**Exhibit 10.3**

** **

**SECONDAMENDMENT, CONSENT AND WAIVER**

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THIS **SECONDAMENDMENT, CONSENT AND WAIVER** dated as of May 6, 2009 (this “***Amendment***”), among **AMYLINPHARMACEUTICALS, 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 (asdefined below) party hereto, and **BANK OF AMERICA, N.A.**, as Administrative Agent, CollateralAgent and L/C Issuer (in such capacity, the “***AdministrativeAgent***”) for the Lenders.

 

**W I T N E S S E T H:**

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**WHEREAS**, the Borrowers are a party to a Credit Agreement,dated as of December 21, 2007, among the Borrowers, the lenders from timeto time party thereto (the “***Lenders***”),the Administrative Agent, and the other agents, lead arranger and book managerparty thereto (as amended, restated, supplemented or otherwise modified to butexcluding the date hereof, the “***Existing Credit Agreement***”).Capitalized terms used and not otherwise defined herein shall have the meaningsassigned to such terms in the Existing Credit Agreement;

 

**WHEREAS**, the Company has proposed a slate of directors (the “***Company Nominees***”) for election tothe board of directors of the Company (the “***Boardof Directors***”) at its annual meeting on May 27, 2009 (the “***2009 Annual Meeting***”), and certainshareholders of the Company have nominated competing slates of directors (the “***Shareholder Nominees***”) for electionto the Board of Directors of the Company;

 

**WHEREAS**, pursuant to Section 8.01(k) of theExisting Credit Agreement (the “***Change of ControlProvision***”), an Event of Default would occur if six or more ofthe Shareholder Nominees are elected to the Board of Directors at or inconnection with the 2009 Annual Meeting (a “***SpecifiedChange of Control***”);

 

**WHEREAS**, in connection with the nomination of the ShareholderNominees, a shareholder of the Company has filed a Verified Fourth Amended Class ActionComplaint for Declaratory and Injunctive Relief (as amended, restated,supplement, replaced with another complaint or otherwise modified from time totime, the “***Proxy Complaint***”) with theCourt of Chancery of the State of Delaware (the “***Court***”)challenging the validity and enforceability of the Change of Control Provisionand asking the Court to set aside the Change of Control Provision;

** **

**WHEREAS**, pursuant to Section 8.01(j) of theExisting Credit Agreement, Lenders believe an Event of Default occurred whenthe Proxy Complaint was filed (the “***Litigation Event ofDefault***”);

 

**WHEREAS**, the Companyhas requested that the Lenders waive the Litigation Event of Default andconsent to a Specified Change of Control (if and to the extent that any mayarise);

 

**WHEREAS**, theundersigned Required Lenders have agreed to waive the Litigation Event of Defaultand consent to the Specified Change of Control upon the terms and conditionsset forth herein and in consideration thereof the parties hereto have agreed,subject to the terms and conditions hereof, to amend and modify the ExistingCredit Agreement as provided herein;

 

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**NOW THEREFORE**, for good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties heretohereby agree as follows:

 

**SECTION 1.01.                   **Consent and Waiver.

 

(a)           Limited Consent.  Effective only upon the satisfaction of allof the Consent Conditions (defined below), the undersigned Required Lendershereby (i) consent to the Specified Change of Control, if any shall occurat or in connection with the 2009 Annual Meeting and (ii) agree that suchSpecified 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, “***ConsentConditions***” means the date on which all of the followingconditions have been satisfied or waived in writing by the Administrative Agentand Required Lenders: (i) the Administrative Agent shall have received (A) acopy of a final judgment of a court of competent jurisdiction, (B) asettlement agreement approved by such a court or (C) an opinion of counselto the indenture trustee under the Senior 2007 Notes, as the case may be, ineach case providing or opining, as applicable, that the election of any or allof the Shareholder Nominees to the board of directors of the Company at or inconnection with the 2009 Annual Meeting shall not constitute a “FundamentalChange” or, in the case of the opinion of counsel or settlement agreementprovided for in clauses (B) and (C) above, otherwise result in adefault or event of default under the Senior 2007 Note Documents, (ii) theAdministrative Agent shall have received a certificate of the Company, signedby a Responsible Officer of the Company, certifying that as of the effectivedate of the Limited Consent (A) no Default (including, without limitation,as a result of a cross-default under Section 8.01(e) of the ExistingCredit Agreement, but excluding the Litigation Event of Default and any Eventof Default that would arise absent this Amendment as a result of the Change ofControl provisions) shall have occurred and be continuing and (B) noDefault could reasonably be expected to occur as a result of the SpecifiedChange of Control or any transactions arising with respect thereto, and (iii) theSecond Amendment Effective Date shall have occurred.

 

(b)           Waiver. Effective upon theSecond Amendment Effective Date, the undersigned Required Lenders hereby waivethe Litigation Event of Default.  Exceptas otherwise expressly provided in clause (ii) of Section 1.01(a) hereofand in the first sentence of this Section 1.01(b), the execution,delivery and effectiveness of this Amendment or the effectiveness of either ofthe foregoing waivers shall not operate as a waiver of any other Default orEvent of Default or of any right, power or remedy of the Administrative Agentor any other Secured Party under any Loan Document.

 

**SECTION 1.02.                   **Amendment to Section 1.01 of theExisting Credit Agreement.  Effective immediately upon theSecond Amendment Effective Date, the definition of “Base Rate” set forth in Section 1.01of the Existing Credit Agreement is hereby deleted in its entirety and replacedby the following:

 

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“Base Rate”means for any day a fluctuating rate per annum equal to the highest of (a) theFederal Funds Rate plus 1⁄2 of 1%, (b) the rate of interest in effect forsuch day as publicly announced from time to time by Bank of America as its “primerate” and (c) the Eurocurrency Rate for an Interest Period of one month plus 1.00%.  The “prime rate” is a rate set by Bank ofAmerica based upon various factors including Bank of America’s costs anddesired return, general economic conditions and other factors, and is used as areference point for pricing some loans, which may be priced at, above, or belowsuch announced rate.  Any change in suchrate announced by Bank of America shall take effect at the opening of businesson 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 theEurocurrency Rate shall take effect on the day of such change.

 

**SECTION 1.03.                   **Amendment of Section 2.10 of theExisting Credit Agreement.  Effective immediately upon theSecond Amendment Effective Date, the first sentence of Section 2.10 of theExisting Credit Agreement is hereby amended by deleting the phrase “when theBase 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 Agentand the Lenders, as follows:

 

(a)           Except as to matters that are thesubject of this Amendment, the representations and warranties of such Borrowercontained 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 SecuredCash Management Agreements) or which are contained in any document furnished atany time under or in connection therewith are true and correct in all materialrespects on and as of the date hereof and on and as of the Second AmendmentEffective Date with the same effect as if made on and as of the date hereof orthe Second Amendment Effective Date, as the case may be, except to the extentsuch representations and warranties specifically refer to an earlier date, inwhich case they are true and correct in all material respects as of suchearlier date, and except that the representations and warranties contained inSections 5.05(a) and (b) of the Existing Credit Agreement shall bedeemed to refer to the most recent statements furnished pursuant to Sections6.01(a) and (b) thereof, respectively.

 

(b)           After giving effect to thisAmendment, each Loan Party is in compliance in all material respects with allthe terms and conditions of the Amended Credit Agreement and the other LoanDocuments on its part to be observed or performed and no Default or Event ofDefault has occurred or is continuing under the Amended Credit Agreement.

 

(c)           The execution, delivery andperformance by such Borrower of this Amendment have been duly authorized bysuch Borrower.

 

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(d)           Each of this Amendment and theAmended Credit Agreement constitutes the legal, valid and binding obligation ofsuch Borrower, enforceable against such Borrower in accordance with its termssubject to bankruptcy, insolvency, reorganization, moratorium, or similar lawsof general applicability relating to or affecting creditors’ rights.

 

(e)           The execution, delivery, performanceand compliance with the terms and provisions by such Borrower of this Amendmentand the consummation of the transactions contemplated herein, do not and willnot: (i) contravene the terms of any of such Borrower’s Organization Documents;(ii) conflict with or result in any breach or contravention of, or (exceptfor the Liens created under the Loan Documents) the creation of any Lien under,(A) any material Contractual Obligation to which such Borrower is a partyaffecting such Borrower or the properties of such Borrower or its Subsidiariesor (B) any material order, injunction, writ or decree of any GovernmentalAuthority or any arbitral award to which such Borrower or its property issubject or (C) violate any Law in any material respect.

 

(f)            No default or event of default hasoccurred and is continuing under the Senior 2004 Notes, and no default or eventof default shall occur under the Senior 2004 Notes upon the occurrence of aSpecified Change of Control.

 

**SECTION 1.05.                   **Effectiveness. This Amendment shall become effective only upon satisfaction of thefollowing conditions precedent (the first date upon which each such conditionhas been satisfied being herein called the “***SecondAmendment Effective Date***”):

 

(a)           The Administrative Agent shall havereceived duly executed counterparts of this Amendment which, when takentogether, bear the authorized signatures of the Borrower, the AdministrativeAgent and the Required Lenders.

 

(b)           All fees due and payable as of theSecond Amendment Effective Date in accordance with the Engagement Letter, datedas of May 1, 2009 (the “***Engagement Letter***”),among the Company, Bank of America and Banc of America Leasing &Capital, LLC (“***BALC***”), shall have been paidin full.

 

(c)           The Administrative Agent on behalf ofthe Lenders shall have received such other documents, instruments andcertificates as they shall reasonably request and such other documents,instruments and certificates shall be satisfactory in form and substance to theLenders and their counsel.  All corporateand other proceedings taken or to be taken in connection with this Amendmentand all documents incidental thereto, whether or not referred to herein, shallbe satisfactory in form and substance to the Lenders and their counsel.

 

**SECTION 1.06.                   **APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,THE LAWS OF THE STATE OF NEW YORK.

 

**SECTION 1.07.                   **Fees, Costs and Expenses.  Unless, withinten (10) days following the occurrence of a Specified Change of Control,the Borrowers have (a) repaid in full in cash the aggregate outstandingLoans under the Amended Credit Agreement, (b) terminated the 

 

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RevolvingCredit Facility, (c) fully Cash Collateralized the Outstanding Amount ofL/C Obligations and the Permitted FX Facility under the Amended CreditAgreement and (d) terminated the Letter of Credit Sublimit in accordancewith Section 2.06 of the Amended Credit Agreement, the Borrowers will pay,immediately upon the expiration of such ten day period following the occurrenceof a Specified Change of Control, to the Administrative Agent, for the accountof each consenting Lender (including Bank of America and BALC) party hereto, afee (the “***Upfront Fee***”) in an amount equalto 50 bps times the aggregate outstanding Loans, participations inLetters of Credit and available Revolving Credit Commitments of each consentingLender.  The Upfront Fee described aboveis the same “Upfront Fee” as is described in the Engagement Letter, shall befor the undersigned Lenders’ consent hereto and shall be payable in full(without duplication of the “Upfront Fee” described in the Engagement Letter),so long as the Second Amendment Effective Date has already occurred,immediately upon the expiration of the ten day period following the occurrenceof a Specified Change of Control. In addition, the Borrowers promptly shall pay allcosts and expenses of the Administrative Agent in connection with thepreparation, execution and delivery of this Amendment and the other instrumentsand documents to be delivered hereunder (including, without limitation, thereasonable fees and expenses of counsel for the Administrative Agent) inaccordance with and to the extent required by the terms of Section 10.04(a) ofthe Amended Credit Agreement.

 

**SECTION 1.08.                   **Loan Document; Counterparts. This Amendment is and from and after the Second Amendment Effective Dateshall be deemed to be a “Loan Document” under the Amended Credit Agreement.This Amendment may be executed in any number of counterparts, each of whichshall constitute an original but all of which when taken together shallconstitute but one agreement. Delivery by facsimile by any of the partieshereto of an executed counterpart of this Amendment shall be as effective as anoriginal executed counterpart hereof and shall be deemed a representation thatan original executed counterpart hereof will be delivered, but the failure todeliver a manually executed counterpart shall not affect the validity, enforceabilityor binding effect of this Amendment.

 

**SECTION 1.09.                   **Existing Credit Agreement. Except as expressly set forth herein, the consent, waiver and amendmentsprovided herein shall not, by implication or otherwise, limit, constitute awaiver of, or otherwise affect the rights and remedies of the AdministrativeAgent or any other Secured Party under the Existing Credit Agreement or anyother Loan Document, nor shall it alter, modify, amend or in any way affect anyof the terms, conditions, obligations, covenants or agreements contained in theExisting Credit Agreement or any other Loan Document.  Each of the amendments provided herein shallapply and be effective only with respect to the provisions of the Existing CreditAgreement specifically referred to by such amendment.  Except to the extent a provision in theExisting Credit Agreement is expressly amended herein, the Existing CreditAgreement and the other Loan Documents shall continue in full force and effectin accordance with the provisions thereof and each of the undersigned LoanParties hereby ratifies and confirms in all respects its obligations under andthe continued full force and effect of the Amended Credit Agreement and theother Loan Documents.

 

*[Signature pages follow]*

 

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**IN WITNESS WHEREOF**, the parties hereto have caused this Amendment to beduly executed by their duly authorized officers, all as of the date first abovewritten.

 

| ** ** | **AMYLIN PHARMACEUTICALS, INC.**, as a Borrower |
|------------|-------------------------------------------------|
| ** ** | ** **                                      |
| ** ** | By:                                             | /s/ Lloyd A. Rowland |
| ** ** | Name:                                           | Lloyd A. Rowland |
| ** ** | Title:                                          | Vice President, Governance and Compliance, and  Secretary |
|            |                                                 |  |  |

 

 

| ** ** | **AMYLIN OHIO LLC**, as a Borrower |
|------------|------------------------------------|
| ** ** | ** **                         |
| ** ** |                               | By: | Amylin Pharmaceuticals, Inc., |
| ** ** |                               |   | its Sole Manager |

 

 

| ** ** | By:    | /s/ Lloyd A. Rowland                                      |
|------------|--------|-----------------------------------------------------------|
| ** ** | Name:  | Lloyd A. Rowland                                          |
| ** ** | Title: | Vice President, Governance and Compliance, and  Secretary |
|            |        |                                                           |  |

 

 

| ** ** | **AMYLIN INVESTMENTS LLC**, as a Borrower |
|------------|-------------------------------------------|
| ** ** | ** **                                |
| ** ** |                                      | By: | Amylin Pharmaceuticals, Inc., |
| ** ** |                                      |   | its Sole Manager |

 

 

| ** ** | By:    | /s/ Lloyd A. Rowland                                      |
|------------|--------|-----------------------------------------------------------|
| ** ** | Name:  | Lloyd A. Rowland                                          |
| ** ** | Title: | Vice President, Governance and Compliance, and  Secretary |
|            |        |                                                           |  |

** **

Second Amendment, Consentand Waiver

Signature Page

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| ** ** | **BANK OF AMERICA, N.A.,**as Administrative Agent |
|------------|---------------------------------------------------|
| ** ** | ** **                                        |
| ** ** | By:                                               | /s/ Brenda H. Little |
| ** ** | Name:                                             | Brenda H. Little |
| ** ** | Title:                                            | Vice President |
|            |                                                   |  |  |

 

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| ** ** | **BANK OF AMERICA, N.A.,**as a Revolving Credit Lender, L/C  Issuer and Hedge Bank under the Permitted F/X Facility |
|------------|---------------------------------------------------------------------------------------------------------------------|
| ** ** | ** **                                                                                                          |
| ** ** | By:                                                                                                                 | /s/ Karin Barnes |
| ** ** | Name:                                                                                                               | Karin Barnes |
| ** ** | Title:                                                                                                              | Senior Vice President |
|            |                                                                                                                     |  |  |

 

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| ** ** | **BANC OF AMERICA LEASING & CAPITAL, LLC,**as a Term  Lender |
|------------|-----------------------------------------------------------------------|
| ** ** | ** **                                                            |
| ** ** | By:                                                                   | /s/ Lori J. Noberini |
| ** ** | Name:                                                                 | Lori J. Noberini |
| ** ** | Title:                                                                | Vice President |
|            |                                                                       |  |  |

 

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| ** ** | **SILICON VALLEY BANK**, as a Term Lender |
|------------|-------------------------------------------|
| ** ** | ** **                                |
| ** ** | By:                                       | ** ** |
| ** ** | Name:                                     |   |
| ** ** | Title:                                    |   |
|            |                                           |  |  |

 

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| ** ** | **RBS ASSET FINANCE, INC.**, as a Term Lender |
|------------|-----------------------------------------------|
| ** ** | ** **                                    |
| ** ** | By:                                           | /s/ Lawrence S. Hershoff |
| ** ** | Name:                                         | Lawrence S. Hershoff |
| ** ** | Title:                                        | Senior Vice President |
|            |                                               |  |  |

 

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| ** ** | **COMERICA BANK**, as a Term Lender |
|------------|-------------------------------------|
| ** ** | ** **                          |
| ** ** | By:                                 | /s/ Greg Park |
| ** ** | Name:                               | Greg Park |
| ** ** | Title:                              | Vice President |
|            |                                     |  |  |

 

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| ** ** | **BMO CAPITAL MARKETS FINANCING, INC.**, as a Term Lender |
|------------|-----------------------------------------------------------|
| ** ** | ** **                                                |
| ** ** | By:                                                       | ** ** |
| ** ** | Name:                                                     |   |
| ** ** | Title:                                                    |   |
|            |                                                           |  |  |

 

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| ** ** | **FIRST BANK**, as a Term Lender |
|------------|----------------------------------|
| ** ** | ** **                       |
| ** ** | By:                              | ** ** |
| ** ** | Name:                            |   |
| ** ** | Title:                           |   |
|            |                                  |  |  |

 

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| ** ** | **UNION BANK OF CALIFORNIA, N.A.**, as a Term Lender |
|------------|------------------------------------------------------|
| ** ** | ** **                                           |
| ** ** | By:                                                  | /s/ Bruce Breslau |
| ** ** | Name:                                                | Bruce Breslau |
| ** ** | Title:                                               | Senior Vice President |
|            |                                                      |  |  |

 

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| ** ** | **AIB DEBT MANAGEMENT, LIMITED**, as a Term Lender |
|------------|----------------------------------------------------|
| ** ** | ** **                                         |
| ** ** | By:                                                | /s/ Brent Phillips |
| ** ** | Name:                                              | Brent Phillips |
| ** ** | Title:                                             | Vice President, Investment Advisor to AIB Debt  Management, Limited |
|            |                                                    |  |  |

 

 

| ** ** | By:    | /s/ Mia Bolin                                                                 |
|------------|--------|-------------------------------------------------------------------------------|
| ** ** | Name:  | Mia Bolin                                                                     |
| ** ** | Title: | Assistant Vice President, Investment Advisor to AIB  Debt Management, Limited |
|            |        |                                                                               |  |

 

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