First Amendment to Working Capital Facility Agreement, dated as of February 13, 2025, by and among the Company, the several banks and other financial institutions or entities from time to time party thereto, and Hercules Capital, Inc
Exhibit 10.1
FIRST AMENDMENT TO WORKING CAPITAL FACILITY AGREEMENT
THIS FIRST AMENDMENT TO WORKING CAPITAL FACILITY AGREEMENT (this
“Amendment”), dated as of February 13, 2025 (the “Amendment Effective Date”), is entered into by and among HERON THERAPEUTICS, INC., a Delaware corporation (“Company”), and each of its Qualified Subsidiaries from time to time party hereto (together with Company, individually or collectively, as the context may require, “Borrower”), the several banks and other financial institutions or entities from time to time party hereto (each, a “Lender”, and collectively “Lenders”) and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and Lenders (in such capacity, including any successors or assigns, “Agent”).
The Borrower, the Lenders and Agent are parties to a Working Capital Facility Agreement dated as of August 9, 2023 (as amended, restated or modified from time to time, the “Facility Agreement”). The Borrower has requested that Agent and Lenders agree to certain amendments to the Facility Agreement. Agent and Lenders 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 Facility Agreement.
“Term Loan Maturity Date” means the earlier of (x) September 1, 2027 and (y) solely to the extent that any Senior Unsecured Convertible Note remains outstanding on such date, (A) May 12, 2026 or (B) in the event that the maturity date of any Senior Unsecured Convertible Note is extended, prior to May 12, 2026, to August 11, 2026 or later, the date that is ninety-one (91) days prior to the maturity date of such further extended Senior Unsecured Convertible Note; provided, that, in each case of the foregoing clauses (x) and (y), if such day is not a Business Day, the Term Loan Maturity Date shall be the immediately preceding Business Day.
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:
(i) Except as expressly modified herein by the Exhibits and Schedules attached hereto, the representations and warranties contained in Section 5 of the Facility Agreement shall be true and correct on and as of the Amendment Effective Date as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, after giving effect in all cases to any standard(s) of materiality contained in the Agreement as to such representations and warranties; and
(ii) There exist no Events of Default or events that with the passage of time would result in an Event of Default.
SECTION 4 Representations and Warranties. To induce Agent and Lender to enter into this Amendment, Borrower hereby confirms, as of the date hereof, (a) that the representations and warranties made by it in Section 5 of the Facility 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; (b) that there has not been and there does not exist a Material Adverse Effect; and (c)[intentionally omitted]. For the purposes of this Section 4, (i) each reference in Section 5 of the Facility Agreement to “this Agreement,” and the words “hereof,” “herein,” “hereunder,” or words of like import in such Section, shall mean and be a reference to the Facility Agreement as amended by this Amendment, and (ii) any representations and warranties which relate solely to an earlier date shall not be deemed confirmed and restated as of the date hereof (provided that such representations and warranties shall be true, correct and complete in all material respects as of such earlier date; 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).
SECTION 5 Miscellaneous.
Borrower acknowledges having read and understood and hereby waives the benefits of Section 1542 of the California Civil Code, which provides as follows (and hereby waives the benefits of any similar law of the state that may be applicable):
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Borrower acknowledges that the foregoing provisions of this Section 5(c) are intended to be a general release with respect to the matters described therein. Borrower does hereby expressly acknowledge and agree that the waivers and releases contained in this Amendment shall not be construed as an admission of and/or the existence of any claims of Borrower against Agent or Lender. Borrower does hereby acknowledge and agree that the value to Borrower of this Amendment and of the covenants and agreements on the part of Lender contained in this Amendment substantially and materially exceeds any and all value of any kind or nature whatsoever of any claims or liabilities waived or released by Borrower hereunder.
[Balance of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment, as of the date first above written.
BORROWER:
HERON THERAPEUTICS, INC.
Signature: /s/ Craig Collard
Print Name: Craig Collard
Title: Chief Executive Officer (CEO)
AGENT:
HERCULES CAPITAL, INC.
Signature: /s/ Seth H. Meyer
Print Name: Seth Meyer
Title: Chief Financial Officer
LENDER:
HERCULES CAPITAL, INC.
Signature: /s/ Seth H. Meyer
Print Name: Seth Meyer
Title: Chief Financial Officer
HERCULES CAPITAL IV L.P.
By: Hercules Technology SBIC Management, LLC, its General Partner
By: Hercules Capital, Inc., its Manager
Signature: /s/ Seth H. Meyer
Print Name: Seth Meyer
Title: Chief Financial Officer
HERCULES PRIVATE GLOBAL VENTURE GROWTH FUND I L.P.
By: Hercules Adviser LLC, its Investment Adviser
Signature: /s/ Seth H. Meyer
Print Name: Seth Meyer
Title: Authorized Signatory
Exhibit B
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Exhibit D
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Schedule 5.11
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Schedule 5.17
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