UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): November 5, 2013
REAL GOODS SOLAR, INC.
(Exact Name of Registrant as Specified in its Charter)
| Colorado | 001-34044 | 26-1851813 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
833 W. South Boulder Road, Louisville, CO 80027-2452
(Address of Principal Executive Offices, Including Zip Code)
Registrant’s telephone number, including area code: (303) 222-8400
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
On November 5, 2013, Real Goods Solar, Inc. (the “Company”) entered into an Agreement (the “Loan Repayment Agreement”) with Gaiam, Inc. and Riverside Renewable Energy Investments, LLC, whereby Gaiam, Inc. agreed that upon receipt of an amount equal to $2,100,000 (the “Payoff Amount”) all of the Company’s outstanding indebtedness and obligations under the Amended and Restated Promissory Note dated March 27, 2013 in the original principal amount of $1,700,000 and the Amended and Restated Promissory Note dated March 27, 2013 in the original principal amount of $1,000,000 (collective, the “Gaiam Notes,”) will be repaid in full. In addition Gaiam, Inc. will relinquish all of its rights and obligations under, and will no longer be a party to, the Shareholders Agreement and the Registration Rights Agreement, each by and among the Company, Gaiam, Inc. and Riverside Renewable Energy Investments, LLC, dated December 19, 2011.
The balance of the Gaiam Notes as of the date of the Loan Repayment Agreement was $2,600,000. The Loan Repayment Agreement also provides that the aggregate principal amount outstanding under the Gaiam Notes immediately before payment of the Payoff Amount will be reduced by $200,000 to reflect that Gaiam, Inc. will be deemed to have purchased from the Company the Company’s tenant leasehold improvements pursuant to and in accordance with the terms of the Second Amendment to Lease, dated March 28, 2013, between the Company and Gaiam, Inc. for the Company’s Louisville, Colorado office building. Therefore, the Payoff Amount results in a discount of $300,000.
Also on November 5, 2013, the Company’s wholly-owned subsidiaries Real Goods Energy Tech, Inc., Real Goods Trading Corporation, Alteris Renewables, Inc. and Real Goods Syndicated, Inc. (collectively, the “Borrowers”) entered into a Fifth Loan Modification Agreement (the “Loan Agreement Amendment”) with Silicon Valley Bank (“SVB”) pursuant to which the parties thereto agreed to certain amendments to the Loan and Security Agreement, dated as of December 19, 2011, as amended (the “Loan Agreement”).
Under the Loan Agreement Amendment, SVB agreed to extend to the Borrowers a term loan of up to $2,000,000 (the “Term Loan”) under the terms of the Loan Agreement in addition to the existing $6,500,000 revolving line of credit. The Term Loan matures on September 29, 2014. The Borrowers are required to make monthly payments of interest only with respect to the Term Loan with the aggregate principal balance of the Term Loan, together with any accrued but unpaid interest, due and payable on the maturity date. The Borrowers may prepay the Term Loan in whole or in part at any time without penalty. The proceeds of the Term Loan are required to be used to repay in full the outstanding indebtedness owed to Gaiam, Inc. under the Gaiam Notes.
All borrowings under the Term Loan are collateralized by a security interest in substantially all assets of the Borrowers other than the limited liability company interests in Alteris Project Financing Company LLC, and bear interest at (i) the greater of the bank’s prime rate or 4.00%, plus (ii) 2.00% (or 10.00% during an event of default). The Borrowers are obligated to pay to SVB a final payment fee of $150,000 on or before the Term Loan maturity date. In addition, pursuant to the terms of the Loan Agreement Amendment, at any time when (i) the Borrowers’ unrestricted cash at SVB, less (ii) all outstanding obligations of Borrowers owed to SVB, is less than $2,000,000, the Borrowers’ availability under the existing $6,500,000 line of credit will be reduced by an amount equal to the outstanding principal balance of the Term Loan.
SVB fully funded the Term Loan on November 5, 2013 at the Borrowers’ request. The Company used the proceeds of the Term Loan together with other available cash on hand to pay the Payoff Amount in full on November 5, 2013.
The foregoing descriptions of the Loan Agreement and the Loan Repayment Agreement are qualified in their entirety by reference to the full text of the agreements, which are attached hereto as Exhibit 10.1 and Exhibit 10.2 respectively.
Item 1.02 Termination of a Material Definitive Agreement.
The information set forth in Item 1.01 is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit |
Description | |
| 10.1 | Fifth Loan Modification Agreement, dated as of November 5, 2013, among Real Goods Energy Tech, Inc., Real Goods Trading Corporation, Alteris Renewables, Inc., Real Goods Syndicated, Inc., and Silicon Valley Bank | |
| 10.2 | Agreement, dated November 5, 2013, among Gaiam, Inc., Riverside Renewable Energy Investments, LLC and Real Goods Solar, Inc. | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| REAL GOODS SOLAR, INC. | ||
| By: | /s/ Anthony DiPaolo | |
| Anthony DiPaolo | ||
| Chief Financial Officer | ||
Date: November 5, 2013
| Exhibit |
Description | |
| 10.1 | Fifth Loan Modification Agreement, dated as of November 5, 2013, among Real Goods Energy Tech, Inc., Real Goods Trading Corporation, Alteris Renewables, Inc., Real Goods Syndicated, Inc., and Silicon Valley Bank | |
| 10.2 | Agreement, dated November 5, 2013, among Gaiam, Inc., Riverside Renewable Energy Investments, LLC and Real Goods Solar, Inc. | |
Exhibit 10.1
FIFTH LOAN MODIFICATION AGREEMENT
This Fifth Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as of November 5, 2013 (the “Fifth Loan Modification Effective Date”), by and among (i) SILICON VALLEY BANK, a California corporation with a loan production office located at 555 Mission St., Suite 900, San Francisco, California 94105 (“Bank”), and (ii) REAL GOODS ENERGY TECH, INC., a Colorado corporation (“Real Goods Energy”), REAL GOODS TRADING CORPORATION, a California corporation (“Real Goods Trading”), ALTERIS RENEWABLES, INC., a Delaware corporation (“Alteris”) and REAL GOODS SYNDICATED, INC., a Delaware corporation (“Syndicated”, and together with Real Goods Energy, Real Goods Trading and Alteris, individually and collectively, jointly and severally, the “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 December 19, 2011, evidenced by, among other documents, a certain Loan and Security Agreement, dated as of December 19, 2011, as amended by a certain First Loan Modification Agreement, dated as of August 28, 2012, as further amended by a certain Second Loan Modification and Reinstatement Agreement, dated as of November 13, 2012, as further amended by a certain Third Loan Modification Agreement, dated as of March 27, 2013 and as further amended by a certain Joinder and Fourth Loan Modification Agreement, dated as of September 26, 2013 (as amended, 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 (i) the Collateral as described in the Loan Agreement, (ii) that certain Security Agreement, dated as of December 19, 2011, between the Secured Guarantor and Bank (as amended, the “Security Agreement”), and (ii) the “Intellectual Property Collateral”, as such term is defined in that certain IP Agreement, dated as of September 26, 2013, by and between Bank and Borrower (together with any other collateral security granted to Bank, the “Security Documents”).
Hereinafter, the Loan Agreement, together with all other documents executed in connection therewith evidencing, securing or otherwise relating to the Obligations shall be referred to as the “Existing Loan Documents”.
3. DESCRIPTION OF CHANGE IN TERMS.
| A. | Modifications to Loan Agreement. |
| 1 | The Loan Agreement shall be amended by inserting the following new Section 2.1.3 immediately following Section 2.1.2 thereof: |
“2.1.3 Term Loan.
(a) Availability. Bank shall make one (1) term loan available to Borrower on the Fifth Loan Modification Effective Date, in an amount up to Two Million Dollars ($2,000,000) (the “Term Loan Amount”), subject to the satisfaction of the terms and conditions of this Agreement.
(b) Repayment. Commencing on the first day of the month following the month in which the Funding Date occurs, Borrower shall make monthly payments of interest with respect to the Term Loan and thereafter on the first day of each successive calendar month until the Term Loan is paid in full. Borrower shall repay the aggregate principal amount of the Term Loan outstanding on the Term Loan Maturity Date, which payment shall include all outstanding accrued and unpaid interest under the Term Loan. Once repaid, the Term Loan may not be reborrowed.
(c) Prepayment of Term Loan. Borrower may at any time and from time to time prepay, without penalty, all or any portion of the outstanding principal balance of the Term Loan, upon irrevocable notice delivered to the Bank no later than 10:00 A.M.,
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Pacific time, three (3) Business Days prior thereto, which notice shall specify the date and amount of the proposed prepayment. In addition, if such notice of prepayment indicates that such prepayment is to be funded with the proceeds of a refinancing, such notice of prepayment may be revoked if the financing is not consummated. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid.
(d) Use of Proceeds. Proceeds of the Term Loan shall be used on the Fifth Loan Modification Effective Date for the repayment in full of all outstanding amounts owed to Gaiam, Inc. (other than Permitted Indebtedness). Any excess amount of the Term Loan shall be used to fund Borrower’s general business requirements and not for personal, family, household or agricultural purposes.
| 2 | The Loan Agreement shall be amended by inserting the following new Section 2.3(a)(ii) immediately following Section 2.3(a)(i) thereof: |
“(ii) Term Loan. Subject to Section 2.3(b), the principal amount outstanding under the Term Loan shall accrue interest at a floating per annum rate equal to the Prime Rate plus two percentage points (2.00%), which interest shall be payable monthly, in arrears, in accordance with Section 2.1.3(b).”
| 3 | The Loan Agreement shall be amended by deleting the following text appearing as Section 6.8(b) thereof: |
“(b) Provide Bank five (5) days prior-written notice before establishing any Collateral Account at or with any bank or financial institution other than Bank or Bank’s Affiliates. For each Collateral Account that Borrower at any time maintains, Borrower shall cause the applicable bank or financial institution (other than Bank) at or with which any Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Bank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior-written consent of Bank. The provisions of the previous sentence shall not apply to deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Bank by Borrower as such.”
and inserting in lieu thereof the following:
“(b) Provide Bank five (5) days prior-written notice before establishing any Collateral Account at or with any bank or financial institution other than Bank or Bank’s Affiliates. For each Collateral Account that Borrower at any time maintains (excluding, until required by Bank, in its sole discretion, Collateral Accounts of Real Goods Trading maintained at financial institutions other than Bank), Borrower shall cause the applicable bank or financial institution (other than Bank) at or with which any Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Bank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of Bank. The provisions of the previous sentence shall not apply to deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Bank by Borrower as such.”
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| 4 | The Loan Agreement shall be amended by deleting the following text appearing as Section 7.9 thereof: |
“7.9 Subordinated Debt. (a) Make or permit any payment on any Subordinated Debt, except under the terms of the subordination, intercreditor, or other similar agreement to which such Subordinated Debt is subject, or (b) amend any provision in any document relating to the Subordinated Debt which would increase the amount thereof or adversely affect the subordination thereof to Obligations owed to Bank; provided, that with respect to Subordinated Debt owed to (i) Riverside Renewable Energy Investments, LLC, and (ii) following receipt by Bank of an executed Amended and Restated Subordination Agreement from Gaiam, Inc., (collectively, the “Existing Subordinated Creditors”), in form and substance acceptable to Bank, in its reasonable discretion, Borrower shall be permitted to pay, and each Existing Subordinated Creditor shall be permitted to retain, each regularly scheduled non-default payment of interest and principal as and when due, so long as (i) no Event of Default exists immediately prior to any such payment and after giving effect to any such payment; and (ii) Borrower maintains Net Cash at Bank at all times of at least Eight Million Dollars ($8,000,000).”
and inserting in lieu thereof the following:
“7.9 Subordinated Debt. (a) Make or permit any payment on any Subordinated Debt, except under the terms of the subordination, intercreditor, or other similar agreement to which such Subordinated Debt is subject, or (b) amend any provision in any document relating to the Subordinated Debt which would increase the amount thereof or adversely affect the subordination thereof to Obligations owed to Bank; provided, that with respect to Subordinated Debt owed to Riverside Renewable Energy Investments, LLC, (the “Existing Subordinated Creditors”), in form and substance acceptable to Bank, in its reasonable discretion, Borrower shall be permitted to pay, and Existing Subordinated Creditor shall be permitted to retain, each regularly scheduled non-default payment of interest and principal as and when due, so long as (i) no Event of Default exists immediately prior to any such payment and after giving effect to any such payment; and (ii) Borrower maintains Net Cash at Bank at all times of at least Eight Million Dollars ($8,000,000).”
| 5 | The Loan Agreement shall be amended by deleting the following text appearing as Section 8.1 thereof: |
“8.1 Payment Default. Borrower fails to (a) make any payment of principal or interest on any Credit Extension on its due date, or (b) pay any other Obligations within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day cure period shall not apply to payments due on the Revolving Line Maturity Date). During the cure period, the failure to make or pay any payment specified under clause (a) or (b) hereunder is not an Event of Default (but no Credit Extension will be made during the cure period);”
and inserting in lieu thereof the following:
“8.1 Payment Default. Borrower fails to (a) make any payment of principal or interest on any Credit Extension on its due date, or (b) pay any other Obligations within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day cure period shall not apply to payments due on the Revolving Line Maturity Date and/or the Term Loan Maturity Date, as applicable). During the cure period, the failure to make or pay any payment specified under clause (a) or (b) hereunder is not an Event of Default (but no Credit Extension will be made during the cure period);”
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| 6 | The Loan Agreement shall be amended by inserting the following new definitions, each in its appropriate alphabetical order, in Section 13.1 thereof: |
““Fifth Loan Modification Agreement” is that certain Fifth Loan Modification Agreement, by and between Borrower and Bank, dated as of the Fifth Loan Modification Effective Date.
“Fifth Loan Modification Effective Date” is November 5, 2013.
“Term Loan” means the term loan described in Section 2.1.3.
“Term Loan Amount” is defined in Section 2.1.3(a).
“Term Loan Maturity Date” is the early to occur of (i) the voluntary prepayment in full by Borrower of the Term Loan; (ii) the occurrence of an Event of Default; and (iii) September 29, 2014.
“Term Loan Reserve” is (a) during a Term Loan Reserve Period, the outstanding principal balance of the Term Loan; and (b) at all other times, Zero Dollars ($0.00).
“Term Loan Reserve Period” is the period (i) commencing on any date that Bank determines, in its reasonable discretion, that Borrower has less than Two Million Dollars ($2,000,000) of Net Cash and (ii) terminating on the date thereafter that Bank determines, in its reasonably discretion, that Borrower has Net Cash equal to or greater than Two Million Dollars ($2,000,000).
| 7 | The Loan Agreement shall be amended by deleting the following definitions from Section 13.1 thereof: |
““Availability Amount” is (a) the lesser of (i) the Revolving Line or (ii) the amount available under the Borrowing Base minus (b) the Dollar Equivalent amount of all outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit plus an amount equal to the Letter of Credit Reserve), minus (c) the outstanding principal balance of any Advances.
“Credit Extension” is any Advance, Letter of Credit, foreign exchange forward contracts, amount utilized for cash management services, or any other extension of credit by Bank for Borrower’s benefit under this Agreement.
“Subordination Agreement” the collective reference to (i) that certain Subordination Agreement by Gaiam Energy Tech, Inc., (ii) that certain Amended and Restated Subordination Agreement by Riverside Renewable Energy Investments, LLC, each in favor of Bank, and each dated on or about the Fourth Loan Modification Effective Date; and (iii) each other subordination, intercreditor or similar agreement entered into by Bank and any creditor of Borrower.”
and inserting in lieu thereof the following:
““Availability Amount” is (a) the lesser of (i) the Revolving Line or (ii) the result of the amount available under the Borrowing Base minus the Term Loan Reserve; minus (b) the Dollar Equivalent amount of all outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit plus an amount equal to the Letter of Credit Reserve); minus (c) the outstanding principal balance of any Advances.
“Credit Extension” is any Advance, Term Loan, Letter of Credit, foreign exchange forward contracts, amount utilized for cash management services, or any other extension of credit by Bank for Borrower’s benefit under this Agreement.
“Subordination Agreement” the collective reference to (i) that certain Amended and Restated Subordination Agreement by Riverside Renewable Energy Investments, LLC, each in favor of Bank, dated on or about the Fourth Loan Modification Effective Date; and (ii) each other subordination, intercreditor or similar agreement entered into by Bank and any creditor of Borrower.”
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4. CONDITIONS PRECEDENT. Borrower hereby agrees that the following documents shall be delivered to the Bank prior to or concurrently with the execution of this Loan Modification Agreement, each in form and substance satisfactory to the Bank (collectively, the “Conditions Precedent”):
| A. | copies, certified by a duly authorized officer of Borrower, to be true and complete as of the date hereof, of each of (i) the governing documents of Borrower as in effect on the date hereof (but only to the extent modified since last delivered to the Bank), (ii) the resolutions of Borrower authorizing the execution and delivery of this Loan Modification Agreement, the other documents executed in connection herewith and Borrower’s performance of all of the transactions contemplated hereby (but only to the extent required since last delivered to Bank), and (iii) an incumbency certificate giving the name and bearing a specimen signature of each individual who shall be so authorized on behalf of Borrower (but only to the extent any signatories have changed since such incumbency certificate was last delivered to Bank); |
| B. | executed copies of the Fifth Loan Modification Agreement; |
| C. | a payoff letter from Gaiam, Inc.; and |
| D. | such other documents as Bank may reasonably request. |
5. FEES. Borrower shall reimburse Bank for all legal fees and expenses incurred in connection with the Existing Loan Documents and this Loan Modification Agreement.
6. CONDITION SUBSEQUENT. On or before the date that is ten (10) Business Days after the occurrence of the Mercury Acquisition, Borrower shall cause Real Goods Mercury, Inc., a Delaware corporation (“Mercury”), to comply with Section 6.12 of the Loan Agreement. Until such time as Borrower has caused Mercury to comply with Section 6.12 of the Loan Agreement to Bank’s satisfaction, in its reasonable discretion (including, without limitation, the granting by Mercury to Bank of a first-priority, perfected security interest to Bank in all assets of Mercury, and the joinder to such Loan Documents by Bank as Bank shall require, in its reasonable discretion), no accounts of Mercury will be included in any Borrowing Base calculation.
7. FINAL PAYMENT FEE. In addition to the fees and expenses described above, on or before the Term Loan Maturity Date, Borrower shall pay to Bank a final payment fee equal to One Hundred Fifty Thousand Dollars ($150,000) (the “Final Payment Fee”), which final payment fee shall be fully earned as of the date hereof and shall be non-refundable when paid.
8. ADDITIONAL COVENANTS: RATIFICATION OF PERFECTION CERTIFICATE. Borrower hereby certifies that, other than as disclosed in the Perfection Certificate, no Collateral with a value greater than Ten Thousand Dollars ($10,000) in the aggregate is in the possession of any third party bailee (such as at a warehouse). In the event that Borrower, after the date hereof, intends to store or otherwise deliver the Collateral with a value in excess of Ten Thousand Dollars ($10,000) in the aggregate to such a bailee, then Borrower shall first receive, the prior written consent of Bank and such bailee must acknowledge in writing that the bailee is holding such Collateral for the benefit of Bank. Except as supplemented through the Fifth Loan Modification Effective Date and with respect to the Perfection Certificate of Syndicated, dated as of the Fourth Loan Modification Effective Date, Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in a certain Perfection Certificate, dated as of December 19, 2011, as supplemented through the Fifth Loan Modification Effective Date, and acknowledges, confirms and agrees the disclosures and information above Borrower provided to Bank in such Perfection Certificate remains true and correct in all material respects as of the date hereof.
9. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever necessary to reflect the changes described above.
10. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and reaffirms all terms and conditions of the Loan Agreement and each other Loan Document, and of all security or other collateral granted to the Bank, and confirms that the indebtedness secured thereby includes, without limitation, the Obligations.
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11. 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.
12. 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 Loan Modification Agreement, the terms of the Existing Loan Documents remain unchanged and in full force and effect. Bank’s agreement to modify the Existing Loan Documents pursuant to this Loan Modification Agreement in no way shall obligate Bank to make any future modifications to the Obligations. Nothing in this Loan Modification 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 Loan Modification Agreement.
13. JURISDICTION/VENUE. Section 11 of the Loan Agreement is hereby incorporated by reference.
14. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank.
[Signature page follows.]
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This Loan Modification Agreement is executed as of the date first written above.
| BORROWER | ||||||||
| REAL GOODS ENERGY TECH, INC. | REAL GOODS TRADING CORPORATION | |||||||
| By: | /s/ Kam Mofid |
By: | /s/ Kam Mofid | |||||
| Name: | Kam Mofid |
Name: | Kam Mofid | |||||
| Title: | CEO |
Title: | CEO | |||||
| ALTERIS RENEWABLES, INC. | REAL GOODS SYNDICATED, INC. | |||||||
| By: | /s/ Kam Mofid |
By: | /s/ Kam Mofid | |||||
| Name: | Kam Mofid |
Name: | Kam Mofid | |||||
| Title: | CEO |
Title: | CEO | |||||
BANK:
| SILICON VALLEY BANK | ||
| By: | /s/ Elisa Sun | |
| Name: | Elisa Sun | |
| Title: | Vice President | |
Acknowledgment and Agreement:
The undersigned ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Amended and Restated Unconditional Guaranty and a certain Amended and Restated Security Agreement, each dated as of September 26, 2013, and each document executed in connection therewith, and acknowledges, confirms and agrees that the Amended and Restated Unconditional Guaranty, Amended and Restated Security Agreement and each document executed in connection therewith shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith.
| REAL GOODS SOLAR, INC. | ||
| By: | /s/ Kam Mofid | |
| Name: | Kam Mofid | |
| Title: | CEO | |
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Exhibit 10.2
AGREEMENT
This Agreement dated as of November 5, 2013 (the “Agreement”), is by and between Gaiam, Inc., a Colorado corporation (“Gaiam”), Riverside Renewable Energy Investments, LLC (“Riverside”), solely for purposes of paragraphs 3 and 4 of this Agreement, and Real Goods Solar, Inc., a Colorado corporation (the “Company”).
Introduction
Gaiam and the Company wish to memorialize certain agreements with respect to (a) the Company’s prepayment of that certain (i) Promissory Note, dated December 11, 2012 between the Company, as maker and Gaiam as payee, in the principal amount of $1,000,000, and (ii) Amended and Restated Promissory Note dated March 27, 2013 between the Company, as maker and Gaiam as payee, in the principal amount of $1,700,000 (collectively, the “Gaiam Notes”); (b) Gaiam’s acceptance as payment in full of the obligations represented by the Gaiam Notes of something less than the full amounts owed thereon; and (c) upon such repayment of the Gaiam Notes, Gaiam’s relinquishment of all of its rights and obligations under that certain Shareholders Agreement (the “Shareholders Agreement”) and Registration Rights Agreement (“Registration Rights Agreement”) each dated as of December 19, 2011, among the Company, Gaiam and Riverside. Notwithstanding anything herein to the contrary, Gaiam and the Company acknowledge that Gaiam shall be deemed to have purchased from the Company, the Company’s tenant leasehold improvements pursuant to and in accordance with the terms of that certain Second Amendment to Lease dated March 28, 2013, by and between Gaiam and the Company, by way of an offset and reduction of $200,000 outstanding under the Gaiam Notes, and that the prepayment of the Gaiam Notes contemplated by this Agreement shall be deemed to have occurred after the Gaiam Notes have been reduced by such $200,000 offset.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:
1. Prepayment of Gaiam Notes and Relinquishment of Rights and Obligations Under Shareholders Agreement. Upon receipt by Gaiam of an aggregate amount equal to $2,100,000 in cash (the “Payoff Amount”) on or prior to November 15, 2013, such amount to be distributed to Gaiam in accordance with the payment instructions set forth on Exhibit A attached hereto, Gaiam hereby acknowledges and agrees that: (i) all indebtedness and liabilities of the Company owing under the Gaiam Notes have been fully paid and discharged; (ii) all other obligations of the Company owing under the Gaiam Notes are released and discharged; and (iii) Gaiam relinquishes all of its rights and obligations under, and shall no longer be deemed a party to, the Shareholders Agreement or the Registration Rights Agreement.
2. Gaiam and Company Mutual Release. By execution of this Agreement and in consideration of and upon payment by the Company and receipt by Gaiam of the Payoff Amount, Gaiam and the Company do hereby, on behalf of itself and of all those persons claiming by, through or under Gaiam or Company, together with each of their respective successors and assigns, unconditionally remise, release, acquit and forever discharge the each other, and each of
their respective past and present managers, officers, directors, shareholders, employees, agents, attorneys, subsidiaries, affiliates, successors and assigns, and the heirs, executors, trustees, administrators, successors, and assigns of any such persons (collectively, the “Releasees”), of and from any and all actions, causes of action, suits, claims, counterclaims, liabilities, obligations, defenses, and demands whatsoever (if any), at law or in equity, or disputed or undisputed, which Gaiam or the Company ever had, now has, or hereafter can, shall, or may claim to have against any of the Releasees for or by reason of any cause, matter, or event whatsoever, arising out of the Gaiam Notes, the Shareholders Agreement or the Registration Rights Agreement.
3. Gaiam and Riverside Mutual Release. Riverside acknowledges and agrees to Gaiam’s relinquishment of all of its rights and obligations under the Shareholders Agreement in accordance with the terms of this Agreement and, Gaiam and Riverside do hereby, on behalf of itself and of all those persons claiming by, through or under Gaiam or Riverside, together with each of their respective successors and assigns, unconditionally remise, release, acquit and forever discharge the each other, and each of their respective past and present managers, officers, directors, shareholders, employees, agents, attorneys, subsidiaries, affiliates, successors and assigns, and the heirs, executors, trustees, administrators, successors, and assigns of any such persons (collectively, the “Releasees”), of and from any and all actions, causes of action, suits, claims, counterclaims, liabilities, obligations, defenses, and demands whatsoever (if any), at law or in equity, or disputed or undisputed, which Gaiam or the Riverside ever had, now has, or hereafter can, shall, or may claim to have against any of the Releasees for or by reason of any cause, matter, or event whatsoever, arising out of the Shareholders Agreement.
4. Miscellaneous. This Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective successors and assigns, and shall be governed, construed and enforced in accordance with the laws of the State of Colorado. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Delivery of executed signature pages by facsimile or other electronic transmission shall constitute effective and binding execution and delivery hereof.
[ Signature Page Follows ]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| REAL GOODS SOLAR, INC. | ||
| By: | /s/ Kam Mofid | |
| Name: | Kam Mofid | |
| Title: | CEO | |
| GAIAM, INC. | ||
| By: | /s/ Jirka Rysavy | |
| Name: | Jirka Rysavy | |
| Title: | Chairman | |
| RIVERSIDE RENEWABLE ENERGY INVESTMENT, LLC (solely with respect to paragraphs 3 and 4 of this Agreement) | ||
| By: | /s/ David Belluck | |
| Name: | David Belluck | |
| Title: | Manager | |
Exhibit A
Payment Instructions
| Bank Routing Number: |
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| Bank Name: |
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| Account Number: |
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| Account Name: |
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| Contact Information: |
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| (for questions, etc.) |
Office: | |
| Mobile: | ||
| Email: | ||