aspn-ex101_23.htm



 

Exhibit 10.1

FIFTH Amendment

to 

SECOND AMENDED AND RESTATED Loan and security agreement

 

This Fifth Amendment to Second Amended and Restated Loan and Security Agreement (this “Amendment”) is entered into this 23rd day of June, 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 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: 

 ““Key Person” is Borrower’s Chief Executive Officer and President as of the Effective Date, who is Donald R. Young.”

““Revolving Line Maturity Date” is August 26, 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.

9.Fees and Expenses.  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/ Frank Groccia
	
 
	
By:
	
/s/ Ricardo C. Rodriguez

	
Name: Frank Groccia
	
 
	
Name: Ricardo C. Rodriguez

	
Title: Director
	
 
	
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 Fifth 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 June 23, 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




 

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.