a6025668ex10-3.htm


    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:

    


    
      	
              1.  

            	
              Lender
      Identity.  All references in the Credit Agreement to
      “Citizens Bank of Massachusetts” are hereby deleted and replaced with “RBS
      Citizens, National Association”.

            


    

     

    
      	
              2.  

            	
              Removal
      of AGTI as a Co-Borrower.  AGTI is hereby deleted as a
      co-borrower under the Credit
Agreement.

            


    

     

    
      	
              3.  

            	
              Amendment
      to Subsection 5.13.  Subsection 5.13 of the Credit
      Agreement is hereby deleted in its entirety and replaced with the
      following:

            


    

     

    
      	
              5.13

            	
              Cash, Cash
      Equivalents, Marketable Securities and
  Investments.

            


    

     

    
      	
               
      

            	
              (a)

            	
              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”).

            


    

     

    
      	
               
      

            	
              (b)

            	
              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.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    
      	
               
      

            	
              (c)

            	
              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.

            


    

     

    
      	
              4.  

            	
              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:

            


    

     

    
      	
               
      

            	
              “Treasury
      Desk”: CCO Investment Services
Corp.

            


    

    


    
      	
              5.  

            	
              Amendment
      to Appendix A to the Credit Agreement.  The text of
      the definition of “Obligations” contained in Appendix A of the Credit
      Agreement is hereby deleted in its entirety and replaced with the
      following:

            


    

     

    
      	
               
      

            	
              “Obligations”:  All
      Indebtedness, obligations and liabilities of the Borrowers to the Lender
      or its affiliates or subsidiaries, individually or collectively, now
      existing or hereafter arising, direct or indirect, joint or several,
      absolute or contingent, matured or unmatured, liquidated or unliquidated,
      secured or unsecured, arising by contract, operation of law or
      otherwise.

            


    

     

    
      	
              6.  

            	
              Amendment
      to Appendix A to the Credit Agreement.  The term and
      definition “Treasury Desk Investment” is hereby deleted and the following
      term and definition are inserted in its
place:

            


    

     

    
      	
               
      

            	
              “Treasury
      Investment(s)” as defined in subsection
  5.13(b).

            


    

    


    
      	
              7.  

            	
              Amendment
      to Master Disclosure Schedule. The Master Disclosure
      Schedule attached to the Credit Agreement is hereby deleted in its
      entirety and replaced with the attached Master Disclosure
      Schedule.

            


    

     

    
      	
              8.  

            	
              Waiver
      of Non-Compliance by Borrower with Certain Provisions of Credit
      Agreement.  Lender hereby waives compliance by the
      Borrowers with the Two Hundred Fifty Thousand Dollar limitation on
      Indebtedness contained in Section 6.2 for the sole purpose of permitting
      the Borrowers to enter into new capital leases with Conway Office Products
      L.L.C. and Dell Financial Services L.L.C. in the collective amount of up
      to, but not exceeding, Six Hundred Thousand
  Dollars.

            


    

     

    
      	
              9.  

            	
              No
      Further Amendments.  Except as amended hereby, all other
      provisions of the Credit Agreement shall remain in full force and
      effect.  After the effective date hereof, all references in the
      Credit Agreement and other Financing Documents shall be deemed to refer to
      the Credit Agreement as amended hereby, representing the entire expression
      of the parties with respect to the subject matter hereof on the date this
      Amendment is executed.

            


    

     

    
      	
              10.  

            	
              Ratification
      of Financing Documents.  By signing
      below, the Borrowers ratify and affirm the terms of the Credit Agreement
      (as amended hereby), the Note, the Security Agreements and all other
      Financing Documents executed in connection with any of the foregoing, and
      confirm and represent that each remains in full force and effect and that
      no default or event of default has occurred thereunder (except such
      defaults or events of default as have been waived in writing by the Lender
      on or before the date hereof or such defaults or events of default as the
      Borrowers have requested, in writing prior to the date hereof, the Lender
      to waive).

            


    

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

       

    

    
      	
              11.  

            	
              Governing
      Law.  This
      Amendment shall be governed in all respects by the laws of the
      Commonwealth of Massachusetts without regard to any conflicts of laws
      principles.

            


    

     

    
      	
              12.  

            	
              Descriptive
      Headings.  Descriptive
      headings are for convenience only and will not control or affect the
      meaning or construction of any provisions of this
    Amendment.

            


    

     

    
      	
              13.  

            	
              Counterparts.  This
      Amendment may be executed in any number of identical counterparts, each of
      which will constitute an original but all of which when taken together
      will constitute but one instrument.

            


    

     

    
      	
              14.  

            	
              Severability.  In the
      event one or more of the provisions of this Amendment should, for any
      reason, be held to be invalid, illegal or unenforceable in any respect,
      such invalidity, illegality, or unenforceability shall not affect any
      other provisions of this Amendment, and this Amendment shall be construed
      as if such invalid, illegal or unenforceable provision had never been
      contained herein.

            


    

     

    
      	
               
      

            	
              WITNESS
      our hands and seals as of the date set forth
  above.

            


    

    


    


    


    [signatures contained on following
page]

    


    


    


    
      
         

      

      
        3

        
          

        

      

      
         

      

    

    


    
      
        
          
            	WITNESS
      AS TO BORROWERS:	 	ARIAD
      PHARMACEUTICALS, INC.	 
	 	 	 	 	 
	
                    /s/
      Dain K. Waters

                  	 	
                    By: 
      

                  	
                    /s/
      Edward M. Fitzgerald

                  	 
	
                    Name:  Dain
      K. Waters

                  	 	 	
                    Name:  Edward
      M. Fitzgerald

                  	 
	
                     

                  	 	 	
                    Title:  Senior
      Vice President, Chief Financial Officer

                  	 


          

        

      

    

     

     

    
      
        
          
            
              
                	 	 	ARIAD
      CORPORATION	 
	 	 	 	 	 
	
                         

                      	 	
                        By: 
      

                      	
                        /s/
      Edward M. Fitzgerald

                      	 
	
                         

                      	 	 	
                              
                          Name:  Edward
      M. Fitzgerald

                        

                      	 
	
                         

                      	 	 	
                        Title:  Vice
      President

                      	 


              

            

          

        

      

    

     

     

    
      
        
          
            
              
                	WITNESS
      AS TO LENDER:	 	RBS
      CITIZENS, NATIONAL ASSOCIATION
	 	 	 	 	 
	
                         

                      	 	
                        By: 
      

                      	
                        /s/
      Scott Haskell

                      	 
	
                        Name:
      

                      	 	 	
                              
                          Scott
      Haskell, Senior Vice President

                        

                      	 
	
                         

                      	 	 	
                         

                      	 


              

            

          

        

      



     

     

    
 

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

     

    CREDIT
AGREEMENT

    (the “Agreement”)

     

    by and
between

     

    RBS
CITIZENS, NATIONAL ASSOCIATION

     

    (the
“Lender”)

     

    and

     

    ARIAD
PHARMACEUTICALS, INC. and

    ARIAD
CORPORATION

    (each
individually, a "Borrower"
and collectively, the “Borrowers”)

    


     

    MASTER DISCLOSURE
SCHEDULE

     

    The
Borrowers, jointly and severally, represent and warrant to the Lender that the
statements contained in Section 4 of the Agreement are true, correct and
complete as of the date of the Agreement, except as set forth in this Master
Disclosure Schedule (as the same may be supplemented, from time to time,
the “Master
Disclosure Schedule”).  The Master
Disclosure Schedule is arranged in sections corresponding to the lettered and
numbered sections contained in Section 4 of the Agreement.

     

    
      
        	
                 
      

              	
                4.6

              	
                No
      exceptions except ongoing litigation as a plaintiff against Eli Lilly and
      Company and against Amgen Inc. and certain affiliated entities as
      described in ARIAD Pharmaceuticals, Inc.’s Form 10-Q for the fiscal
      quarter ended September 30, 2007, filed on November 9,
    2007.

              
	 	 	 
	 	4.15	ARIAD
      Pharmaceuticals, Inc. has the following
subsidiaries:


      

    

               

    ARIAD
Corporation (100% owned)

    ARIAD
Pharma S.A. (99% owned)

    ARIAD
Pharma Ltd. (100% owned)

    


    
      ARIAD
Corporation has the following subsidiaries:

    

    


    
      ARIAD
Pharma S.A. (1% owned)

    

     

     

    
 

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

    


    Appendix
A to Compliance Certificate

    ARIAD
Pharmaceuticals, Inc.

    ARIAD
Corporation

    


    


    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                	
                                        I.
      Total Balance
      Sheet Cash & Investments:

                                      	 
      
	
                                        1.
      Total Cash & Investments:

                                      	 
      
	
                                        2. 
      Required Total Cash & Investments Per Covenant:

                                      	
                                        $15,000,000

                                      
	
                                        3. Excess
      / (Deficit) (#1-#2)

                                      	 
      
	 
      	 
      
	
                                        II. Treasury
      Investments:

                                      	 
      
	
                                        3.
      Borrower’s Treasury Investments:

                                      	 
      
	
                                        4.
      Required Treasury Investments (#1*85%)#:

                                      	 
      
	
                                        5.
      Minus Excess Investments (#1-$17MM*85%)##:

                                      	 
      
	
                                        6. Adjusted
      Treasury Investment Requirement (#4-#5):

                                      	 
      
	
                                        7. Excess
      / (Deficit) Treasury Investments (#3-#6):

                                      	 
      
	 
      	 
      
	
                                        III. Treasury
      Investment Summary:

                                      	 
      
	
                                        Government
      Securities:

                                      	 
      
	
                                        Commercial
      Paper:

                                      	 
      
	
                                        Citizens
      Certificate of Deposits:

                                      	 
      
	
                                        Treasury
      Bills:

                                      	 
      
	
                                        Total
      (Equals #3):

                                      	 
      


                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    #       Per
Section 5.13(b) Paragraph 1.

    ##     Per
Section 5.13(b) Paragraph 2.

    


    

      6