Exhibit 10.3
SECOND AMENDMENT, CONSENT AND
WAIVER
THIS SECOND AMENDMENT, CONSENT
AND WAIVER dated as of May 6, 2009 (this “
Amendment ”), among AMYLIN PHARMACEUTICALS,
INC. , a Delaware corporation (the “
Company ”), each of the Company’s
subsidiaries listed on the signature pages hereto
(collectively, together with the Company, the “
Borrowers ” and each a “
Borrower ”), the Lenders (as defined below)
party hereto, and BANK OF AMERICA, N.A. , as Administrative
Agent, Collateral Agent and L/C Issuer (in such capacity, the
“ Administrative Agent ”) for the
Lenders.
W I T N E S S E T
H:
WHEREAS , the Borrowers are a party to a Credit
Agreement, dated as of December 21, 2007, among the Borrowers,
the lenders from time to time party thereto (the “
Lenders ”), the Administrative Agent, and the
other agents, lead arranger and book manager party thereto (as
amended, restated, supplemented or otherwise modified to but
excluding the date hereof, the “ Existing Credit
Agreement ”). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such
terms in the Existing Credit Agreement;
WHEREAS , the Company has proposed a slate of directors
(the “ Company Nominees ”) for election
to the board of directors of the Company (the “ Board
of Directors ”) at its annual meeting on May 27,
2009 (the “ 2009 Annual Meeting ”), and
certain shareholders of the Company have nominated competing slates
of directors (the “ Shareholder Nominees
”) for election to the Board of Directors of the
Company;
WHEREAS , pursuant to Section 8.01(k) of the
Existing Credit Agreement (the “ Change of Control
Provision ”), an Event of Default would occur if six
or more of the Shareholder Nominees are elected to the Board of
Directors at or in connection with the 2009 Annual Meeting (a
“ Specified Change of Control
”);
WHEREAS , in connection with the nomination of the
Shareholder Nominees, a shareholder of the Company has filed a
Verified Fourth Amended Class Action Complaint for Declaratory
and Injunctive Relief (as amended, restated, supplement, replaced
with another complaint or otherwise modified from time to time, the
“ Proxy Complaint ”) with the Court of
Chancery of the State of Delaware (the “ Court
”) challenging the validity and enforceability of the Change
of Control Provision and asking the Court to set aside the Change
of Control Provision;
WHEREAS , pursuant to Section 8.01(j) of the
Existing Credit Agreement, Lenders believe an Event of Default
occurred when the Proxy Complaint was filed (the “
Litigation Event of Default ”);
WHEREAS , the Company has requested that the Lenders
waive the Litigation Event of Default and consent to a Specified
Change of Control (if and to the extent that any may
arise);
WHEREAS , the undersigned Required Lenders have agreed
to waive the Litigation Event of Default and consent to the
Specified Change of Control upon the terms and conditions set forth
herein and in consideration thereof the parties hereto have agreed,
subject to the terms and conditions hereof, to amend and modify the
Existing Credit Agreement as provided herein;
NOW THEREFORE
, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
SECTION 1.01.
Consent and Waiver
.
(a)
Limited Consent . Effective only upon the satisfaction
of all of the Consent Conditions (defined below), the undersigned
Required Lenders hereby (i) consent to the Specified Change of
Control, if any shall occur at or in connection with the 2009
Annual Meeting and (ii) agree that such Specified Change of
Control shall not result in, or be deemed to give rise to, an Event
of Default under the Event of Default provision (the “
Limited Consent ”). For purposes hereof,
“ Consent Conditions ” means the date on
which all of the following conditions have been satisfied or waived
in writing by the Administrative Agent and Required Lenders:
(i) the Administrative Agent shall have received (A) a
copy of a final judgment of a court of competent jurisdiction,
(B) a settlement agreement approved by such a court or
(C) an opinion of counsel to the indenture trustee under the
Senior 2007 Notes, as the case may be, in each case providing or
opining, as applicable, that the election of any or all of the
Shareholder Nominees to the board of directors of the Company at or
in connection with the 2009 Annual Meeting shall not constitute a
“Fundamental Change” or, in the case of the
opinion of counsel or settlement agreement provided for in clauses
(B) and (C) above, otherwise result in a default or
event of default under the Senior 2007 Note Documents,
(ii) the Administrative Agent shall have received a
certificate of the Company, signed by a Responsible Officer of the
Company, certifying that as of the effective date of the Limited
Consent (A) no Default (including, without limitation, as a
result of a cross-default under Section 8.01(e) of the
Existing Credit Agreement, but excluding the Litigation Event of
Default and any Event of Default that would arise absent this
Amendment as a result of the Change of Control provisions) shall
have occurred and be continuing and (B) no Default could
reasonably be expected to occur as a result of the Specified Change
of Control or any transactions arising with respect thereto, and
(iii) the Second Amendment Effective Date shall have
occurred.
(b)
Waiver . Effective upon the Second Amendment Effective Date,
the undersigned Required Lenders hereby waive the Litigation Event
of Default. Except as otherwise expressly provided in clause
(ii) of Section 1.01(a) hereof and in the
first sentence of this Section 1.01(b) , the execution,
delivery and effectiveness of this Amendment or the effectiveness
of either of the foregoing waivers shall not operate as a waiver of
any other Default or Event of Default or of any right, power or
remedy of the Administrative Agent or any other Secured Party under
any Loan Document.
SECTION 1.02.
Amendment to Section 1.01 of
the Existing Credit Agreement . Effective immediately upon the Second
Amendment Effective Date, the definition of “Base Rate”
set forth in Section 1.01 of the Existing Credit Agreement is
hereby deleted in its entirety and replaced by the
following:
2
“ Base Rate ”
means for any day a fluctuating rate per annum equal to the highest
of (a) the Federal Funds Rate plus ½ of 1%,
(b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime
rate” and (c) the Eurocurrency Rate for an Interest
Period of one month plus 1.00%. The “prime
rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return,
general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in such rate
announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such
change. For the purposes of subsection (c) above, the
Eurocurrency Rate shall be determined daily and any change in the
Eurocurrency Rate shall take effect on the day of such
change.
SECTION 1.03.
Amendment of Section 2.10 of
the Existing Credit Agreement . Effective immediately upon the Second
Amendment Effective Date, the first sentence of Section 2.10
of the Existing Credit Agreement is hereby amended by deleting the
phrase “when the Base Rate is determined by Bank of
America’s ‘prime rate’”.
SECTION 1.04.
Representations and
Warranties . Each
Borrower hereby represents and warrants to the Administrative Agent
and the Lenders, as follows:
(a)
Except as to matters that are the subject of this Amendment, the
representations and warranties of such Borrower contained in
Article V of the Existing Credit Agreement, as amended hereby
(the “ Amended Credit Agreement ”), or
any other Loan Document (except for any Secured Hedge Agreements or
Secured Cash Management Agreements) or which are contained in any
document furnished at any time under or in connection therewith are
true and correct in all material respects on and as of the date
hereof and on and as of the Second Amendment Effective Date with
the same effect as if made on and as of the date hereof or the
Second Amendment Effective Date, as the case may be, except to the
extent such representations and warranties specifically refer to an
earlier date, in which case they are true and correct in all
material respects as of such earlier date, and except that the
representations and warranties contained in Sections
5.05(a) and (b) of the Existing Credit Agreement shall be
deemed to refer to the most recent statements furnished pursuant to
Sections 6.01(a) and (b) thereof,
respectively.
(b) &
