Exhibit
10.22(a)


 


FIRST AMENDMENT dated as of December 3,
2008 (this “Amendment”), to the CREDIT AGREEMENT dated as of August 15,
2008 (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 preamble 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)            The
definition of the term “Alternate Base Rate” in Section 1.01 of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:


 


“Alternate Base Rate” means, for any
day, a rate per annum equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1⁄2 of 1% and (c) the Adjusted LIBO Rate for a one month
Interest Period on such day (or if such day is not a Business Day, the
immediately preceding Business Day) plus 1%; provided that, for the
avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the
rate appearing on the Reuters BBA Libor Rates Page 3750 (or on any
successor or substitute page of such page) at approximately 11:00 a.m.
London time on such day.  Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted LIBO Rate shall be effective from and including
the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted LIBO Rate, respectively.


 

















 


(ii)          The
following new definitions are hereby added in their proper alphabetical order:


 


“Acusphere” means Acusphere, Inc.,
a Delaware corporation.


 


“Acusphere Convertible Note Purchase”
means the purchase by the Borrower on November 3, 2008, of the senior
secured convertible note of Acusphere in the aggregate principal amount of
US$15,000,000 pursuant to the Note Purchase Agreement dated as of October 24,
2008, by and between the Borrower and Acusphere, Inc.


 


“Defaulting Lender” means any Lender,
as determined by the Administrative Agent, that has (a) failed to fund any
portion of its Loans or participations in Letters of Credit or Swingline Loans
within three Business Days of the date required to be funded by it hereunder, (b) notified
the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender
or any Lender in writing that it does not intend to comply with any of its
funding obligations under this Agreement or has made a public statement to the
effect that it does not intend to comply with its funding obligations under
this Agreement or under other agreements in which it commits to extend credit, (c) failed,
within three Business Days after request by the Administrative Agent, to
confirm that it will comply with the terms of this Agreement relating to its
obligations to fund prospective Loans and participations in then outstanding
Letters of Credit and Swingline Loans, (d) otherwise failed to pay over to
the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within three Business Days of the date when due, unless
the subject of a good faith dispute, or (e) (i) become or is
insolvent or has a parent company that has become or is insolvent or (ii) become
the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment or has a parent company that has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment.


 


“Permitted Majority-Interest Convertible
Note Purchase” means the purchase or other acquisition by (a) the
Borrower, (b) any Subsidiary Loan Party or (c) any Foreign Subsidiary
the Equity Interests in which have been pledged in accordance with the
requirements of clause (b) of the definition of the term “Guarantee
and Collateral Requirement” of a senior convertible note of any Person in
contemplation of a possible future purchase or acquisition of Equity Interests
in, or all or 


 


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substantially all the assets of (or all or substantially all the assets
constituting a business unit, division, product line (including rights in
respect of any drug or other pharmaceutical product) or line of business of),
such Person, if (i) the terms of such convertible note include a right,
exercisable by the Borrower, such Subsidiary Loan Party or such Foreign
Subsidiary, as the case may be, to convert such convertible note into (A) the
Equity Interests in such Person representing more than 50% of each of the
aggregate ordinary voting power and aggregate equity value represented by the
issued and outstanding Equity Interests in such Person on the date of
conversion, (B) the right to enter into a license of intellectual property
rights of such Person in respect of one or more drugs or other pharmaceutical
products or (C) credit for one or more Milestone Payments owed by the
Borrower, such Subsidiary Loan Party or such Foreign Subsidiary under a license
or other similar agreement with such Person in respect of one or more drugs or
other pharmaceutical products of such Person, (ii) the Indebtedness
evidenced by such convertible note will be in favor of the Borrower, such
Subsidiary Loan Party or such Foreign Subsidiary and (iii) at the time of
and immediately after giving effect to any such purchase or other acquisition
of a convertible note, (A) no Default shall have occurred and be continuing,
(B) the Borrower shall be in compliance with the covenants set forth in
Sections 6.12, 6.13 and 6.14 and (C) the Borrower’s Leverage
Ratio shall not exceed 3.50 to 1.00 and the Borrower’s Senior Leverage
Ratio shall not exceed 1.75 to 1.00, 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 Minority-Interest Convertible
Note Purchase” means the purchase or other acquisition by (a) the
Borrower, (b) any Subsidiary Loan Party or (c) any Foreign Subsidiary
the Equity Interests in which have been pledged in accordance with the
requirements of clause (b) of the definition of the term “Guarantee
and Collateral Requirement” of a senior convertible note of any Person in
contemplation of a possible future purchase or acquisition of Equity Interests
in, or all or substantially all the assets of (or all or substantially all the
assets constituting a business unit, division, product line (including rights
in respect of any drug or other pharmaceutical product) or line of business
of), such Person, if (i) the terms of such convertible note include a
right, exercisable by the Borrower, such Subsidiary Loan Party or such Foreign
Subsidiary, as the case may be, to convert such convertible note into the
Equity Interests in such Person representing 50% or less of the aggregate
ordinary voting power or aggregate equity value represented by the issued and
outstanding Equity Interests in such Person on the date of conversion, (ii) the
Indebtedness evidenced by such convertible note will be in favor of the
Borrower, such Subsidiary Loan Party or such Foreign Subsidiary and (iii) at
the time of and immediately after giving effect to any such 


 


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purchase or other acquisition of a convertible note, (A) no Default
shall have occurred and be continuing, (B) the Borrower shall be in compliance
with the covenants set forth in Sections 6.12, 6.13 and 6.14 and (C) the
Borrower’s Leverage Ratio shall not exceed 3.50 to 1.00 and the Borrower’s
Senior Leverage Ratio shall not exceed 1.75 to 1.00, 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 Option Acquisition” means
the purchase or other acquisition by (a) the Borrower, (b) any
Subsidiary Loan Party or (c) any Foreign Subsidiary the Equity Interests
in which have been pledged in accordance with the requirements of clause (b) of
the definition of the term “Guarantee and Collateral Requirement” of an option
if (i) the terms of such option include a right, exercisable by the
Borrower, such Subsidiary Loan Party or such Foreign Subsidiary, as the case
may be, (A) to purchase or acquire more than 50% of the Equity Interests
in, or all or substantially all the assets of (or all or substantially all the
assets constituting a business unit, division, product line (including rights
in respect of any drug or other pharmaceutical product) or line of business
of), such Person or (B) to enter into a license of intellectual property
rights of such Person in respect of one or more drugs or other pharmaceutical
products of such Person and (ii) at the time of and immediately after
giving effect to any such purchase or other acquisition of an option, (A) no
Default shall have occurred and be continuing, (B) the Borrower shall be
in compliance with the covenants set forth in Sections 6.12, 6.13
and 6.14 and (C) the Borrower’s Leverage Ratio shall not exceed 3.50
to 1.00 and the Borrower’s Senior Leverage Ratio shall not exceed 1.75
to 1.00, 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.


 


(b)           Section 1.04(b) of
the Credit Agreement is hereby amended by the insertion of “, Permitted
Majority-Interest Convertible Note Purchase, Permitted Minority-Interest
Convertible Note Purchase, Permitted Option Acquisition” immediately before “or
Permitted Acquisition” in the first sentence of such Section.


 


(c)           Section 2.18(b) of
the Credit Agreement is hereby amended (i) by the deletion of clause (iii) of
such Section in its entirety and the substitution of “(iii) any Lender becomes
a Defaulting Lender” therefor and (ii) by the deletion of (A) the word “or”
immediately before clause (v) of such Section and (B) clause (v) of such
Section in its entirety.


 


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(d)           Section 6.01(a)(v) of
the Credit Agreement is hereby amended by the insertion of “or 6.04(t)”
immediately after “Section 6.04(e)”.


 


(e)           Section 6.04 of
the Credit Agreement is hereby amended (i) by the deletion of clause (n) of
such Section in its entirety and the substitution of the following
therefor:


 


“(n)         (i) any
Permitted Minority-Interest Convertible Note Purchase (and the Investment
resulting solely from the exercise of the right to convert the underlying
convertible note, without any additional consideration provided therefor by the
Borrower or any Subsidiary) and (ii) acquisitions of Equity Interests that
would constitute Permitted Acquisitions but for the fact that Persons in which
such Equity Interests are acquired do not become wholly owned Subsidiaries of
the Borrower; provided that the aggregate consideration paid in all such
Permitted Minority-Interest Convertible Note Purchases and acquisitions made
under this clause (n) after the Effective Date shall not exceed
US$30,000,000;”


 


and (ii) by the deletion of the word “and”
immediately before clause (q) of such Section and by the
insertion after clause (q) of such Section of a semicolon and of
the following new clauses:


 


“(r)  any Permitted Majority-Interest Convertible Note Purchase
(and the Investment resulting solely from the exercise of the right to convert
the underlying convertible note, without any additional consideration provided
therefor by the Borrower or any Subsidiary);


 


(s)  the Acusphere Convertible Note Purchase (and the Investment
resulting solely from the exercise of the right to convert the underlying
convertible note, without any additional consideration provided therefor by the
Borrower or any Subsidiary);


 


(t)  Guarantees by the Borrower of Milestone Payments and payments
of royalties owed to any Person by any Foreign Subsidiary the Equity Interests
in which have been pledged in accordance with the requirements of clause (b) of
the definition of the term “Guarantee and Collateral Requirement”;


 


(u)  any Permitted Option Acquisition (and the Investment resulting
solely from the exercise of the underlying option, without any additional
consideration provided therefor by the Borrower or any Subsidiary);


 


(v)  Investments by the Borrower or any Subsidiary in any Person
with which the Borrower or such Subsidiary has entered into a definitive
agreement for the purchase or other acquisition by the Borrower or such
Subsidiary, as the case may be, of Equity Interests in, or all or 


 


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substantially
all the assets of (or all or substantially all the assets constituting a
business unit, division, product line (including rights in respect of one or
more drug or other pharmaceutical products) or line of business of), such
Person, for the purpose of funding clinical trials or other product development
related to the assets or rights to be acquired; provided that the
aggregate amount of such Investments made, directly or indirectly, in any
Person (including Investments made in Affiliates of such Person) pursuant to
this clause (v) shall not exceed US$5,000,000; and


 


(w)  Investments by the Borrower in the form of loans under a
single non-revolving unsecured credit facility to a Person identified as “C” in
a transaction description heretofore delivered to the Administrative Agent for
the purpose of funding clinical trials or other product development of such
Person; provided that the aggregate amount of the Investments made
pursuant to this clause (w) shall not exceed US$25,000,000”.


 


(f)  The following new Section 2.19 shall be
inserted immediately following Section 2.18 of the Credit Agreement:


 


SECTION  2.19.     Defaulting Lenders.  Notwithstanding any provision of this
Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the
following provisions shall apply for so long as such Lender is a Defaulting
Lender:


 


(a) if any Swingline Exposure or LC Exposure exists at the time a
Lender is a Defaulting Lender,  the Borrower shall within one
Business Day following notice by the Administrative Agent (i) prepay such
Swingline Exposure or, if agreed by the Swingline Lender, cash collateralize
the Swingline Exposure of the Defaulting Lender on terms satisfactory to the
Swingline Lender and (ii) cash collateralize such Defaulting Lender’s LC
Exposure in accordance with the procedures set forth in Section 2.05(i) for
so long as such LC Exposure is outstanding; and


 


(b)           the Swingline Lender
shall not be required to fund any Swingline Loan and the Issuing Bank shall not
be required to issue, amend or increase any Letter of Credit unless it is
satisfied that cash collateral  will be
provided by the Borrower in accordance with Section 2.19(a).


 


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


 


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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 4.  Effectiveness.  This Amendment shall become effective 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, subject to
the effectiveness of this Amendment, the amendments to the Credit Agreement set
forth in Section 2 hereof shall be deemed to have become effective as of November 21,
2008.


 


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.


 


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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.


 


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.  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, for the account of each
Lender that executes and delivers a copy of this Amendment to the
Administrative Agent (or its counsel) at or prior to 5:00 p.m., New York
City time, on December 3, 2008 (the “Signing Date”), an amendment
fee in an amount equal to 0.05% of the aggregate principal amount of the
Commitments of such Lender outstanding on the Signing 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/ J. Kevin Buchi

  
	
   

  	
   

  	
    Name:
  J. Kevin Buchi 

  
	
   

  	
   

  	
    Title:
  Executive Vice President and Chief

  
	
   

  	
   

  	
    Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., individually

  and as Administrative Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  by 

  	
   

  
	
   

  	
   

  	
  /s/ James A. Knight

  
	
   

  	
   

  	
    Name:
  James A. Knight

    Title:  Vice President

  
					



 

















 


SIGNATURE PAGE TO


FIRST AMENDMENT TO


CEPHALON, INC. CREDIT AGREEMENT


 


 


	
  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/ Douglas J. Weir

  
	
   

  	
   

  	
    Name:
  Douglas J. Weir 

  
	
   

  	
   

  	
    Title:
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Ming K. Chu

  
	
   

  	
   

  	
    Name:
  Ming K. Chu 

  
	
   

  	
   

  	
    Title:
  Vice President

  
	
   

  	
   

  
	
  WACHOVIA BANK, NATIONAL ASSOCIATION:

  
	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ Harry E. Ellis

  
	
   

  	
   

  	
    Name:
  Harry E. Ellis 

  
	
   

  	
   

  	
    Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  BARCLAYS BANK PLC

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/ David Barton

  
	
   

  	
   

  	
    Name:
  David Barton 

  
	
   

  	
   

  	
    Title:
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  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