COLLATERAL AGREEMENT.
SECTION 3.05(A) OF THE GUARANTEE AND COLLATERAL AGREEMENT IS HEREBY AMENDED TO
AMEND AND RESTATE IN ITS ENTIRETY THE FINAL SENTENCE THEREOF AS FOLLOWS:
"EACH GRANTOR AGREES NOT TO EFFECT OR PERMIT ANY CHANGE DESCRIBED IN THE FIRST
SENTENCE OF THIS PARAGRAPH UNLESS ALL FILINGS HAVE BEEN MADE UNDER THE UNIFORM
COMMERCIAL CODE OR OTHERWISE THAT ARE REQUIRED IN ORDER FOR THE ADMINISTRATIVE
AGENT TO CONTINUE AT ALL TIMES FOLLOWING SUCH CHANGE TO HAVE A VALID, LEGAL AND
PERFECTED SECURITY INTEREST IN ALL THE COLLATERAL."
SECTION 4.
REPRESENTATIONS AND WARRANTIES.
THE BORROWER HEREBY REPRESENTS AND
WARRANTS TO THE ADMINISTRATIVE AGENT AND TO EACH OF THE LENDERS, AS OF THE FIFTH
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, THE CREDIT
AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND THE GUARANTEE AND COLLATERAL
AGREEMENT, AS AMENDED BY THIS AMENDMENT, CONSTITUTE 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.
2
(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 FIFTH 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 FIFTH AMENDMENT EFFECTIVE DATE, AFTER GIVING EFFECT TO
THIS AMENDMENT, NO DEFAULT HAS OCCURRED AND IS CONTINUING.
(D)
THE EQUITY INTERESTS IN ANESTA AG, CEPHALON LUX AND CEPHALON HOLDINGS LTD
THAT, IN EACH CASE, IMMEDIATELY PRIOR TO THE EFFECTIVENESS OF THIS AMENDMENT ARE
SUBJECT TO THE LIENS CREATED IN FAVOR OF THE ADMINISTRATIVE AGENT UNDER THE
SECURITY DOCUMENTS DO NOT REPRESENT ALL OR SUBSTANTIALLY ALL THE COLLATERAL.
SECTION 5.
EFFECTIVENESS.
THIS AMENDMENT SHALL BECOME EFFECTIVE, AS OF THE
DATE FIRST ABOVE WRITTEN, ON THE DATE (THE "FIFTH 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 FIFTH AMENDMENT
EFFECTIVE DATE AND 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