First Amendment to Loan and Security Agreement among Lucira Health, Inc., Hercules Capital, Inc., Silicon Valley Bank, and Lenders
This amendment updates the original Loan and Security Agreement between Lucira Health, Inc., its subsidiaries, Hercules Capital, Inc., Silicon Valley Bank, and other lenders. The changes include increasing certain financial caps, such as the Bank Services Cap and limits on permitted indebtedness and liens. The amendment is effective once all parties sign and certain conditions are met, including confirmation that no defaults exist. All other terms of the original agreement remain in effect, and Lucira Health reaffirms its obligations and security interests under the original agreement.
EXHIBIT 10.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of March 2, 2022 (the “Amendment Effective Date”), is entered into by and among LUCIRA HEALTH, INC., a Delaware corporation, and each of its Subsidiaries joined hereafter from time to time pursuant to Section 7.13 of the Loan and Security Agreement (hereinafter collectively referred to as the “Borrower”), HERCULES CAPITAL, INC., a Maryland corporation (“Hercules”), Silicon Valley Bank, a California corporation, and the several banks and other financial institutions or entities from time to time parties to this Agreement (each, a “Lender”, and collectively, referred to as the “Lenders”), and Hercules , in its capacity as administrative agent and collateral agent
for itself and the Lender (in such capacity, together with its successors and assigns in such capacity, “Agent”).
The Borrower, the Lenders and Agent are parties to a Loan and Security Agreement dated as of February 4,
2022 (as amended, restated or modified from time to time, the “Loan and Security Agreement”). The Borrower has requested that Agent and Lenders agree to certain amendments to the Loan and Security 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 Loan and Security Agreement.
“Bank Services Cap” means One Million Eight Hundred Thousand Dollars ($1,800,000).
“(vii) reimbursement obligations in connection with letters of credit that are secured by Cash and issued on behalf of the Borrower or a Subsidiary thereof in an amount not to exceed One Million Two Hundred Thousand Dollars ($1,200,000) at any time outstanding,”
“(xiv) (A) Liens on Cash securing obligations permitted under clause (vii) of the definition of Permitted Indebtedness and (B) security deposits in connection with real property leases, the combination of (A) and (B) in an aggregate amount not to exceed Two Million Two Hundred Thousand Dollars ($2,200,000) at any time;”
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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, Borrower hereby confirms, as of the date hereof, (a) that the representations and warranties made by it in Section 5 of the Loan and Security 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) that the information included in the Perfection Certificate delivered to Agent on the Closing Date remains true and correct in all material respects. For the purposes of this Section 4, (i) each reference in Section 5 of the Loan and Security 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 Loan and Security 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 as of such earlier date).
SECTION 5 Miscellaneous.
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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.
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[Balance of Page Intentionally Left Blank; Signature Pages Follow]
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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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LUCIRA HEALTH, INC. | |
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Signature: |
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Print Name: | Dan George |
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Title: | CFO |
[Signature Page to First Amendment to Loan and Security Agreement]
AGENT: | |
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HERCULES CAPITAL, INC. | |
Signature: |
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Print Name: | Zhuo Huang |
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Title: | Associate General Counsel |
LENDER: | |
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HERCULES CAPITAL, INC. | |
Signature: |
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Print Name: | Zhuo Huang |
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Title: | Associate General Counsel |
SILICON VALLEY BANK | |
Signature: |
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Print Name: | Kristina Peralta |
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Title: | Vice President |
[Signature Page to First Amendment to Loan and Security Agreement]