XOMA (US) LLC, as Borrower
By:
/s/ CHRISTOPHER J. MARGOLIN
Name: Christopher J. Margolin
Title: Vice President, General Counsel
and Secretary
XOMA LTD., as Guarantor By:
/s/ CHRISTOPHER J. MARGOLIN
Name: Christopher J.
Margolin
Title: Vice President, General Counsel
and Secretary
42
EXHIBIT A
Form of Promissory Note
US$35,000,000
New York, New York November 9, 2006
FOR VALUE RECEIVED, XOMA (US) LLC, a Delaware limited liability company (the
"Borrower"), hereby promises to pay to the order of Goldman Sachs Specialty
Lending Holdings, Inc. or its registered assigns (the "Lender"), in lawful money
of the United States of America, in same day funds on the Maturity Date the
principal sum of thirty-five million dollars (US$35,000,000).
The Borrower also promises to pay interest on the unpaid principal amount hereof
in like money, from the date hereof until such unpaid principal is paid in full,
at the rates, at the times and in the manner provided in the Loan Agreement
referred to below.
This Note is the Note referred to in the Loan Agreement, dated as of November 9,
2006, between the Borrower and the Lender (as amended from time to time, the
"Loan Agreement") and is entitled to the benefits thereof and of the other Loan
Documents. This Note is secured as provided in the Loan Documents. This Note is
subject to optional prepayment, in whole or in part, prior to the Maturity Date
as provided in the Loan Agreement.
If an Event of Default shall occur and be continuing, the principal of and
accrued interest on this Note may become or be declared to be due and payable in
the manner and with the effect provided in the Loan Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind in
connection with this Note.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Loan Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLES
THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).
XOMA (US) LLC By:
/s/ J. DAVID BOYLE II
Name: J. David Boyle II
Title: Vice President, Finance and
Chief Financial Officer
EXHIBIT B
Form of Notice of Borrowing
[*]
EXHIBIT C
[Form of Security Agreement]
EXHIBIT D-1
Form of Certificate of Borrower
[*]
EXHIBIT D-2
Form of Certificate of XOMA
[*]
EXHIBIT D-3
Form of Certificate of XOMA Bermuda
[*]
EXHIBIT E
Existing Liens and Related Indebtedness
[*]
EXHIBIT F
Revenue Milestones
[*]
EXHIBIT G
Form of Assignment and Acceptance
[*]
EXHIBIT H-1
[*]
EXHIBIT H-2
[*]
EXHIBIT J
XOMA BCE/HE Intellectual Property
XOMA Patent Rights - Bacterial Expression
A. Title: Modular Assembly of Antibody Genes, Antibodies Prepared Thereby and
Use
Based on PCT/US88/02514, which corresponds to U.S. Application No. 07/077,528,
which is a continuation-in-part PCT/US86/02269 (abandoned), which is a
continuation-in-part of U.S. Application No. 06/793,980 (abandoned).
COUNTRY