FORBEARANCE AGREEMENT
Exhibit 10.2
This Forbearance Agreement (this “Agreement”) is entered into as of September 13, 2009, by and
between SILICON VALLEY BANK, a California corporation, with its principal place of business at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located at 000
Xxxxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (“Bank”), and ENERGY FOCUS, INC., a
Delaware corporation, formerly known as Fiberstars, Inc., a Delaware corporation, with offices
located at 00000 Xxxxxx Xxxx, Xxxxx, Xxxx 00000 (“Borrower”).
1. DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other indebtedness and
obligations which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a loan
arrangement dated as of October 27, 2008, evidenced by, among other documents, a certain Second
Amended and Restated Loan and Security Agreement dated as of October 27, 2008 between Borrower and
Bank, as amended by a certain First Modification and Forbearance Agreement dated as of January 31,
2009 between Borrower and Bank, as further modified by a certain Second Loan Modification and
Forbearance Agreement, dated as of June 12, 2009, as further amended by a certain Third Loan
Modification and Forbearance Agreement, dated as of July 22, 2009 and as further modified by a
certain Forbearance Agreement, dated as of August 25, 2009 (as may be further amended from time to
time, the “Loan Agreement”). Capitalized terms used but not otherwise defined herein shall have
the same meaning as in the Loan Agreement.
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the Collateral as
described in the Loan Agreement and as described in a certain Intellectual Property Security
Agreement between borrower and Bank, as ratified and reaffirmed by a certain Reaffirmation of
Intellectual Property Security Agreement dated as of October 27, 2008 between Borrower and Bank
(collectively, the “IP Agreement”, and together with any other collateral security granted to Bank,
the “Security Documents”).
Hereinafter, the Security Documents, together with all other documents evidencing or securing
the Obligations shall be referred to as the “Existing Loan Documents”.
3. ACKNOWLEDGMENT OF DEFAULTS. Borrower acknowledges and agrees that Bank is currently
forbearing from enforcing its rights and remedies under the Loan Agreement due to certain Defaults
and Events of Default that have occurred under the Loan Agreement by virtue of Borrower’s failure
to comply with the minimum Tangible Net Worth covenant contained in Section 6.9(a) of the Loan
Agreement for the compliance periods ended on November 30, 2008, December 31, 2008, January 31,
2009, February 28, 2009, March 31, 2009, April 30, 2009, May 31, 2009, June 30, 2009 and July 31,
2009 (collectively, the “Existing Defaults”). Borrower further acknowledges and agrees that the
Forbearance Period (as such term is defined in that certain Forbearance Agreement, dated as of
August 25, 2009) has by its terms expired, and Bank, in its sole discretion, may immediately
commence enforcing its rights and remedies under the Existing Loan Documents. Notwithstanding the
foregoing, the Bank hereby agrees as follows.
4. FORBEARANCE BY BANK.
| A. | In consideration of, among other things, Borrower’s compliance with each and every term of this Agreement, Bank hereby agrees to forbear from exercising its rights and remedies against the Borrower as a result of the Existing Defaults until the earlier to occur of (i) a Default or an Event of Default under the Loan Agreement (with the sole exception of the Existing Defaults), (ii) the failure of Borrower to promptly, punctually, or faithfully perform or comply with any term or condition of this Agreement as and when required, it being expressly acknowledged and agreed that TIME IS OF THE ESSENCE, or (iii) 3:00 p.m. (Denver, Colorado time) on October 13, 2009 (the period commencing as of the date hereof and ending on the earlier of (i), (ii) or (iii) above shall be referred to as the “Forbearance Period”). |
| B. | Borrower hereby acknowledges and agrees that nothing contained in this section or in any other section of this Agreement shall be deemed or otherwise construed as a waiver by Bank of the Existing Defaults or any other Default or Event of Default (whether now existing or hereafter arising) or of any of its rights and remedies pursuant to the Existing Loan Documents, applicable law or otherwise. This Agreement shall only constitute an agreement by Bank to forbear from enforcing its rights and remedies based upon the Existing Defaults upon the terms and conditions set forth herein. Upon the expiration of the Forbearance Period, the agreement of Bank to forbear as set forth in this Agreement shall automatically terminate and Bank may immediately commence enforcing its rights and remedies pursuant to the Existing Loan Documents, applicable law or otherwise, in such order and manner as Bank may determine appropriate. |
5. TERMS OF FORBEARANCE.
| A. | Borrower agrees that Bank has no obligation to make any Advances to Borrower, or to issue any other Credit Extensions for Borrower’s account, or to provide any other extensions of credit of any kind (if an obligation exists in a particular instance) to Borrower. Notwithstanding the foregoing, from the date hereof through and including September 30, 2009, and at the request of Borrower, Bank may, in its sole and absolute discretion, continue to make Advances and/or issue Letters of Credit (hereinafter, such financial accommodations shall be referred to collectively as “Discretionary Financial Accommodations” and singly as a “Discretionary Financial Accommodation”), subject, in all events, to the terms and conditions of this Agreement, the Loan Agreement (including but not limited to, all limitations imposed by the Borrowing Base and the Availability Amount) and the other Loan Documents, as affected hereby. Borrower covenants and agrees that if, in the sole and absolute discretion of Bank, Bank shall make any Discretionary Financial Accommodation during the Forbearance Period, such act shall not constitute (i) a waiver of the Existing Defaults, or of any other Default or Event of Default which may now exist or which may occur after the date of this Amendment under any of the Loan Documents, or (ii) an agreement on the part of Bank to make any further extensions of credit of any kind to Borrower at a later date. | ||
| B. | At all times during and after the Forbearance Period, Borrower shall comply with all terms and conditions of the Loan Documents, including, without limitation, the affirmative and negative covenants, contained in the Loan Agreement and other Loan Documents. | ||
| C. | During the Forbearance Period, Borrower shall continue to remit all regularly scheduled payments (whether due on account of any Credit Extension or otherwise, including all principal, interest, fees, costs and other amounts) which may become due under the Loan Agreement, as and when such payments are due. |
6. FEES. Borrower shall pay to Bank a forbearance fee equal to Four Thousand Dollars
($4,000.00), which fee shall be due on the date hereof and shall be deemed fully earned as of the
date hereof. Borrower shall also reimburse Bank for all legal fees and expenses incurred in
connection with the Existing Loan Documents and this Agreement.
7. RATIFICATION OF IP AGREEMENT. Borrower hereby ratifies, confirms and reaffirms, all and
singular, the terms and conditions of the IP Agreement, and acknowledges, confirms and agrees that
said IP Agreement contains an accurate and complete listing of all Intellectual Property Collateral
as defined in said IP Agreement, which shall remain in full force and effect. Notwithstanding the
terms and conditions of the IP Agreement, the Borrower shall not register any Copyrights or Mask
Works in the United States Copyright Office unless it: (i) has given at least fifteen (15) days’
prior-written notice to Bank of its intent to register such Copyrights or Mask Works and has
provided Bank with a copy of the application it intends to file with the United States Copyright
Office (excluding exhibits thereto); (ii) executes a security agreement or such other documents as
Bank may reasonably request in order to maintain the perfection and priority of Bank’s security
interest in the Copyrights proposed to be registered with the United States Copyright Office; and
(iii) records such security documents with the
United States Copyright Office contemporaneously with filing the Copyright application(s) with the
United States Copyright Office. Borrower shall promptly provide to Bank a copy of the Copyright
application(s) filed with the United States Copyright Office, together with evidence of the
recording of the security documents necessary for Bank to maintain the perfection and priority of
its security interest in such Copyrights or Mask Works. Borrower shall provide written notice to
Bank of any application filed by Borrower in the United States Patent Trademark Office for a patent
or to register a trademark or service xxxx within thirty (30) days of any such filing.
8. RATIFICATION OF PERFECTION CERTIFICATE. Borrower hereby ratifies, confirms and
reaffirms, all and singular, the terms and disclosures contained in a certain Perfection
Certificate dated as of October 27, 2008 executed by Borrower, and acknowledges, confirms and
agrees the disclosures and information Borrower provided to Bank in the Perfection Certificate have
not changed, as of the date hereof.
9. AUTHORIZATION TO FILE. Borrower hereby authorizes Bank to file UCC financing statements
without notice to Borrower, with all appropriate jurisdictions, as Bank deems appropriate, in order
to further perfect or protect Bank’s interest in the Collateral, including a notice that any
disposition of the Collateral, by either the Borrower or any other Person, shall be deemed to
violate the rights of the Bank under the Code.
10. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever necessary
to reflect the changes described above.
11. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and reaffirms all
terms and conditions of the Loan Agreement, the other Existing Loan Documents and all security or
other collateral granted to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Obligations.
12. NO DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that Borrower has no
offsets, defenses, claims, or counterclaims against Bank with respect to the Obligations, or
otherwise, and that if Borrower now has, or ever did have, any offsets, defenses, claims, or
counterclaims against Bank, whether known or unknown, at law or in equity, all of them are hereby
expressly WAIVED and Borrower hereby RELEASES Bank from any liability thereunder.
13. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the existing
Obligations, Bank is relying upon Borrower’s representations, warranties, and agreements, as set
forth in the Existing Loan Documents. Except as expressly modified pursuant to this Agreement, the
terms of the Existing Loan Documents remain unchanged and in full force and effect. Bank’s
agreement to modifications to the existing Obligations pursuant to this Agreement in no way shall
obligate Bank to make any future modifications to the Obligations. Nothing in this Agreement shall
constitute a satisfaction of the Obligations. It is the intention of Bank and Borrower to retain
as liable parties all makers of Existing Loan Documents, unless the party is expressly released by
Bank in writing. No maker will be released by virtue of this Agreement.
14. RIGHT OF SET-OFF. In consideration of Bank’s agreement to enter into this Agreement,
Borrower hereby reaffirms and hereby grants to Bank, a lien, security interest and right of set off
as security for all Obligations to Bank, whether now existing or hereafter arising upon and against
all deposits, credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of Silicon Valley Bank (including a
Bank subsidiary) or in transit to any of them. At any time after the occurrence and during the
continuance of an Event of Default, without demand or notice, Bank may set off the same or any part
thereof and apply the same to any liability or obligation of Borrower even though unmatured and
regardless of the adequacy of any other collateral securing the loan. ANY AND ALL RIGHTS TO
REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES
THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR
OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
15. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its properties,
unconditionally, the exclusive jurisdiction of any state or federal court of competent jurisdiction
in the State of California in any action, suit, or proceeding of any kind against it which arises
out of or by reason of this Agreement. NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION WHICH THE BANK DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE
COLLATERAL OR TO OTHERWISE ENFORCE THE BANK’S RIGHTS AGAINST THE BORROWER OR ITS PROPERTY.
16. CONFIDENTIALITY. Bank may use confidential information for the development of
databases, reporting purposes, and market analysis, so long as such confidential information is
aggregated and anonymized prior to distribution unless otherwise expressly permitted by Borrower.
The provisions of the immediately preceding sentence shall survive the termination of the Loan
Agreement.
17. COUNTERSIGNATURE. This Agreement shall become effective only when it shall have been
executed by Borrower and Bank.
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This Agreement is executed as of the date first written above.
| BORROWER: | BANK: | |||||||||||||
| ENERGY FOCUS, INC. | SILICON VALLEY BANK | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Name: | |||||||||||||
| Title: | Title: | |||||||||||||
[Forbearance Agreement Signature Page]
