Exhibit 10.1


 


FIRST AMENDMENT TO CREDIT AGREEMENT


 


THIS FIRST AMENDMENT
TO CREDIT AGREEMENT (this “Amendment”) dated as of November 2, 2018 is by and among UNITED THERAPEUTICS
CORPORATION, a Delaware corporation (the “Borrower”), the Guarantors, the Lenders party hereto and WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association, as the Administrative Agent (in such capacity, “Administrative
Agent”).


 


W I T N E S S E T H


 


WHEREAS, the Borrower,
the Guarantors party thereto, the Lenders from time to time party thereto and the Administrative Agent are party to that certain
Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time
to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby);


 


WHEREAS, the Borrower
has requested that the Lenders approve certain amendments to the Credit Agreement; and


 


WHEREAS, the Required
Lenders have approved the Borrower’s requested amendments on the terms and conditions set forth herein.


 


NOW, THEREFORE, IN
CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


1.            Defined
Terms. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the
Credit Agreement.


 


2.            Amendment.
The definition of “Consolidated EBITDA” in Section 1.1 of the Credit Agreement is hereby amended and restated
in its entirety as follows:


 


“Consolidated
EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication,
for the Borrower and its Subsidiaries in accordance with GAAP: (a) Consolidated Net Income for such period plus
(b) the sum of the following, without duplication, to the extent deducted in determining Consolidated Net Income for
such period: (i) income and franchise taxes, (ii) Consolidated Interest Expense, (iii) amortization and
depreciation, (iv) stock based compensation expense (including with respect to stock option, share tracking award and
employee stock purchase plans), (v) non-cash license fee charges and other non-cash charges (or minus non-cash
adjustments increasing Consolidated Net Income) recorded in respect to purchase accounting adjustments, (vi) non-cash
asset impairment charges, (vii) non-recurring non-cash charges reducing Consolidated Net Income in such period
(excluding any such expenses or charges to the extent representing an accrual or reserve for any cash charge in any future
period and excluding write-downs of current assets), (viii) non-recurring transaction fees, costs and expenses,
integration, reorganization and restructuring costs and facility consolidation and closing costs incurred in connection with
reorganizations, restructurings, Investments and other acquisitions or inbound licenses of any rights in respect of
(including any collaboration or development agreements with respect to) drug or pharmaceutical products or other technologies
(and any related property or assets) (including, the incurrence or repayment of Indebtedness in connection therewith) and
Asset Dispositions permitted hereunder, provided that (A) such fees, costs and expenses in this clause
(viii) are incurred within twelve (12) months of the occurrence of such applicable triggering event and (B) the
aggregate amount of such fees, costs and expenses added back pursuant to this clause (viii) shall not exceed the
greater of (1) 15% of Consolidated EBITDA for the applicable period of four fiscal quarters (prior to giving effect to
such adjustments) and (2) $100,000,000 during any such applicable period of four fiscal quarters, (ix) any upfront
payments and any milestone payments or other deferred consideration (including purchase price adjustments, earn-outs,
compensation, contingent value rights, non-compete payments and similar obligations but excluding ongoing royalty payments),
contingent or non-contingent, accrued or paid during such period, and any buy-down of royalty obligations, in each case in
respect of acquisitions or inbound licenses of any rights in respect of (including any collaboration or development
agreements with respect to) drug or pharmaceutical products or other technologies (and any related property or assets), and
(x) losses (or minus gains) associated with the revaluation of any milestone payments or other deferred consideration
referred to in clause (ix) above, less (c) to the extent included in determining Consolidated Net Income for
such period, (i) interest income and (ii) all non-recurring non-cash items increasing Consolidated Net Income. For
purposes of this Agreement, Consolidated EBITDA shall be adjusted on a Pro Forma Basis.


 






     


     


    

 


3.            Conditions
Precedent. The effectiveness of this Amendment shall be subject to receipt by the Administrative Agent of counterparts of this
Amendment duly executed by the Borrower, each Guarantor, the Required Lenders and the Administrative Agent.


 


4.            Amendment
is a “Loan Document”. This Amendment is a Loan Document and all references to a “Loan Document” in
the Credit Agreement and the other Loan Documents shall be deemed to include this Amendment.


 


5.            Reaffirmation
of Obligations. Each Credit Party hereby ratifies the Credit Agreement, as amended hereby, and each other Loan Document to
which it is a party and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement, as amended hereby,
and each other Loan Document to which it is a party applicable to it and (b) that it is responsible for the observance and
full performance of its respective obligations under the Loan Documents.


 


6.            No
Other Changes. Except as modified hereby, all of the terms and provisions of the Loan Documents shall remain in full force
and effect.


 


7.            Expenses.
The Borrower agrees to pay all reasonable costs and expenses incurred by the Administrative Agent in connection with the preparation,
execution and delivery of this Agreement, including without limitation the reasonable fees and expenses of the Administrative Agent’s
legal counsel.


 


8.            Counterparts;
Delivery. This Amendment may be executed in counterparts (and by different parties hereto in 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 in electronic (i.e., “pdf” or “tif”)
format shall be effective as delivery of a manually executed counterpart of this Amendment.


 


9.            Governing
Law. This Amendment and any claim, controversy, dispute or cause of action (whether
in contract or tort or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby
shall be governed by, and construed in accordance with, the law of the State of New York.


 


[Signature Pages Follow]


 






     


     


    

 


IN WITNESS WHEREOF,
each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above
written.


 


	BORROWER:	UNITED
    THERAPEUTICS CORPORATION,
	 	a
    Delaware corporation
	 	 
	 	By:	/s/
    James Edgemond
	 	Name:
    James Edgemond
	 	Title:
    Chief Financial Officer and Treasurer
	 	 
	GUARANTORS:	LUNG
    BIOTECHNOLOGY PBC,
	 	a
    Delaware public benefit corporation
	 	 
	 	By:	/s/
    James Edgemond
	 	Name:
    James Edgemond
	 	Title:
    Chief Financial Officer and Treasurer




 


UNITED THERAPEUTICS CORPORATION


First
Amendment to CREDIT AGREEMENT


 







     


     


    

 


	AGENTS
    AND LENDERS:	WELLS
    FARGO BANK, NATIONAL ASSOCIATION, 
	 	as
    Administrative Agent,
	 	Swingline
    Lender and Lender
	 	 
	 	By:	/s/
    Kirk Tesch
	 	Name:
    Kirk Tesch
	 	Title:
    Managing Director




 


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First
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	 	BANK
    OF AMERICA, N.A.,
	 	as
    Lender
	 	 
	 	By:	/s/
    H. Hope Walker
	 	Name:
    H. Hope Walker
	 	Title:
    Senior Vice President




 


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	 	DNB Capital LLC,
	 	as Lender
	 	 
	 	By:	 /s/ Kristie Li
	 	Name: Kristie Li
	 	Title: Senior Vice President
	 	 
	 	By:	 /s/ Kristi Birkeland Sorensen
	 	Name: Kristi Birkeland Sorensen
	 	Title: Head of Corporate Banking




 





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	 	MUFG Bank, Ltd.,
	 	as Lender
	 	 
	 	By:	/s/ Kevin Wood
	 	Name: Kevin Wood
	 	Title: Director




 


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	 	PNC BANK, NATIONAL ASSOCIATION,
	 	as Lender
	 	 
	 	By:	 /s/ Carolyn L. West
	 	Name: Carolyn L. West
	 	Title: Senior Vice President




 


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	 	Citibank, N.A.,
	 	as Lender
	 	 
	 	By:	/s/ Pranjal Gambhir
	 	Name: Pranjal Gambhir
	 	Title: Vice President




 





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	 	Barclays Bank PLC,
	 	as Lender
	 	 
	 	By:	/s/ Jonathan Stone
	 	Name: Jonathan Stone
	 	Title: Director
	 	Date: 11.2.18
	 	Executed in New York




 


Restricted - Internal


 


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First
Amendment to CREDIT AGREEMENT



 






     


     


    

 


	 	HSBC Bank USA, National Association, 
	 	as Lender
	 	 
	 	By:	 /s/ John Treadwell
	 	Name: John P. Treadwell Jr.
	 	Title: SVP




 





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Amendment to CREDIT AGREEMENT



 






     


     


    

 


	 	State Bank of India, New York,
	 	as Lender
	 	 
	 	By:	/s/ Manoranjan Panda
	 	Name: Mr. Manoranjan Panda
	 	Title: Vice President & Head (Credit)




 


[SEAL]


 





UNITED THERAPEUTICS CORPORATION


First
Amendment to CREDIT AGREEMENT



 






     


     


    

 


	 	JPMorgan Chase Bank, N.A.,
	 	as Lender
	 	 
	 	By:	/s/ Anthony Galea
	 	Name: Anthony Galea
	 	Title: Executive Director




 


UNITED THERAPEUTICS CORPORATION


First
Amendment to CREDIT AGREEMENT