Exhibit No. 10(h)
EXECUTION COPY
AMENDMENT NO. 1
Dated as of April 15,
2009
To the Lenders parties to the Credit
Agreement
referred to below:
Ladies and Gentlemen:
Reference is made to the
$3,850,000,000 Second Amended and Restated Credit Agreement, dated
as of December 17, 2008 (the “ Credit
Agreement ”), among Constellation Energy
Group, Inc. (the “ Borrower ”), the
lenders parties thereto and Wachovia Bank, National Association, as
Administrative Agent (in such capacity, “
Administrative Agent ”). Capitalized
terms used herein and not otherwise defined herein have the
meanings given such terms in the Credit Agreement.
Section 1.
Amendments.
The parties agree that, subject to the satisfaction of the
conditions precedent to effectiveness set forth below, the Credit
Agreement is, as of the date hereof, amended as follows:
(a)
The definition of “LIBOR
Market Rate Spread” set forth in Section 1.01 is amended
and restated in its entirety to read as follows:
‘“ LIBOR Market
Rate Spread ” shall mean, for any Interest Period for
any Borrowing, 100% of the Borrower’s five-year credit
default swap spread (as obtained by the Administrative Agent from
the Markit Group Limited website) (i) on the date two Business
Days prior to the first day of such Interest Period if such
Borrowing is a Eurodollar Borrowing and (ii) on the first day
of such Interest Period if such Borrowing is a Base Rate
Borrowing. The Administrative Agent will determine the LIBOR
Market Rate Spread no later than 11:00 A.M. on the date
specified in clause (i) or (ii) above, as applicable;
provided, however, that in the event that the LIBOR Market
Rate Spread for such Interest Period is not available from Markit
Group Limited on such date, the Borrower and Wachovia (or any of
its Affiliates) shall negotiate in good faith (for a period of up
to 30 days after the credit default swap spread becomes unavailable
(such 30-day period, the “ Negotiation
Period” )) to agree on an alternative method for
establishing the LIBOR Market Rate Spread. The LIBOR Market
Rate Spread at any date of determination thereof that falls during
the Negotiation Period shall be based upon the then most recently
available quote of the credit default swap spread determined
pursuant to the first sentence of this definition. If no such
alternative method is agreed upon during the Negotiation Period,
the LIBOR Market Rate Spread for any Interest Period for any
Borrowing as at any date of determination after the end of the
Negotiation Period shall be a rate per annum equal to the greater
of (i) 100% of the maximum Applicable Margin for the Type of
Advances made in connection with such Borrowing and (ii) the
average of the Borrower’s five-year credit default swap
spreads (as
[Amendment No. 1 to CEG Second Amended and
Restated Credit Agreement]
obtained by the Administrative Agent
from the Markit Group Limited website) during the 30 day period
ending on the date on which such swap spread was most recently
available from Markit Group Limited.’
(b)
Section 6.01(j) is amended
and restated in its entirety to read as follows:
“(j) The Borrower shall
own less than 100% of the then outstanding common stock, membership
interests or other equity interests of each Material Subsidiary,
free and clear of any Liens other than Liens permitted under
Section 5.02(a), provided , that (A) the Borrower
may dispose of the equity interests in any Material Subsidiary to
the extent permitted under Section 6.01(j) of the RBS
Credit Agreement and (B) the Borrower may transfer its
ownership interests in Constellation Generation pursuant to the
EDFI Acquisition; or”
Section 2.
Conditions to Effectiveness. Section 1 of this Amendment shall be
effective as of the date hereof when and if the following
conditions are satisfied:
(i) the Borrower and the Majority Lenders shall have
executed and delivered to the Administrative Agent executed
counterparts of this Amendment; and
(ii) the representations and warranties of the
Borrower set forth in Section 3 below shall be true and
correct on and as o
