PURSUANT TO THIS LOAN AGREEMENT, OR ANY OTHER LOAN
DOCUMENT, WHETHER PRINCIPAL, INTEREST, OR OTHERWISE, SHALL BE PAID, WHEN DUE,
DIRECTLY TO LILLY AT THE OFFICE OF LILLY IDENTIFIED IN THE OPENING PARAGRAPH OF
THIS LOAN AGREEMENT, OR AT SUCH OTHER LOCATION AS LILLY MAY DESIGNATE IN WRITING
TO AMYLIN FROM TIME TO TIME, IN IMMEDIATELY AVAILABLE UNITED STATES FUNDS, AND
WITHOUT SETOFF, DEDUCTION OR COUNTERCLAIM.
3.8
OPTIONAL PREPAYMENTS.
AMYLIN MAY PREPAY THE
OUTSTANDING INDEBTEDNESS, IN WHOLE OR IN PART, WITHOUT PREMIUM OR PENALTY, AT
ANY TIME AND FROM TIME TO TIME.
ANY PARTIAL PREPAYMENT SHALL BE APPLIED FIRST
TO ANY INDEBTEDNESS CONSISTING OF AMOUNTS OTHER THAN PRINCIPAL AND INTEREST,
SECOND TO ACCRUED BUT UNPAID INTEREST AND FINALLY TO OUTSTANDING PRINCIPAL.
ANY
PARTIAL PREPAYMENT APPLIED TO OUTSTANDING PRINCIPAL SHALL BE DEEMED APPLIED TO
THE OUTSTANDING ADVANCES IN THE ORDER IN WHICH THEY WERE MADE.
3.9
COLLECTION COSTS.
ALL AMOUNTS PAYABLE BY
AMYLIN UNDER ANY OF THE LOAN DOCUMENTS SHALL BE PAYABLE WITH ALL COLLECTION
COSTS AND REASONABLE ATTORNEYS' FEES.
SECTION 4.
CONDITIONS PRECEDENT
4.1
CONDITIONS PRECEDENT TO DISBURSEMENT OF
ADVANCES. THE OBLIGATION OF LILLY TO MAKE ANY ADVANCE, INCLUDING THE INITIAL
ADVANCE HEREUNDER, SHALL BE SUBJECT TO THE SATISFACTION
6
OF EACH OF THE FOLLOWING CONDITIONS PRECEDENT ON OR BEFORE ANY DISBURSEMENT
UNDER SUCH ADVANCE:
(A)
REPRESENTATIONS AND WARRANTIES.
EACH OF
THE REPRESENTATIONS AND WARRANTIES OF AMYLIN IN THIS LOAN AGREEMENT SHALL BE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE OF THE
APPLICABLE BORROWING REQUEST WITH THE SAME EFFECT AS THOUGH SUCH REPRESENTATIONS
AND WARRANTIES HAD BEEN MADE ON AND AS OF SUCH DATE, EXCEPT THAT REPRESENTATIONS
AND WARRANTIES MADE AS OF A PARTICULAR DATE SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ONLY AS OF SUCH PARTICULAR DATE.
(B)
PERFORMANCE.
AMYLIN SHALL HAVE PERFORMED
ALL MATERIAL OBLIGATIONS AND AGREEMENTS AND COMPLIED WITH ALL MATERIAL COVENANTS
TO BE PERFORMED OR COMPLIED WITH BY IT ON OR BEFORE THE DATE OF THE APPLICABLE
BORROWING REQUEST PURSUANT TO THE LOAN DOCUMENTS.
(C)
COLLABORATION AGREEMENT IN EFFECT.
THE
COLLABORATION AGREEMENT SHALL NOT HAVE BEEN TERMINATED PURSUANT TO ITS TERMS,
AND NEITHER LILLY NOR AMYLIN SHALL HAVE GIVEN WRITTEN NOTICE OF ITS INTENTION TO
TERMINATE THE COLLABORATION AGREEMENT.
(D)
NO DEFAULT.
NO EVENT OF DEFAULT SHALL HAVE
OCCURRED AND BE CONTINUING.
(E)
CERTIFICATE.
THE APPLICABLE BORROWING
REQUEST SHALL INCLUDE A CERTIFICATION BY AMYLIN'S CHIEF FINANCIAL OFFICER, DATED
THE DATE OF THE APPLICABLE BORROWING REQUEST, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO LILLY, TO THE EFFECT THAT THE CONDITIONS PRECEDENT SET FORTH IN
THIS SECTION 4.1 HAVE BEEN SATISFIED.
4.2
CLOSING DOCUMENTS.
AMYLIN SHALL PROVIDE TO
LILLY ON THE EFFECTIVE DATE EACH OF THE FOLLOWING:
(A)
NOTE.
THE NOTE, DULY AUTHORIZED, EXECUTED
AND DELIVERED BY AMYLIN, AND IN COMPLIANCE WITH THE TERMS OF THIS LOAN
AGREEMENT.
(B)
CORPORATE DOCUMENTS.
A CERTIFICATE OF GOOD
STANDING WITH RESPECT TO AMYLIN, ISSUED BY THE DELAWARE SECRETARY OF STATE AND
REFLECTING AMYLIN'S EXISTENCE IN GOOD STANDING AND PAYMENT OF ALL APPLICABLE