exhibit10_1.htm


    EXHIBIT
10.1

    


    SECOND
AMENDMENT

    TO

    LOAN
AND SECURITY AGREEMENT

     

    This
Second Amendment to Loan and Security Agreement (this “Amendment”) is entered
into this 5th day of February, 2010, by and among SILICON VALLEY BANK, a
California corporation (“Bank”), COMVERGE, INC., a Delaware corporation
(“Comverge”), ENERWISE GLOBAL TECHNOLOGIES, INC., a Delaware corporation
(“Enerwise”), COMVERGE GIANTS, LLC, a Delaware limited liability company
(“Giants”), PUBLIC ENERGY SOLUTIONS, LLC, a New Jersey limited liability company
(“PES”), PUBLIC ENERGY SOLUTIONS NY, LLC, a Delaware limited liability company
(“PES-NY”), CLEAN POWER MARKETS, INC., a Pennsylvania corporation (“CPM”) and
ALTERNATIVE ENERGY RESOURCES, INC. a Delaware corporation (“AER”) (each of
Comverge, Enerwise, Giants, PES, PES-NY, CPM and AER are hereinafter referred to
individually as a “Borrower” and collectively as “Borrowers”).  As
used herein, “Original Borrowers” means Comverge, Enerwise, Giants, PES, PES-NY
and CPM.

     

    Recitals

     

    A.           Bank
and Original Borrowers have entered into that certain Loan and Security
Agreement dated as of November 7, 2008, as amended by that certain First
Amendment to Loan and Security Agreement dated October 23, 2009 (as the same may
from time to time be further amended, modified, supplemented or restated, the
“Loan Agreement”).

     

    B.           Bank
has extended credit to Original Borrowers for the purposes permitted in the Loan
Agreement.

     

    C.           AER
is a wholly-owned Subsidiary of Comverge.

     

    D.           Borrowers
have requested that Bank amend the Loan Agreement to increase the maximum amount
of the Revolving Loan and extend the Revolving Line Maturity Date and have
agreed to add AER as a co-Borrower.

     

    E.           Bank
has agreed to so amend the Loan Agreement, but only to the extent, in accordance
with the terms, subject to the conditions and in reliance upon the
representations and warranties set forth below.

     

    Agreement

     

    Now,
Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:

     

    1. Definitions.  Capitalized
terms used but not defined in this Amendment shall have the meanings given to
them in the Loan Agreement.

     

    2. Amendments
to Loan Agreement.

     

    2.1 Section 2.4 (Payment of Interest on
the Credit Extensions).  The first sentence of Section
2.4(a)(i) of the Loan Agreement is hereby deleted in its entirety and replaced
with the following:

     

    Each
Advance shall bear interest on the outstanding principal amount thereof from the
date when made, continued or converted until paid in full at either (A) a rate
per annum equal to (a) the greater of (i) the Prime Rate or (ii) four percent
(4%), plus (b) the Prime Rate Advance Margin, or (B) a rate per annum equal to
(a) the LIBOR Advance Rate plus (b) the LIBOR Rate Advance Margin, as the case
may be.

     

    2.2 Section 2.5 (Commitment
Fees).  Section 2.5(a)(i) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:

     

    (i) Revolving
Loan.  A fully earned, non-refundable commitment fee equal to
(A) Fifty Thousand Dollars ($50,000) on the Effective Date, (B) Twenty-Five
Thousand Dollars ($25,000) on the first anniversary of the Effective Date, (C)
One Hundred Thousand Dollars ($100,000) on February 5th,
2010 and (D) Seventy-Five Thousand Dollars ($75,000) on February 5th of
each year thereafter.

     

    2.3 Section 6.2 (Financial Statements,
Reports, Certificates).  Section 6.2(d) of the Loan Agreement
is hereby amended by (a) deleting the reference to “$750” and replacing it with
“$850” and (b) adding the following at the end of Section 6.2(d): “Borrower and
Bank hereby acknowledge and agree that an audit shall be conducted, at
Borrower’s expense (subject to the audit fee restrictions described above),
within ninety (90) days after February 5th,
2010.”

     

    2.4 Section 6.5
(Insurance).  The following language in the fifth sentence
of  Section 6.5 of the Loan Agreement is hereby deleted in its
entirety:

     

    “;
provided, however, that to the extent that a portion of any such proceeds relate
to claims involving AER, such portion shall not be payable to Bank on account of
the Obligations.”

     

    2.5 Section 6.6 (Operating
Accounts).  Section 6.6(a) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:

     

    (a)           As
of February 5th,
2010, Borrowers maintain operating and other deposit accounts and securities
accounts with Bank and Bank’s Affiliates that represent at least 80%
of the dollar value of Borrowers’ accounts at all financial institutions,
excluding Cash Collateral held at other financial institutions used to secure
letters of credit or cash held as lease deposits.  Borrowers agree to
move their accounts with other financial institutions over to Bank and Bank’s
Affiliates so as to maintain their primary banking relationship with Bank and
Bank’s Affiliates, which shall include operating and other deposit accounts and
securities accounts with Bank and Bank’s Affiliates that represent at least 90%
of the dollar value of Borrowers’ accounts at all financial
institutions.  It shall be considered and Event of Default under this
Agreement if Borrowers’ primary operating and other deposit accounts and
securities accounts representing at least 90% of the dollar value of Borrowers’
accounts at all financial institutions are not fully functional with Bank and
Bank’s Affiliates on or before April 30, 2010.

     

    2.6 Section 6.7 (Financial
Covenants).  Section 6.7 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following

     

    6.7           Financial
Covenants.

     

    Borrowers
shall maintain at all times, to be tested as of the last day of each month,
unless otherwise noted, on a consolidated basis with respect to
Borrowers:

     

    (a)           Tangible Net
Worth.  A Tangible Net Worth, measured as of the last day of
each fiscal quarter during the following periods, of at least the
following:

     

    
      	
              Period

            	
              Minimum
      Tangible Net Worth

            
	
              Quarter
      ending March 31, 2010

            	
              $50,000,000
      plus the Applicable Equity Proceeds

            
	
              Quarter
      ending June 30, 2010

            	
              $42,000,000
      plus the Applicable Equity Proceeds

            
	
              Quarter
      ending September 30, 2010

            	
              $42,000,000
      plus the Applicable Equity Proceeds

            
	
              Quarter
      ending December, 2010 and each quarter thereafter

            	
              $50,000,000
      plus the Applicable Equity Proceeds

            


    

    


    (b)           Liquidity Ratio
..  A Liquidity Ratio, measured as of the last day of each month, of at
least (i) 1.30 to 1.00 through December 31, 2010, (ii) 1.40 to 1.00 from January
31, 2011 through December 31, 2011 and (iii) 1.50 to 1.00 as of January 31, 2012
and each month thereafter.

     

    2.7 Section 6 (Affirmative
Covenants).  Section 6 of the Loan Agreement is hereby amended
by adding the following Section 6.11 immediately after Section
6.10:

     

    6.11           Pledge of Stock.

    


    If AER
has not transferred all of its assets to another Borrower or merged with and
into another Borrower on or before June 1, 2010, then Comverge shall execute and
deliver to Bank on or before such date, (a) a stock pledge agreement in favor of
Bank pledging one hundred percent (100%) of the equity ownership interest in the
outstanding capital stock of AER, (b) a stock transfer in blank and (c) the
original stock certificates evidencing such pledged shares.

    


    2.8 Section 8.2 (Events of
Default).  Section 8.2(a) of the Loan Agreement is hereby
amended by adding “or 6.11” immediately after the reference to
“6.7”.

     

    2.9 Section 13 (Definitions).  The
following terms and their respective definitions set forth in Section 13.1
are deleted in their entirety and replaced with the following:

     

    “Applicable Equity Proceeds”
means an amount equal to fifty percent (50%) of all proceeds received by
Borrowers from the sale of equity securities by any Borrower after February
5th,
2010.

     

    “LIBOR Advance Rate” means, for
each Revolving Loan Interest Period in respect of a LIBOR Advance comprising
part of the same Advance, an interest rate per annum (rounded upward, if
necessary, to the nearest 1/10,000th of one percent (0.0001%)) equal to (a) the
greater of (i) LIBOR for such Revolving Loan Interest Period or (ii) one and one
half percent (1.5%), divided by (b) one (1) minus the Reserve Requirement for
such Revolving Loan Interest Period.

     

    “Minimum Cash Requirement”
means (as it relates solely to the application and applicability of a
Non-Formula Period, and in no way shall be interpreted to mean a financial
covenant of the Borrowers under this Agreement) as of the end of each fiscal
quarter during the following periods, Borrowers maintaining a minimum balance of
unrestricted Cash and Cash Equivalents with Bank and Bank’s Affiliates of at
least Forty Million Dollars ($40,000,000).

     

    “Revolving Loan” is an Advance
or Advances in an amount not to exceed to Thirty Million Dollars
($30,000,000).

     

    “Revolving Loan Maturity Date”
is December 31, 2012.

     

    “Subsidiary” means, with
respect to any Person, any Person of which more than 50.0% of the voting stock
or other equity interests (in the case of Persons other than corporations) is
owned or controlled directly or indirectly by such Person or one or more of
Affiliates of such Person.

     

    2.10 Section 13 (Definitions).  Clause
(h) of the definition of “Permitted Indebtedness” in Section 13.1 of the Loan
Agreement is hereby deleted in its entirety.

     

    2.11 Section 13 (Definitions).  Clause
(k) of the definition of “Permitted Investments” in Section 13.1 of the Loan
Agreement is hereby deleted in its entirety and clause (j) of the definition of
“Permitted Investments” in Section 13.1 of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:

     

    (j)           Investments
consisting of the Transfer of all assets of AER to another
Borrower.

     

    2.12 Section 13 (Definitions).  The
following term and its definition are hereby added to
Section 13.1:

     

    “Liquidity Ratio” is (a) Cash
and Cash Equivalents held at Bank or Bank’s Affiliates, plus billed Accounts
Receivable, divided by (b) all outstanding Obligations, including, without
limitation, issued and outstanding Letters of Credit.

     

    2.13 Exhibit C (Borrowing Base
Certificate).  Exhibit C of the Loan Agreement is hereby
deleted in its entirety and replaced with Exhibit C attached
hereto.

     

    2.14 Exhibit E (Compliance
Certificate).  Exhibit E of the Loan Agreement is hereby
deleted in its entirety and replaced with Exhibit E attached
hereto.

     

    3. Additional
Borrower Joinder.

     

    3.1 AER and
Original Borrowers hereby acknowledge, confirm and agree that on and as of the
date of this Amendment AER has become a “Borrower” (as that term is defined in
the Loan Agreement), and, along with the Original Borrowers, is included in the
definition of “Borrower” under the Loan Agreement and the other Loan Documents
for all purposes thereof, and as such shall be jointly and severally liable, as
provided in the Loan Documents, for all Obligations thereunder (whether incurred
or arising prior to, on, or subsequent to the date hereof) and otherwise bound
by all of the terms, provisions and conditions thereof.

     

    3.2 Without
in any way implying any limitation on any of the provisions of this Amendment,
the Loan Agreement, or any of the other Loan Documents, AER hereby assigns,
pledges and grants to the Bank as security for the Obligations, and agrees that
the Bank shall have a perfected and continuing security interest in, and Lien
on, all of the Borrower’s Collateral, whether now owned or existing or hereafter
acquired or arising.  AER further agrees that the Bank shall have in
respect thereof all of the rights and remedies of a secured party under the
Uniform Commercial Code as well as those provided in this Amendment, under each
of the other Loan Documents and under applicable laws.

     

    3.3 Without
in any way implying any limitation on any of the provisions of this Amendment,
AER agrees to execute such financing statements, instruments, and other
documents as the Bank may require in connection with joinder of AER as a
Borrower under the Loan Documents and the granting of the Lien described in
Section 3.2 above.

     

    4. Limitation
of Amendments.

     

    4.1 The
amendments set forth in Section 2, above, are effective for the purposes
set forth herein and shall be limited precisely as written and shall not be
deemed to (a) be a consent to any amendment, waiver or modification of any
other term or condition of any Loan Document, or (b) otherwise prejudice
any right or remedy which Bank may now have or may have in the future under or
in connection with any Loan Document.

     

    4.2 This
Amendment shall be construed in connection with and as part of the Loan
Documents and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Loan Documents, except as herein amended, are hereby
ratified and confirmed and shall remain in full force and effect.

     

    5. Representations and
Warranties.  To induce Bank to enter into this Amendment,
Borrowers hereby represent and warrant to Bank as follows:

     

    5.1 Immediately
after giving effect to this Amendment (a) the representations and
warranties contained in the Loan Documents are true, accurate and complete in
all material respects as of the date hereof (except to the extent such
representations and warranties relate to an earlier date, in which case they are
true and correct as of such date and except as indicated in Section 4.3 below),
and (b) no Event of Default has occurred and is continuing;

     

    5.2 Borrowers
have the power and authority to execute and deliver this Amendment and to
perform their obligations under the Loan Agreement, as amended by this
Amendment;

     

    5.3 The
organizational documents of Borrowers most recently delivered to Bank remain
true, accurate and complete and have not been amended, supplemented or restated
and are and continue to be in full force and effect;

     

    5.4 The
execution and delivery by Borrowers of this Amendment and the performance by
Borrowers of their obligations under the Loan Agreement, as amended by this
Amendment, have been duly authorized;

     

    5.5 The
execution and delivery by Borrowers of this Amendment and the performance by
Borrowers of their obligations under the Loan Agreement, as amended by this
Amendment, do not and will not contravene (a) any law or regulation binding
on or affecting Borrowers, (b) any contractual restriction with a Person
binding on Borrowers, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on Borrowers, or (d) the organizational documents of
Borrowers;

     

    5.6 The
execution and delivery by Borrowers of this Amendment and the performance by
Borrowers of their obligations under the Loan Agreement, as amended by this
Amendment, do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
Borrowers, except as already has been obtained or made; and

     

    5.7 This
Amendment has been duly executed and delivered by Borrowers and is the binding
obligation of Borrowers, enforceable against Borrowers in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’
rights.

     

    6. Integration.  This
Amendment and the Loan Documents represent the entire agreement about this
subject matter and supersede prior negotiations or agreements.  All
prior agreements, understandings, representations, warranties, and negotiations
between the parties about the subject matter of this Amendment and the Loan
Documents merge into this Amendment and the Loan Documents.

     

    7. Counterparts.  This
Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.

     

    8. Effectiveness.  This
Amendment shall be deemed effective upon (a) the due execution and delivery to
Bank of this Amendment by each party hereto, (b) AER’s execution and
delivery to Bank of an Intellectual Property Security Agreement in the form
previously executed by the Original Borrowers, and a Perfection Certificate, (c)
Borrowers’ payment of the commitment fee in the amount equal to $100,000
referenced in Section 2.5(a)(i)(C) of the Loan Agreement, as amended by this
Amendment, and (d) payment of Bank’s reasonable legal fees and expenses in
connection with the negotiation and preparation of this Amendment.

     

    [Signature
page follows.]


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    In Witness
Whereof, the parties
hereto have caused this Amendment to be duly executed and delivered as of the
date first written above.

    


    
      	
              BORROWERS:

               

              COMVERGE,
      INC.

              By  /s/ Michael D. Picchi

              Name:
      Michael D. Picchi

              Title:  Interim
      President and CEO

               

              ENERWISE
      GLOBAL TECHNOLOGIES, INC.

              By  /s/ Michael D. Picchi

              Name:
      Michael D. Picchi

              Title:  President

               

              COMVERGE
      GIANTS, LLC

              By  /s/ Michael D. Picchi

              Name:
      Michael D. Picchi

              Title:
      President

               

              PUBLIC
      ENERGY SOLUTIONS, LLC

              By  /s/ Michael D. Picchi

              Name:  Michael
      D. Picchi

              Title:  President

               

              PUBLIC
      ENERGY SOLUTIONS NY, LLC

              By  /s/ Michael D. Picchi

              Name:  Michael
      D. Picchi

              Title:  President

               

              CLEAN
      POWER MARKETS, INC.

              By  /s/ Michael D. Picchi

              Name:  Michael
      D. Picchi

              Title:  President

              [continued
      on next page]

               

               

              ALTERNATIVE
      ENERGY RESOURCES, INC.

              By  /s/ Michael D. Picchi

              Name:  Michael
      D. Picchi

              Title:  President

               

            	 
      
	
              BANK:

              SILICON
      VALLEY BANK

              By  /s/ Scott McCarty

              Name:
      Scott McCarty

              Title:VP

            	 
      


    


    
      
        
          [signature
page of Second Amendment to Loan and Security Agreement]

          


        

         


      

      
         


        
          

        

      

      
         


      

    


    ACKNOWLEDGMENT
OF AMENDMENT

    AND
REAFFIRMATION OF GUARANTY

    


    


    Section 1.                      Each
Guarantor hereby acknowledges and confirms that it has reviewed and approved the
terms and conditions of the Second Amendment to Loan and Security Agreement
dated as of even date herewith (the “Amendment”).

     

    Section 2.                      Each
Guarantor hereby consents to the Amendment and agrees that the Guaranty relating
to the Obligations of Borrower under the Loan Agreement shall continue in full
force and effect, shall be valid and enforceable and shall not be impaired or
otherwise affected by the execution of the Amendment or any other document or
instrument delivered in connection herewith.

     

    Dated as
of February 5, 2010

     

    GUARANTOR

    


    6D
COMVERGE, INC.

     

    By:       /s/ Michael D.
Picchi                                                      

     

    Name:  Michael D.
Picchi                                                      

    Title:    President                                           

    


    


    COMVERGE
ENERGY MANAGEMENT, INC.

     

    By:       /s/ Michael D.
Picchi                                                      

     

    Name:  Michael D.
Picchi                                                      

    Title:    President                                           

    


    


    COMVERGE
UTAH, INC.

     

    By:       /s/ Michael D.
Picchi                                                      

     

    Name:  Michael D.
Picchi                                                      

    Title:    President                                           

    


    


    [continued
on next page]


    
      
        
          [signature
page of Acknowledgment of Amendment and Reaffirmation of Guaranty]

          


        

         


      

      
         


        
          

        

      

      
         


      

    

    COMVERGE
CANADA, INC.

     

    By:       /s/ Michael D.
Picchi                                                      

     

    Name:  Michael D.
Picchi                                                      

    Title:    President                                           

    


    


    COMVERGE
ENERGY PARTNERS, LTD

     

    By:       /s/ Michael D.
Picchi                                                      

     

    Name:  Michael D.
Picchi                                                      

    Title:    President                                           

    


    


    PUBLIC
ELECTRIC, INC.

     

    By:       /s/ Michael D.
Picchi                                                      

     

    Name:  Michael D.
Picchi                                                      

    Title:    President                                           

    


    


    PES NY,
LLC

     

    By:       /s/ Michael D.
Picchi                                                      

     

    Name:  Michael D.
Picchi                                                      

    Title:    President                                           

    


    



    
      
        
          [signature
page of Acknowledgment of Amendment and Reaffirmation of Guaranty]

          


        

         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
C

     

    BORROWING
BASE CERTIFICATE

     

    
      	
               
      

            	
              Borrowers:
      Comverge, Inc., Enerwise Global Technologies, Inc., Comverge Giants, LLC,
      Public Energy Solutions, LLC, Public Energy Solutions NY, LLC, Clean Power
      Markets, Inc. and  Alternative Energy Resources,
      Inc.

            


    

    
      	
              Lender:

            	
              Silicon
      Valley Bank

            


    

    
      	
              Commitment
      Amount:

            	
              $30,000,000

            


    

     

    
      	
              ACCOUNTS
      RECEIVABLE

            	 
      
	
              1.Accounts
      Receivable (invoiced) Book Value as of
____________________

            	
              $_______________

            
	
              2.Additions
      (please explain on reverse)

            	
              $_______________

            
	
              3.TOTAL
      ACCOUNTS RECEIVABLE

            	
              $_______________

            
	 
      	 
      
	
              ACCOUNTS
      RECEIVABLE DEDUCTIONS (without duplication)

            	 
      
	
              4.Un-invoiced
      Accounts

            	
              $_______________

            
	
              5.Amounts
      over 90 days due

            	
              $_______________

            
	
              6.Balance
      of 50% over 90 day accounts

            	
              $_______________

            
	
              7.Credit
      balances over 90 days

            	
              $_______________

            
	
              8.Concentration
      Limits

            	
              $_______________

            
	
              9.Foreign
      Accounts

            	
              $_______________

            
	
              10.Governmental
      Accounts (excluding Governmental Accounts with Assignment of
      Claims)

            	
              $_______________

            
	
              11.Contra
      Accounts

            	
              $_______________

            
	
              12.Promotion
      or Demo Accounts

            	
              $_______________

            
	
              13.Intercompany/Employee
      Accounts

            	
              $_______________

            
	
              14.Disputed
      Accounts

            	
              $_______________

            
	
              15.Deferred
      Revenue

            	
              $_______________

            
	
              16.Other
      (please explain on reverse)

            	
              $_______________

            
	
              17.TOTAL
      ACCOUNTS RECEIVABLE DEDUCTIONS

            	
              $_______________

            
	
              18.Eligible
      Accounts (#3 minus #17)

            	
              $_______________

            
	
              19.ELIGIBLE
      AMOUNT OF ACCOUNTS (80% of #18)

            	
              $_______________

            
	 
      	 
      
	
              BALANCES

            	 
      
	
              20.Revolving
      Loan

            	
              $30,000,000

            
	
              21.Total
      Funds Available (lesser of #20 or #19)

            	
              $_______________

            
	
              22.Present
      balance owing on Line of Credit

            	
              $_______________

            
	
              23.Outstanding
      under Sublimits

            	
              $_______________

            
	
              24.RESERVE
      POSITION (#21 minus #22 and #23)

            	
              $_______________

               

            


    

    The
undersigned represents and warrants that this is true, complete and correct, and
that the information in this Borrowing Base Certificate complies with the
representations and warranties in the Loan and Security Agreement between the
undersigned and Silicon Valley Bank.

     

    
      	
              COMMENTS:

               

              By:
      ___________________________

              Authorized
      Signer

              Date:

            	
              BANK
      USE ONLY

              Received
      by: _____________________

              authorized
      signer

              Date:  __________________________

              Verified:
      ________________________

              authorized
      signer

              Date:
      ___________________________

              Compliance
      Status:                                Yes           No

            


    

    


     

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
E

     

    COMPLIANCE
CERTIFICATE

     

    TO:           SILICON
VALLEY
BANK                                                                                                           Date:
________________________

    


    FROM:   COMVERGE,
INC.,

    ENERWISE GLOBAL TECHNOLOGIES,
INC.,

    COMVERGE GIANTS, LLC

    PUBLIC ENERGY SOLUTIONS,
LLC

    PUBLIC ENERGY SOLUTIONS NY,
LLC

    CLEAN POWER MARKETS, INC.

    ALTERNATIVE ENERGY RESOURCES,
INC.

    


    The
undersigned authorized officers of Comverge, Inc., Enerwise Global Technologies,
Inc., Comverge Giants, LLC, Public Energy Solutions, LLC, Public Energy
Solutions NY, LLC, Clean Power Markets, Inc. and Alternative Energy Resources,
Inc. (collectively, the “Borrowers”) certify that under
the terms and conditions of the Loan and Security Agreement between Borrowers
and Bank (the “Agreement”), (1) Each Borrower
is in complete compliance for the period ending _______________ with all
required covenants except as noted below, (2) there are no Events of Default,
(3) all representations and warranties in the Agreement are true and
correct in all material respects on this date except as noted below; provided,
however, that such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or modified by
materiality in the text thereof; and provided, further that those
representations and warranties expressly referring to a specific date shall be
true, accurate and complete in all material respects as of such date, (4) Each
Borrower, and each of its Subsidiaries, has timely filed all required tax
returns and reports, and each Borrower has timely paid all foreign, federal,
state and local taxes, assessments, deposits and contributions owed by Borrowers
except as otherwise permitted pursuant to the terms of Section 5.9 of the
Agreement, and (5) no Liens have been levied or claims made against any Borrower
or any of its Subsidiaries relating to unpaid employee payroll or benefits of
which such Borrower has not previously provided written notification to
Bank.  Attached are the required documents supporting the
certification.  The undersigned certifies that these are prepared in
accordance with GAAP consistently applied from one period to the next except as
explained in an accompanying letter or footnotes.  The undersigned
acknowledges that no borrowings may be requested at any time or date of
determination that Borrowers are not in compliance with any of the terms of the
Agreement, and that compliance is determined not just at the date this
certificate is delivered.  Capitalized terms used but not otherwise
defined herein shall have the meanings given them in the Agreement.

     

    
      	
              Please
      indicate compliance status by circling Yes/No under “Complies”
      column.

               

            
	 
      
	
              Reporting Covenant

            	
              Required

            	
              Complies

            
	 
      	 
      	 
      
	
              Monthly
      financial statements with

              Compliance
      Certificate

            	
              Monthly within 30
      days

            	
              Yes  No

            
	
              Annual
      financial statement (CPA Audited) + CC

            	
              FYE
      within 90 days

            	
              Yes  No

            
	
              Quarterly
      financial statement

            	
              Within
      45 days of fiscal quarter end

            	
              Yes  No

            
	
              10-Q,
      10-K and 8-K

            	
              Within
      5 days after filing with SEC

            	
              Yes  No

            
	
              Borrowing
      Base Certificate, A/R & A/P Agings

            	
              Monthly
      within 30 days only required during Non-Formula Period

            	
              Yes  No

            
	 
      


    

    


    
      	
              Non-Formula
      Calculation

            	
              Required

            	
              Complies

            
	
              Non-Formula
      Period:

            	 
      	 
      
	
              Minimum
      Cash and Cash Equivalents Requirement

            	
              $40,000,000

            	
              Yes  No

            


    

    


    
      	
              Financial Covenant

            	
              Required

            	
              Actual

            	
              Complies

            
	 
      	 
      	 
      	 
      
	
              Maintain
      on a Quarterly Basis:

            	 
      	 
      	 
      
	
              Minimum
      Tangible Net Worth:

            	
              $50,000,000
      plus the Applicable Equity Proceeds, for quarter ending March 31,
      2010

            	 
      	
              Yes  No

            
	
              $42,000,000
      plus the Applicable Equity Proceeds, for quarter ending June 30,
      2010

            	 
      	
              Yes  No

            
	
              $42,000,000
      plus the Applicable Equity Proceeds, for quarter ending September 30,
      2010

            	 
      	
              Yes  No

            
	
              $50,000,000
      plus the Applicable Equity Proceeds, for quarter ending December 31, 2010
      and each quarter thereafter

            	 
      	
              Yes  No

            
	
                 
      Maintain on a Monthly Basis:

            	 
      	 
      	 
      
	
              Minimum
      Liquidity

            	
              1.3:1.0
      through December 31, 2010

            	
              _____:1.0

            	
              Yes  No

            
	 
      	
              1.4:1.0
      from January 31, 2011 through December 31, 2011

            	
              _____:1.0

            	
              Yes  No

            
	 
      	
              1.3:1.0
      from and after January 31, 2012

            	
              _____:1.0

            	
              Yes  No

            


    

    


    The
following financial covenant analyses and information set forth in Schedule 1
attached hereto are true and accurate as of the date of this
Certificate.

     

    The
following are the exceptions with respect to the certification
above:  (If no exceptions exist, state “No exceptions to
note.”)

     

    ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

     

    


    
      	
               

              By:______________________________

              Name:
      ___________________________

              Title:
      ____________________________

               

               

               

            	
              BANK
      USE ONLY

              Received
      by: _____________________

              authorized
      signer

              Date:                    _________________________

              Verified:
      ________________________

              authorized
      signer

              Date:                    _________________________

              Compliance
      Status:                                         Yes  No

            


    

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Schedule
1

     

    Schedule 1 to Compliance
Certificate

     

    Financial Covenants of
Borrowers

     

    Dated:           ____________________

     

    In the
event of a conflict between this Schedule and the Loan Agreement, the terms of
the Loan Agreement shall govern.

     

    I.           Tangible Net Worth (Section
6.7(a)

     

    Required:

     

    
      	
              Period

            	
              Minimum
      Tangible Net Worth

            
	
              Quarter
      ending March 31, 2010

            	
              $50,000,000
      plus the Applicable Equity Proceeds

            
	
              Quarter
      ending June 30, 2010

            	
              $42,000,000
      plus the Applicable Equity Proceeds

            
	
              Quarter
      ending September 30, 2010

            	
              $42,000,000
      plus the Applicable Equity Proceeds

            
	
              Quarter
      ending December 31, 2010 and each quarter thereafter

            	
              $50,000,000
      plus the Applicable Equity Proceeds

            


    

    


     

    Actual:

     

    A.           Tangible
Net Worth for such reporting
period                                                                                                                     $_____

     

    
      	
              B.

            	
              Proceeds
      received by Borrowers from the sale of
equity

            


    

    securities
by any Borrower after February ___,
2010                                                                                                          $_____

     

    C.           50%
of line
B                                                                                                                                                                                $_____

     

    D.           
Tangible Net Worth plus Applicable Equity Proceeds (line A plus line
C)                                                                      $_____

     

    Is line D
equal to or greater than the required minimum amount for such period set forth
above.

     

                                                                       ______
No, not in
compliance                                                                                                ______
Yes, in compliance

     

    II.           Liquidity Ratio
(6.7(b))

     

    Required:               1.30:1.00
through December 31, 2010

    1.40:1.00 from January 31, 2011 through
December 31, 2011

    1.50:1.00 from and after January 31,
2012

    


    Actual:

    


    
      	
              A.

            	
              Unrestricted
      cash and Cash Equivalents at Bank or Bank’s Affiliates

            	
              $           

               

            
	
              B.

            	
              Billed
      Accounts Receivable

            	
              $           

               

            
	
              C.

            	
              Liquidity
      (line A plus line B)

            	
              $           

               

            
	
              D.

            	
              Outstanding
      Obligations, including issued and outstanding Letters of
      Credit

            	
              $           

               

            
	
              E.

            	
              Liquidity
      Ratio (line C divided by line D

            	
              ____
      : 1.00

            
	 
      	 
      	 
      


    

    Is line E
equal to or greater than the minimum ratio for such period set forth
above?

    


    _______  No, not in
compliance                                                                           _______
Yes, in compliance