Exhibit 10.1
THIRD aMENDMENT to AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (REVOLVING LOAN)
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (REVOLVING LOAN) (this “Agreement”) is made as of this 10th day of May, 2022 (“Effective Date”), by and among SIGHT SCIENCES, INC., a Delaware corporation (“Borrower”), MIDCAP FUNDING IV 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:
“Deposit Account Control Agreement” means an agreement, in form and substance reasonably satisfactory to Agent, among Agent, any Borrower and each financial institution in which such Borrower maintains a Deposit Account, which agreement contains such terms and conditions as Agent may reasonably require, including as to any such agreement pertaining to any Lockbox Account on and following the Lockbox Activation Date, providing that such financial institution shall wire, or otherwise transfer, in immediately available funds, on a daily basis to the Payment Account all funds received or deposited into such Lockbox or Lockbox Account.
“Lockbox Activation Date” means the date that is five (5) Business Days prior to the date of the initial borrowing of the Revolving Loans hereunder.
“Borrowers shall maintain a lockbox (the “Lockbox”) with a United States depository institution reasonably acceptable to Agent (the “Lockbox Bank”), subject to the provisions of this Agreement, and shall execute with the Lockbox Bank a Deposit Account Control Agreement and such other agreements related to such Lockbox as Agent may require to implement the provisions of this Section 2.11. At all times following the initial borrowing of the Revolving Loans, Borrowers shall ensure that all collections of Accounts are paid directly from Account Debtors (i) into the Lockbox for deposit into the Lockbox Account and/or (ii) directly into the Lockbox Account; provided, however, that unless Agent shall otherwise direct by written notice to Borrowers, Borrowers shall be permitted to cause Account Debtors who are individuals to pay Accounts directly to Borrowers, which Borrowers shall then administer and apply in the manner required below. All funds deposited into a Lockbox Account following the Lockbox Activation Date shall be transferred into the Payment Account (or, prior to the time of the initial borrowing of the Revolving Loans, such Deposit Account of Borrower as Agent may direct in its Permitted Discretion) by the close of each Business Day.”
“Borrowers shall not, and Borrowers shall not suffer or permit any Credit Party to at any time following the Lockbox Activation Date, (i) withdraw any amounts from any Lockbox Account, (ii) change the procedures or sweep instructions under the agreements governing any Lockbox Accounts, or (iii) send to or deposit in any Lockbox Account any funds other than payments made with respect to and proceeds of Accounts or proceeds of other Collateral comprising part of the Borrowing Base (including Inventory). From and following the Lockbox Activation Date, Borrowers shall, and shall cause each Credit Party to, cooperate with Agent in the identification and reconciliation on a daily basis of all amounts received in or required to be deposited into the Lockbox Accounts. If more than twenty percent (20%) of the collections of Accounts received by Borrowers during any given fifteen (15) day period following the Lockbox Activation Date is not identified or reconciled to the reasonable satisfaction of Agent within ten (10) Business Days of receipt, Agent shall not be obligated to make further advances under this Agreement until such amount is identified or is reconciled to the reasonable satisfaction of Agent, as the case may be.”
“(f) with respect to the initial borrowing of the Revolving Loans, Agent shall have received by the date that is five (5) Business Days prior to such borrowing a Deposit Account Control Agreement with respect to each Lockbox Account in form and substance reasonably satisfactory to Agent.”
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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 FUNDING IV 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
|
LENDER:
| MIDCAP FUNDING IV 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
|
BORROWER: SIGHT SCIENCES, INC.
By: _/s/Jesse Selnick___________________
Name: _Jesse Selnick__________________
Title: _Chief Financial Officer___________