outstanding Indebtedness.
1.2
ACCOUNTING TERMS.
ALL ACCOUNTING TERMS NOT
SPECIFICALLY DEFINED IN THIS LOAN AGREEMENT SHALL BE DETERMINED AND CONSTRUED IN
ACCORDANCE WITH GAAP.
1.3
SINGULAR AND PLURAL.
WHERE THE CONTEXT HEREIN
REQUIRES, THE SINGULAR NUMBER SHALL BE DEEMED TO INCLUDE THE PLURAL, THE
MASCULINE GENDER SHALL INCLUDE THE FEMININE AND NEUTER GENDERS, AND VICE VERSA.
1.4
ELEMENTS OF THIS AGREEMENT.
WHEN A REFERENCE
IS MADE IN THIS LOAN AGREEMENT TO THE RECITALS, ARTICLES, SECTIONS, EXHIBITS OR
SCHEDULES, SUCH REFERENCE IS TO A RECITAL, ARTICLE OR SECTION OF, OR AN
EXHIBIT OR SCHEDULE TO, THIS LOAN AGREEMENT, UNLESS OTHERWISE INDICATED.
SECTION 2.
AMOUNT AND TERMS OF CREDIT
2.1
COMMITMENT. SUBJECT TO THE TERMS AND
CONDITIONS OF THIS LOAN AGREEMENT, LILLY AGREES TO MAKE ADVANCES TO AMYLIN FROM
TIME TO TIME BEGINNING ON DECEMBER 1, 2009 AND ENDING ON JUNE 30, 2011 (THE
"ADVANCE PERIOD"). NOTWITHSTANDING ANY OTHER PROVISION OF THIS
4
LOAN AGREEMENT, THE AGGREGATE PRINCIPAL AMOUNT OF ALL ADVANCES OUTSTANDING AT
ANY TIME SHALL NOT EXCEED THE AMOUNT OF THE LOAN COMMITMENT AS OF SUCH TIME.
THE ADVANCES SHALL BE EVIDENCED BY THE NOTE EXECUTED BY AMYLIN IN THE ORIGINAL
PRINCIPAL AMOUNT OF THE LOAN COMMITMENT, AND MAY BE USED BY AMYLIN FOR GENERAL
CORPORATE PURPOSES.
2.2
REQUESTS FOR ADVANCES.
AMYLIN MAY REQUEST, NO
MORE FREQUENTLY THAN TWO (2) TIMES IN ANY CALENDAR YEAR, AN ADVANCE (EACH SUCH
REQUEST, A "BORROWING REQUEST") BY DELIVERING TO LILLY A WRITTEN REQUEST, WHICH
MUST ALSO PROVIDE DISBURSEMENT INSTRUCTIONS AND INCLUDE THE CERTIFICATIONS
REFERRED TO IN SECTION 4.1.
AMYLIN SHALL PROVIDE THE AMOUNT (WHICH AMOUNT SHALL
NOT BE LESS THAN $50,000,000) AND DATE OF SUCH ADVANCE (WHICH DATE MUST BE A
BUSINESS DAY NOT EARLIER THAN FORTY-FIVE (45) BUSINESS DAYS FOLLOWING THE DATE
OF DELIVERY OF SUCH BORROWING REQUEST) WITH RESPECT TO AND AT THE TIME OF EACH
BORROWING REQUEST; PROVIDED, HOWEVER, THAT THE DATE OF THE ADVANCE MAY FOLLOW
THE DATE OF DELIVERY OF THE BORROWING REQUEST BY ONLY ONE (1) BUSINESS DAY IF
THE FULL AMOUNT OF SUCH ADVANCE IS TO BE APPLIED BY LILLY TO AMOUNTS OWING BY
AMYLIN TO LILLY PURSUANT TO THE COLLABORATION AGREEMENT (I.E., AMYLIN'S
APPLICATION OF THE PROCEEDS OF SUCH ADVANCE MUST BE CONSISTENT WITH THE USE OF
PROCEEDS COVENANT SET FORTH IN THIS LOAN AGREEMENT).
2.3
DISBURSEMENT OF ADVANCES.
SUBJECT TO THE
TERMS AND CONDITIONS OF THIS LOAN AGREEMENT, LILLY SHALL MAKE AVAILABLE TO
AMYLIN THE AMOUNT OF THE ADVANCE REQUESTED IN ACCORDANCE WITH THE APPLICABLE
BORROWING REQUEST.
SECTION 3.
INTEREST AND PAYMENTS
3.1
INTEREST.
ALL INDEBTEDNESS OUTSTANDING FROM
TIME TO TIME SHALL BEAR INTEREST AT A RATE PER ANNUM EQUAL TO LIBOR PLUS FIVE
AND ONE QUARTER PERCENT (LIBOR + 5.25%) COMPOUNDED ANNUALLY; PROVIDED, HOWEVER,
THAT FROM AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, THE OUTSTANDING
INDEBTEDNESS SHALL BEAR INTEREST AT A RATE PER ANNUM EQUAL TO THE GREATER OF
(A) ELEVEN PERCENT (11.0%) PER ANNUM, OR (B) LIBOR PLUS FIVE AND ONE QUARTER
PERCENT (LIBOR + 5.25%).
INTEREST SHALL BE