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Exhibit 10.40
CREDIT AGREEMENT
This Agreement is made by and between Amylin Pharmaceuticals, Inc.
("Borrower") and Imperial Bank, a California banking corporation, ("Bank").
In consideration of mutual covenants and conditions hereof, the parties
hereto agree as follows:
1. REPRESENTATIONS OF BORROWER
Borrower represents and warrants that:
1.01 EXISTENCE AND RIGHTS. Borrower is a corporation duly organized and existing
and in good standing under the laws of Delaware, without limit as to the
duration of its existence and is authorized and in good standing to do business
in the State of California; Borrower has corporate powers and adequate
authority, rights and franchises to own its property and to carry on its
business as now conducted, and is duly qualified and in good standing in each
State in which the character of the properties owned by it therein or the
conduct of its business makes such qualification necessary; and Borrower has the
power and adequate authority to make and carry out this Agreement
1.02 AGREEMENT AUTHORIZED. The execution, delivery and performance of this
Agreement are duly authorized and do not require the consent or approval of any
governmental body or other regulatory authority; are not in contravention of or
in conflict with any law or regulation or any term or provision of Borrower's
certificate of incorporation or by-laws, as the case may be, and this Agreement
is the valid, binding and legally enforceable obligation of Borrower in
accordance with its terms; subject only to bankruptcy, insolvency or similar
laws affecting creditors rights generally.
1.03 NO CONFLICT. The execution, delivery and performance of this Agreement are
not in contravention of or in conflict with any material agreement, indenture or
undertaking to which Borrower is a party or by which it or any of its property
may be bound or affected, and do not cause any lien, charge or other encumbrance
to be created or imposed upon any such property by reason thereof.
1.04 LITIGATION. Except as set forth in the Borrower's most recent Form 10-Q
filed with the Securities and Exchange Commission, there is no litigation or
other proceeding pending or threatened against or affecting Borrower which if
determined adversely to Borrower or its interest would have a material adverse
effect on the financial condition of Borrower, and Borrower is not in default
with respect to any order, writ, injunction, decree or demand of any court or
other governmental or regulatory authority.
1.05 FINANCIAL CONDITION. The balance sheet of Borrower as of September 30,
1997, a copy of which has heretofore been delivered to Bank by Borrower, and all
other material statements and data submitted in writing by Borrower to Bank in
connection with this request for credit are to the best of Borrower's knowledge
true and correct, and said balance sheet truly presents the financial condition
of Borrower as of the date thereof, and has been prepared in accordance with
generally accepted accounting principles on a basis consistently maintained.
Since September 30, 1997, there have been no material adverse changes to
Borrower's financial condition. Borrower has no knowledge of any liabilities,
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CREDIT AGREEMENT
JANUARY 15, 1998
contingent or otherwise, at September 30, 1997 not reflected in said balance
sheet, and Borrower has not entered into any special commitments or substantial
contracts which are not reflected in said balance sheet, other than in the
ordinary and normal course of its business, which may have a materially adverse
effect upon its financial condition, operations or business as now conducted.
1.06 TITLE TO ASSETS. Borrower has good title to its assets, and the same are
not subject to any liens or encumbrances other than those permitted by Section
3.03 hereof.
1.07 TAX STATUS. Borrower has no liability for any delinquent state, local or
federal taxes, and, if Borrower has contracted with any government agency,
Borrower has no liability for re-negotiation of profits.
1.08 TRADEMARKS, PATENTS. Except as set forth in the Borrower's most recent Form
10-Q filed with the Securities and Exchange Commission, Borrower, as of the date
hereof, possesses all necessary trademarks, trade names, copyrights, patents,
patent rights, and licenses to conduct its business as now operated, without any
known conflict with the valid trademarks, trade names, copyrights, patents and
license rights of others.
1.09 REGULATION U. None of the proceeds of any loan from the Bank to Borrower
shall be used to purchase or carry margin stock (as defined within Regulation U
of the Board of Governors of the Federal Reserve system).
2. LOAN COMMITMENT
2.01 LOAN COMMITMENT. Subject to the terms of this Agreement and the related
documents specified in section 2.05 below, Bank hereby agrees to make periodic
advances ("Advances") to Borrower from time to time during the Commitment Period
(defined below), not to exceed at any time the aggregate principal amount of two
million seven hundred thousand dollars ($2,700,000) (the "Credit Facility").
2.03 COMMITMENT PERIOD. Bank's obligation to make Advances to Borrower hereunder
shall commence as of January 1, 1998 and continue until December 31, 1998
subject to the provisions of Section 5 of this Agreement (the "Commitment
Period").
2.04 ADVANCE REQUESTS. Advance requests shall be evidenced by an Advance Request
form substantially in the form of Exhibit A hereto and duly executed by an
authorized officer of Borrower (the "Advance Request"). Each Advance shall be
repaid by Borrower pursuant to the terms of the Note in an amount of up to two
million seven hundred thousand dollars ($2,700,000) of even date herewith (the
"Note"). Advance Requests shall specify (a) the amount of the Advance requested
by Borrower, (b) the requested disbursement date therefor, and (c) disbursement
instructions in the form of either account information for a Borrower account at
Bank into which proceeds should be deposited, or outgoing wire transfer
instructions. Following the receipt of any properly executed Advance Request,
Bank shall disburse the Advance in lawful money of the United States of America
in accordance with such Advance Request.
2.05 LOAN DOCUMENTS. Notwithstanding any contrary provision of the Agreement,
each Advance pursuant to the Agreement shall be made subject to and in
accordance with each of the
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CREDIT AGREEMENT
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following (together with this Agreement, collectively referred to as the "Loan
Documents"), all of which are hereby incorporated herein and made a part hereof:
a. Note dated January 15, 1998 between Borrower and Bank.
b. Agreement to Provide Insurance (Real or Personal Property)
dated January 15, 1998, executed by Borrower.
c. General Security Agreement (Tangible and Intangible
Personal Property) dated January 15, 1998, executed by Borrower.
d. Corporate Resolution Regarding Credit dated January 15,
1998, executed by Borrower.
3. AFFIRMATIVE COVENANTS OF BORROWER
Borrower agrees that so long as it is indebted to Bank, under
borrowings, or other indebtedness, it will, unless Bank shall otherwise consent
in writing:
3.01 RIGHTS AND FACILITIES. Maintain and preserve all rights, franchises and
other authority adequate for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and, if a
corporation or partnership, maintain and preserve its existence.
3.02 INSURANCE. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property against fire
and other hazards with responsible insurance carriers to the extent usually
maintained by similar businesses and/or in the exercise of good business
judgment and as to property insurance have Bank named as loss payee in an
Lenders "Loss Payable" Endorsement Form 438BFU or equivalent.
3.03 TAXES AND OTHER LIABILITIES. Pay and discharge, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments and
governmental charges upon or against it or any of its properties, and all its
other liabilities at any time existing, except to the extent and so long as:
a. The same are being contested in good faith and by appropriate
proceedings in such manner as not to cause any materially adverse
affect upon its financial condition or the loss of any right of
redemption from any sale thereunder; and
b. It shall have set aside on its books reserves (segregated to
the extent required by generally accepted accounting practice)
deemed by it adequate with respect thereto.
3.04 FINANCIAL COVENANTS.
a. LIQUIDITY COVENANT. Have and maintain a balance of cash, cash
equivalents, and Short-Term Investments ("Liquidity") of at least
$10,000,000.00. If Liquidity falls below $10,000,000.00, Borrower
shall provide collateral in the form of cash or cash equivalents
to Bank equal to 50% of the outstanding amount of the loan.
Following the pledge of such collateral in conjunction with a
violation of this Liquidity covenant, if Borrower
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CREDIT AGREEMENT
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subsequently complies with this Liquidity covenant and other
terms and conditions of its indebtedness to Bank, the collateral
shall be returned to the Borrower. "Short-Term Investments" are
defined as readily negotiable "Margin Stocks" as defined by
Regulation U with a per-share market value of no less than
$5.00; or municipal, corporate, or United States Government debt
instruments rated "Baa" or higher. Borrower may also include in
this Liquidity covenant monies contractually available to
Borrower from Xxxxxxx & Xxxxxxx which are not subject to
cancellation or restriction by Xxxxxxx & Xxxxxxx; such monies
may be included in this Liquidity covenant for no more than two
consecutive fiscal quarters in any one fiscal year.
3.05 RECORDS AND REPORTS. Maintain a standard and modern system of accounting in
accordance with generally accepted accounting principles on a basis consistently
maintained; permit Bank's representatives to have access to, and to examine its
properties, books and records at all reasonable times and upon reasonable notice
during normal business hours; and furnish Bank:
a. QUARTERLY FINANCIAL STATEMENT. Within forty-five (45) days
after the close of each quarter of each fiscal year of Borrower,
commencing with the quarter next ending, Form 10-Q as required
by the Securities and Exchange Commission;
b. ANNUAL FINANCIAL STATEMENT. As soon as available, and in any
event within ninety (90) days after the close of each fiscal
year of Borrower, Form 10-K as required by the Security and
Exchange Commission;
c. CERTIFICATION OF CHIEF FINANCIAL OFFICER. Within ninety (90)
days after the end of each fiscal year of Borrower, a
certificate of chief financial officer of Borrower, delivered on
behalf of Borrower, stating that Borrower has performed and
observed in all material respects each and every covenant
contained in this Agreement to be performed by it and that no
event has occurred and no condition then exists which
constitutes an event of default hereunder or would constitute
such an event of default upon the lapse of time or upon the
giving of notice and the lapse of time specified herein; or, if
any such event has occurred or any such condition exists,
specifying the nature thereof;
d. LIQUIDITY STATEMENT. Within 21 days of each month end of
Borrower, a cash, cash equivalent and Short-Term Investment
position statement executed by an authorized officer of
Borrower.
e. MANAGEMENT LETTER. In connection with each fiscal year end
financial statement furnished to Bank hereunder, any management
letter of Borrower's independent certified public accountant.
3.06 NOTICE OF DEFAULT. Promptly notify Bank in writing of the occurrence of any
Event of Default hereunder ("Event of Default") or any event which upon notice
and lapse of time would be an Event of Default.
3.07 ATTORNEY'S FEES. Pay promptly to Bank without demand after notice, with
interest thereon from the date of expenditure at the rate applicable to any
loans from Bank to Borrower, reasonable attorneys' fees and all costs and
expenses paid or incurred by Bank in collecting or
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CREDIT AGREEMENT
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compromising any such loan after the occurrence of an Event of Default, whether
or not suit is filed. If suit is brought to enforce any provision of this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and court costs in addition to any other remedy or recovery
awarded by the court.
4. NEGATIVE COVENANTS OF BORROWER
Borrower agrees that so long as it is indebted to Bank, it will
not, without Bank's written consent, which consent shall not be unreasonably
withheld:
4.01 TYPE OF BUSINESS. Make any substantial change in the character of its
business.
4.02 LIENS AND ENCUMBRANCES. Other than in the ordinary course of business,
create, incur, or assume any mortgage, pledge, encumbrance, lien or charge of
any kind upon any asset now owned, other than liens for taxes not delinquent and
liens in Bank's favor, except for those already existing as of September 30,
1997.
4.03 LOANS, INVESTMENTS, SECONDARY LIABILITIES. Make any loans or advances to
any person or other entity other than in the ordinary and normal course of its
business and consistent with past practices or make any investment in the
securities of any person or other entity other than the United States
Government; or guarantee or otherwise become liable upon the obligation of any
person or other entity, except by endorsement of negotiable instruments for
deposit or collection in the ordinary and normal course of its business and
consistent with past practices.
4.04 ACQUISITION OR SALE OF BUSINESS; MERGER OR CONSOLIDATION. Except in the
ordinary course of business or for the betterment of the business, purchase or
otherwise acquire the assets or business of any person or other entity; or
liquidate, dissolve, merge or consolidate, or commence any proceedings therefor;
or sell any assets except in the ordinary course of its business or for the
betterment of the business; or except in the ordinary course of business or for
the betterment of the business, sell, lease assign or transfer any substantial
part of its business or fixed assets, or any property or other assets necessary
for the continuance of its business as now conducted, including without
limitation the selling of any dividends, property or other asset accompanied by
the leasing back of the same.
5. EVENTS OF DEFAULT
The occurrence of any of the following Events of Default shall,
at Bank's option, terminate Bank's commitment to lend and make all sums of
principal and interest then remaining unpaid on all Borrower's indebtedness to
Bank immediately due and payable, all without demand, presentment or notice, all
of which are hereby expressly waived:
5.01 FAILURE TO PAY. Failure to pay any installment of principal or interest on
any indebtedness of Borrower to Bank within five (5) days after notice is
delivered to Borrower that the indebtedness is past-due.
5.02 BREACH OF COVENANT. Failure of Borrower to perform any other term or
condition of this Agreement binding upon Borrower if such failure is not
remedied within ten (10) days after written notice is received from Bank.
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5.03 BREACH OF WARRANTY. Any of Borrower's representations or warranties made
herein or any statement or certificate at any time given in writing pursuant
hereto or in connection herewith shall be false or misleading in any respect.
5.04 INSOLVENCY; RECEIVER OR TRUSTEE. Borrower shall become insolvent; or admit
its inability to pay its debts as they mature; or make an assignment for the
benefit of creditors; or apply for or consent to the appointment of a receiver
or trustee for it or for a substantial part of its property or business.
5.05 JUDGMENTS, ATTACHMENTS. Any money judgment, writ or warrant of attachment,
or similar process shall be entered or filed against Borrower or any of its
assets and shall remain unvacated, unbonded or unstayed for a period later than
five days prior to the date of any proposed sale thereunder.
5.06 BANKRUPTCY. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against Borrower and, if
instituted against it, shall be consented to.
6. MISCELLANEOUS PROVISIONS
6.01 FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of Bank
or any holder of any note issued by Borrower to Bank, in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under this Agreement or any note issued in
connection with a loan that Bank may make hereunder, are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
6.02 ADDITIONAL REMEDIES. The rights, powers and remedies given to Bank
hereunder shall be cumulative and not alternative and shall be in addition to
all rights, powers and remedies given to Bank by law against Borrower or any
other person, including but not limited to Bank's rights of setoff or banker's
lien.
6.03 INUREMENT. The benefits of this Agreement shall inure to the successors and
assigns of Bank and the permitted successors and assigns of Borrower.
6.04 INTENTIONALLY LEFT BLANK.
6.05 OFFSET. In addition to and not in limitation of all rights of offset that
Bank or other holder of any note issued by Borrower in favor of Bank may have
under applicable law, Bank or other holder of such notes shall, upon the
occurrence of any Event of Default or any event which with the passage of time
or notice would constitute such an Event of Default, have the right to
appropriate and apply to the payment of the outstanding under any such note any
and all balances, credits, deposits, accounts or monies of Borrower then or
thereafter with Bank or other holder, within ten (10) days after the Event of
Default, and notice of the occurrence of any Event of Default by Bank to
Borrower.
6.06 SEVERABILITY. Should any one or more provisions of the Agreement be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
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6.07 TIME OF THE ESSENCE. Time is hereby declared to be of the essence of this
Agreement and of every part hereof.
6.08 INTEGRATION CLAUSES. Except for documents and instruments specifically
referenced herein, the Agreement constitutes the entire agreement between Bank
and Borrower regarding any loan or loans from Bank to Borrower, and all prior
communications verbal or written between Borrower and Bank shall be of no
further effect or evidentiary value. In the event of a conflict or inconsistency
among any other documents and instruments and this Agreement, the provisions of
this Agreement shall prevail.
6.09 ACCOUNTING. All accounting terms shall have the meanings applied under
generally accepted accounting principles unless otherwise specified.
6.10 MODIFICATION. This Agreement may be modified only by a writing signed by an
authorized representative of each party hereto.
6.11 NOTICES. All communications and notices hereunder shall be in writing and
shall be transmitted to Borrower and Bank at:
Borrower: Amylin Pharmaceuticals, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
Bank: Imperial Bank
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Regional Vice President
Tel: (000) 000-0000
Fax: (000) 000-0000
7. GOVERNING LAW; JUDICIAL REFERENCE.
7.01 GOVERNING LAW. This Agreement shall be deemed to have been made in the
State of California and the validity, construction, interpretation, and
enforcement hereof, and the rights of the parties hereto, shall be determined
under, governed by, and construed in accordance with the internal laws of the
State of California, without regard to principles of conflicts of law.
7.02 JUDICIAL REFERENCE.
(a) Other than (i) nonjudicial foreclosure and all matters in connection
therewith regarding security interests in real or personal property; or (ii) the
appointment of a receiver, or the exercise of other provisional remedies (any
and all of which may be initiated pursuant to applicable law), each controversy,
dispute or claim between the parties arising out of or relating to this
Agreement, which controversy, dispute or claim is not settled in writing within
thirty (30) days after the "Claim Date" (defined as the date on which a party
subject to this Agreement gives written notice to all other parties that a
controversy, dispute or claim exists), will be
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settled by a reference proceeding in California in accordance with the
provisions of Section 638 et seq. of the California Code of Civil Procedure, or
their successor section ("CCP"), which shall constitute the exclusive remedy for
the settlement of any controversy, dispute or claim concerning this Agreement,
including whether such controversy, dispute or claim is subject to the reference
proceeding and except as set forth above, the parties waive their rights to
initiate any legal proceedings against each other in any court or jurisdiction
other than the Superior Court in the County where the Real Property, if any, is
located or Los Angeles County if none (the "Court"). The referee shall be a
retired Judge of the Court selected by mutual agreement of the parties, and if
they cannot so agree within forty-five (45) days after the Claim Date, the
referee shall be promptly selected by the Presiding Judge of the Court (or his
representative). The referee shall be appointed to sit as a temporary judge,
with all of the powers for a temporary judge, as authorized by law, and upon
selection should take and subscribe to the oath of office as provided for in
Rule 244 of the California Rules of Court (or any subsequently enacted Rule).
Each party shall have one peremptory challenge pursuant to CCP Section 170.6.
The referee shall (a) be requested to set the matter for hearing within sixty
(60) days after the date of selection of the referee and (b) try any and all
issues of law or fact and report a statement of decision upon them, if possible,
within ninety (90) days of the Claim Date. Any decision rendered by the referee
will be final, binding and conclusive and judgment shall be entered pursuant to
CCP Section 644 in any court in the State of California having jurisdiction. Any
party may apply for a reference proceeding at any time after thirty (30) days
following notice to any other party of the nature of the controversy, dispute or
claim, by filing a petition for a hearing and/or trial. All discovery shall be
completed no later than fifteen (15) days before the first hearing date
established by the referee. The referee may extend such period in the event of a
party's refusal to provide requested discovery for any reason whatsoever,
including, without limitation, legal objections raised to such discovery or
unavailability of a witness due to absence or illness. No party shall be
entitled to "priority" in conducting discovery. Depositions may be taken by
either party upon thirty (30) days written notice, and request for production or
inspection of documents shall be responded to within thirty (30) days after
service. All disputes relating to discovery which cannot be resolved by the
parties shall be submitted to the referee whose decision shall be final and
binding upon the parties. Pending appointment of the referee as provided herein,
the Superior Court is empowered to issue temporary and/or provisional remedies,
as appropriate.
(b) Except as expressly set forth in this Agreement, the referee shall
determine the manner in which the reference proceeding is conducted including
the time and place of all hearings, the order of presentation of evidence, and
all other questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the referee, except
for trial, shall be conducted without a court reporter except that when any
party so requests, a court reporter will be used at any hearing conducted before
the referee. The party making such a request shall have the obligation to
arrange for and pay for the court reporter. The costs of the court reporter at
the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all issues in accordance
with existing case law and the statutory laws of the State of California. The
rules of evidence applicable to proceedings at law in the State of California
will be applicable to the reference proceeding. The referee shall be empowered
to enter equitable as well as legal relief, to provide all temporary and/or
provisional remedies and to enter equitable orders that will be binding upon the
parties. The referee shall issue a single judgment at the close of the reference
proceeding which shall dispose of all of the claims of the parties that are the
subject of the reference. The parties hereto expressly reserve the right to
contest or appeal from the final judgment or any appealable order or appealable
judgment entered by the referee. The parties hereto expressly reserve the right
to findings of fact, conclusions of laws, a written statement of decision, and
the right to move for a new trial or a different judgment, which new trial, if
granted, is also to be a reference proceeding under this provision.
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CREDIT AGREEMENT
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(d) In the event that the enabling legislation which provides for
appointment of a referee is repealed (and no successor statute is enacted), any
dispute between the parties that would otherwise be determined by the reference
procedure herein described will be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge of the Court, in accordance
with the California Arbitration Act, Section 1280 through Section 1294.2 of the
CCP as amended from time to time. The provisions with respect to discovery as
set forth hereinabove shall apply to any such arbitration proceeding.
This Agreement is executed on behalf of the parties by duly authorized
representatives as of January 15, 1998.
IMPERIAL BANK ("BANK")
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx, Vice President
Date: 1/27/98
AMYLIN PHARMACEUTICALS, INC. ("BORROWER")
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------------
Xxxxxxxx X. Xxxx
Senior Vice President and General Counsel
Date: 1/23/98
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CREDIT AGREEMENT
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NOTE
Maximum of $2,700,000.00 San Diego, California, January 15, 1998.
On December 1, 2003 and as hereinafter provided for value received, to
undersigned promises to pay to IMPERIAL BANK ("Bank") a California banking
corporation, or order, at its San Diego Regional office, the principal sum of $
2,700,000.00 or such sums up to the maximum if so stated, as the Bank may now or
hereafter advance to or for the benefit of the undersigned in accordance with
the terms hereof, together with interest from date of disbursement or N/A,
whichever is later, on the unpaid principal balance at the rate at 0.500 % per
year in excess of the rate of interest which Bank has announced as its prime
lending rate (the "Prime Rate"), which shall vary concurrently with any change
in such Prime Rate, or $250.00 whichever is greater. Interest shall be computed
at the above rate on the basis of the actual number of days during which the
principal balance is outstanding, divided by 360, which shall, for interest
computation purposes, be considered one year.
Interest shall be payable monthly in addition to principal beginning February
28, 1998, and if not so paid shall become a part of the principal. All payments
shall he applied first to any rate charges owing, then to interest and the
remainder, if any, to principal. Principal shall be payable in installments of $
* or more, each installment on the last day of each month, beginning February
28, 1998. Advances not to exceed any unpaid balance owing at any one time equal
to the maximum amount specified above, may be made at the option of Bank.
Any partial prepayment shall be applied to the installments, if any, in
inverse order of maturity. Should default be made in the payment of principal or
interest when due, or in the performance or observance, when due, of any item,
covenant or condition of any deed of trust, security agreement or other
agreement (including amendments or extensions thereof) securing or pertaining to
this note, at the option of the holder hereof and without notice or demand, the
entire balance of principal and accrued interest then remaining unpaid shall (a)
become immediately due and payable, and (b) thereafter bear interest, until paid
in full, at the increased rate of 5% per year in excess of the rate provided for
above, as it may vary from time-to-time.
Defaults shall include, but not be limited to, the failure of the maker(s)
to pay principal or interest when due/** the filing as to each person obligated
hereon, whether as maker, co-maker, endorser or guarantor (individually or
collectively referred to as the "Obligor") of a voluntary or involuntary
petition under the provisions of the Federal Bankruptcy Act; the issuance of any
attachment or execution against any asset of any Obligor; the death of any
Obligor; or any deterioration of the financial condition of any Obligor which
results in the holder hereof considering itself, in good faith, insecure.
If any installment payment, interest payment, principal payment or
principal balance payment due hereunder is delinquent/** five or more days,
Obligor agrees to pay Bank a late charge in the amount of 5% of the payment so
due and unpaid, in addition to the payment; but nothing in this paragraph is to
be construed as any obligation on the part of the holder of this note to accept
payment of any payment past due or less than the total unpaid principal balance
after maturity.
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CREDIT AGREEMENT
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**in accordance with the Credit Agreement dated January 15, 1998.
If this note is not paid when due, each Obligor promises to pay all costs
and expenses of collection and, reasonably attorneys fees incurred by the holder
hereof on account of such collection, plus interest at the rate applicable to
principal, whether or not suit is filed hereon. Each Obligor shall be jointly
and severally liable hereon and consents to renewals, replacements and
extensions of time for payment hereof, before, at, or after maturity; consents
to the acceptance, release or substitution of security for this note; and waives
demand and protest and the right to assert any statute of limitations. Any
married person who signs this note agrees that recourse may be had against
separate property for any obligations hereunder. The indebtedness evidenced
hereby shall be payable in lawful money of the United States. In any action
brought under or arising out of this note, each, Obligor, including successor(s)
or assign(s) hereby consents to the application of California law, to the
jurisdiction of any competent court within the State of California, and to
service of process by any means authorized by California law.
No single or partial exercise of any power hereunder, or under any deed of
trust, security agreement or other agreement In connection herewith shall
preclude other or further exercises thereof or the exercise of any other such
power. The holder hereof shall at all times have the right to proceed against
any portion of the security for this note in such order and in such manner as
such holder may consider appropriate, without waiving any rights with respect to
any of the security. Any delay or omission on the part of the holder hereof in
exercising any right hereunder, or under any dead of trust, security agreement
or other agreement, shall Not operate as a waiver of such right, or of any other
right. under this note or any deed of trust, security agreement or other
agreement in connection herewith.
*See Addendum I to Note attached hereto and made a part hereof by this
reference.
This Note is subject to the terms and
conditions of the Credit Agreement Amylin Pharmaceuticals, Inc. a
dated January 15,1998 and all Delaware Corporation
amendments thereto and replacements
therefor. By: /s/ Xxxxxxxx X. Xxxxxxx
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CREDIT AGREEMENT
JANUARY 15, 1998
Attached to that certain Note dated January 15, 1998 in the amount of
$2,700,000.00 executed by AMYLIN PHARMACEUTICALS, INC., a Delaware corporation.
ADDENDUM I
Advances under the Note shall be available through December 31, 1998. On said
date, the outstanding balance of the advances shall be converted to an
amortizing loan payable in 60 equal monthly payments of principal plus accrued
interest commencing January 30, 1999.
All principal and accrued but unpaid interest shall be in any event be due and
payable on December 1, 2003.
AMYLIN PHARMACEUTICALS, INC., a Delaware corporation.
By: /s/ Xxxxxxxx X. Xxxxxxx
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