Exhibit 10.1



 





Exhibit 10.1




THIRD AMENDMENT TO CREDIT AGREEMENT



THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of December 15, 2007
by and between TEKELEC, a California corporation (“Borrower”) and WELLS FARGO BANK, NATIONAL
ASSOCIATION (“Bank”).




RECITALS




     WHEREAS, Borrower is currently indebted to Bank pursuant to the terms and conditions
of that certain Credit Agreement between Borrower and Bank dated as of December 15, 2004, as
amended from time to time (“Credit Agreement”).



     WHEREAS, Bank and Borrower have agreed to certain changes in the terms and conditions set
forth in the Credit Agreement and have agreed to amend the Credit Agreement to reflect said
changes.



     NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the Credit Agreement shall be amended as follows:



     1. Section 1.1(a) is hereby amended by deleting “December 15, 2007” as the last day on which
Bank will make advances under the Line of Credit, and by substituting for said date “December 15,
2008” with such change to be effective upon the execution and delivery to Bank of a promissory note
dated as of December 15, 2007 (which promissory note shall replace and be deemed the Line of Credit
Note defined in an made pursuant to the Credit Agreement) and all other contracts, instruments and
documents required by Bank to evidence such change.



     2. The reference in Section 2.5 to “June 30, 2006” as the date of Borrower’s financial
statement is hereby amended to read “June 30, 2007.”



     3. The reference in Section 3.1(c) to “December 31, 2005” as the date of Borrower’s financial
statement is hereby amended to read “December 31, 2006.”



     4. Section 1.1(b) is hereby amended and restated in its entirety so as to be as follows:




     “1.1 (b) Letter of Credit Subfeature. (i) As a subfeature under the
Line of Credit, Bank agrees from time to time during the term thereof to issue or
cause an affiliate to issue standby letters of credit in either USD or OAC for the
account of Borrower for corporate purposes (each, a “Letter of Credit”); provided
however, that the aggregate undrawn amount of, and the aggregate amount drawn and
not yet reimbursed under, all outstanding Letters of Credit shall not at any time
exceed the USD Equivalent Amount



 









 







of Twenty Five Million Dollars ($25,000,000.00). The form and substance of
each Letter of Credit shall be subject to approval by Bank, in its reasonable
discretion. Except as expressly provided in paragraph 1.1(b)(ii) below, (X) each
Letter of Credit shall be issued for a term not to exceed 12 months, as designated
by Borrower, and (Y) no Letter of Credit shall have an expiration date subsequent
to the maturity date of the Line of Credit. An amount equal to the sum of 100% of
the undrawn amount of outstanding USD-denominated Letters of Credit and 120% of the
undrawn USD Equivalent Amount of outstanding OAC-denominated Letters of Credit
shall be reserved under the Line of Credit and shall not be available for
borrowings thereunder. Each Letter of Credit shall be subject to the additional
terms and conditions of the Letter of Credit agreements, applications and any
related documents required by Bank and agreed to by Borrower in connection with the
issuance thereof. Each drawing paid under a Letter of Credit (other than Post
Maturity Letters of Credit) shall be deemed an advance under the Line of Credit in
the USD Equivalent Amount of such drawing (which advance, until converted by
borrower to a “LIBOR”-based advance, shall be a “Prime Rate”-based advance (both as
defined in the Line of Credit Note) and shall be repaid by Borrower in accordance
with the terms and conditions of this Agreement applicable to such advances;
provided however, that if advances under the Line of Credit are not available, for
any reason, at the time any drawing is paid, then Borrower shall immediately pay to
Bank the full USD Equivalent Amount drawn, together with interest thereon from the
date such drawing is paid to the date such amount is fully repaid by Borrower, at
the Prime Rate-based rate of interest applicable to advances under the Line of
Credit. In the event that Borrower fails to pay the amounts set forth in the
preceding sentence within 10 days of Bank’s demand therefor, Borrower agrees that
Bank, in its sole discretion, may debit any account maintained by Borrower with
Bank for the amount of any such drawing. In the event of a conflict between the
terms of the Letter of Credit Agreement and this Agreement, the terms of this
Agreement shall prevail.




(ii) As part of (and not in addition to) the Letter of Credit subfeature described
in the preceding paragraph (i) Bank agrees that, subject to the conditions set
forth herein, certain Letters of Credit may have a term greater than twelve months
and an expiration date subsequent to the maturity date of the Letter of Credit
(such Letters of Credit being referred to as “Post Maturity Letters of Credit”).
No Post Maturity Letter of Credit shall have an expiration date subsequent to
December 15, 2009. The aggregate undrawn amount of, and the aggregate amount drawn
and not yet reimbursed under, all outstanding Post Maturity Letters of Credit shall
not at any time exceed the USD Equivalent Amount of Five Million Dollars
($5,000,000.00). Ten Business Days prior to the maturity date of the Line of
Credit, Borrower shall deliver to Bank Sufficient Assets with respect to the Post
Maturity Letters of Credit as collateral security for the



 









 








repayment of any drawings made under any Post Maturity Letters of Credit and
Borrower hereby grants to Bank a security interest in all such Sufficient Assets.
Borrower shall deliver to Bank any additional agreements and documents reasonably
requested by Bank to evidence such security interest and control of the Sufficient
Assets so delivered. In the event that any Post Maturity Letters of Credit are
issued during the last ten days preceding the maturity date of the Line of Credit,
Borrower shall deposit with the Bank with such additional assets as a condition
precedent to the issuance of such Post Maturity Letters of Credit. Each drawing
paid under a Post Maturity Letter of Credit that occurs on or after the maturity
date of the Line of Credit shall be immediately paid by Borrower to Bank in full in
the USD-Equivalent Amount drawn, and in any event no later than the first Business
Day after borrower receives notice of such drawing, together with the interest
thereon from the date of such drawing to the date such amount is fully repaid by
Borrower, at the Prime Rate-based that was applicable to advances under the Line of
Credit. In the event that Borrower fails to pay the amounts set forth in the
preceding sentence by the first Business Day after demand therefor, Borrower agrees
that Bank in its sole discretion, may debit any account maintained by Borrower with
the Bank or apply any of the collateral for the amount of any such drawing.”



     5. Except as specifically provided herein, all terms and conditions of the Credit Agreement
remain in full force and effect, without waiver or modification. All terms defined in the Credit
Agreement shall have the same meaning when used in this Amendment. This Amendment and the Credit
Agreement shall be read together, as one document.



     6. Borrower hereby remakes all representations and warranties contained in the Credit
Agreement and reaffirms all covenants set forth therein. Borrower further certifies that as of the
date of this Amendment there exists no Event of Default as defined in the Credit Agreement, nor any
condition, act or event which with the giving of notice or the passage of time or both would
constitute any such Event of Default.



     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day
and year first written above.





	 	 	 
	TEKELEC
	 
	 	 
	By:

	 	/s/ William H. Everett
	 

	 	 
	Title:

	 	Executive Vice President and 

Chief Financial Officer









	 	 	 
	WELLS FARGO BANK NATIONAL ASSOCIATION
	 
	 	 
	By:
	 	/s/ Sharon L. Prince 
	 

	 	 
	 
	 	 
	Title:
	 	Vice President