Exhibit 10.1
SECOND AMENDMENT dated as of February 27, 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.
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 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 TO INSERT THE FOLLOWING DEFINED TERMS IN THE
APPROPRIATE ALPHABETICAL ORDER:
"ARANA" MEANS ARANA THERAPEUTICS LIMITED, AN AUSTRALIAN COMPANY LIMITED BY
SHARES.
"PERMITTED ARANA ACQUISITION" MEANS THE PURCHASE OR OTHER ACQUISITION BY THE
BORROWER OR ANY SUBSIDIARY LOAN PARTY OF EQUITY INTERESTS IN ARANA IF, AT THE
TIME OF AND IMMEDIATELY AFTER GIVING EFFECT TO ANY SUCH PURCHASE OR OTHER
ACQUISITION, (A) NO DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING AND (B) THE
BORROWER SHALL BE IN COMPLIANCE WITH THE COVENANTS SET FORTH IN SECTIONS 6.12,
6.13 AND 6.14, 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 ARANA DISPOSITION" MEANS ANY SALE, TRANSFER OR OTHER DISPOSITION OF
THE EQUITY INTERESTS IN ARANA ACQUIRED BY THE BORROWER OR ANY SUBSIDIARY LOAN
PARTY IN A PERMITTED ARANA ACQUISITION, PROVIDED THAT ARANA IS
NOT AT THE TIME THEREOF, AND SHALL NOT HAVE BEEN AT ANY TIME PRIOR TO THE TIME
THEREOF, A SUBSIDIARY.
(B)
SECTION 6.04 OF THE CREDIT AGREEMENT IS HEREBY AMENDED AS FOLLOWS:
(I)
CLAUSE (N) THEREOF IS AMENDED TO REPLACE THE REFERENCE TO
"$30,000,000" THEREIN WITH A REFERENCE TO "$50,000,000";
(II)
THE WORD "AND" IMMEDIATELY BEFORE CLAUSE (W) THEREOF IS DELETED;
(III)
THE PERIOD AT THE END OF CLAUSE (W) THEREOF IS REPLACED WITH ";
AND"; AND
(IV)
THE FOLLOWING NEW CLAUSE IS INSERTED AT THE END THEREOF:
"(X)
ANY PERMITTED ARANA ACQUISITION."
(C)
SECTION 6.05 OF THE CREDIT AGREEMENT IS HEREBY AMENDED TO (I) DELETE THE
WORD "AND" IMMEDIATELY BEFORE CLAUSE (E) OF SUCH SECTION, (II) REPLACE THE
PERIOD AT THE END OF CLAUSE (E) OF