Exhibit 10.3
WAIVER AND AMENDMENT NO. 4 TO
CREDIT AGREEMENT
THIS WAIVER
AND AMENDMENT NO. 4 (this
“ Amendment ”) dated as of June 19, 2009
to the CREDIT AGREEMENT (the “ Credit
Agreement ”) dated March 12, 2003, as amended by the
Amendment No. 1 to Credit Agreement dated December 31, 2003 and
further amended by the Amendment No. 2 to Credit Agreement dated
December 31, 2004, and further amended by the Amendment No. 3 to
Credit Agreement dated March 26, 2008, is by and among ARIAD
Pharmaceuticals, Inc., a Delaware corporation and ARIAD
Corporation, a Delaware corporation (hereinafter sometimes referred
to collectively as the “ Borrowers ”) and
RBS Citizens, National Association, successor by merger to Citizens
Bank of Massachusetts, a national banking association (the "
Lender "). All capitalized terms not
defined herein but defined in the Credit Agreement shall have the
meanings given to such terms in the Credit Agreement.
WHEREAS , ARIAD Gene Therapeutics, Inc.
(“AGTI”) has been merged into ARIAD Pharmaceuticals,
Inc.; and
WHEREAS , the Borrowers and the Lender have agreed to
certain modifications to the Credit Agreement as set forth herein;
and
WHEREAS , the Borrowers have requested that the Lender
waive compliance with a certain financial covenant under the Credit
Agreement.
NOW,
THEREFORE, in
consideration of the mutual promises and covenants set forth
herein, the Borrowers and the Lender hereby agree as
follows:
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1.
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Lender
Identity . All references in the Credit
Agreement to “Citizens Bank of Massachusetts” are
hereby deleted and replaced with “RBS Citizens, National
Association”.
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2.
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Removal of
AGTI as a Co-Borrower . AGTI is hereby deleted as a
co-borrower under the Credit Agreement.
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3.
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Amendment
to Subsection 5.13. Subsection 5.13 of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following:
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5.13
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Cash, Cash
Equivalents, Marketable Securities and Investments
.
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During the term
of this Agreement, the Borrowers shall maintain, as evidenced on
their consolidated balance sheet, not less than Fifteen Million and
00/100 Dollars ($15,000,000.00) in Unrestricted Cash, unrestricted
Cash Equivalents, and unrestricted marketable securities (the
“ Liquid Assets ”).
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Not less than
Eighty-Five Percent (85%) of the Borrowers’ total Liquid
Assets shall be invested through and held by either the Treasury
Desk or Citizens Investment Management Services (“
CIMS ”), in investments which are consistent with the
Borrowers’ current investment policy, a copy of which is
attached hereto as Exhibit D , all of such investments to be
in book entry form (each singly, a “ Treasury
Investment ” and collectively, the “ Treasury
Investments ”). Notwithstanding the foregoing,
in no event shall the Borrowers be required to invest more than
Seventeen Million and 00/100 Dollars ($17,000,000.00) with CIMS and
the Treasury Desk, collectively, during the Term of this
Agreement. In the event the Borrowers intend to invest
through the Treasury Desk, the Borrower shall be required to enter
into a control agreement in a form acceptable to Borrower, Lender
and the Treasury Desk prior to making any investment with the
Treasury Desk.
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To liquidate a
Treasury Investment, the Borrowers shall, not less than two (2)
Business Days prior to the maturity of such Treasury Investments,
provide written instructions to the Lender via facsimile
transmission regarding such Treasury Investment in the form
attached hereto as Exhibit E (the " Treasury Investment
Instructions "). The Treasury Investment
Instructions shall contain, in addition to standard instructions, a
representation and warranty that the execution of the requested
instructions shall not cause a breach of any of the covenants
contained in this Agreement.
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4.
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Amendment
to Appendix A to the Credit Agreement . The text of the definition of
“Treasury Desk” contained in Appendix A of the
Credit Agreement is hereby deleted in its entirety and replaced
with the following:
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“
Treasury Desk ”: CCO Investment Services
Corp.
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5.
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Amendment
to Appendix A to the Cred
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