ex10_1.htm


    
      

    

    Exhibit
10.1

    
 

    
      SUPPLEMENT
NO. 1, dated as of December 5, 2008, to the Guaranty dated as of February 25,
2008 among AXCAN MIDCO INC. (“Holdings”), AXCAN INTERMEDIATE
HOLDINGS INC. (the “Parent
Borrower”), AXCAN US PARTNERSHIP 1 LP, (the “Co-Borrower”), certain other
Subsidiaries of AXCAN INTERMEDIATE HOLDINGS INC. from time to time party thereto
and BANK OF AMERICA, N.A., as Administrative Agent.

       

      A.           Reference
is made to (i) the Credit Agreement dated as of February 25, 2008 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Parent Borrower, the Co-Borrower, Holdings, Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, and each lender from
time to time party thereto (collectively, the “Lenders” and individually, a
“Lender”), (ii) each
Secured Hedge Agreement (as defined in the Credit Agreement) and (iii) the Cash
Management Obligations (as defined in the Credit Agreement).

       

      B.           Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.

       

      C.           The
Guarantors have entered into the Guaranty in order to induce (x) the Lenders to
make Loans and the L/C Issuers to issue Letters of Credit, (y) the Hedge Banks
to enter into and/or maintain Secured Hedge Agreements and (z) the Cash
Management Banks to provide Cash Management Services.  The Credit
Agreement provides that the Parent Borrower may cause any Restricted Subsidiary
that is not a Guarantor to Guarantee the Obligations.  The undersigned
Restricted Subsidiary (the “New
Subsidiary”) is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the Guaranty in
order to induce (x) the Lenders to make additional Loans and the L/C Issuers to
issue additional Letters of Credit, (y) the Hedge Banks to enter into and/or
maintain Secured Hedge Agreements and (z) the Cash Management Banks to provide
Cash Management Services and as consideration for (x) Loans previously made and
Letters of Credit previously issued, (y) Secured Hedge Agreements previously
entered into and/or maintained and (z) Cash Management Services previously
provided.

       

      Accordingly,
the Administrative Agent and the New Subsidiary agree as follows:

       

      SECTION
1.  In accordance with Section 4.12 of the Guaranty, the New
Subsidiary by its signature below becomes a Guarantor under the Guaranty with
the same force and effect as if originally named therein as a Guarantor and the
New Subsidiary hereby (a) agrees to all the terms and provisions of the Guaranty
applicable to it as a Guarantor and Guarantor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct on and as of the date hereof.  In
furtherance of the foregoing, the New Subsidiary, as security for the payment
and performance in full of the Obligations does hereby, for the benefit of the
Secured Parties, their

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      successors
and assigns, irrevocably, absolutely and unconditionally guaranty, jointly with
the other Guarantors and severally, the due and punctual payment and performance
of the Obligations.  Each reference to a “Guarantor” in the Guaranty
shall be deemed to include the New Subsidiary.  The Guaranty is hereby
incorporated herein by reference.

       

      SECTION
2.  The New Subsidiary represents and warrants to the Administrative
Agent and the Secured Parties that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as such
enforceability may be limited by Debtor Relief Laws and by general principles of
equity.

       

      SECTION
3.  This Supplement 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.  This Supplement shall become effective when the
Administrative Agent shall have received a counterpart of this Supplement that
bears the signature of the New Subsidiary, and the Administrative Agent has
executed a counterpart hereof.  Delivery of an executed signature page
to this Supplement by facsimile transmission or other electronic communication
shall be as effective as delivery of a manually signed counterpart of this
Supplement.

       

      SECTION
4.  Except as expressly supplemented hereby, the Guaranty shall remain
in full force and effect.

       

      SECTION
5.  THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.

       

      SECTION
6.  If any provision contained in this Supplement is held to be
invalid, illegal or unenforceable, the legality, validity, and enforceability of
the remaining provisions contained herein and in the Guaranty shall not be
affected or impaired thereby.  The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.

       

      SECTION
7.  All communications and notices hereunder shall be in writing and
given as provided in Section 4.01 of the Guaranty.

       

      SECTION
8.  The New Subsidiary agrees to reimburse the Administrative Agent
for its reasonable out-of-pocket expenses in connection with the execution and
delivery of this Supplement, including the reasonable fees, other charges and
disbursements of counsel for the Administrative Agent to the extent required by
Section 4.03 of the Guaranty.

       

      [Signature page
follows]


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      IN
WITNESS WHEREOF, the New Subsidiary and the Administrative Agent have duly
executed this Supplement to the Guaranty as of the day and year first above
written.

      

        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    	 	
                                            AXCAN
      EU LLC

                                          	 
	 	 	 	 
	
                                             

                                          	
                                            By:
      

                                          	/s/ David Mims	 
	 	 	Name:
      David Mims    	 
	 	 	Title:
      President	 
	 	 	 	 
	 	 	 	 
	 	Jurisdiction
      of Formation:   Delaware	 
	 	 	 
	 	Address
      Of Chief Executive Office:	 
	 	 	 
	 	22 Inverness Center
      Parkway,	 
	 	Third Floor	 
	 	 
      

                                            Birmingham,
      Alabama

                                          	 
	 	 	 


                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      
        
          	 	
                  BANK OF AMERICA,
      N.A.,

                  as
      Administrative Agent

                	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Mollie S. Canup	 
	 	 	Name:
      Mollie S. Canup	 
	 	 	Title:
      Vice President	 
	 	 	 	 


        

      

    

     

     

     

    [Guaranty Supplement]