TO
CREDIT AGREEMENT
AMENDMENT
NO. 1 (this “ Amendment ”), dated as of
July 1, 2009, to that certain Credit Agreement dated as of
November 3, 2006 (as further amended, amended and restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”; capitalized terms used but not
defined herein shall have the respective meanings ascribed thereto
in the Credit Agreement), among Watson Pharmaceuticals, Inc., a
Nevada corporation (the “ Borrower ”), the
financial institutions from time to time party thereto, whether by
execution of the Credit Agreement, a Lender Addendum or an
Assignment and Acceptance (the “ Lenders ”),
Canadian Imperial Bank of Commerce, acting through its New York
agency (“ CIBC ”), in its capacity as
administrative agent for the Lenders (in such capacity, the “
Administrative Agent ”), Wachovia Capital Markets,
LLC, as syndication agent for the Lenders (in such capacity, the
“ Syndication Agent ”), and Wells Fargo Bank,
National Association, Union Bank of California, N.A. and Sumitomo
Mitsui Banking Corporation, each in its capacity as documentation
agent for the Lenders (together, in such capacity, the “
Documentation Agents ,” and each, a “
Documentation Agent ”).
Whereas , in
connection with the Robin Hood Acquisition (as defined below),
Borrower has requested that the Administrative Agent and the
Lenders agree to amend certain provisions of the Credit
Agreement;
Whereas , pursuant to
Section 13.09 of the Credit Agreement, the consent of
the Requisite Lenders is necessary to effect this
Amendment;
Whereas , the Lenders
party hereto constitute the Requisite Lenders under the Credit
Agreement;
Whereas , the
Administrative Agent and the Requisite Lenders have considered and
are willing to agree to amend certain provisions of the Credit
Agreement upon the terms and conditions set forth in this
Amendment; and
Now, Therefore , in
consideration of the premises and for other good and valuable
consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as
follows:
Section 1. Amendments to the Credit
Agreement
The
Credit Agreement is, effective as of the Amendment No. 1
Effective Date, hereby amended as set forth below:
(a) The
following definitions are hereby added to Section 1.01
of the Credit Agreement:
(i) “
AIL ” means Arrow International Limited, a Malta
private limited liability company and a direct or indirect
wholly-owned Subsidiary of Robin Hood, and which will become a
direct or indirect wholly-owned Subsidiary of Borrower after the
Robin Hood Acquisition .
(ii) “
Atorvastatin Profit Sharing Arrangement ” means the
profit sharing arrangement between a newly formed Subsidiary of
Borrower and the Sellers whereby Borrower and the Sellers have
agreed to share profits relating to Atorvastatin sales in the
United States.
(iii) “
CODES ” has the meaning ascribed to such term in
Section 9.01(xiii) hereto.
(iv) “
Restricted Additional Specified Indebtedness Payment ”
means any voluntary or optional payment or prepayment of, and any
redemption, purchase, retirement, defeasance, sinking fund or
similar
payment and any
claim for rescission with respect to, principal of and premium, if
any, on any Indebtedness of Borrower or any Loan Party that
refinances the CODES or any Indebtedness incurred solely pursuant
to Section 9.01(viii); provided , however , that
so long as no Default exists or would result therefrom, the term
“Restricted Additional Specified Indebtedness Payment”
shall not include any refinancing of Indebtedness of Borrower or
any Loan Party that refinances the CODES or any Indebtedness
incurred solely pursuant to Section 9.01(viii) that is
permitted under Section 9.01 .
(v) “
Robin Hood ” means Robin Hood Holdings Limited, a
Malta private limited liability company.
(vi) “
Robin Hood Acquisition ” means the acquisition of
Robin Hood by Borrower pursuant to the Share Purchase
Agreement.
(vii) “
Sellers ” means the selling shareholders party to the
Share Purchase Agreement.
(viii) “
Sepracor ” means Sepracor, Inc., a Delaware
corporation.
(ix) “
Sepracor Sharing Agreements Note ” means any note,
loan or other indebtedness issued or incurred (or to be issued or
incurred) by AIL (or any Affiliate of Borrower) to a third party
lender(s) (including any related interest and guarantee
undertakings) as contemplated by Section 6.21 of the Share
Purchase Agreement, provided that the intention of the parties is
that Borrower and its Subsidiaries will not be required to make any
principal payments on the Sepracor Sharing Agreements Note in
excess of amounts received from payments from Sepracor.
(x) “
Share Purchase Agreement ” means the share purchase
agreement dated as of June 16, 2009, among Borrower, a
non-U.S. wholly-owned Subsidiary of Borrower, Robin Hood, the
selling shareholders party thereto and a representative of the
selling shareholders.
(b)
Section 1.01 of the Credit Agreement is hereby amended
as follows:
(i) The
definition of “Indebtedness” shall be amended by adding
the language “: (i)” after the word
“include” in the last sentence thereof, by replacing
the period at the end thereof with a comma, and by adding the
following language at the end thereof:
“(ii)
obligations to make post-closing payments from Borrower or any of
its Subsidiaries to the Seller(s) or any applicable successors
relating to the Atorvastatin Profit Sharing Arrangement which are
due and payable to the Sellers beginning no earlier than February
2012, and (iii) indebtedness incurred by AIL evidenced by the
Sepracor Sharing Agreements Note in a principal amount not to
exceed $151.4 million (or refinancings thereof to the extent
of the principal amount of the Sepracor Sharing Agreements
Note)”.
(ii) The
definition of “Restricted Payment” shall be amended by
deleting the language “or” therein and replacing it
with a comma, and adding the language “or Restricted
Additional Specified Indebtedness Payment” at the end
thereof.
(c)
Section 8.10(a) of the Credit Agreement is hereby
clarified, for the avoidance of doubt, to add the word
“domestic” before each use of the terms
“Subsidiary” and “Subsidiaries” contained
therein.
(d)
Section 9.01 of the Credit Agreement is hereby amended
as follows:
(i)
Section 9.01(viii) is hereby amended by deleting the
language “$100,000,000” therein and replacing it with
the language “$500,000,000”.
(ii)
Section 9.01(xiii) is hereby amended:
(1)
by adding the language “or this clause (xiii)” after
the language “or (xii)” therein;
(2)
by adding the following language after the word
“Lenders” in the fourth line thereof: “
provided further however, that with regard to refinancing
the Convertible Contingent Senior Debentures (the “
CODES ”), the first proviso of this clause (xiii)
shall not apply to any Indebtedness incurred to refinance the
CODES, which Indebtedness has a maturity occurring after the later
of the 91 st
day following the Term Loan Maturity
Date or the 91 st day following the Revolving Loan Maturity Date
and, for the avoidance of doubt, the principal amount of the
Indebtedness incurred to refinance the CODES may be in excess of
the amount of the CODES up to the amount permitted to be used with
any other exception in this Section 9.01”.
Section 2. Consent and
Waiver
Pursuant
to Section 13.09 of the Credit Agreement, the Requisite
Lenders hereby consent to the Robin Hood Acquisition described in
this Amendment and waive the requirements of any provision of the
Credit Agreement or any other Loan Document that might otherwise be
deemed to impair or otherwise restrict the foregoing, if any,
subject to the limitations of the covenants contained in
Articles IX and X of the Credit Agreement, as amended
hereby.
Section 3. Conditions Precedent to the
Effectiveness of this Amendment
This
Amendment shall become effective as of the date first written above
when, and only when, each of the following conditions precedent
shall have been (or are or will be substantially concurrently
therewith) satisfied or waived (the “ Amendment No. 1
Effective Date ”) by the Administrative Agent:
(a) The
Administrative Agent shall have received this Amendment, duly
executed by Borrower, the Administrative Agent and the Requisite
Lenders.
(b) Evidence
that the person executing this Amendment on behalf of Borrower is
authorized to execute this Amendment on behalf of Borrower and bind
Borrower hereunder.
(c) Borrower
shall have paid, in each case to the extent invoiced prior to the
Amendment No. 1 Effective Date, all reasonable out-of-pocket
costs and expenses of the Administrative Agent in connection with
the preparation, reproduction, execution and delivery of
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