Execution Version
Exhibit 10.2
FIRST aMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (term LOAN)
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (TERM LOAN) (this “Agreement”) is made as of this 5th day of October, 2021 (“Effective Date”), by and among SIGHT SCIENCES, INC., a Delaware corporation (“Borrower”), MIDCAP FINANCIAL TRUST, as Agent for Lenders (in such capacity and together with its permitted successors and assigns, the “Agent”) and the other financial institutions or other entities from time to time parties to the Credit Agreement referenced below, each as a Lender.
RECITALS
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Required Lenders, and Borrower hereby agree as follows:
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“(i) within thirty (30) days after the last day of each month, together with the monthly financial statements described in (a) above to the extent such financial statements have been requested by Agent, a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing monthly cash and cash equivalents of Borrowers, Borrowers and their Consolidated Subsidiaries, and the Excluded Subsidiaries (in each case, if requested by Agent five (5) Business Days prior to the date such Compliance Certificate is delivered) and compliance with the financial covenants set forth in this Agreement; provided that, for the avoidance of doubt, the calculations of monthly cash and cash equivalent and the monthly financial statements described in (a)
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above shall only be attached to the Compliance Certificate if requested by Agent in writing.”
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[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, intending to be legally bound, the undersigned have executed this Agreement as of the day and year first hereinabove set forth.
AGENT: | MIDCAP FINANCIAL TRUST
By: Apollo Capital Management, L.P., its investment manager
By: Apollo Capital Management GP, LLC, its general partner
By: _/s/ Maurice Amsellem___________ Name: Maurice Amsellem Title: Authorized Signatory
|
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LENDER:
| MIDCAP FUNDING XIII TRUST
By: Apollo Capital Management, L.P., its investment manager
By: Apollo Capital Management GP, LLC, its general partner
By: _/s/ Maurice Amsellem___________ Name: Maurice Amsellem Title: Authorized Signatory
|
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LENDER: | ELM 2020-3 TRUST
By: MidCap Financial Services Capital Management, LLC, as Servicer
By: _/s/ John O'Dea_________________ Name: John O’Dea Title: Authorized Signatory |
LENDER: | ELM 2020-4 TRUST
By: MidCap Financial Services Capital Management, LLC, as Servicer
By: _/s/ John O'Dea_________________ Name: John O’Dea Title: Authorized Signatory |
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BORROWER: SIGHT SCIENCES, INC.
By: _/s/ Jesse Selnick__________________
Name: _Jesse Selnick__________________
Title: _Chief Financial Officer___________
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ANNEX A
Exhibit B to Credit Agreement (Form of Compliance Certificate)
COMPLIANCE CERTIFICATE
This Compliance Certificate is given by _____________________, a Responsible Officer of Sight Sciences, Inc., a Delaware corporation (the “Borrower Representative”), pursuant to that certain Amended and Restated Credit and Security Agreement (Term Loan), dated as of November 23, 2020 among the Borrower Representative and any additional Borrower that may hereafter be added thereto (collectively, “Borrowers”), MidCap Financial Trust, individually as a Lender and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
The undersigned Responsible Officer hereby certifies, solely in his/her capacity as a Responsible Officer of the Borrower Representative and not in any individual capacity, to Agent and Lenders that:
(a) [the financial statements delivered with this certificate in accordance with Section 4.1 of the Credit Agreement fairly present in all material respects the results of operations and financial condition of Borrowers and their Consolidated Subsidiaries as of the dates and the accounting period covered by such financial statements;]1
(b) [reserved];
(c) I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Borrowers and their Consolidated Subsidiaries during the accounting period covered by such financial statements, and such review has not disclosed the existence during or at the end of such accounting period, and I have no knowledge of the existence as of the date hereof, of any condition or event that constitutes a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature and period of existence of such Default or an Event of Default and what action Borrowers have taken, are undertaking and propose to take with respect thereto;
(d) except as noted on Schedule 2 attached hereto, Schedule 9.2(b) to the Credit Agreement contains a complete and accurate list of all business locations of Borrowers and Guarantors and all names under which Borrowers and Guarantors currently conduct business; Schedule 2 specifically notes any changes in the names under which any Borrower or Guarantors conduct business;
(e) except as noted on Schedule 3 attached hereto, the undersigned has no knowledge of (i) any federal or state tax liens (other than Permitted Liens) having been filed against any Borrower, Guarantor or any Collateral, or (ii) any failure of any Borrower or any Guarantors to make required payments of withholding or other tax obligations of any Borrower or any Guarantors during the accounting period to which the attached statements pertain or any subsequent period;
1 To be included only if requested by Agent.
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(f) Schedule 5.14 to the Credit Agreement contains a complete and accurate statement of all deposit accounts or investment accounts maintained by Borrowers and Guarantors;
(g) [except as noted on Schedule 4 attached hereto and Schedule 3.6 to the Credit Agreement, the undersigned has no knowledge of any current, pending or threatened: (i) litigation against the Borrowers or any Guarantors, (ii) inquiries, investigations or proceedings concerning the business affairs, practices, licensing or reimbursement entitlements of Borrowers or any Guarantors, or (iii) default by Borrowers or any Guarantors under any Material Contract to which it is a party;]2
(h) [except as noted on Schedule 5 attached hereto, no Borrower has acquired, by purchase, by the approval or granting of any application for registration (whether or not such application was previously disclosed to Agent by Borrowers) or otherwise, any Intellectual Property that is registered with any United States or foreign Governmental Authority, or has filed with any such United States or foreign Governmental Authority, any new application for the registration of any Intellectual Property, that has not previously been reported to Agent on Schedule 3.19 to the Credit Agreement or any Schedule 5 to any previous Compliance Certificate delivered by Borrower to Agent];3
(i) [except as noted on Schedule 5 attached hereto, no entered into or become bound by any additional in-bound license or sublicense agreement that is material to Borrower’s business or any additional exclusive out-bound license or sublicense agreement (excluding agreements for in-bound licenses for (a) off-the-shelf software or services that are commercially available to the public, and (b) open source software), that has not previously been reported to Agent on Schedule 3.19 to the Credit Agreement or any Schedule 5 to any previous Compliance Certificate delivered by Borrower to Agent] ;4
(j) except as noted on Schedule 6 attached hereto, no Borrower or Guarantor has acquired, by purchase or otherwise, any Chattel Paper, Letter of Credit Rights, Instruments, Documents or Investment Property that has not previously been reported to Agent on any Schedule 6 to any previous Compliance Certificate delivered by Borrower Representative to Agent;
(k) except as noted on Schedule 7 attached hereto, no Borrower or Guarantor is aware of any commercial tort claim that has not previously been reported to Agent on any Schedule 7 to any previous Compliance Certificate delivered by Borrower Representative to Agent; and
(l) The aggregate amount of cash and cash equivalents held by Borrowers (on a consolidated basis) as of the date hereof is $[__________];
(m) The aggregate amount of cash and cash equivalents held by Excluded Subsidiaries as of the date hereof is $[__________];
(n) The aggregate amount of Borrower Unrestricted Cash as of the date hereof is $[__________]; and
2 To be included only if requested by Agent.
3 To be included in June 30 and December 31 compliance certificates.
4 To be included in quarterly compliance certificates.
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(o) Net Revenue of Borrowers and Guarantors for the relevant Defined Period is equal to $ . Borrowers and Guarantor are [NOT] in compliance with the covenant contained in Article 6 of the Credit Agreement, and in any Guarantee constituting a part of the Financing Documents, as demonstrated by the calculation of such covenants below, except as set forth below; in determining such compliance, the following calculations have been made: [See attached worksheets]. Such calculations and the certifications contained therein are true, correct and complete in all material respects.
The foregoing certifications and computations are made as of ________________, 202__ (end of month) and as of _____________, 202__.
| Sincerely, SIGHT SCIENCES, INC. By: ________________________________ |
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