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:


 


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“Base Rate”
means for any day a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate plus 1⁄2 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)           After giving effect to this
Amendment, each Loan Party is in compliance in all material respects with all
the terms and conditions of the Amended Credit Agreement and the other Loan
Documents on its part to be observed or performed and no Default or Event of
Default has occurred or is continuing under the Amended Credit Agreement.


 


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


 


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


 


(e)           The execution, delivery, performance
and compliance with the terms and provisions by such Borrower of this Amendment
and the consummation of the transactions contemplated herein, do not and will
not: (i) contravene the terms of any of such Borrower’s Organization Documents;
(ii) conflict with or result in any breach or contravention of, or (except
for the Liens created under the Loan Documents) the creation of any Lien under,
(A) any material Contractual Obligation to which such Borrower is a party
affecting such Borrower or the properties of such Borrower or its Subsidiaries
or (B) any material order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Borrower or its property is
subject or (C) violate any Law in any material respect.


 


(f)            No default or event of default has
occurred and is continuing under the Senior 2004 Notes, and no default or event
of default shall occur under the Senior 2004 Notes upon the occurrence of a
Specified Change of Control.


 


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


 


(a)           The Administrative Agent shall have
received duly executed counterparts of this Amendment which, when taken
together, bear the authorized signatures of the Borrower, the Administrative
Agent and the Required Lenders.


 


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


 


(c)           The Administrative Agent on behalf of
the Lenders shall have received such other documents, instruments and
certificates as they shall reasonably request and such other documents,
instruments and certificates shall be satisfactory in form and substance to the
Lenders and their counsel.  All corporate
and other proceedings taken or to be taken in connection with this Amendment
and all documents incidental thereto, whether or not referred to herein, shall
be 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, within
ten (10) days following the occurrence of a Specified Change of Control,
the Borrowers have (a) repaid in full in cash the aggregate outstanding
Loans under the Amended Credit Agreement, (b) terminated the 


 


4

















 


Revolving
Credit Facility, (c) fully Cash Collateralized the Outstanding Amount of
L/C Obligations and the Permitted FX Facility under the Amended Credit
Agreement and (d) terminated the Letter of Credit Sublimit in accordance
with Section 2.06 of the Amended Credit Agreement, the Borrowers will pay,
immediately upon the expiration of such ten day period following the occurrence
of a Specified Change of Control, to the Administrative Agent, for the account
of each consenting Lender (including Bank of America and BALC) party hereto, a
fee (the “Upfront Fee”) in an amount equal
to 50 bps times the aggregate outstanding Loans, participations in
Letters of Credit and available Revolving Credit Commitments of each consenting
Lender.  The Upfront Fee described above
is the same “Upfront Fee” as is described in the Engagement Letter, shall be
for 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 occurrence
of a Specified Change of Control. In addition, the Borrowers promptly shall pay all
costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and the other instruments
and documents to be delivered hereunder (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent) in
accordance with and to the extent required by the terms of Section 10.04(a) of
the Amended Credit Agreement.


 


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


 


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


 


[Signature pages follow]


 


5

















 


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


 




	
   

  	
  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, Consent
and Waiver


Signature Page


 

















 




	
   

  	
  BANK OF AMERICA, N.A., as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brenda H. Little

  
	
   

  	
  Name:

  	
  Brenda H. Little

  
	
   

  	
  Title:

  	
  Vice President

  
				






 



















	
   

  	
  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

  
				






 
















 




	
   

  	
  BANC OF AMERICA LEASING & CAPITAL, LLC,
  as a Term
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lori J. Noberini

  
	
   

  	
  Name:

  	
  Lori J. Noberini

  
	
   

  	
  Title:

  	
  Vice President

  
				






 

















 




	
   

  	
  SILICON VALLEY BANK, as a Term Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				






 

















 




	
   

  	
  RBS ASSET FINANCE, INC., as a Term Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence S. Hershoff

  
	
   

  	
  Name:

  	
  Lawrence S. Hershoff

  
	
   

  	
  Title:

  	
  Senior Vice President

  
				






 

















 




	
   

  	
  COMERICA BANK, as a Term Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Greg Park

  
	
   

  	
  Name:

  	
  Greg Park

  
	
   

  	
  Title:

  	
  Vice President

  
				






 

















 




	
   

  	
  BMO CAPITAL MARKETS FINANCING, INC., as a Term Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				






 

















 




	
   

  	
  FIRST BANK, as a Term Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				






 

















 




	
   

  	
  UNION BANK OF CALIFORNIA, N.A., as a Term Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Breslau

  
	
   

  	
  Name:

  	
  Bruce Breslau

  
	
   

  	
  Title:

  	
  Senior Vice President

  
				






 

















 




	
   

  	
  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