TERM LOAN AMENDMENT AGREEMENT

EX-10.1 2 d577909dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

TERM LOAN AMENDMENT AGREEMENT

This TERM LOAN AMENDMENT AGREEMENT, dated as of August 1, 2013 (this “Amendment Agreement”), is entered into by and among Actavis, Inc., a Nevada corporation (f/k/a Watson Pharmaceuticals, Inc., the “Company”), the Lenders under the Existing Term Loan Credit Agreement (as defined below) that are party hereto (such Lenders, the “Consenting Lenders”, and together with the other Lenders, if any, under the Existing Term Loan Credit Agreement that are not party hereto (such other Lenders that are not party hereto, the “Non-Consenting Lenders”), the “Existing Lenders”), the Eligible Assignees party hereto that are not Existing Lenders (the “New Lenders”), and Bank of America, N.A., as administrative agent (in such capacity, the “Administrative Agent”).

PRELIMINARY STATEMENTS:

(1) The Company, the Existing Lenders, the Administrative Agent and the other entities party thereto entered into that certain Term Loan Credit Agreement, dated as of June 22, 2012 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Term Loan Credit Agreement”);

(2) The Company has requested to amend and restate the Existing Term Loan Credit Agreement in the form of the Amended and Restated Actavis Term Loan Credit and Guaranty Agreement attached as Annex A hereto (the “Amended ACT Term Loan Credit Agreement”);

(3) The amendments contemplated by the Amended ACT Term Loan Credit Agreement require the consent of all the Lenders pursuant to Section 10.01 of the Existing Term Loan Credit Agreement;

(4) The Consenting Lenders, the New Lenders and the Administrative Agent are willing to amend the Existing Term Loan Credit Agreement (including all exhibits and schedules thereto) in the form of the Amended ACT Term Loan Credit Agreement upon the terms and conditions set forth herein;

(5) The Non-Consenting Lenders have not approved the requested amendments and, pursuant to Sections 3.06(b) and 10.13 of the Existing Term Loan Credit Agreement, the Company hereby notifies the Administrative Agent and each such Non-Consenting Lender that such Non-Consenting Lender must assign and delegate, all of its interests, rights and obligations under the Existing Term Loan Credit Agreement and the related Loan Documents, including, without limitation, such Non-Consenting Lender’s Loans, to the Consenting Lenders that agree to assume such Loans and the New Lenders that shall assume such obligations, in each case pursuant to Section 2 below; and

(6) In accordance with Sections 3.06(b), 10.01, 10.06 and 10.13 of the Existing Term Loan Credit Agreement, the Administrative Agent, the Consenting Lenders, the New Lenders and the Company have each agreed, subject to the terms and conditions stated below, to the transactions described herein.

NOW, THEREFORE, in consideration of the premises and in order to induce the parties hereto to enter into the transactions described herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Administrative Agent, the Consenting Lenders, the New Lenders and the Company hereby agree as follows:

SECTION 1. Definitions. All capitalized terms not otherwise defined herein shall have the meanings attributed thereto in the Existing Term Loan Credit Agreement.

SECTION 2. Replacement of Non-Consenting Lenders. If any Existing Lender declines or fails to consent to this Amendment Agreement by returning an executed counterpart hereof to the Administrative Agent prior to 5:00 p.m. (New York City time), on August 1, 2013, then pursuant to Sections 3.06(b) and 10.13 of the Existing Term Loan Credit Agreement, such Existing Lender shall be replaced and the Loans and other Obligations purchased and assumed by either (x) a New Lender or (y) a Consenting Lender which is willing to increase its Loans (identified on Schedule 1 by an asterisk), in each case as evidenced by its execution and delivery of this Amendment Agreement (which will also be deemed to be its execution and delivery of an Assignment and Assumption substantially in the form of Exhibit B to the Existing Term Loan Credit Agreement as an “Assignee” as defined therein and thereunder, agreeing in such capacity to all the terms therein applicable to it), and effective on the Closing Date (as defined in the Amended ACT Term Loan Credit Agreement). The Administrative Agent agrees that notwithstanding the provisions of Section 10.13 of the Existing Term Loan Credit Agreement, the Company shall not be required to pay to the Administrative Agent any assignment fee in connection with the replacement of Non-Consenting Lenders. Each Consenting Lender and each New Lender hereby agrees that, with respect to any Assignment and Assumption entered into by such Lender on and after the effectiveness of this Amendment Agreement, each assignee thereunder shall expressly agree to be a Consenting Lender for purposes of this Amendment Agreement, and shall be evidenced by an Assignment and Acceptance in the form attached as Annex B hereto.

SECTION 3. Amendment and Restatement of the Existing Term Loan Credit Agreement. The Administrative Agent, each Consenting Lender, each New Lender and the Company hereby agree that, subject solely to satisfaction (or waiver) of the conditions precedent set forth in Section 4.01 of the Amended ACT Term Loan Credit Agreement, the Existing Term Loan Credit Agreement is amended and restated in full as set forth in the form of Amended ACT Term Loan Credit Agreement and shall be replaced and superseded in all respects by the terms and provisions of the Amended ACT Term Loan Credit Agreement. The Administrative Agent is directed to date and execute the Amended ACT Term Loan Credit Agreement for and on behalf of the Lenders (as defined in the Amended ACT Term Loan Credit Agreement). The percentage of Loans held by each Lender under the Amended ACT Term Loan Credit Agreement is the percentage opposite such Lender’s name as set forth on Schedule 1 hereto, unless such amount is adjusted from time to time prior to the Closing Date (as defined in the Amended ACT Term Loan Agreement) in accordance with Agreement and the Existing Term Loan Credit Agreement.

SECTION 4. Conditions of Effectiveness. This Amendment Agreement and the commitment of each Consenting Lender and New Lender, as applicable, to replace each Non-Consenting Lender pursuant to Sections 3.06(b) and 10.13 of the Existing Term Loan Credit Agreement and Section 2 of this Amendment Agreement shall become effective upon receipt by the Administrative Agent of executed counterparts of this Amendment Agreement by a Responsible Officer of the Company and a duly authorized officer of (w) the Administrative Agent, (x) the Consenting Lenders constituting at least the Required Lenders under the Existing Term Loan Credit Agreement, (y) each other Consenting Lender and (z) each of the New Lenders.

Upon such effectiveness, (i) this Amendment Agreement shall be a binding agreement between the parties hereto and their permitted assigns under the Existing Term Loan Credit Agreement, and (ii) each party hereto agrees that their commitments and consents to this Amendment Agreement, once delivered, are irrevocable and may not be withdrawn. The Administrative Agent shall promptly notify the Company and the Lenders of the Amendment Effective Date in writing, and such notice shall be conclusive and binding.

SECTION 5. Representations and Warranties. The Company hereby represents and warrants, on and as of the date hereof, that (i) the execution, delivery and performance by it of this Amendment Agreement has been duly authorized by all necessary corporate action, and (ii) this Amendment Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to Debtor Relief Laws and the effect of general principals of equity, whether applied by a court of law or equity.

SECTION 6. Execution in Counterparts. This Amendment Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery by facsimile or other form of written electronic communication of an executed counterpart of a signature page to this Amendment Agreement shall be effective as delivery of an original executed counterpart of this Amendment Agreement.

SECTION 7. Governing Law. This Amendment Agreement will be governed by, and construed in accordance with, the law of the State of New York.

SECTION 8. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 9. Jurisdiction; Consent to Service of Process.

(a) Each party hereto irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against any other party hereto or any related party of the foregoing in any way relating to this Amendment Agreement or the transactions relating hereto, in any forum other than the courts of the state of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in and such New York State Court or, to the fullest extent permitted by applicable Law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Nothing in this Amendment Agreement will affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Amendment Agreement or any of the transactions contemplated hereby against the Company or its properties in the courts of any jurisdiction for the purpose of enforcement of a judgment.

(b) Each party hereto irrevocably and unconditionally waives, to the fullest extent permitted by applicable Law, any objection that it may now or hereafter have to the laying of venue of

any action or proceeding arising out of or relating to this Amendment Agreement or any of the transactions contemplated hereby in any court referred to in Section 9(a) above. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed by their respective authorized officers as of the day and year first written above.


ACTAVIS, INC.

	By:	/s/ David Buchen

		Name:	David Buchen
		Title:	Chief Legal Officer – Global and Secretary