Third Amendment to Loan and Security Agreement among Aldeyra Therapeutics Inc., Helio Vision, LLC, and Hercules Capital, Inc.
This amendment updates the existing Loan and Security Agreement between Aldeyra Therapeutics Inc., Helio Vision, LLC, their subsidiaries, and Hercules Capital, Inc. as agent for the lenders. The amendment revises payment terms, updates contact information, and clarifies certain definitions. It requires the borrower to pay all outstanding fees and confirms that no default exists for the changes to take effect. The agreement remains legally binding, and all prior security interests and obligations continue as amended.
Exhibit 10.1
Execution Version
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as of April 29, 2024 (the "Third Amendment Effective Date"), is entered into by and among ALDEYRA THERAPEUTICS INC., a Delaware corporation ("Aldeyra"), Helio Vision, LLC, a Delaware limited liability company, and each of Aldeyra's Qualified Subsidiaries (hereinafter collectively referred to as the "Borrower"), the several banks and other financial institutions or entities from time to time parties to the Loan Agreement (as defined below) (collectively, referred to as "Lender") and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and Lender (in such capacity, "Agent").
Borrower, Lender and Agent are parties to that certain Loan and Security Agreement, dated as of March 25, 2019 (the "Original Loan Agreement"; the Original Loan Agreement, as amended by the First Amendment to Loan and Security Agreement dated April 20, 2021 and the Second Amendment to Loan and Security Agreement dated December 22, 2022, the "Existing Loan Agreement"; and the Existing Loan Agreement, as amended by this Amendment and as further amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"). As of the Third Amendment Effective Date, the Term Loan principal balance outstanding is Fifteen Million Dollars ($15,000,000). Borrower has requested that Agent and Lender agree to certain amendments to the Loan Agreement. Agent and Lender have agreed to such request, subject to the terms and conditions hereof.
Accordingly, the parties hereto agree as follows:
SECTION 1 Definitions; Interpretation.
SECTION 2 Amendments to the Loan Agreement.
"Third Amendment Effective Date" means April 29, 2024.
"(d) Payment. Borrower will pay interest on each Term Loan Advance on the first Business Day of each month, beginning the month after the Advance Date. The entire Term Loan principal balance and all accrued but unpaid interest hereunder, shall be due and payable on Term Loan Maturity Date. Borrower shall make all payments under this Agreement without setoff, recoupment or deduction and regardless of any counterclaim or defense. Lender will initiate debit entries to the Borrower's account as authorized on the ACH Authorization (i) on each payment date of all periodic obligations payable to Lender under each Term Advance and (ii) reasonable and documented out-of-pocket legal fees and costs incurred by Agent or Lender in connection with Section 11.11 of this Agreement; provided that, with respect to clause (i) above, in the event that Lender or Agent informs Borrower that Lender will not initiate a debit entry to Borrower's account for a certain amount of the periodic obligations due on a specific payment date, Borrower shall pay to Lender such amount of periodic obligations in full in immediately available funds on such payment date; provided, further, that, with respect to clause (i) above, if Lender or Agent informs Borrower that Lender will not initiate a debit entry as described above later than the date that is three (3) Business Days prior to such
payment date, Borrower shall pay to Lender such amount of periodic obligations in full in immediately available funds on the date that is three (3) Business Days after the date on which Lender or Agent notifies Borrower of such; provided, further, that, with respect to clause (ii) above, in the event that Lender or Agent informs Borrower that Lender will not initiate a debit entry to Borrower's account for certain amount of such reasonable and documented out-of-pocket legal fees and costs incurred by Agent or Lender, Borrower shall pay to Lender such amount in full in immediately available funds within three (3) Business Days after the date on which Lender or Agent notifies Borrower of such."
"(a) If to Agent:
HERCULES CAPITAL, INC.
Legal Department
Attention: Chief Legal Officer, Lake McGuire, Michael Dutra and Michael Bowden
1 North B Street, Suite 2000
San Mateo, CA 94401
email: ***@***; ***@***; ***@*** and ***@***
Telephone: 650 ###-###-####
"(b) If to Lender:
HERCULES CAPITAL, INC.
Legal Department
Attention: Chief Legal Officer, Lake McGuire, Michael Dutra and Michael Bowden
l North B Street, Suite 2000
San Mateo, CA 94401
email: ***@***; ***@***; ***@*** and ***@***
Telephone: 650 ###-###-####"
SECTION 3 Conditions of Effectiveness. The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
SECTION 4 Representations and Warranties. To induce Agent and Lender to enter into this Amendment, each Borrower hereby confirms, as of the date hereof and the Third Amendment Effective Date, that (a) the representations and warranties made by it in Section 5 of the Loan Agreement and in the other Loan Documents are true and correct in all material respects; 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 provided, further, that to the extent such representations and warranties by their terms expressly relate only to a prior date such representations and warranties shall be true and correct as of such prior date; (b) there has not been and there does not exist a Material Adverse Effect;
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(c) [reserved]; (d) Agent has and shall continue to have valid, enforceable and perfected first-priority liens, subject only to Permitted Liens, on and security interests in the Collateral and all other collateral heretofore granted by Borrower to Agent, pursuant to the Loan Documents or otherwise granted to or held by Agent; (e) the agreements and obligations of Borrower contained in the Loan Documents and in this Amendment constitute the legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors' rights or by the application of general principles of equity; (f) the execution, delivery and performance of this Amendment by Borrower will not violate any law, rule, regulation, order, contractual obligation or organizational document of Borrower and will not result in, or require, the creation or imposition of any lien, claim or encumbrance of any kind on any of its properties or revenues; and (g) no Event of Default has occurred and is continuing.
SECTION 5 Miscellaneous.
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U) Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Amendment. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, portable document format (.pdf) or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment, as of the date first above
written.
BORROWER: | |
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ALDEYRA THERAPEUTICS, INC. | |
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Signature: | /S/ Bruce Greenberg |
Print Name: | Bruce Greenberg |
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Title: | Chief Financial Officer |
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HELIO VISION, LLC | |
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Signature: | /S/ Bruce Greenberg |
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Print Name: | Bruce Greenberg |
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Title: | Chief Financial Officer |
[SIGNATURES CONTINUE ON THE NEXT PAGE]
[Signature Page to ThirdAmendment to Loan and Security Agreement]
AGENT: |
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HERCULES CAPITAL, INC. | |
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Signature: | /S/ Prentis Robinson III |
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Print Name: | Prentis Robinson III |
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Title: | Associate General Counsel |
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LENDER: |
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HERCULES CAPITAL, me. | |
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Signature: | /S/ Prentis Robinson III |
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Print Name: | Prentis Robinson III |
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Title: | Associate General Counsel |
[Signature Page to ThirdAmendment to Loan and Security Agreement]