EXHIBIT 10.34
LOAN AND SECURITY AGREEMENT
Exelixis, Inc.
TABLE OF CONTENTS
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HEADING PAGE
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1. ACCOUNTING AND OTHER TERMS . . . . . . . . . . . . . . . . . . . . . . . 1
2. LOAN AND TERMS OF PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Promise to Pay . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Overadvances. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Interest Rate, Payments . . . . . . . . . . . . . . . . . . . . . 2
2.4 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. CONDITIONS OF LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Conditions Precedent to Initial Credit Extension. . . . . . . . . 3
3.2 Conditions Precedent to all Credit Extensions . . . . . . . . . . 3
4. CREATION OF SECURITY INTEREST. . . . . . . . . . . . . . . . . . . . . . 3
5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . 3
5.1 Due Organization and Authorization. . . . . . . . . . . . . . . . 3
5.2 Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.3 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.4 No Material Adverse Change in Financial Statements. . . . . . . . 4
5.5 Regulatory Compliance . . . . . . . . . . . . . . . . . . . . . . 4
5.6 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.1 Government Compliance . . . . . . . . . . . . . . . . . . . . . . 4
6.2 Financial Statements, Reports, Certificates . . . . . . . . . . . 5
6.3 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.4 Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.5 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . 5
7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.1 Dispositions. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.2 Changes in Business, Ownership, Management or Business Locations. 6
7.3 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.4 Encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.5 Distributions; Investments. . . . . . . . . . . . . . . . . . . . 6
7.6 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . 6
7.7 Subordinated Debt.. . . . . . . . . . . . . . . . . . . . . . . . 6
7.8 Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.1 Payment Default.. . . . . . . . . . . . . . . . . . . . . . . . . 7
8.2 Covenant Default. . . . . . . . . . . . . . . . . . . . . . . . . 7
8.3 Material Adverse Change.. . . . . . . . . . . . . . . . . . . . . 7
8.4 Attachment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.5 Insolvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.6 Other Agreements. . . . . . . . . . . . . . . . . . . . . . . . . 7
8.7 Judgments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.8 Misrepresentations. . . . . . . . . . . . . . . . . . . . . . . . 8
9. BANK'S RIGHTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 8
9.1 Rights and Remedies.. . . . . . . . . . . . . . . . . . . . . . . 8
9.2 Power of Attorney.. . . . . . . . . . . . . . . . . . . . . . . . 8
9.3 Bank Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.4 Bank's Liability for Collateral.. . . . . . . . . . . . . . . . . 9
9.5 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . 9
9.6 Demand Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER . . . . . . . . . . . . . . . 9
12. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 9
12.2 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 10
12.3 Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . . 10
12.4 Severability of Provision. . . . . . . . . . . . . . . . . . . . 10
12.5 Amendments in Writing, Integration . . . . . . . . . . . . . . . 10
12.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12.7 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12.8 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 10
12.9 Attorneys' Fees, Costs and Expenses. . . . . . . . . . . . . . . 11
13. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
EXHIBITS
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Exhibit A - Description of Collateral
Exhibit B - Loan Payment/Advance Request Form
Exhibit C - Form of Loan Agreement Supplement
Exhibit D - Form of Compliance Certificate
This LOAN AND SECURITY AGREEMENT dated May 22, 2002, between SILICON VALLEY
BANK, a California-chartered bank ("Bank") whose address is 3003 Tasman Drive,
Santa Clara, California 95054, and EXELIXIS, INC., a Delaware corporation
("Borrower") whose address is 170 Harbor Way, P.O. Box 511, South San Francisco,
California 94083, provides the terms on which Bank will lend to Borrower and
Borrower will borrow from Bank. The parties agree as follows:
1. ACCOUNTING AND OTHER TERMS.
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Accounting terms not defined in this Agreement will be construed in
accordance with GAAP. Calculations and determinations must be made in accordance
with GAAP. The term "financial statements" includes the notes and schedules. The
terms "including" and "includes" always mean "including (or includes) without
limitation," in this or any Loan Document.
2. LOAN AND TERMS OF PAYMENT.
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2.1 PROMISE TO PAY.
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Borrower promises to pay Bank the unpaid principal amount of all Credit
Extensions and interest on the unpaid principal amount of all Credit Extensions.
2.1.1 EQUIPMENT ADVANCES.
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(a) Subject to the terms and conditions of this Agreement, Bank agrees to
lend to Borrower, from the Closing Date until the Commitment Termination Date,
equipment advances (the "Equipment Advances") in an aggregate amount not to
exceed the Committed Equipment Line. When repaid, the Equipment Advances may not
be re-borrowed. The proceeds of each Equipment Advance will be used solely to
reimburse Borrower for 100% of the Original Stated Cost of Eligible Equipment
purchased. Bank's obligation to lend hereunder shall terminate on the earlier of
(i) the occurrence and continuance of an Event of Default, or (ii) the
Commitment Termination Date. For purposes of this Section 2.1.1, the maximum
number of Equipment Advances that may be made is eight and the minimum amount of
each Equipment Advance (except for the Initial Equipment Advance and the final
Equipment Advance) shall be $500,000.
(b) To obtain an Equipment Advance, Borrower will deliver to Bank, at least
three (3) Business Days before the proposed funding date (the "Funding Date"), a
completed supplement in the form attached as Exhibit C ("Loan Supplement")
signed by a Responsible Officer or his or her designee and such additional
information as Bank may request. On the Funding Date, Bank will specify in the
Loan Supplement the Basic Rate, the periodic principal payments and the Payment
Dates, all in accordance with the terms of this Agreement. If Borrower satisfies
the conditions of the Equipment Advances specified herein, Bank will disburse
such Equipment Advance by internal transfer to Borrower's deposit account with
Bank. The Loan Supplement for each Equipment Advance shall be considered a
promissory note evidencing the amounts due under such Equipment Advance.
2.2 OVERADVANCES.
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If the Obligations under Sections 2.1.1 at any time exceed the Committed
Equipment Line or the principal balance of the segregated securities account(s)
required by Section 6.4 hereof at any time is less than 110% of the principal
portion of the Obligations, then Borrower will be in an Overadvance to the
extent of such excess amount. If Borrower is in an Overadvance, then Borrower
shall immediately repay to Bank such excess amount.
2.3 INTEREST RATE, PAYMENTS.
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2.3.1 EQUIPMENT ADVANCES.
(a) Borrower will repay each of the Equipment Advances on the terms
provided in the Loan Supplement for such Equipment Advance, effected through
debits of Borrower's accounts as provided in Section 2.3.2 hereof. Borrower will
make 48 equal monthly payments of principal in arrears, plus accrued and unpaid
interest (collectively, "Scheduled Payments"), on the last Business Day of the
month following the Funding Date (or commencing on the Funding Date, if the
Funding Date is the last Business Day of the month) and continuing thereafter
during the Repayment Period on the last Business Day of each calendar month
(each, a "Payment Date"), and all then-outstanding principal and accrued and
unpaid interest as to each Equipment Advance shall be due and payable in full on
the Maturity Date for that Equipment Advance. Payments received after 12:00
noon, Pacific Time, are considered received at the opening of business on the
next Business Day.
(b) Borrower will pay interest on the Payment Dates at the per annum rate
of interest equal to the Basic Rate, as the Basic Rate may from time to time
change. Any amounts outstanding during the continuance of an Event of Default
shall bear interest at a per annum rate equal to the Basic Rate plus five
percent (5.00%). If any change in the law after the date of this Agreement
increases Bank's expenses or decreases its return from the Equipment Advances,
Borrower will pay Bank upon request the amount of such increase of expenses or
an amount equal to the difference between Bank's anticipated return from the
Equipment Advances and the decreased return actually received by Bank (as the
case may be).
(c) If the Equipment Advances are accelerated following the occurrence of
an Event of Default, then Borrower will immediately pay to Bank, without
duplication, (i) all unpaid Scheduled Payments (including principal and
interest), (ii) all principal with respect to remaining Scheduled Payments (iii)
all accrued unpaid interest, including the default rate of interest, to the date
of the prepayment, and (iv) all other sums, if any, that shall have become due
and payable with respect to the Equipment Advances.
(d) Borrower shall have the option to prepay, without penalty or premium,
the Equipment Advances in whole or in part at any time; provided, however, that
Borrower (i) gives written notice to Bank of its election to prepay at least 30
days prior to such prepayment and (ii) pays, on the date of the prepayment,
without duplication, (A) all unpaid Scheduled Payments (including principal and
interest) with respect to the Equipment Advances to be prepaid, (B) such
principal portion of the Equipment Advance as Borrower notified Bank was to be
prepaid, (C) all unpaid accrued interest on the principal portion so prepaid to
the date of the prepayment, and (D) all other sums, if any, that shall have
become due and payable hereunder with respect to such principal portion so
prepaid.
2.3.2 DEBIT OF BORROWER'S ACCOUNTS.
Bank will debit any of Borrower's deposit accounts, including Account
Number 3300161062, for principal and interest payments, and any other amounts
Borrower owes Bank when due. Bank will notify Borrower when it debits Borrower's
accounts. Any such debits are not a set-off.
2.4 FEES.
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(a) Borrower will pay all Bank Expenses (including reasonable attorneys'
fees and reasonable expenses) incurred through and after the date of this
Agreement, provided, however, that Borrower's obligation to pay Bank Expenses
incurred through the Closing Date shall be limited to $3,000. All Bank Expenses
are due and payable upon demand from Bank.
(b) Borrower will pay the Loan Fee on or before the Closing Date.
3. CONDITIONS OF LOANS.
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION.
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Bank's obligation to make the initial Credit Extension is subject to Bank's
having received the agreements, documents and fees that it requires.
3.2 CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS.
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Bank's obligations to make each Credit Extension, including the initial
Credit Extension, is subject to the following:
(a) Bank shall have received any Loan Payment/Advance Request Form and any
Loan Supplement.
(b) The representations and warranties in Section 5 shall be true in all
material respects on the date of the Payment/Advance Form and the Loan
Supplement, and on the effective date of each Credit Extension, and no Event of
Default may have occurred and be continuing, or result from the Credit
Extension. Each Credit Extension is Borrower's representation and warranty on
that date that the representations and warranties of Section 5 remain true in
all material respects.
(c) Borrower shall have opened its primary operating accounts with Bank and
shall have opened a segregated investment account with the Bank's Investment
Products and Services Division with a principal balance in an amount at all
times equal to not less than 110% of the principal portion of the Obligations
plus the amount of the requested Credit Extension(s).
4. CREATION OF SECURITY INTEREST.
Borrower grants Bank a continuing first priority security interest in all
presently existing and later acquired Collateral to secure all Obligations and
the performance of each of Borrower's duties under the Loan Documents. Bank may
place a "hold" on any deposit account and/or securities account pledged as
Collateral. If this Agreement is terminated, Bank's lien and security interest
in the Collateral will continue until Borrower fully satisfies its Obligations.
5. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND AUTHORIZATION.
-------------------------------------
Borrower and each Subsidiary is duly existing and in good standing in its
jurisdiction of formation and is qualified and licensed to do business in, and
in good standing in, each jurisdiction in which the conduct of its business or
its ownership of property requires that it be qualified, except where the
failure to do so could not reasonably be expected to cause a Material Adverse
Change. Borrower is a Delaware corporation. The execution, delivery and
performance by Borrower of the Loan Documents have been duly authorized, and do
not conflict with Borrower's formation documents, nor constitute an event of
default under any material agreement by which Borrower is bound. Borrower is not
in default under any agreement to which or by which it is bound in which the
default could reasonably be expected to cause a Material Adverse Change.
5.2 COLLATERAL.
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Borrower has good title to the Collateral, free of all Liens except the
Lien in favor of the Bank.
5.3 LITIGATION.
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Except as shown in the Schedules, there are no actions or proceedings
pending or, to the knowledge of Borrower's Responsible Officers, threatened by
or against Borrower or any Subsidiary in which an adverse decision could
reasonably be expected to cause a Material Adverse Change.
5.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS.
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All separate or consolidated financial statements for Borrower and any
Subsidiary delivered to Bank fairly present in all material respects such
entity's separate and consolidated financial condition and separate and
consolidated results of operations. There has not been any material
deterioration in Borrower's consolidated financial condition since the date of
the most recent financial statements submitted to Bank.
5.5 REGULATORY COMPLIANCE.
----------------------
Neither Borrower nor any Subsidiary, is an "investment company" or a
company "controlled" by an "investment company" under the Investment Company
Act. Neither Borrower nor any Subsidiary, is engaged, as one of its material
activities, in extending credit for margin stock (under Regulations T and U
promulgated by the Board of Governors of the Federal Reserve System). Borrower
has complied in all material respects with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to cause a Material Adverse Change. None of
Borrower's or any Subsidiary's properties or assets has been used by Borrower or
any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in
disposing, producing, storing, treating or transporting any hazardous substance
other than in a legal manner in substantial compliance with all environmental
laws and regulations. Each of Borrower and each Subsidiary has timely filed all
required tax returns and paid, or made adequate provision to pay, all material
taxes, except those being contested in good faith with adequate reserves under
GAAP. Each of Borrower and each Subsidiary has obtained all consents, approvals
and authorizations of, made all declarations or filings with, and given all
notices to, all government authorities that are necessary to continue its
business as currently conducted, except where the failure to do so could not
reasonably be expected to cause a Material Adverse Change.
5.6 FULL DISCLOSURE.
----------------
No written representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank (taken together with all such
written certificates and written statements to Bank) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained in the certificates or statements not misleading, it
being recognized by Bank that the projections and forecasts provided by Borrower
in good faith and based upon reasonable assumptions are not viewed as facts and
that actual results during the period or periods covered by such projections and
forecasts may differ from the projected and forecasted results.
6. AFFIRMATIVE COVENANTS.
Borrower will do all of the following for so long as Bank has an obligation
to lend, or there are outstanding Obligations:
6.1 GOVERNMENT COMPLIANCE.
----------------------
Borrower will maintain its and all Subsidiaries' legal existence and good
standing in its respective jurisdictions of formation and maintain qualification
in each jurisdiction in which the failure to so qualify could reasonably be
expected to result in a Material Adverse Change. Borrower will comply, and cause
each Subsidiary to comply, with all laws, ordinances and regulations to which it
is subject, noncompliance with which could reasonably be expected to cause a
Material Adverse Change.
6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
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(a) Borrower will deliver to Bank: (i) as soon as available, but no later
than 45 days after the last day of each of the first three quarters of
Borrower's fiscal year, company-prepared unaudited separate and consolidated
balance sheets and income statements covering the separate and consolidated
operations of Borrower and its Subsidiaries during the fiscal quarter (with the
exception of when annual statements are due), certified by a Responsible Officer
and in a form acceptable to Bank; (ii) as soon as available but no later than 90
days after the last day of Borrower's fiscal year, audited separate and
consolidated financial statements for Borrower and all Subsidiaries prepared
under GAAP, consistently applied, together with an unqualified opinion on the
financial statements from an independent certified public accounting firm
reasonably acceptable to Bank; (iii) except as otherwise disclosed in filings
with the U.S. Securities and Exchange Commission, a prompt report of any legal
actions pending or threatened against Borrower or any Subsidiary that could
result in damages or costs to Borrower or any Subsidiary of $5,000,000 or more;
and (iv) any Forms 10-K and 10-Q filed with the U.S. Securities and Exchange
Commission, within 10 days of such filing.
(b) Concurrently with the delivery of the quarterly and annual financial
statements, Borrower will deliver to Bank a Compliance Certificate in the form
of Exhibit D, signed by a Responsible Officer.
6.3 TAXES.
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Borrower will make, and cause each Subsidiary to make, timely payment of
all material federal, state, and local taxes or assessments (other than taxes
and assessments which Borrower is contesting in good faith, with adequate
reserves maintained in accordance with GAAP) and will deliver to Bank, on
demand, appropriate certificates attesting to the payment.
6.4 DEPOSITS.
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Borrower will at all times maintain its primary operating accounts with the
Bank. In addition, Borrower will at all times maintain on deposit in a
segregated securities account with Bank or its Investment Products and Service
Division a principal balance in a value equal to at least 110% of the principal
portion of the Obligations plus all requested Credit Extensions, the value of
such account to be marked to market on a monthly basis. The balance in such
account must be invested in a manner consistent with the Investment Policies
approved by Borrower's Board of Directors dated April 28, 2000, or in mutual
funds offered by Bank or one of its Affiliates.
6.5 FURTHER ASSURANCES.
-------------------
Borrower will execute all further instruments and take all further actions
as Bank reasonably requests to perfect or continue Bank's first priority
security interest in the Collateral and to effect the purposes of this
Agreement.
7. NEGATIVE COVENANTS.
For so long as Bank has an obligation to lend or there are any outstanding
Obligations, Borrower will not do any of the following to the extent that such
actions impair Bank's Lien on the Collateral unless Borrower obtains Bank's
prior written consent:
7.1 DISPOSITIONS.
------------
Borrower will not convey, sell, lease, transfer or otherwise dispose of
(collectively "Transfer"), all or any part of its business or property, except
for Transfers (i) of Inventory in the ordinary course of business, (ii) of
licenses and similar arrangements for the use of the property of Borrower or its
Subsidiaries in the ordinary course of business, or (iii) of worn-out or
obsolete Equipment.
7.2 CHANGES IN BUSINESS, OWNERSHIP, MANAGEMENT OR BUSINESS LOCATIONS.
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Borrower will not, without the prior written consent of Bank, engage in any
business other than the businesses currently engaged in by Borrower or
businesses reasonably related thereto. Borrower will not, without at least 30
days prior written notice to Bank, relocate its chief executive office.
7.3 INDEBTEDNESS.
------------
Borrower will not create, incur, assume or be liable for any Indebtedness,
or permit any Subsidiary to do so, other than Permitted Indebtedness.
7.4 ENCUMBRANCES.
------------
Borrower will not create, incur or allow to exist any Lien on any of its
properties, or assign or convey any right to receive income (including the sale
of any Accounts), or permit any of its Subsidiaries to do so, except for
Permitted Liens, or permit any Collateral not to be subject to the first
priority security interest herein granted to Bank, subject to Permitted Liens.
7.5 DISTRIBUTIONS; INVESTMENTS.
---------------------------
Borrower will not directly or indirectly pay any dividends or make any
distribution or payment related to, or redeem, retire or purchase any of, its
capital stock, except for (i) dividends and distributions consisting solely of
the capital stock of Borrower and (ii) repurchases of stock from former
employees or directors of Borrower under the terms of applicable repurchase
agreements or pursuant to Borrower's employee stock option plans as approved by
Borrower's board of directors.
7.6 TRANSACTIONS WITH AFFILIATES.
------------------------------
Borrower will not directly or indirectly enter into or permit any material
transaction with any Affiliate, except transactions that are in the ordinary
course of Borrower's business, on terms less favorable to Borrower than would be
obtained in an arm's length transaction with a non-affiliated Person.
7.7 SUBORDINATED DEBT.
-------------------
Borrower will not make or permit any payment on any Subordinated Debt
except under the express terms of the Subordinated Debt, or amend any provision
in any document relating to the Subordinated Debt, without Bank's prior written
consent.
7.8 COMPLIANCE.
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Borrower will not become an "investment company" or a company controlled by
an "investment company," under the Investment Company Act of 1940, or undertake
as one of its material activities extending credit to purchase or carry margin
stock, or use the proceeds of any Credit Extension for that purpose; fail to
meet the minimum funding requirements of ERISA, permit a Reportable Event or
Prohibited Transaction (as defined in ERISA) to occur; fail to comply with the
Federal Fair Labor Standards Act or violate any other law or regulation, if the
violation could reasonably be expected to have a material adverse effect on
Borrower's business or operations (or the business or operations of Guarantor)
or would reasonably be expected to cause a Material Adverse Change, or permit
any of its Subsidiaries to do so.
8. EVENTS OF DEFAULT.
8.1 PAYMENT DEFAULT.
----------------
Borrower fails to pay any of the Obligations within three Business Days
after their due date. During the three-Business Day period, the failure to cure
the default is not itself an Event of Default (but Bank shall have no obligation
to make a Credit Extension during the three-Business Day period).
8.2 COVENANT DEFAULT.
-----------------
(a) Borrower fails to perform any obligation under Section 6.4 of this
Agreement, or violates any of the covenants in Article 7 of this Agreement, or
(b) Borrower fails or neglects to perform, keep or observe any other
material term, provision, condition, covenant or agreement in this Agreement, in
any other Loan Documents or in any other present or future agreement between
Borrower and Bank and, as to any default under such other term, provision,
condition, agreement or covenant that can be cured, has failed to cure the
default within ten (10) days after the occurrence thereof; provided, however,
that if the default cannot by its nature be cured within the ten-day period, and
such default is likely to be cured within a reasonable time thereafter, then
Borrower shall have an additional reasonable time period (which shall not in any
case exceed ten additional days) to cure such default. During the ten-day period
and (if applicable) the additional ten-day period, the failure to cure the
default is not itself an Event of Default (but Bank shall have no obligation to
make a Credit Extension during such periods).
8.3 MATERIAL ADVERSE CHANGE.
-------------------------
There occurs (i) a material adverse change in the business, operations or
condition (financial or otherwise) of the Borrower, (ii) a material impairment
of the prospect of repayment of any portion of the Obligations, or (iii) a
material impairment to the value of, or the priority of Bank's Lien upon, the
Collateral (or any material portion thereof).
8.4 ATTACHMENT.
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Any material portion of Borrower's assets is attached, seized or levied on,
or comes into possession of a trustee or receiver, and the attachment, seizure
or levy is not removed, or the possession by a trustee or receiver is not
terminated, in ten days; or Borrower is enjoined, restrained or prevented by
court order from conducting a material part of its respective businesses; or a
judgment or other claim becomes a Lien on a material portion of Borrower's
assets; or a notice of lien, levy or assessment is filed against any of
Borrower's assets by any government agency and not paid within ten days after
Borrower receives notice thereof. None of the foregoing is an Event of Default
if stayed or if a bond is posted pending contest by Borrower (but Bank shall
have no obligation to make a Credit Extension during such stay period or pending
contest).
8.5 INSOLVENCY.
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Borrower becomes insolvent or begins an Insolvency Proceeding, or an
Insolvency Proceeding is begun against Borrower and is not dismissed or stayed
within 30 days (but Bank shall have no obligation to make a Credit Extension
before any Insolvency Proceeding is dismissed).
8.6 OTHER AGREEMENTS.
-----------------
There is a default in any agreement between Borrower and a third party that
gives the third party the right to accelerate any Indebtedness exceeding
$1,000,000.
8.7 JUDGMENTS.
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A money judgment(s) in the aggregate of at least $5,000,000 is rendered
against Borrower and is unsatisfied and unstayed for ten days (but Bank shall
have no obligation to make a Credit Extension before the judgment is stayed or
satisfied).
8.8 MISREPRESENTATIONS.
------------------
Borrower, or any Person acting for Borrower, makes any material
misrepresentation or material misstatement now or later in any warranty or
representation in this Agreement or in any writing delivered to Bank or in order
to induce Bank to enter this Agreement or any Loan Document.
9. BANK'S RIGHTS AND REMEDIES.
9.1 RIGHTS AND REMEDIES.
---------------------
When an Event of Default occurs and any period for cure has expired Bank
may, without notice or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an Event of
Default described in Section 8.5 occurs all Obligations are immediately due and
payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit under
this Agreement or under any other agreement between Borrower and Bank;
(c) Make any payments and do any acts that Bank considers necessary or
reasonable to protect its security interest in the Collateral;
(d) Apply to the Obligations, after first applying the balances of the
segregated investment accounts thereto, any (i) balances and deposits of
Borrower that Bank holds, and (ii) amounts held by Bank owing to or for the
credit or the account of Borrower; and
(e) Dispose of the Collateral according to the Code.
9.2 POWER OF ATTORNEY.
-------------------
Borrower irrevocably appoints and constitutes Bank as its lawful
attorney-in-fact, with full power and in the name of Borrower, to do all of the
following upon the occurrence and continuation of an Event of Default: (i)
endorse Borrower's name on any checks or other forms of payment or security; and
(ii) transfer the Collateral into the name of Bank or a third party as the Code
permits. Notwithstanding the foregoing, Bank may exercise the power of attorney
to sign Borrower's name on any documents necessary to perfect or continue the
perfection of any security interest regardless of whether an Event of Default
has occurred. Bank's appointment as Borrower's attorney-in-fact, and all of
Bank's rights and powers, are coupled with an interest and irrevocable until all
Obligations have been fully repaid and performed and Bank's obligation to
provide Credit Extensions terminates.
9.3 BANK EXPENSES.
--------------
If Borrower fails to pay any amount or furnish any required proof of
payment to third persons, Bank may make all or part of the payment. Any amounts
paid by Bank are Bank Expenses and immediately due and payable, bearing interest
at the then-applicable rate and secured by the Collateral. No payments by Bank
are deemed an agreement to make similar payments in the future or constitute
Bank's waiver of any Event of Default.
9.4 BANK'S LIABILITY FOR COLLATERAL.
----------------------------------
If Bank complies with reasonable banking practices and the Code, it shall
not be liable for: (i) the safekeeping of the Collateral; (ii) any loss or
damage to the Collateral; (iii) any diminution in the value of the Collateral;
or (iv) any act or default of any carrier, warehouseman, bailee, or other
person. Borrower bears all risk of loss, damage or destruction of the
Collateral.
9.5 REMEDIES CUMULATIVE.
--------------------
Bank's rights and remedies under this Agreement, the other Loan Documents
and all other agreements are cumulative. Bank has all rights and remedies
provided under the Code, by law and in equity. Bank's exercise of one right or
remedy is not an election, and Bank's waiver of any Event of Default is not a
continuing waiver. Bank's delay is not a waiver, election or acquiescence. No
waiver is effective unless signed by Bank, and then is only effective for the
specific instance and purpose for which it was given.
9.6 DEMAND WAIVER.
--------------
Borrower waives demand, notice of default or dishonor, notice of payment
and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension or renewal of accounts, documents,
instruments, chattel paper and guaranties held by Bank on which Borrower is
liable.
10. NOTICES.
All notices or demands by any party about this Agreement or any other
related agreement must be in writing and be personally delivered or sent by an
overnight delivery service, by certified mail, (postage prepaid, return receipt
requested) or by telefacsimile to the addresses set forth at the beginning of
this Agreement. A party may change its notice address by giving the other party
written notice thereof.
11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER.
California law governs the Loan Documents without regard to principles of
conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction of
the State and Federal courts in Santa Clara County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12. GENERAL PROVISIONS.
12.1 SUCCESSORS AND ASSIGNS.
------------------------
This Agreement binds and is for the benefit of the successors and permitted
assigns of each party. Borrower may not assign this Agreement or any rights
under it without Bank's prior written consent, which may be granted or withheld
in Bank's discretion. Bank has the right, without the consent of or notice to
Borrower, to sell, transfer, negotiate or grant participations in all or any
part of, or any interest in, Bank's obligations, rights and benefits under this
Agreement.
12.2 INDEMNIFICATION.
---------------
Borrower will indemnify, defend and hold harmless Bank and its officers,
employees, and agents against: (i) all obligations, demands, claims, and
liabilities asserted by any other party in connection with the transactions
contemplated by the Loan Documents; and (ii) all losses and Bank Expenses
incurred or paid by Bank from, following or consequential to transactions
between Bank and Borrower (including reasonable attorneys fees and expenses),
except in each case for losses caused by Bank's gross negligence or willful
misconduct.
12.3 TIME OF ESSENCE.
-----------------
Time is of the essence for the performance of all obligations in this
Agreement.
12.4 SEVERABILITY OF PROVISION.
---------------------------
Each provision of this Agreement is severable from every other provision in
determining the enforceability of any provision.
12.5 AMENDMENTS IN WRITING, INTEGRATION.
-------------------------------------
All amendments to this Agreement must be in writing and signed by Borrower
and Bank. This Agreement represents the entire agreement about this subject
matter, and supersedes prior negotiations or agreements. All prior agreements,
understandings, representations, warranties and negotiations between the parties
about the subject matter of this Agreement merge into this Agreement and the
other Loan Documents.
12.6 COUNTERPARTS.
------------
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, are an original, and all of which, taken together, constitute one
Agreement.
12.7 SURVIVAL.
--------
All covenants, representations and warranties made in this Agreement
continue in full force while any Obligations remain outstanding. The obligations
of Borrower in Section 12.2 to indemnify Bank will survive until all statutes of
limitations for actions that may be brought against Bank have run.
12.8 CONFIDENTIALITY.
---------------
In handling any confidential information, Bank will exercise the same
degree of care that it exercises for its own proprietary information, and
disclosure of information may be made by Bank: (i) to Bank's subsidiaries or
affiliates in connection with their business with Borrower; (ii) to prospective
transferees or purchasers of any interest in the Loan Documents (provided,
however, Bank shall use commercially reasonable efforts in obtaining such
prospective transferee or purchasers agreement of the terms of this provision);
(iii) as required by law, regulation, subpoena or other order; (iv) as required
in connection with Bank's examination or audit; and (v) as Bank considers
appropriate in exercising remedies under this Agreement. Confidential
information does not include information that either: (i) is in the public
domain or in Bank's possession when disclosed to Bank, or becomes part of the
public domain after disclosure to Bank through no fault of Bank; or (ii) is
disclosed to Bank by a third party, if Bank does not know that the third party
is prohibited from disclosing the information.
12.9 ATTORNEYS' FEES, COSTS AND EXPENSES.
---------------------------------------
In any action or proceeding between Borrower and Bank arising out of the
Loan Documents, the prevailing party will be entitled to recover its reasonable
attorneys' fees and other reasonable costs and expenses incurred, in addition to
any other relief to which it may be entitled.
13. DEFINITIONS.
In this Agreement:
"AFFILIATE" of a Person is a Person that owns or directly or indirectly
controls the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"BANK EXPENSES" are all audit fees and expenses and reasonable costs and
expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals and Insolvency Proceedings).
"BASIC RATE" is, as to each Equipment Advance, the Prime Rate, as that rate
shall change from time to time.
"BORROWER'S BOOKS" are all of Borrower's books and records, including
ledgers, records regarding Borrower's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs or
any equipment containing the information.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or other day on
which the Bank is closed.
"CLOSING DATE" is the date of this Agreement.
"CODE" is the Uniform Commercial Code, as applicable.
"COLLATERAL" is the property described on Exhibit A.
"COMMITTED EQUIPMENT LINE" is the principal sum of $16,000,000 of Equipment
Advances.
"COMMITMENT TERMINATION DATE" is the one-year anniversary of the Closing
Date.
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"CREDIT EXTENSION" is each Equipment Advance or any other extension of
credit made by Bank to Borrower or for Borrower's benefit.
"DOLLARS" and "$" is United States dollars.
"ELIGIBLE EQUIPMENT" is new or used general purpose computer equipment,
office equipment, test and laboratory equipment and furnishings, as well as
Other Equipment.
"EQUIPMENT" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"EQUIPMENT ADVANCE" is defined in Section 2.1.1.
"EQUIPMENT LOAN AMOUNT" is the amount of each Equipment Advance. "ERISA" is
the Employment Retirement Income Security Act of 1974, and its regulations.
"EVENT OF DEFAULT" is the occurrence of any event described in Article 8
but does not include any cure period provided therein.
"FINANCED EQUIPMENT" is defined in the Loan Supplement.
"FUNDING DATE" is a date on which an Equipment Advance is made to or on
account of Borrower.
"GAAP" is generally accepted accounting principles, consistently applied
over the period(s) in question.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred price
of property or services, such as reimbursement and other obligations for surety
bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"INITIAL EQUIPMENT ADVANCE" is the first Equipment Advance under the
Committed Equipment Line.
"INSOLVENCY PROCEEDINGS" are proceedings by or against any Person under the
United States Bankruptcy Code or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization, arrangement
or other relief.
"INVESTMENT" is any beneficial ownership (including stock, partnership
interest or other securities) of any Person, or any loan, advance or capital
contribution to any Person.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note or notes, and
any other present or future agreement between Borrower to or for the benefit of
Bank in connection with this Agreement, all as amended, extended or restated.
"LOAN FEE" is an amount equal to $80,000.
"LOAN SUPPLEMENT" is attached as Exhibit C.
----------
"MATERIAL ADVERSE CHANGE" is described in Section 8.3.
"MATURITY DATE" is, as to each Equipment Advance, the last day of the
Repayment Period for such Equipment Advance or, if earlier, the date of
acceleration of the Equipment Advance by Bank following an Event of Default.
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts that Borrower owes to Bank now or later, including cash management
services, letters of credit and foreign exchange contracts (if any) and
including interest accruing after Insolvency Proceedings begin, and debts,
liabilities or obligations of Borrower assigned to Bank.
"ORIGINAL STATED COST" is (i), the original cost to the Borrower of the
item of new Eligible Equipment net of any and all freight, installation, tax
(except to the extent Eligible Equipment constitutes Other Equipment) or (ii)
the fair market value assigned to such item of used Eligible Equipment by mutual
agreement of Borrower and Bank at the time of making of an Equipment Advance.
"OTHER EQUIPMENT" is leasehold improvements, taxes, freight, installation,
intangible property such as computer software and software licenses, equipment
specifically designed or manufactured for Borrower, other intangible property,
limited use property and other similar property.
"OVERADVANCE" is described in Section 2.2.
"PERMITTED INDEBTEDNESS" is:
(a) Borrower's indebtedness to Bank under this Agreement or any other Loan
Document;
(b) Indebtedness existing on the Closing Date that is acceptable to Bank
and shown on the Schedules;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course of
business; and
(e) Indebtedness of Borrower to any Subsidiary and Contingent Obligations
of any Subsidiary with respect to obligations of Borrower (provided that the
primary obligations are not prohibited hereby), and Indebtedness of any
Subsidiary to any other Subsidiary and Contingent Obligations of any Subsidiary
with respect to obligations of any other Subsidiary (provided that the primary
obligations are not prohibited by);
(f) other Indebtedness not otherwise permitted by Section 7.4 not exceeding
$1,000,000 in the aggregate outstanding at any time; and
(g) Indebtedness secured by Permitted Liens.
"PERMITTED INVESTMENTS" are:
(a) Investments existing on the Closing Date that are acceptable to Bank
and shown on the Schedules;
(b) (i) marketable direct obligations issued or unconditionally guaranteed
by the United States or its agency or any State maturing within two years from
its acquisition, (ii) commercial paper maturing no more than one year after its
creation and having the highest rating from either Standard & Poor's Corporation
or Moody's Investors Service, Inc., and (iii) Bank's certificates of deposit
issued maturing no more than one year after issue;
(c) Investments consisting of Borrower's accounts receivable in the
ordinary course of business;
(d) Investments consisting of loans to employees, officers or directors;
(e) other Investments in accordance with Borrower's investment policies as
approved in good faith by Borrower's board of directors; and
(f) checking, savings, money market and investment accounts with Bank or an
Affiliate of Bank.
"PERMITTED LIENS" are:
(a) Liens existing on the Closing Date that are acceptable to Bank and
shown on the Schedules or arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its Books, if they have no priority over
any of Bank's security interests;
(c) purchase money Liens (i) on Equipment acquired or held by Borrower or
its Subsidiaries incurred for financing the acquisition of the Equipment, or
(ii) existing on equipment when acquired, if the Lien is confined to the
property and improvements and the proceeds of the equipment, provided that any
such lien pertaining to Eligible Equipment that is financed by the Equipment
Advances must be in favor of Bank;
(d) licenses or sublicenses granted in the ordinary course of Borrower's
business and any interest or title of a licensor or under any license or
sublicense, if the licenses and sublicenses permit granting Bank a security
interest;
(e) leases or subleases granted in the ordinary course of Borrower's
business, including in connection with Borrower's leased premises or leased
property;
(f) Liens in favor of Bank hereunder;
(g) Liens arising from judgments, decrees or attachments in circumstances
not constituting an Event of Default under Section 8.7; and
(h) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness so secured may not
increase.
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company association, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or government agency.
"PRIME RATE" is Bank's most recently announced "prime rate," even if it is
not the lowest rate at which Bank makes loans or otherwise extends credit.
"REPAYMENT PERIOD" as to each Equipment Advance is 48 months.
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"SCHEDULED PAYMENTS" is described in Section 2.3.1(a).
"SCHEDULES" are the attached schedules of exceptions.
"SUBORDINATED DEBT" is debt incurred by Borrower that is subordinated to
Borrower's Indebtedness owed to Bank and that is reflected in a written
agreement in a manner and form acceptable to Bank and approved by Bank in
writing.
"SUBORDINATION AGREEMENT" shall mean one or more agreements in favor of
Bank as senior creditor relating to Subordinated Debt.
"SUBSIDIARY" is, for Borrower, any business entity of which more than 20%
of the voting stock or other equity interests is owned or controlled, directly
or indirectly, by Borrower or one or more Affiliates of Borrower.
IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized representative to execute and deliver this Agreement on the date
first set forth above.
BANK: BORROWER:
SILICON VALLEY BANK, EXELIXIS, INC.,
a California-chartered bank a Delaware corporation.
By: /s/ D. Edward Wohlleb By: /s/ Glen Y. Sato
------------------------------ ------------------------------
Name: D. Edward Wohlleb Name: Glen Y. Sato
---------------------------- ----------------------------
Title: Vice President Title: CFO & VP Legal Affairs
--------------------------- ---------------------------
EXHIBIT A
----------
The Collateral consists of all of Borrower's right, title and interest in
and to the following:
All documents, cash, deposit accounts, securities, securities entitlements,
securities accounts, investment property, financial assets, letters of credit,
certificates of deposit and instruments held in segregated investment accounts
with Bank or an affiliate of Bank, whether now owned or hereafter acquired, and
all proceeds of any of the foregoing, and all of Borrower's Books relating to
the foregoing.
EXHIBIT B
---------
LOAN PAYMENT/ADVANCE REQUEST FORM
FAX TO: DATE:
-------------------------- ------------
- -------------------------------------------------------------------------------
Loan Payment:
- -
EXELIXIS, INC.
From Account # To Account #
---------------------- ------------------
(Deposit Account #) (Loan Account #)
Principal $ and/or Interest $
--------------------- ----------------------------
All Borrower's representation and warranties in the Loan and Security Agreement
are true, correct and complete in all material respects to on the date of the
telephone transfer request for and advance, but those representations and
warranties expressly referring to another date shall be true, correct and
complete in all material respects as of the date:
AUTHORIZED SIGNATURE: Phone Number:
--------------------------- --------------
- --------------------------------------------------------------------------------
LOAN ADVANCE:
- -
COMPLETE OUTGOING WIRE REQUEST SECTION BELOW IF ALL OR A PORTION OF THE FUNDS
FROM THIS LOAN ADVANCE ARE FOR AN OUTGOING WIRE.
From Account # To Account #
---------------------- ------------------
(Deposit Account #) (Loan Account #)
Amount of Revolving Advance $
---------------------------------
All Borrower's representation and warranties in the Loan and Security Agreement
are true, correct and complete in all material respects to on the date of the
telephone transfer request for and advance, but those representations and
warranties expressly referring to another date shall be true, correct and
complete in all material respects as of the date:
AUTHORIZED SIGNATURE: Phone Number:
--------------------------- --------------
- --------------------------------------------------------------------------------
OUTGOING WIRE REQUEST
COMPLETE ONLY IF ALL OR A PORTION OF FUNDS FROM THE LOAN ADVANCE ABOVE ARE TO BE
WIRED.
Deadline for same day processing is 12:00 p.m., P.T.
Beneficiary Name: Amount of Wire: $
----------------------- ----------------
Beneficiary Bank: Account Number:
----------------------- ----------------
City and Sate:
-------------------------
Beneficiary Bank Transit (ABA) #:
-- -- -- -- -- - --
Beneficiary Bank Code (Swift, Sort, Chip, etc.):
--------------------------
(FOR INTERNATIONAL WIRE ONLY)
Intermediary Bank: Transit (ABA) #:
------------------------- ----------------
For Further Credit to:
------------------------------------------------------
Special Instruction:
---------------------------------------------------------
By signing below, I (we) acknowledge and agree that my (our) funds transfer
request shall be processed in accordance with and subject to the terms and
conditions set forth in the agreements(s) covering funds transfer service(s),
which agreements(s) were previously received and executed by me (us).
Authorized Signature: 2nd Signature (If Required):
------------------- ---------
Print Name/Title: Print Name/Title:
---------------------- ------------------
Telephone # Telephone #
---------------------------- -- -------------------
- -------------------------------------------------------------------------------
EXHIBIT C
----------
FORM OF LOAN AGREEMENT SUPPLEMENT
---------------------------------
LOAN AGREEMENT SUPPLEMENT No. [ ]
LOAN AGREEMENT SUPPLEMENT No. [ ], dated , 200 ("Supplement"), to the
-------- --
Loan and Security Agreement dated as of May 22, 2002 (the "Loan Agreement) by
and between the undersigned ("Borrower"), and Silicon Valley Bank ("Bank").
Capitalized terms used herein but not otherwise defined herein are used with the
respective meanings given to such terms in the Loan Agreement. The Loan
Agreement is hereby incorporated by reference herein and is hereby ratified,
approved and confirmed.
Borrower hereby requests an Equipment Advance in the amount of
$ in order to finance the Eligible Equipment set forth on
-------------------
Annex A hereto. Annex A (Eligible Equipment Schedule) and Annex B (Equipment
Advance Terms Schedule) are attached hereto and incorporated herein for all
purposes.
The proceeds of the Loan should be transferred to Borrower's account with Bank
set forth below:
Bank Name: Silicon Valley Bank
Account No.:
------------------------
Borrower hereby certifies that (i) the foregoing information is true and correct
and authorizes Bank to endorse in its respective books and records the principal
amount set forth in the Equipment Advance Terms Schedule; (ii) the
representations and warranties made by Borrower in the Loan Agreement are true
and correct in all material respects on the date hereof and will be true and
correct in all material respects on such Funding Date; and (iii) no Event of
Default has occurred and is continuing under the Loan Agreement. This
Supplement may be executed by Borrower and Bank in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
This Supplement is delivered as of this day and year first above written.
SILICON VALLEY BANK, EXELIXIS, INC.,
a California-chartered bank a Delaware corporation
By: By:
------------------------- -------------------------
Name: Name:
--------------------- ---------------------
Title: Title:
-------------------- --------------------
Annex A
-------
ELIGIBLE EQUIPMENT SCHEDULE
---------------------------
The Eligible Equipment being financed with the Equipment Advance as to
which this Loan Agreement Supplement is being executed is listed below.
Description of Equipment Total Costs
- ------------------------ -----------
Annex B
-------
EQUIPMENT ADVANCE TERMS SCHEDULE #________
Funding Date:, ,200
----------- --
Principal Amount of Equipment Advance $
--------------
Basic Rate: Prime Rate (floating)
Scheduled Payment Dates and Principal Amounts*:
Forty-eight (48) principal payments of $ due monthly in arrears from
-------
through .
- ---------- ---------
Maturity Date:
-----------
EXHIBIT D
---------
COMPLIANCE CERTIFICATE
----------------------
TO: SILICON VALLEY BANK
FROM: EXELIXIS, INC.
DATED:
--------------------
The undersigned authorized officer of Exelixis, Inc. ("Borrower") certifies
that under the terms and conditions of the Loan and Security Agreement dated May
22, 2002 between Borrower and Bank (the "Agreement"), (i) Borrower is in
complete compliance for the period ending on the date first set forth above with
all required covenants except as noted below and (ii) all representations and
warranties in the Agreement are true and correct in all material respects on
this date. Attached are the required documents supporting the certification.
The Officer certifies that these are prepared in accordance with Generally
Accepted Accounting Principles (GAAP) consistently applied from one period to
the next except as explained in an accompanying letter or footnotes. The
Officer acknowledges that no borrowings may be requested at any time or date of
determination that Borrower is not in compliance with any of the terms of the
Agreement, and that compliance is determined not just at the date this
certificate is delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
REPORTING COVENANTS REQUIRED COMPLIES
- ------------------------------------------ -------------------------- -------------
Quarterly financial statements + CC. . . Quarterly within 45 days Yes No
after the end of each of first
three quarters of each Fiscal Year
Annual audited financial statements + CC Within 90 days of FYE Yes No
Forms 10K and 10Q. . . . . . . . . . . . Within 10 days of filing Yes No
COMMENTS REGARDING EXCEPTIONS: See Attached.
Sincerely,
EXELIXIS, INC.,
a Delaware corporation
- --------------------------------------
SIGNATURE
- --------------------------------------
TITLE
- --------------------------------------
DATE
- --------------------------------------------------------------------------------
BANK USE ONLY
Received by:
------------------------
AUTHORIZED SIGNER
Date:
--------------------------------
Verified:
----------------------------
AUTHORIZED SIGNER
Date:
--------------------------------
Compliance Status: Yes No