Seventh Amendment to the Second Amended and Restated Loan and Security Agreement, dated as of October 14, 2022, by and between the Registrant and Silicon Valley Bank

Contract Categories: Business Finance - Loan Agreements
EX-10.2 3 aspn-ex102_32.htm EX-10.2 aspn-ex102_32.htm

 

Exhibit 10.2

SEVENTH Amendment

to

SECOND AMENDED AND RESTATED Loan and security agreement

 

This Seventh Amendment to Second Amended and Restated Loan and Security Agreement (this Amendment”) is entered into this 14th day of October, 2022 by and between SILICON VALLEY BANK (“Bank”) and ASPEN AEROGELS, INC., a Delaware corporation (“Borrower”) whose address is 30 Forbes Road, Building B, Northborough, Massachusetts 01532.

Recitals

A.Bank and Borrower have entered into that certain Second Amended and Restated Loan and Security Agreement dated as of March 12, 2021, as amended by that certain First Amendment to Second Amended and Restated Loan and Security Agreement dated September 29, 2021, as further amended by that certain Second Amendment to Second Amended and Restated Loan and Security Agreement dated December 27, 2021, as further amended by that certain Third Amendment to Second Amended and Restated Loan and Security Agreement dated March 31, 2022, as further amended by that certain Fourth Amendment to Second Amended and Restated Loan and Security Agreement dated April 28, 2022, as amended by that certain Fifth Amendment to Second Amended and Restated Loan and Security Agreement dated June 23, 2022, and as further amended by that certain Sixth Amendment to Second Amended and Restated Loan and Security Agreement dated August 26, 2022 (as the same may from time to time be further amended, restated, amended and restated, modified and/or supplemented, the “Loan Agreement”).  

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

C.Borrower has requested that Bank amend the Loan Agreement to make certain revisions to the Loan Agreement as more fully set forth herein.

D.Bank has agreed to so amend certain provisions of 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.

2.1Section 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:

Revolving Line Maturity Date” is December 1, 2022.”

 

3.Limitation of Amendments.

3.1The 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.

 


 

3.2This 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.

4.Representations and Warranties.  To induce Bank to enter into this Amendment, Borrower hereby represents and warrants to Bank as follows:

4.1Immediately 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 (b) no Event of Default has occurred and is continuing;

4.2Borrower has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;

4.3The organizational documents of Borrower delivered to Bank on the Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;

4.4The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized;

4.5The execution and delivery by Borrower of this Amendment and the performance by Borrower of its 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 Borrower, (b) any contractual restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d) the organizational documents of Borrower;

4.6The execution and delivery by Borrower of this Amendment and the performance by Borrower of its 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 Borrower, except as already has been obtained or made; and

4.7This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower 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.

5.Ratification of Perfection Certificate.  Borrower hereby ratifies, confirms and reaffirms, all and singular, in all material respects, the terms and disclosures contained in a certain Perfection Certificate dated as of March 12, 2021, and acknowledges, confirms and agrees that the disclosures and information Borrower provided to Bank in such Perfection Certificate as updated by Annex 1,  have not changed, as of the date hereof.

6.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.

7. 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.

8.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.  Each party hereto may execute this Amendment by electronic means and recognizes and accepts the use of electronic signatures and records by any other party hereto in connection with the execution and storage hereof.

9.Fees and Expenses.  Borrower’s payment of a fully-earned, non-refundable extension fee in an amount equal to Five Thousand Dollars ($5,000.00).  Borrower agrees to promptly pay Bank, upon receipt of an invoice, Bank’s legal fees and expenses incurred in connection with this Amendment.  

10.Effectiveness.  As a condition precedent to the effectiveness of this Amendment and the Bank’s obligation to make further Advances under the Revolving Line, the Bank shall have received the following documents prior to or concurrently with this Amendment, each in form and substance reasonably satisfactory to Bank:

10.1this Amendment duly executed on behalf of Borrower;

10.2the Acknowledgment of Amendment and Reaffirmation of Guaranty substantially in the form attached hereto as Schedule 1, duly executed and delivered by Guarantor; and

10.3such other documents as Bank may reasonably request.

[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.

 

 

BANK

 

BORROWER

 

 

 

SILICON VALLEY BANK

 

ASPEN AEROGELS, INC.

 

 

 

By:

/s/ Krista Alexon

 

By:

/s/ Ricardo C. Rodriguez

Name: Krista Alexon

 

Name: Ricardo C. Rodriguez

Title: Vice President

 

Title: Senior Vice President,

Chief Financial Officer and Treasurer

 

 


 

 

Schedule 1

 

ACKNOWLEDGMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTY AND SECURITY AGREEMENT

 

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

 

Section 2.Guarantor hereby consents to the Amendment and agrees that the Guaranty and Guarantor Security Agreement 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 instruction delivered in connection herewith.

 

Section 3.Guarantor represents and warrants that, after giving effect to the Amendment, all representations and warranties contained in the Guaranty are true, accurate and complete as if made the date hereof.

 

Dated as of October 14, 2022

 

[Signature Page Follows]

 


 


 

 

GUARANTOR:

 

ASPEN AEROGELS RHODE ISLAND, LLC

 

 

 

 

 

By:

/s/ Ricardo C. Rodriguez

 

 

Name: Ricardo C. Rodriguez

 

 

Title: Senior Vice President, Chief Financial Officer and Treasurer


 


 

 

Annex 1

 

Section 2 of the Perfection Certificate is hereby updated to refer to the following filed reports:

 

Public Disclosures By Borrower Since March 2021

 

Date

Filing Type

 

 

March 15, 2021

S-3

March 23, 2021

Press Release – Water Tower Fireside Chat Series

April 7, 2021

Press Release – Q1 2021 Earnings Release and Conference Call Date

April 19, 2021

DEFA 14A

April 23, 2021

Effectiveness Order

April 29, 2021

8-K  - Press Release Q1 2021 Financial Results

April 29, 2021

Press Release – Q1 2021 Financial Results

May 4, 2021

10-Q (Q1 2021)

May 6, 2021

Press Release – Italian Building Materials Lawsuit

May 6, 2021

8-K – Press Release Patent Infringement Action

May 17, 2021

Press Release – Water Tower Fireside Chat Series

May 18, 2021

Press Release – Needham Technology & Media Conference

June 1, 2021

8-K – Annual Meeting Voting Results

June 1, 2021

Press Release – Fireside Chat at Cowen Technology

June 3, 2021

Form 4 – Non-Employee Director Stock Award

June 3, 2021

Form 4 – Non-Employee Director Stock Award

June 3, 2021

Form 4 – Non-Employee Director Stock Award

June 3, 2021

Form 4 – Non-Employee Director Stock Award

June 3, 2021

Form 4 – Non-Employee Director Stock Award

June 3, 2021

Form 4 – Non-Employee Director Stock Award

June 8, 2021

Press Release -  Water Tower Fireside Chat Series

June 29, 2021

Press Release$75 Million Private Placement with Koch Strategic Platforms

June 30, 2021

8-K – Securities Purchase Agreement

July 1, 2021

D – Small Company Offereing and Sale of Securities Without Registration

July 1, 2021

Form 4 – Employee Director Stock Award

July 8, 2021

Press Release – Q2 2021 Earnings Release and Conference Call Date

July 29, 2021

8-K – Press Release Q1 2021 Financial Results

July 29, 2021

Press Release – Q2 2021 Financial Results

August 4, 2021

Form 4 – Whitaker exercise/sale

August 4, 2021

Form 4 – Landes sale

August 4, 2021

10-Q (Q2 2021)

August 5, 2021

Fireside Chat at Canaccord Genuity 41st Annual Growth Conference

August 27, 2021

Form 4 – Conte exercise/sale

September 1, 2021

Fireside Chat at Cowen 14th Annual Global Transportation & Sustainable Mobility Conference

September 10, 2021

S-3

September 20, 2021

Effectiveness Order

 


 

September 24, 2021

424B3 - Prospectus

October 1, 2021

Current report filing

October 28, 2021

Current report filing

November 3, 2021

Form 4 – Young sale

November 4, 2021

8-K  - Press Release Q3 2021 Financial Results

November 10, 2021

Form 4 – Whitaker exercise/sale

November 29, 2021

Form 4 – Gervis exercise

December 1, 2021

Form 4 – Conte exercise/sale

December 20, 2021

Form 4 – Noetzel exercise

December 27, 2021

Current report filing

January 3, 2022

Current report filing

January 4, 2022

Current report filing

January 13, 2022

Current report filing

January 28, 2022

Schedule 13G/A filing

January 31, 2022

Form 3 filing

February 9, 2022

Schedule 13G/A filing

February 11, 2022

Form 5 filing

February 17, 2022

Current report filing

February 17, 2022

Current report filing

February 18, 2022

Current report filing

February 22, 2022

Schedule 13G/A filing

February 23, 2022

Form 4 – Spring Creek Capital LLC

February 25, 2022

Form 4 - Fairbanks

February 25, 2022

Form 4 - Young

February 25, 2022

Form 4 - Conte

February 25, 2022

Form 4 - Schilling

February 25, 2022

Form 4 - Gould

February 25, 2022

Form 4 - Whitaker

February 25, 2022

Form 4 - Landes

March 1, 2022

S-8 registration Statement

March 1, 2022

Form 10-K Annual Report

March 1, 2022

Form 4 - Young

March 1, 2022

Form 4 - Whitaker

March 1, 2022

Form 4 - Fairbanks

March 1, 2022

Form 4 - Conte

March 1, 2022

Form 4 - Landes

March 3, 2022

Form D

March 16, 2022

S-3 Registration Statement

March 16, 2022

Current report filing

March 23, 2022

Form 4 – Gervis

March 29, 2022

Current report filing

March 30, 2022

Form 3 – Wood River Capital LLC

March 30, 2022

Form 4 – Koch Industries, Inc.

April 1, 2022

Current report filing

April 1, 2022

Form 3 - Rodriguez

April 5, 2022

Schedule 13D

April 6, 2022

Form D

April 11, 2022

Form 4 – Noetzel Exercise

April 21, 2022

Proxy Statement (definitive)

 


 

April 21, 2022

Additional Proxy Soliciting Materials (definitive)

April 27, 2022

Current report filing

April 29, 2022

Current report filing

April 29, 2022

Additional Proxy Soliciting Materials (definitive)

May 3, 2022

SC 13D/A Amended Statement of Beneficial Ownership

May 3, 2022

Form 4

May 3, 2022

Form 4

May 4, 2022

S-3 Registration Statement

May 10, 2022

10-Q Quarterly Report

May 12, 2022

Form 4

May 13, 2022

Effectiveness Order

May 19, 2022

Current report filing

May 24, 2022

Form 3

June 3, 2022

Current report filing

June 6, 2022

Current report filing

June 6, 2022

Current report filing

June 6, 2022

A total of 13 - Form 4/4A filings

June 24, 2022

Current report filing

June 28, 2022

Prospectus filed pursuant to Rule 424(b)(5)

June 29, 2022

Prospectus filed pursuant to Rule 424(b)(5)

June 29, 2022

Initial Statement of Trust Indenture

June 30, 2022

Current report filing

July 8, 2022

SC 13G Statement of Ownerhsip

July 27, 2022

Current report filing

July 29, 2022

Current report filing

August 2, 2022

Current report filing

August 3, 2022

Form 3 and Form 4

August 4, 2022

Quarterly Report

 

OFFICERS OF THE Company AND ITS SUBSIDIARIES

The following are the names and titles of the officers of the Company and its subsidiaries.  

Name of Officer

Office/Title

Name of Company/Subsidiary

Donald R. Young

President and Chief Executive Officer

Aspen Aerogels, Inc. and Rhode Island, German and Georgia Subsidiaries

Ricardo C. Rodriguez

Senior Vice President, Chief Financial Officer and Treasurer

Aspen Aerogels, Inc. and Rhode Island, German and Georgia Subsidiaries.

Corby Whitaker

Senior Vice President Sales & Marketing

Aspen Aerogels, Inc.

Keith L. Schilling

Senior Vice President, Technology

Aspen Aerogels, Inc.

Kelley Conte

Senior Vice President, Human Resources

Aspen Aerogels, Inc. and Rhode Island and Georgia Subsidiaries.

 


 

Gregg Landes

Senior Vice President, Operations and Strategic Development

Aspen Aerogels, Inc. and Rhode Island and Georgia Subsidiaries.

Virginia H. Johnson

Chief Legal Officer, General Counsel and Corporate Secretary

Aspen Aerogels, Inc. and Rhode Island and Georgia Subsidiaries.

Poongunran Muthukumaran

Assistant Secretary

Aspen Aerogels, Inc. and Rhode Island and Georgia Subsidiaries.