Exhibit 10.2
First AMENDMENT AND CONSENT
TO
LOAN AND SECURITY AGREEMENT
This First Amendment AND CONSENT to Loan and Security Agreement (this “Amendment”) is dated as of March 30, 2023 and is entered into by and among SCYNEXIS, INC., a Delaware corporation (“Borrower”), HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent (“Agent”), SILICON VALLEY BANK, a division of First-Citizens Bank & Trust Company (successor by purchase to the Federal Deposit Insurance Corporation as Receiver for Silicon Valley Bridge Bank, N.A. (as successor to Silicon Valley Bank)), as a lender (“SVB”), and HERCULES CAPITAL, INC., a Maryland corporation (“Hercules”), as a lender (SVB and Hercules and each of the other lenders from time to time party to the Loan Agreement are referred to herein collectively as the “Lenders” and each individually as a “Lender”). Capitalized terms used herein without definition shall have the same meanings given them in the Loan Agreement (as defined below).
Recitals
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:
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“(f) Mandatory Prepayment in Connection with the GSK Transaction. Upon the earliest of (A) one (1) Business Day following receipt by Borrower of the Upfront Payment or any proceeds thereof, (B) June 1, 2023, or (C) the cancellation, revocation, annulment, breakup or other termination of the GSK Transaction, Borrower shall immediately pay to the Lenders an amount equal to the sum of (i) all outstanding principal plus all accrued and unpaid interest with respect to the Term Loan Advances, in accordance with each Lender’s Pro Rata Share, (ii) the Prepayment Fee, (iii) the applicable Final Payment, and (iv) all other sums, if any, that shall have become due and payable with respect to the Term Loan Advances, including Lenders’ Expenses and interest at the Default Rate with respect to any past due amounts.
“and (k) pursuant to the GSK Transaction (subject to compliance with Section 2.2(f));
“8.13 GSK Transaction. Borrower (a) fails to prepay the Term Loan Advances in accordance with Section 2.2(f) or (b) to the extent the “Effective Date” (as defined in the GSK License Agreement) has occurred, fails to issue a Valid Invoice (as defined in the GSK License Agreement) to GSK in accordance with the GSK License Agreement.
“GSK” means GlaxoSmithKline Intellectual Property (No. 3) Limited, a company registered under the laws of England and Wales with offices at 980 Great West Road Brentford, Middlesex TW8 9GS England.
“GSK License Agreement” means that certain Exclusive License Agreement, to be dated on or about March 30, 2023, by and between Borrower and GSK, in form and substance substantially identical to the draft provided to Agent on March 28, 2023 (or such other form approved in writing by Agent in its sole discretion).
“GSK Transaction” means the entering into of the GSK License Agreement and the transactions contemplated thereby.
“Upfront Payment” means the non-refundable and non-creditable upfront payment by GSK to Borrower in the aggregate amount of $90,000,000 as partial consideration of the rights and licenses granted to GSK by Borrower pursuant to the GSK License Agreement.”
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Borrower understands and acknowledges that Agent and the Lenders are each entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
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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.
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[Signature Page Follows]
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In Witness Whereof, the parties have duly authorized and caused this Amendment to be executed as of the date first written above.
BORROWERS:
SCYNEXIS, INC.
Signature: /s/ Ivor Macleod
Print Name: Ivor Macleod
Title: Chief Financial Officer
[Signature Page to First Amendment to Loan and Security Agreement]
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Accepted in Palo Alto, California:
AGENT:
HERCULES CAPITAL, INC.
Signature: /s/ Jennifer Choe
Print Name: Jennifer Choe
Title: Associate General Counsel
LENDERS:
HERCULES FUNDING IV LLC
Signature: /s/ Jennifer Choe
Print Name: Jennifer Choe
Title: Authorized Signatory
HERCULES PRIVATE CREDIT FUND 1 L.P.
By: Hercules Adviser LLC, its Investment Adviser
Signature: /s/ Jennifer Choe
Print Name: Jennifer Choe
Title: Authorized Signatory
HERCULES CAPITAL FUNDING TRUST 2022-1
By: Hercules Capital, Inc., its Administrator
Signature: /s/ Jennifer Choe
Print Name: Jennifer Choe
Title: Associate General Counsel
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FIRST-CITIZENS BANK & TRUST COMPANY (SUCCESSOR BY PURCHASE TO THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR SILICON VALLEY BRIDGE BANK, N.A. (AS SUCCESSOR TO SILICON VALLEY BANK))
Signature: /s/ Tom Gordon
Print Name: Tom Gordon
Title: Managing Director
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