Exhibit 10.1
SECOND AMENDMENT dated as of
February 27, 2009 (this “ Amendment ”), to
the CREDIT AGREEMENT dated as of August 15, 2008, as
heretofore amended (as so amended, the “ Credit
Agreement ”), among CEPHALON, INC., a Delaware
corporation, the LENDERS party thereto and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Lenders have agreed to
extend credit to the Borrower under the Credit Agreement on the
terms and subject to the conditions set forth therein;
and
WHEREAS, the Borrower has requested
that the Lenders amend certain provisions of the Credit Agreement,
and the Lenders whose signatures appear below, constituting at
least the Required Lenders, are willing to amend the Credit
Agreement on the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of
the mutual agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
SECTION 1.
Defined Terms. Capitalized terms used but not
otherwise defined herein (including in the recitals hereto) have
the meanings assigned to them in the Credit Agreement.
SECTION 2.
Amendments to the Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby
amended to insert the following defined terms in the appropriate
alphabetical order:
“
Arana ” means Arana Therapeutics Limited, an
Australian company limited by shares.
“
Permitted Arana Acquisition ” means the purchase or
other acquisition by the Borrower or any Subsidiary Loan Party of
Equity Interests in Arana if, at the time of and immediately after
giving effect to any such purchase or other acquisition,
(a) no Default shall have occurred and be continuing and
(b) the Borrower shall be in compliance with the covenants set
forth in Sections 6.12, 6.13 and 6.14, in each case determined
on a pro forma basis in a manner consistent with
Section 1.04(b) solely to give effect to the incurrence
of Indebtedness, if any, by the Borrower or any Subsidiary in
connection with such purchase or other acquisition.
“
Permitted Arana Disposition ” means any sale, transfer
or other disposition of the Equity Interests in Arana acquired by
the Borrower or any Subsidiary Loan Party in a Permitted Arana
Acquisition, provided that Arana is
not at the time
thereof, and shall not have been at any time prior to the time
thereof, a Subsidiary.
(b)
Section 6.04 of the Credit Agreement is hereby amended as
follows:
(i)
clause (n) thereof is amended to replace the reference to
“$30,000,000” therein with a reference to
“$50,000,000”;
(ii)
the word “and” immediately before clause
(w) thereof is deleted;
(iii)
the period at the end of clause (w) thereof is replaced with
“; and”; and
(iv)
the following new clause is inserted at the end
thereof:
“(x)
any Permitted Arana Acquisition.”
(c)
Section 6.05 of the Credit Agreement is hereby amended to
(i) delete the word “and” immediately before
clause (e) of such Section, (ii) replace the period at
the end of clause (e) of such Section with “;
and” and (iii) insert at the end of such
Section the following new clause:
“(f)
any Permitted Arana Disposition.”
SECTION 3.
Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and to each of
the Lenders, as of the Amendment Effective Date (as defined below),
that:
(a) The
execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate or
other organizational and, if required, stockholder or other
equityholder action. This Amendment has been duly executed
and delivered by the Borrower and this Amendment and the Credit
Agreement, as amended by this Amendment, constitutes legal, valid
and binding obligations of the Borrower, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting
creditors’ rights generally and to general principles of
equity, regardless of whether considered in a proceeding in equity
or at law.
(b) The
representations and warranties of the Borrower and the Subsidiary
Loan Parties set forth in the Credit Agreement and the other Loan
Documents are true and correct in all material respects on and as
of the Amendment Effective Date, except in the case of
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