SECONDAMENDMENT AGREEMENT

EX-10.1 2 d704957dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

EXECUTION COPY

SECOND AMENDMENT AGREEMENT

This SECOND AMENDMENT AGREEMENT, dated as of March 31, 2014 (this “Amendment Agreement”), is entered into by and among ACTAVIS CAPITAL S.À R.L. (f/k/a ACTAVIS WC HOLDING S.À R.L.), a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand-Duchy of Luxembourg having its registered office at 46A, avenue J.F. Kennedy, L-1855 Luxembourg, registered with the Luxembourg Registrar of Commerce and Companies under number B 178.410 (the “Borrower”), ACTAVIS, INC., a Nevada corporation (“Actavis”), ACTAVIS PLC, a public limited company organized under the Laws of Ireland (“Parent”), 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, the “Existing Lenders”) and Tranche A-2 Lenders (as defined below) party hereto that are not Existing Lenders, and Bank of America, N.A., as administrative agent (in such capacity, the “Administrative Agent”).

PRELIMINARY STATEMENTS:

(1) The Borrower, Actavis, Parent, the Existing Lenders, the Administrative Agent and the other entities party thereto entered into that certain Amended and Restated Actavis Term Loan and Guaranty Credit Agreement, dated as of October 1, 2013 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Term Loan Credit Agreement”);

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

(3) Pursuant to Section 11.01 of the Existing Term Loan Credit Agreement, the amendments contemplated by the Second Amended ACT Term Loan Credit Agreement, other than with respect to the Tranche A-2 Commitments and Tranche A-2 Loans (as such terms are defined in the Second Amended ACT Term Loan Credit Agreement), require the consent of the Required Lenders, and the amendments contemplated by the Second Amended ACT Term Loan Credit Agreement with respect to the Tranche A-2 Commitments and Tranche A-2 Loans require the consent of each Tranche A-2 Lender (as defined in the Second Amended ACT Term Loan Credit Agreement);

(4) The Consenting Lenders, the Tranche A-2 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 Second Amended ACT Term Loan Credit Agreement upon the terms and conditions set forth herein; and

(5) In accordance with Section 11.01 of the Existing Term Loan Credit Agreement, the Administrative Agent, the Consenting Lenders, the Tranche A-2 Lenders, the Borrower, Actavis and Parent 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 Tranche A-2 Lenders, the Borrower, Actavis and Parent, 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. Amendment and Restatement of the Existing Term Loan Credit Agreement. The Administrative Agent, each Consenting Lender, each Tranche A-2 Lender, the Borrower, Actavis and Parent hereby agree that, subject solely to satisfaction (or waiver) of the conditions precedent set forth in Section 3 of this Amendment Agreement, the Existing Term Loan Credit Agreement is amended and restated in full as set forth in the form of Second Amended ACT Term Loan Credit Agreement and shall be replaced and superseded in all respects by the terms and provisions of the Second Amended ACT Term Loan Credit Agreement.

SECTION 3. Conditions of Effectiveness. This Amendment Agreement, the amendment and restatement of the Existing Credit Agreement in the form of the Second Amended ACT Term Loan Credit Agreement and the commitment of each Tranche A-2 Lender thereunder shall become effective upon receipt by the Administrative Agent of executed counterparts of this Amendment Agreement by a Responsible Officer of each the Borrower, Actavis and Parent, and a duly authorized officer of (x) the Administrative Agent, (y) the Consenting Lenders constituting at least the Required Lenders under the Existing Term Loan Credit Agreement and (z) each of the Tranche A-2 Lenders.

Upon such effectiveness, this Amendment Agreement and the Second Amended ACT Term Loan Credit Agreement shall be a binding agreement between the parties hereto and thereto. The Administrative Agent shall promptly notify the Parent and the Lenders of the Second Restatement Effective Date (as defined in in the Second Amended ACT Term Loan Credit Agreement) in writing, and such notice shall be conclusive and binding.

SECTION 4. Representations and Warranties. Each of the Borrower, Actavis and Parent 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 5. 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 6. Governing Law. This Amendment Agreement will be governed by, and construed in accordance with, the law of the State of New York.

SECTION 7. 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 8. 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 8(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 CAPITAL S.À R.L.

By:	/s/ David A. Buchen
	Name:	David A. Buchen
	Title:	Manager

ACTAVIS, INC.

By:	/s/ David A. Buchen
	Name:	David A. Buchen
	Title:	Chief Legal Officer

ACTAVIS PLC

By:	/s/ David A. Buchen
	Name:	David A. Buchen
	Title:	Chief Legal Officer

Signature Page to Term Loan Amendment Agreement


BANK OF AMERICA, N.A.,
as Administrative Agent

By:		/s/ Robert Rittelmeyer
Name:		Robert Rittelmeyer
Title:		Vice President