Exhibit 10.1


 


EXECUTION VERSION


 


CONSENT


 


THIS CONSENT
(this “Consent”), dated as of October 29, 2015 is by and among Pepco Holdings, Inc. (“PHI”),
Potomac Electric Power Company (“PEPCO”), Delmarva Power & Light Company (“DPL”), Atlantic
City Electric Company (“ACE”; and together with PHI, PEPCO and DPL, each a “Borrower” and
collectively the “Borrowers”), the Lenders (as defined below) party hereto, Bank of America, N.A., as syndication
agent (the “Syndication Agent”) and as an issuer of letters of credit and Wells Fargo Bank, National Association,
as agent on behalf of the Lenders under the Credit Agreement (as hereinafter defined) (in such capacity, the “Agent”),
as the swingline lender and as an issuer of letters of credit. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed thereto in the Credit Agreement.


 


W I T N E S S E T H


 


WHEREAS, the
Borrowers, the various financial institutions from time to time party thereto (the “Lenders”) and the Agent
are parties to that certain Second Amended and Restated Credit Agreement dated as of August 1, 2011 (as amended by that certain
First Amendment to Second Amended and Restated Credit Agreement dated as of August 2, 2012, as extended by that certain Extension
Notice dated as of June 6, 2013, as amended by that certain Amendment and Consent to Second Amended and Restated Credit Agreement
dated as of May 20, 2014 (the “Second Amendment”), as amended by that certain Third Amendment to Second Amended
and Restated Credit Agreement dated as of May 1, 2015 and as further amended, modified, extended, restated, replaced, or supplemented
from time to time, collectively, the “Credit Agreement”);


 


WHEREAS, PHI
has informed the Agent that it has entered into an Agreement and Plan of Merger, dated April 29, 2014 (as amended, modified or
supplemented from time to time, the “Merger Agreement”), with Exelon Corporation (“Exelon”)
and an indirect wholly-owned subsidiary of Exelon, whereby Exelon will acquire, indirectly, 30% or more (by number of votes) of
the outstanding shares of Voting Stock of PHI ( the “Exelon Merger”);


 


WHEREAS, the
Exelon Merger is prohibited by the provisions of Sections 6.10 and 7.12 of the Credit Agreement;


 


WHEREAS, the
Required Lenders consented to the Exelon Merger pursuant to the Second Amendment, but the time period for which Exelon Merger was
permitted to occur expired on October 29, 2015; and


 


WHEREAS, the
Required Lenders are willing to consent to consummation of the Exelon Merger on an extended time frame, in accordance with and
subject to the terms and conditions set forth herein.


 


NOW, THEREFORE,
in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE I

CONSENT AND AMENDMENT


 


1.1         Consent.
Notwithstanding the provisions of the Credit Agreement to the contrary, the Required Lenders hereby consent to the Exelon Merger
and the subsequent conversion of PHI from a Delaware corporation to a Delaware limited liability company (the “Conversion”);
provided, that the Exelon Merger and the Conversion are consummated on or before June 30, 2016.


 




     


     


    

 


1.2         Effectiveness
of Consent. This Consent shall be effective only to the extent specifically set forth herein and shall not (a) be
construed as a waiver of any breach, Default or Unmatured Default other than as specifically waived herein nor as a waiver of any
breach, Default or Unmatured Default of which the Lenders have not been informed by the Borrowers, (b) affect the right of the
Lenders to demand compliance by the Borrowers with all terms and conditions of the Loan Documents (including, without limitation,
the provisions of Section 7.12 of the Credit Agreement for all other transactions except with respect to the Exelon Merger), except
as specifically modified or waived by this Consent, (c) be deemed a consent to any transaction or future action on the part
of the Borrowers requiring the Lenders’ or the Required Lenders’ consent or approval under the Loan Documents, or (d) except
as waived hereby, be deemed or construed to be a waiver or release of, or a limitation upon, the Agent’s or the Lenders’
exercise of any rights or remedies under the Credit Agreement or any other Loan Document, whether arising as a consequence of any
Default or Unmatured Default which may now exist or otherwise, all such rights and remedies hereby being expressly reserved.


 


1.3         For
the avoidance of doubt, the Consent contained herein shall apply only to the Exelon Merger and the Conversion and, following the
consummation of the Exelon Merger, the definition of “Change in Control” shall be amended as set forth in the Second
Amendment.


 


ARTICLE II

CONDITIONS TO EFFECTIVENESS


 


2.1         Closing
Conditions. This Consent shall be deemed effective as of the date set forth above (the “Consent Effective Date”)
upon satisfaction of the following conditions (in form and substance reasonably acceptable to the Agent):


 


(a)          Executed
Consent. The Agent shall have received a copy of this Consent duly executed by each of the Borrowers, the Agent and the Required
Lenders.


 


(b)          Fees
and Expenses. King & Spalding LLP shall have received from the Borrowers payment of all fees and expenses incurred in connection
with this Consent.


 


ARTICLE III

MISCELLANEOUS


 


3.1         Amended
Terms. On and after the Consent Effective Date, all references to the Credit Agreement in each of the Loan Documents shall
hereafter mean the Credit Agreement as amended by this Consent. Except as specifically amended hereby or otherwise agreed, the
Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.


 


3.2         Representations
and Warranties of Borrowers. Each of the Borrowers represents and warrants as follows:


 


(a)          Such
Borrower has taken all necessary action to authorize the execution, delivery and performance of this Consent.


 


(b)          Such
Borrower has duly executed and delivered the Consent and the Consent constitutes such Borrower’s legal, valid and binding
obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’


 




     


     


    

 


rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).


 


(c)          No
Approval is required to be obtained by such Borrower or any of its Subsidiaries in connection with the execution, delivery or performance
by such Borrower of this Consent; except for such Approvals which have been issued or obtained by such Borrower or any of its Subsidiaries
which are in full force and effect.


 


(d)          The
representations and warranties set forth in Article V of the Credit Agreement are true and correct as of the date hereof (except
for (i) those which expressly relate to an earlier date and (ii) representations and warranties contained in Sections 5.5, 5.7
and 5.15 of the Credit Agreement).


 


(e)          After
giving effect to this Consent, no event has occurred and is continuing which constitutes a Default or an Unmatured Default.


 


3.3         Reaffirmation
of Obligations. Each Borrower hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it is bound
by all terms of the Credit Agreement applicable to it and (b) that it is responsible for the observance and full performance
of its respective Obligations.


 


3.4         Loan
Document. This Consent shall constitute a Loan Document under the terms of the Credit Agreement.


 


3.5         Expenses.
The Borrowers agree to pay all reasonable costs and expenses of the Agent in connection with the preparation, execution and delivery
of this Consent (including, without limitation, the reasonable fees and expenses of the Agent’s legal counsel)..


 


3.6         Entirety.
This Consent and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements
and understandings, oral or written, if any, relating to the subject matter hereof.


 


3.7         Counterparts;
Telecopy. This Consent 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 Consent by signing any such counterpart.
This Consent shall be effective when it has been executed by the Borrowers, the Agent and the Lenders and each party has notified
the Agent by facsimile transmission or telephone that it has taken such action.


 


3.8         GOVERNING
LAW. THIS CONSENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING SECTION 5.1401.7 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.


 


3.9         Successors
and Assigns. This Consent shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns.


 


3.10       Consent
to Jurisdiction; Service of Process; Waiver of Jury Trial. The consent to jurisdiction and waiver of jury trial provisions
set forth in Sections 15.2 and 15.3 of the Credit Agreement, respectively, are hereby incorporated by reference, mutatis
mutandis.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


IN WITNESS WHEREOF
the parties hereto have caused this Consent to be duly executed on the date first above written.


 


	 	PEPCO HOLDINGS, INC.
	 	 	 
	 	By:	/S/ DAVID M. VELAZQUEZ
	 	 	Name:  David M. Velazquez
	 	 	Title:  Executive Vice President
	 	 	 
	 	POTOMAC ELECTRIC POWER COMPANY
	 	 	 
	 	By: 	/S/ DAVID M. VELAZQUEZ
	 	 	Name:  David M. Velazquez
	 	 	Title:  President and Chief Executive Officer
	 	 	 
	 	DELMARVA POWER & LIGHT COMPANY
	 	 	 
	 	By:	/S/ DAVID M. VELAZQUEZ
	 	 	Name:  David M. Velazquez
	 	 	Title:  President and Chief Executive Officer
	 	 	 
	 	ATLANTIC CITY ELECTRIC COMPANY
	 	 	 
	 	By: 	/S/ DAVID M. VELAZQUEZ
	 	 	Name:  David M. Velazquez
	 	 	Title:  President and Chief Executive Officer


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,
	 	as Agent, Issuer, Swingline Lender and Lender
	 	 	 
	 	By: 	/S/ FREDERICK W. PRICE
	 	 	Name:	Frederick W. Price
	 	 	Title:	Managing Director


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	bank of America, n.a.,
	 	as Syndication Agent, Issuer and Lender
	 	 	 	 
	 	By:	/S/ J.B. MEANOR
	 	 	Name:	J.B. Meanor II
	 	 	Title:	Managing Director


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	Citibank, N.A., 
	 	as Co-Documentation Agent and Lender
	 	 	 	 
	 	By:	/S/ DAMIEN LIPKE
	 	 	Name:	Damien Lipke
	 	 	Title:	Vice President


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	Mizuho Bank, LTD,
	 	as Lender
	 	 	 	 
	 	By:	/S/ LEON MO
	 	 	Name:	Leon Mo
	 	 	Title:	Authorized Signatory


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	the bank of nova scotia, 
	 	as Lender
	 	 	 	 
	 	By:	/S/ DAVID DEWAR
	 	 	Name:	David Dewar
	 	 	Title:	Director


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	barclays bank plc, 
	 	as Lender
	 	 	 	 
	 	By:	/S/ VANESSA A. KURBATSKIY
	 	 	Name:	Vanessa A. Kurbatskiy
	 	 	Title:	Vice President


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	credit suisse ag, cayman islands branch,
	 	as Lender
	 	 	 	 
	 	By:	/S/ NUPUR KUMAR
	 	 	Name:	Nupur Kumar
	 	 	Title:	Authorized Signatory
	 	 	 	 
	 	By:	/S/ GREGORY FANTONI
	 	 	Name:	Gregory Fantoni
	 	 	Title:	Authorized Signatory


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	jpmorgan chase bank, n.a., 
	 	as Lender
	 	 	 	 
	 	By:	/S/ JUSTIN MARTIN
	 	 	Name:	Justin Martin
	 	 	Title:	Authorized Officer


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	morgan stanley bank, n.a., 
	 	as Lender
	 	 	 	 
	 	By:	/S/ DMITRIY BARSKIY
	 	 	Name:	Dmitriy Barskiy
	 	 	Title:	Authorized Signatory


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	keybank national association,
	 	as Lender
	 	 	 	 
	 	By:	/S/ RENEE M. BONNELL
	 	 	Name:	Renee M. Bonnell
	 	 	Title:	Vice President


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	suntrust bank,
	 	as Lender
	 	 	 	 
	 	By:	/S/ SHANNON JUHAN
	 	 	Name:	Shannon Juhan
	 	 	Title:	Director


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	bank of new york mellon, 
	 	as Lender
	 	 	 	 
	 	By:	/S/ RICHARD K. FRONAPFEL, JR.
	 	 	Name:	Richard K. Fronapfel, Jr.
	 	 	Title:	Vice President


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	goldman sachs bank Usa,
	 	as Lender
	 	 	 	 
	 	By:	/S/ JERRY LI
	 	 	Name:	Jerry Li
	 	 	Title:	Authorized Signatory


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	manufacturers and traders trust company, 
	 	as Lender
	 	 	 	 
	 	By:	/S/ DANIEL DARNELL, JR.
	 	 	Name:	Daniel Darnell, Jr.
	 	 	Title:	Assistant Vice President


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	northern trust company,
	 	as Lender
	 	 	 	 
	 	By:	/S/ PETER J. HALLAN
	 	 	Name:	Peter J. Hallan
	 	 	Title:	Vice President


 




     


     


    

 


pepco


Consent
to second amended and restated credit agreement


 


	 	pnc bank, national association,
	 	as Lender
	 	 	 	 
	 	By:	/S/ THOMAS E. REDMOND
	 	 	Name:	Thomas E. Redmond
	 	 	Title:	Senior Vice President