WAIVER TO CREDIT AGREEMENT

Exhibit 10.1

WAIVER TO CREDIT AGREEMENT

THIS WAIVER TO CREDIT AGREEMENT (this “Waiver”), dated as of February 23, 2016, is entered into among POWERSECURE INTERNATIONAL, INC., a Delaware corporation (the “Borrower”), the lenders signatory hereto (collectively, the “Lenders”), and CITIBANK, N.A., as Administrative Agent (the “Administrative Agent”).

BACKGROUND

A. The Borrower, the Lenders and the Administrative Agent are parties to that certain Amended and Restated Credit Agreement, dated as of December 21, 2011 (said Credit Agreement, as heretofore amended, modified and supplemented, the “Credit Agreement”). The terms defined in the Credit Agreement and not otherwise defined herein shall be used herein as defined in the Credit Agreement.

B. The Borrower has informed the Lenders that it will be executing an Agreement and Plan of Merger with, among other parties, The Southern Company, whereby upon closing of the transaction and merger described in such agreement, The Southern Company will acquire more than 50% of the Voting Equity Interests of the Borrower (the execution by the Borrower of such agreement, the “Southern Agreement Execution”).

C. The Southern Agreement Execution would result in an Event of Default under Section 8.01(k) of the Credit Agreement.

D. The Borrower has requested that the Lenders waive the Event of Default that would occur as a result of the Southern Agreement Execution.

NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are all hereby acknowledged, the Borrower, the Lenders and the Administrative Agent covenant and agree as follows:

1. WAIVER. Subject to the conditions of effectiveness set forth in Section 3 hereof, the Lenders hereby waive the Event of Default under Section 8.01(k) of the Credit Agreement which would occur as a result of the Southern Agreement Execution. The waiver provided in the immediately preceding sentence (a) is limited to the specific Event of Default referred to therein as a result of the Southern Agreement Execution, (b) shall not waive any Event of Default under Section 8.01(k) of the Credit Agreement that will or may occur as a result of the acquisition by The Southern Company of more than 50% of the Voting Equity Interests of the Borrower, and (c) shall not affect any other terms or provisions of the Credit Agreement or any other Loan Documents.

2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and delivery hereof, the Borrower represents and warrants that, as of the date hereof and after giving effect to this Waiver:

(a) the representations and warranties contained in Article V the Credit Agreement and the other Loan Documents (i) that contain a materiality qualification are true and correct in    

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all respects on and as of the date hereof as if made on and as of such date, and (ii) that do not contain a materiality qualification are true and correct in all material respects on and as of the date hereof as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all respects or in all material respects, as applicable, as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement; and

(b) no event has occurred and is continuing which constitutes a Default or an Event of Default.

3. CONDITIONS TO EFFECTIVENESS. This Waiver shall be effective upon satisfaction or completion of the following:

(a) the Administrative Agent shall have received counterparts of this Waiver executed by each of the Lenders;

(b) the representations and warranties set forth in Section 2 of this Waiver shall be true and correct as of the date of this Waiver; and

(c) the Administrative Agent shall have received counterparts of this Waiver executed by the Borrower and acknowledged by each Guarantor.

4. REFERENCE TO THE CREDIT AGREEMENT.

(a) Upon the effectiveness of this Waiver, each reference in the Credit Agreement to “this Agreement”, “hereunder”, or words of like import shall mean and be a reference to the Credit Agreement, as affected by this Waiver.

(b) Except as expressly set forth herein, this Waiver shall not (i) by implication or otherwise limit, impair, constitute a wavier of, or otherwise affect the rights or remedies of the Administrative Agent or the Lenders under the Credit Agreement or any of the other Loan Documents, or (ii) alter, modify, amend, or in any way affect the terms, conditions, obligations, covenants, or agreements contained in the Credit Agreement or the other Loan Documents, all of which are hereby ratified and affirmed in all respects and shall continue in full force and effect.

5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Waiver and the other instruments and documents to be delivered hereunder (including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).

6. GUARANTOR’S ACKNOWLEDGMENT. By signing below, each Guarantor (a) acknowledges, consents and agrees to the execution, delivery and performance by the Borrower of this Waiver, (b) acknowledges and agrees that its obligations in respect of its Guaranty are not released, diminished, waived, modified, impaired or affected in any manner by this Waiver or any of the provisions contemplated herein, (c) ratifies and confirms its obligations under its Guaranty, and (d) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims to, its Guaranty.

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7. EXECUTION IN COUNTERPARTS. This Waiver may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. For purposes of this Waiver, a counterpart hereof (or signature page thereto) signed and transmitted by any Person party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be treated as an original. The signature of such Person thereon, for purposes hereof, is to be considered as an original signature, and the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature on an original document.

8. GOVERNING LAW; BINDING EFFECT. This Waiver shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such state, provided that each party shall retain all rights arising under federal law, and shall be binding upon the parties hereto and their respective successors and assigns; provided, however, that the Borrower may not assign any of its rights arising from this Waiver or any other Loan Document, and any prohibited assignment shall be null and void.

9. HEADINGS. Section headings in this Waiver are included herein for convenience of reference only and shall not constitute a part of this Waiver for any other purpose.

10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS MODIFIED BY THIS WAIVER, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

REMAINDER OF PAGE LEFT INTENTIONALLY BLANK

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IN WITNESS WHEREOF, this Waiver is executed as of the date first set forth above.

POWERSECURE INTERNATIONAL, INC.
By:		/s/ Xxxx Xxxxxx
		Xxxx Xxxxxx
		Chief Financial Officer

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CITIBANK, N.A., as Administrative Agent and Lender
By:		/s/ Xxxxxx Xxxxxxx
Name:		Xxxxxx Xxxxxxx
Title:		Senior Vice President
BRANCH BANKING AND TRUST COMPANY, as Lender
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		XXXXXX X. XXXXXXX
Title:		SENIOR VICE PRESIDENT

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ACKNOWLEDGED AND AGREED:
POWERSECURE, INC. POWERSERVICES, INC. ENERGYLITE, INC. UTILITYENGINEERING, INC. UTILITYDESIGN, INC. XXXX’X TRAILER, INC.
POWERSECURE SOLAR, LLC
INNOVATION ENERGIES, LLC
SOLAIS LIGHTING, INC.
POWERSECURE LIGHTING, LLC
By:		/s/ Xxxx Xxxxxx
		Xxxx Xxxxxx
		Chief Financial Officer for all

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