Exhibit 10.1


 


FOURTH AMENDMENT dated as of
December 22, 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.


 


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 as follows:


 


(i)            Clause
(c) of the definition of “Investment” is hereby amended and restated in
its entirety to read as follows:  “(c) any
Investment in the form of a capital contribution shall be fair market value (as
determined reasonably and in good faith by the chief financial officer of the
Borrower, giving effect to GAAP) of the cash, Equity Interests or other
property subject thereto, determined as of the time of such contribution,
without any adjustment for increases or decreases in value of, or write-ups,
write-downs or write offs with respect to, such Investment,”.


 


(ii)           Clause (a) of the definition of “Permitted
Foreign Loan” is hereby amended by replacing the phrase “under
clause (m) or (n) of Section 6.04” thereof with “under clause
(m), (n), (r), (u) or (v) of Section 6.04”.


 


(iii)          The
following new defined terms are hereby inserted in the appropriate alphabetical
order:


 


“Cephalon Holdings Ltd” means Cephalon
Holdings Ltd., a company incorporated with limited liability in England and
Wales.


 

















 


“Cephalon Ltd” means Cephalon Limited,
a company incorporated with limited liability in England and Wales.


 


“Cephalon UK” means Cephalon (UK)
Limited, a company incorporated with limited liability in England and Wales.


 


“CIH” means Cephalon International
Holdings Inc., a Delaware corporation.


 


“CTI” means Cephalon Technology, Inc.,
a Delaware corporation.


 


“CTL” means Cell Therapeutics (UK)
Limited, a company incorporated with limited liability in England and Wales.


 


“UK Restructuring Transactions” means,
collectively:


 


(a) the contribution by the Borrower of
all the issued and outstanding Equity Interest in CTL to CTI,


 


(b) subsequent to the completion of the
contribution referred to in clause (a) above, the contribution by CTI of
all the issued and outstanding Equity Interests in CTL to CIH;


 


(c) subsequent to the completion of the
contribution referred to in clause (b) above, the contribution by CIH to
Cephalon UK of all the issued and outstanding Equity Interests in CTL;


 


(d) subsequent to the completion of the
contribution referred to in clause (c) above, liquidation of CTL into
Cephalon UK;


 


(e) subsequent to the completion of the
contribution referred to in clause (c) above, the contribution by CIH of
all the issued and outstanding Equity Interests in Cephalon UK to Cephalon
Holdings Ltd;


 


(f) subsequent to the completion of the
contribution referred to in clause (e) above, the contribution by Cephalon
Holdings Ltd of all the issued and outstanding Equity Interests in Cephalon UK
to Cephalon Ltd; and


 


(g) subsequent to the completion of the
contribution referred to in clause (f) above, the transfer of certain
assets of Cephalon Ltd to Cephalon UK, to be accounted for as a contribution by
Cephalon Ltd to the capital of Cephalon UK.”


 


(b)           Section 6.04 of the
Credit Agreement is hereby amended as follows:


 


(i)            Clause
(c) of Section 6.04 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows: 
“(c) investments by the Borrower and the Subsidiaries in Equity Interests
in their subsidiaries; provided  


 


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that (i) such subsidiaries are Subsidiaries prior to the making of
such investments and (ii) the aggregate amount
(determined, for avoidance of doubt, without duplication of any amounts that
cease to be outstanding) of all such investments by Loan Parties in, and
loans and advances by Loan Parties to, and Guarantees by Loan Parties of
Indebtedness and other obligations of, Subsidiaries that are not Loan Parties made
after the date hereof (other than (A) the conversion of any intercompany
account or other obligation owed by any Foreign Subsidiary to a Loan Party into
the Equity Interests of such Foreign Subsidiary and (B) any such
investment made by a Loan Party prior to the date hereof that after the date
hereof shall have been transferred by such Loan Party or any other Loan Party
that shall be a direct or indirect transferee of such Loan Party to any other
Loan Party), in each case made in reliance on this clause (c) and the
following clauses (d) and (e) of this Section, shall not exceed
US$200,000,000 at any time outstanding;”.


 


(ii)           The
word “and” immediately before clause (x) thereof is hereby deleted, the
period at the end of clause (x) thereof is hereby replaced with “; and”
and the following new clause is hereby inserted at the end of Section 6.04:


 


“(y) Investments arising from the UK Restructuring Transactions.”


 


(iii)          The
last paragraph of Section 6.04 is hereby amended by inserting at the end
of clause (ii) thereof the following: “(other than any such transfer of a
Permitted Foreign Loan to a Subsidiary in which the transferor receives
consideration in cash at least equal to all the amounts outstanding (whether or
not then due and payable) under such Permitted Foreign Loan)”.


 


(c)           Clause (b) of Section 6.09
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:  “(b) transactions
between or among two or more of any of the Borrower and the Subsidiaries not
involving any other Affiliate,  provided
that any sale, transfer or other disposition of an asset (other than any such
sale, transfer or other disposition constituting an Investment) by any Loan
Party to any Subsidiary that is not Loan Party shall be made for consideration
that equals at least the fair market value (as determined reasonably
and in good faith by the chief financial officer of the Borrower, giving effect
to GAAP) of such asset,”.


 


(d)           The second sentence of Section 9.14
of the Credit Agreement is hereby amended by replacing the parenthetical “(other
than to the Borrower or any Subsidiary or any of their Related Parties)” with “(other
than to another Loan Party)”.


 


SECTION 3.  Additional Agreement.  The Lenders party hereto hereby authorize the
Administrative Agent to release, in connection with the consummation of the UK
Restructuring Transactions, any and all Liens created in favor of the
Administrative Agent under the Security Documents on the Equity Interests in
Cephalon UK, and to execute and deliver to any Loan Party all documents that
such Loan Party shall reasonably request to evidence such release.  Any execution and delivery of documents by
the Administrative Agent pursuant to this paragraph shall be without recourse
to or warranty by the Administrative Agent.


 


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SECTION 4.  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.


 


SECTION 5.  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 6.  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.


 


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


 


SECTION 8.  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 9.  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.


 


SECTION 10.  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 11.  Administrative Agent’s
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.


 


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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/ J. Kevin Buchi

  
	
   

  	
   

  	
  Name: J. Kevin Buchi 

  
	
   

  	
   

  	
  Title:
  Exec. V.P. and CFO

  



 


 


	
   

  	
  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/ Yinghua Zhang

  
	
   

  	
   

  	
  Name: Yinghua Zhang

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  DEUTSCHE BANK AG NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Douglas Weir

  
	
   

  	
   

  	
  Name: Douglas Weir

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Ming K. Chu

  
	
   

  	
   

  	
  Name: Ming K. Chu

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  WACHOVIA BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Eric M. Del Viscio

  
	
   

  	
   

  	
  Name: Eric M. Del Viscio

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 

















 


	
   

  	
  BARCLAYS BANK PLC

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ David Barton

  
	
   

  	
   

  	
  Name: David Barton

  
	
   

  	
   

  	
  Title: Director

  



 

















 


	
   

  	
  CITIZENS BANK OF PENNSYLVANIA

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Pankaj C. Goel

  
	
   

  	
   

  	
  Name: Pankaj C. Goel

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  U.S. BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Jennifer Hwang

  
	
   

  	
   

  	
  Name: Jennifer Hwang

  
	
   

  	
   

  	
  Title: Vice President