FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
EXHIBIT 10.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS
FIRST AMENDMENT to Loan and Security Agreement (this
“Amendment”) is
made effective as of March 31, 2017 (the “Amendment Date”) and made, by and
among OXFORD FINANCE LLC, a Delaware limited liability company with
an office located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 (in its individual capacity, “Oxford”; and in its capacity as
Collateral Agent, “Collateral
Agent”), the Lenders listed on Schedule 1.1 thereof
from time to time including Oxford in its capacity as a Lender
(each a “Lender”
and collectively, the “Lenders”) and MABVAX THERAPEUTICS
HOLDINGS, INC., a Delaware corporation with offices located at
00000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
(“Holdings”),
MABVAX THERAPEUTICS, INC., a Delaware corporation with offices
located at 00000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX
00000 (“MabVax”
and together with Holdings, individually and collectively, jointly
and severally, “Borrower”).
WHEREAS, Collateral
Agent, Borrower and Lenders party thereto from time to time have
entered into that certain Loan and Security Agreement, dated as of
January 15, 2016 (as amended, supplemented 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; and
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;
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.
Capitalized terms
used herein but not otherwise defined shall have the respective
meanings given to them in the Loan Agreement.
2.
Section 2.2(b) of
the Loan Agreement is hereby amended and restated in its entirety
as follows:
b.
Repayment. Borrower shall make
monthly payments of interest only commencing on the first
(1st)
Payment Date following the Funding Date of each Term Loan, 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 each Term Loan, 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,
together with applicable 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
Lender’s Term Loan, (2) the effective rate of interest,
as determined in Section 2.3(a), and (3) a repayment schedule
equal to thirty-six (36) months; provided, however, that the
payment of principal that otherwise would have been due on the
Amortization Date will be due and payable on May 1, 2017 along with
any other payment of principal due on May 1, 2017. The
Final Payment and all unpaid principal and accrued and unpaid
interest with respect to each Term Loan are due and payable in full
on the Maturity Date. Each Term Loan may only be
prepaid in accordance with Sections 2.2(c) and
2.2(d).
3.
Limitation of
Amendment.
a.
The amendments set
forth 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, remedy or obligation which Lenders or Borrower
may now have or may have in the future under or in connection with
any Loan Document, as amended hereby.
b.
This 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.
To induce
Collateral Agent and Lenders to enter into this Amendment, Borrower
hereby represents and warrants to Collateral Agent and Lenders as
follows:
a.
Immediately 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;
b.
Borrower has the
power and due authority to execute and deliver this Amendment and
to perform its obligations under the Loan Agreement, as amended by
this Amendment;
c.
The organizational
documents of Borrower delivered to Collateral Agent on the
Effective Date, and updated pursuant to subsequent deliveries by
the Borrower to the Collateral Agent, remain true, accurate and
complete and have not been amended, supplemented or restated and
are and continue to be in full force and effect;
d.
The 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 (i) any law or
regulation binding on or affecting Borrower, (ii) any contractual
restriction with a Person binding on Borrower, (iii) any order,
judgment or decree of any court or other governmental or public
body or authority, or subdivision thereof, binding on Borrower, or
(iv) the organizational documents of Borrower;
e.
The 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
f.
This 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.
Except as expressly
set forth herein, the Loan Agreement shall continue in full force
and effect without alteration or amendment. This Amendment and the
Loan Documents represent the entire agreement about this subject
matter and supersede prior negotiations or agreements.
6.
This Amendment
shall be deemed effective as of the Amendment Date upon (a) the due
execution and delivery to Collateral Agent of this Amendment by
each party hereto, (b) Borrower’s payment of all
Lenders’ Expenses incurred through the date hereof, which may
be debited from any of Borrower’s accounts and (c) in
addition to the payment of Lender’s Expenses payable under
clause (b) hereof, a payment of a fully earned and non-refundable
amendment fee equal to $15,000.00 to Collateral Agent.
7.
This Amendment may
be executed in any number of counterparts, each of which shall be
deemed an original, and all of which, taken together, shall
constitute one and the same instrument.
8.
This Amendment and
the rights and obligations of the parties hereto shall be governed
by and construed in accordance with the laws of the State of New
York.
[Balance of Page Intentionally
Left Blank]
IN WITNESS WHEREOF, the parties hereto
have caused this First Amendment to Loan and Security Agreement to
be executed as of the date first set forth above.
|
BORROWER:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
/s/ J. Xxxxx Xxxxxx /s/
Xxxxxxx X. Xxxxxx
|
|
|
|
Name:
J. Xxxxx Xxxxxx Xxxxxxx X. Xxxxxx
|
|
|
|
Title:
President and CEO Chief Financial Officer
|
|
|
|
|
|
|
|
BORROWER:
|
|
|
|
|
|
|
|
MABVAX
THERAPEUTICS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By
/s/ J. Xxxxx Xxxxxx /s/
Xxxxxxx X. Xxxxxx
|
|
|
|
|
|
|
|
|
|
|
|
COLLATERAL AGENT AND LENDER:
|
|
|
|
|
|
|
|
OXFORD
FINANCE LLC
|
|
|
|
|
|
|
|
|
|
|
|
By
/s/ Xxxx
Xxxxx
|
|
|
|
Name:
Xxxx Xxxxx
|
|
|
|
Title:
Vice President – Finance, Secretary &
Treasurer
|
|
|
