto, by facsimile or other electronic transmittal shall be effective as delivery of a manually executed counterpart of this Amendment.
8. Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 3 to Credit Agreement as of the date first above written.
| EXELON CORPORATION | ||
| By: |
/s/ Xxxxxxxx X. Xxxxxx | |
| Name: |
Xxxxxxxx X. Xxxxxx | |
| Title: |
EVP and CFO, Exelon Corp. | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| JPMORGAN CHASE BANK, N.A., as Administrative Agent, as an LC Issuer and as a Lender | ||
| By: |
/s/ Xxxx Xxxxxxxxx | |
| Name: |
Xxxx Xxxxxxxxx | |
| Title: |
Executive Director | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| THE ROYAL BANK OF SCOTLAND plc, as a Lender | ||
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Name: |
Xxxxxx X. Xxxxxx | |
| Title: |
Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| BANK OF AMERICA, N.A., as a Lender | ||
| By: |
/s/ Will Xxxxxxx | |
| Name: |
Will Xxxxxxx | |
| Title: |
Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| Barclays Bank PLC, as a Lender | ||
| By: |
/s/ Xxxxxxx X. Kurbatskly | |
| Name: |
Xxxxxxx X. Kurbatskly | |
| Title: |
Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| CITIBANK, N.A., as a Lender | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| BNP Paribas, as a Lender | ||
| By: |
/s/ Xxxxxxx XxXxxxx | |
| Name: |
Xxxxxxx XxXxxxx | |
| Title: |
Managing Director | |
| By: |
/s/ Xxxxxxxx Xxxxxxxxx | |
| Name: |
Xxxxxxxx Xxxxxxxxx | |
| Title: |
Director | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| The Bank of Nova Scotia, as a Lender | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: |
Xxxxx Xxxxxx | |
| Title: |
Managing Director | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| The Bank of Tokyo-Mitsubishi UFJ, Ltd, as a Lender | ||
| By: |
/s/ Chi-Xxxxx Xxxx | |
| Name: |
Chi-Xxxxx Xxxx | |
| Title: |
Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| XXXXX FARGO BANK, N.A., as a Lender | ||
| By: |
/s/ Xxxxx Xxxxx | |
| Name: |
Xxxxx Xxxxx | |
| Title: |
Director | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Authorized Signatory | |
| By: |
/s/ Xxxx Xxxxxxx | |
| Name: |
Xxxx Xxxxxxx | |
| Title: |
Authorized Signatory | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| Xxxxxxx Sachs Bank USA, as a Lender | ||
| By: |
/s/ Xxxx Xxxxxx | |
| Name: |
Xxxx Xxxxxx | |
| Title: |
Authorized Signatory | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| MIZUHO BANK (USA), as a Lender | ||
| By: |
/s/ Xxxx Mo | |
| Name: |
Xxxx Mo | |
| Title: |
Senior Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| Xxxxxx Xxxxxxx Bank, N.A., as a Lender | ||
| By: |
/s/ Xxxxx Xxxx | |
| Name: |
Xxxxx Xxxx | |
| Title: |
Authorized Signatory | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| ROYAL BANK OF CANADA, as a Lender | ||
| By: |
/s/ Xxxx X. Xxxxxxx | |
| Name: |
Xxxx X. Xxxxxxx | |
| Title: |
Authorized Signatory | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| UBS AG STAMFORD BRAMCJ, as a Lender | ||
| By: |
/s/ Xxxx Xxxxx | |
| Name: |
Xxxx Xxxxx | |
| Title: |
Director | |
| By: |
/s/ Xxxxxxx Xxxxxxxxx | |
| Name: |
Xxxxxxx Xxxxxxxxx | |
| Title: |
Associate Director | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| U.S. Bank, N.A., as a Lender | ||
| By: |
/s/ Xxxx X. Xxxxxxxx | |
| Name: |
Xxxx X. Xxxxxxxx | |
| Title: |
Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| PNC Bank, National Association, as a Lender | ||
| By: |
/s/ Xxx X. Xxxxxx | |
| Name: |
Xxx X. Xxxxxx | |
| Title: |
Senior Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender | ||
| By: |
/s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Managing Director | |
| By: |
/s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Managing Director | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
| By: |
/s/ Xxxxx X. Xxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxx | |
| Title: | Managing Director | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| Canadian Imperial Bank of Commerce, New York Agency, as a Lender | ||
| By: |
/s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Authorized Signatory | |
| By: |
/s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Authorized Signatory | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| TD BANK, N.A., as a Lender | ||
| By: |
/s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Senior Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| THE BANK OF NEW YORK MELLON, as a Lender | ||
| By: |
/s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| MANUFACTURERS AND TRADERS TRUST COMPANY, as a Lender | ||
| By: |
/s/ Xxxxx X. Xxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxx | |
| Title: | Assistant Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| The Northern Trust Company, as a Lender | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| KeyBank National Association, as a Lender | ||
| By: |
/s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
| The Huntington National Bank, as a Lender | ||
| By: |
/s/ Xxx Xxxxxx | |
| Name: | Xxx Xxxxxx | |
| Title: | Senior Vice President | |
[Signature Page to Amendment No. 3 to Credit Agreement (Exelon)]
