FIRST AMENDMENT, WAIVER AND CONSENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT, WAIVER AND CONSENT to the Loan and Security Agreement (this Amendment) is entered into as of August 15, 2016 (the First Amendment Date), by and among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 133 North Fairfax Street, Alexandria, Virginia 22314 (Oxford), as collateral agent (in such capacity, Collateral Agent), the Lenders listed on Schedule 1.1 of the Loan Agreement (as defined below) or otherwise a party thereto from time to time including Oxford in its capacity as a Lender (each a Lender and collectively, the Lenders), and ), and Inhibrx, LP, a Delaware limited partnership, Inhibrx 101, LP, a Delaware limited partnership, Inhibrx 104, LP, a Delaware limited partnership, INBRX 105, LP, a Delaware limited partnership, INBRX 106, LP, a Delaware limited partnership, INBRX 107, LP, a Delaware limited partnership, INBRX 108, LP, a Delaware limited partnership, INBRX 109, LP, a Delaware limited partnership, INBRX 110, LP, a Delaware limited partnership, INBRX 111, LP, a Delaware limited partnership and INBRX 112, LP, a Delaware limited partnership, each with an office located at with an office located at 11099 N. Torrey Pines Road, Suite 280, La Jolla, CA 92037 (individually and collectively, jointly and severally, Borrower). Capitalized terms used without definition herein shall have the meanings assigned to them in the Loan Agreement (as defined below).
WHEREAS, Collateral Agent, Borrower and Lenders have entered into that certain Loan and Security Agreement, dated as of March 31, 2015 (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, the Loan Agreement) pursuant to which Lenders have provided to Borrower certain loans in accordance with the terms and conditions thereof;
WHEREAS, Borrower, Lenders and Collateral Agent desire to amend certain provisions of the Loan Agreement as provided herein and subject to the terms and conditions set forth herein and to grant set waivers as set forth herein;
WHEREAS, Borrower entered into a Research Collaboration and Agreement with Five Prime Therapeutics, Inc., a Delaware corporation, having its principal office at Two Corporate Drive, South San Francisco, CA 94080 (Licensee), on or about July 13, 2015, which is attached hereto as Exhibit A (the License Agreement);
WHEREAS, Borrower has requested that Collateral Agent and Lenders consent to certain licenses and/or transfers by Borrower to Licensee, pursuant to the License Agreement, as described in Section 6 hereof to the extent that such consent may be required pursuant to Section 7.1 of the Loan Agreement; and
WHEREAS, Collateral Agent and Lenders have agreed to provide such consent, but only to the extent set forth herein, in accordance with the terms and subject to the conditions set forth herein, and in reliance upon the representations and warranties set forth herein.
NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, Lenders and Collateral Agent hereby agree as follows:
| ||1. || |
Section 2.2(b) of the Loan Agreement is hereby amended and restated as follows:
(i) With respect to Term A Loans: Borrower shall make monthly payments of interest only commencing on the first (1st) Payment Date following the Funding Date of Term A Loans, and continuing on the Payment Date of each successive month thereafter through and including the Payment Date immediately preceding the Amortization Date. Borrower agrees to pay, on the Funding Date of Term A Loans, any initial partial monthly interest payment otherwise due for the period between the Funding Date of such Term Loan and the first Payment Date thereof. Commencing on the Amortization Date, and continuing on the Payment Date of each month thereafter, Borrower shall make consecutive equal monthly payments of principal and interest, in arrears, to each Lender, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon: (1) the amount of such Lenders