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 any such representation or warranty that expressly
relates to an earlier date, in which case such representation or warranty is
true and correct in all material respects on and as of such earlier date.


 


(c) 
On and as of the Amendment Effective Date, after giving effect to this
Amendment, no Default has occurred and is continuing.


 


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SECTION 4.  Effectiveness.  This Amendment shall become effective, as of
the date first above written, on the date (the “Amendment Effective Date”)
on which the Administrative Agent shall have received duly executed
counterparts hereof that, when taken together, bear the authorized signatures
of the Borrower and Lenders constituting at least the Required Lenders, provided
that the Administrative Agent shall have received all fees and other amounts
due and payable to it or any of its Affiliates on or prior to the Amendment
Effective Date, including reimbursement of all reasonable and documented
out-of-pocket expenses (including fees, charges and disbursements of counsel)
required to be reimbursed by the Borrower under the Credit Agreement.


 


SECTION 5.  Effect of Amendment.  (a)  Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies of the
Lenders or the Administrative Agent under the Credit Agreement or any other
Loan Document, and shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.  Nothing herein shall be deemed to entitle any
Loan Party to a consent to, or a waiver, amendment, modification or other
change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Loan Document in similar or
different circumstances.


 


(b)           On and after the Amendment
Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein”, or words of like import, and each reference to the Credit
Agreement in any other Loan Document shall be deemed to be a reference to the
Credit Agreement as amended hereby.  This
Amendment shall constitute a “Loan Document” for all purposes of the Credit
Agreement and the other Loan Documents.


 


SECTION 6.  Applicable Law.  THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 7.  Counterparts.  This Amendment may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which, when taken together,
shall constitute a single contract. 
Delivery of an executed counterpart of a signature page of this
Amendment by facsimile or other electronic imaging shall be as effective as
delivery of a manually executed counterpart of this Amendment.


 


SECTION 8.  Severability.  Any provision of this Amendment held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


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SECTION 9.  Headings.  The Section headings used herein are for
convenience of reference only, are not part of this Amendment and shall not
affect the construction of, or be taken into consideration in interpreting,
this Amendment.


 


SECTION 10.  Fees and Expenses.  Without limiting the Borrower’s obligations
under Section 9.03 of the Credit Agreement, the Borrower agrees to
reimburse the Administrative Agent for its reasonable and documented
out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Moore
LLP, counsel for the Administrative Agent. 
The Borrower agrees to pay on the Amendment Effective Date to the
Administrative Agent, (a) for the account of each Lender that executes and
delivers a copy of this Amendment to the Administrative Agent (or its counsel)
on or prior to the time specified by the Administrative Agent, an amendment fee
in an amount equal to 0.10% of the aggregate principal amount of the
Commitments of such Lender outstanding on the Amendment Effective Date and (b) for
the account of each other Lender, an amendment fee in an amount equal to 0.05%
of the aggregate principal amount of the Commitments of such Lender outstanding
on the Amendment Effective Date.  All
fees shall be payable in immediately available funds and shall not be
refundable.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the date first above written.


 


 




	
   

  	
  CEPHALON, INC.,

  
	
   

  
	
   

  	
      by

  
	
   

  	
   

  	
  /s/ Wilco Groenhuysen

  
	
   

  	
   

  	
  Name: Wilco Groenhuysen 

  
	
   

  	
   

  	
  Title: Sr. VP, Worldwide
  Finance

  
	
   

  	
   

  
	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,
  individually

  and as Administrative Agent,

  
	
   

  
	
   

  	
      by

  
	
   

  	
   

  	
  /s/ James A. Knight

  
	
   

  	
   

  	
  Name:  James A. Knight

  
	
   

  	
   

  	
  Title: Vice President

  






 

















 




	
  BANK OF AMERICA, N.A.:

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Kevin R. Wagley

  
	
   

  	
   

  	
  Name: Kevin R. Wagley 

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  
	
  DEUTSCHE BANK AG NEW YORK
  BRANCH:

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Heidi Sandquist

  
	
   

  	
   

  	
  Name: Heidi Sandquist 

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
   

  	
  /s/ Douglas J. Weir

  
	
   

  	
   

  	
  Name: Douglas J. Weir 

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
  WACHOVIA BANK, NATIONAL
  ASSOCIATION:

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Harry E. Ellis

  
	
   

  	
   

  	
  Name: Harry E. Ellis 

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BARCLAYS BANK PLC

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Alicia Borys

  
	
   

  	
   

  	
  Name: Alicia Borys 

  
	
   

  	
   

  	
  Title: Assistant Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CITIZENS BANK OF
  PENNSYLVANIA

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Jonathan H. Sprogell

  
	
   

  	
   

  	
  Name: Jonathan H. Sprogell
  

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  






 

















 




	
  U.S. BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Christopher T. Kordes

  
	
   

  	
   

  	
  Name: Christopher T.
  Kordes 

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  






 

















 


CEPHALON,
INC.


Effectiveness
Memorandum for the


Second
Amendment to the Credit Agreement


 


March 2,
2009


 


We refer you to the Second Amendment dated as of February 27, 2009
(the “Second Amendment”), to the Credit Agreement dated as of August 15,
2008, as heretofore amended (the “Credit Agreement”), among Cephalon, Inc.,
the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent. The Second Amendment has received the consent of Lenders constituting at
least the Required Lenders under the Credit Agreement. The Amendment Effective
Date under the Second Amendment is March 2, 2009.