exv10w1






Exhibit 10.1




AMENDMENT NO. 1



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”).




W I T N E S S E T H:




          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 91st day following the Term Loan
Maturity Date or the 91st 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 this Amendment (including,
without limitation, the reasonable fees, charges, disbursements and out-of-pocket expenses of
Cahill Gordon & Reindel llp with respect thereto).




Section 4. Representations and Warranties




          On and as of the Amendment No. 1 Effective Date, after giving effect to this Amendment,
Borrower hereby represents and warrants to the Administrative Agent and each Lender as follows:




          (a) this Amendment has been duly authorized, executed and delivered by Borrower and
constitutes the legal, valid and binding obligations of Borrower enforceable against Borrower in
accordance with its terms and the Credit Agreement as amended by this Amendment constitutes the
legal, valid and binding obligation of Borrower enforceable against Borrower in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law);




          (b) each of the representations and warranties contained in Section 6.01 of the Credit
Agreement and each other Loan Document is true and correct in all material respects, as if made on
and as of such date and except to the extent that such representations and warranties specifically
relate to a specific date, in which case such representations and warranties shall be true and
correct in all material respects as of such specific date;




 









 







provided, however, that references therein to the “Credit Agreement” shall be
deemed to refer to the Credit Agreement as amended hereby and after giving effect to the consents
set forth herein; and




          (c) no Default or Event of Default has occurred and is continuing.




Section 5. Covenants




          (a) Borrower agrees to pay on demand in accordance with the terms of Section 13.04 of
the Credit Agreement all reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the preparation, reproduction, execution and delivery of this Amendment (including,
without limitation, the reasonable fees and out-of-pocket expenses of Cahill Gordon & Reindel
llp with respect thereto).




          (b) Borrower agrees to repay $100.0 million of the Term Loan Commitment on or before the later
of (x) September 15, 2009 and (y) two business days after the closing of one or more financing
transactions that have net proceeds of $775.0 million, $575.0 million of which is used to refinance
the CODES; provided that if no such financing shall have occurred by December 16, 2009,
Borrower hereby agrees to repay $100.0 million of the Term Loan Commitment on such date. Any such
prepayment shall comply with the terms of Article III and Section 4.02(f) of the Credit Agreement.




          (c) Borrower agrees that any new Indebtedness incurred by Borrower shall also not prohibit
payments with respect to the Atorvastatin Profit Sharing Arrangement and the Sepracor Sharing
Agreements Note as described in Section 1 hereof.




Section 6. Reference to and Effect on the Loan Documents




          (a) As of the Amendment No. 1 Effective Date, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the
other Loan Documents to the Credit Agreement (including, without limitation, by means of words like
“thereunder”, “thereof” and words of like import), shall mean and be a reference to the Credit
Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and
construed as a single instrument. Each of the table of contents and lists of Exhibits and
Schedules of the Credit Agreement shall be amended to reflect the changes made in this Amendment as
of the Amendment No. 1 Effective Date.




          (b) Except as expressly amended hereby or specifically waived above, all of the terms and
provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force
and effect and are hereby ratified and confirmed in all respects.




          (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lenders, Borrower or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver or amendment of any
other provision of any of the Loan Documents or for any purpose except as expressly set forth
herein.




          (d) This Amendment is a Loan Document.




Section 7. Agreements of Borrower




          (a) Borrower hereby (i) expressly acknowledges the terms of this Amendment, (ii) ratifies and
affirms after giving effect to this Amendment its obligations under the Loan Documents executed by
Borrower and (iii) after giving effect to this Amendment, acknowledges, renews and extends its
continued liability under all such Loan Documents and agrees such Loan Documents remain in full
force and effect.




          (b) Borrower hereby reaffirms, as of the Amendment No. 1 Effective Date, and after giving
effect to this Amendment, the covenants and agreements contained in each Loan Document to which it
is a party.




 









 








          (c) Borrower hereby acknowledges and agrees that the acceptance by the Administrative Agent,
each Lender and each other Agent of this Amendment shall not be construed in any manner to
establish any course of dealing on any Agent’s or Lender’s part, including the providing of any
notice or the requesting of any acknowledgment not otherwise expressly provided for in any Loan
Document with respect to any future amendment, waiver, supplement or other modification to any Loan
Document or any arrangement contemplated by any Loan Document.




Section 8. Execution in Counterparts




          This Amendment may be executed in counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument. This Amendment shall become effective against the Borrower, each Lender and the
Administrative Agent on the date hereof when each such party hereto executes and delivers this
Amendment. This Amendment and each of the other Loan Documents shall be construed to the extent
reasonable to be consistent one with the other, but to the extent that the terms and conditions
hereof are actually inconsistent with the terms and conditions of any other Loan Document, this
Agreement shall govern.




Section 9. Governing Law




          THIS AMENDMENT SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.




Section 10. Section Titles




          Section headings in this Amendment are included herein for convenience of reference only and
shall not constitute a part of this Amendment or be given any substantive effect.




Section 11. Notices




          All communications and notices hereunder shall be given as provided in the Credit Agreement.




Section 12. Severability




          In case any provision in or obligation under this Amendment shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby.




Section 13. Successors and Assigns




          This Amendment shall be binding upon the parties thereto and their respective successors and
assigns and shall inure to the benefit of the parties thereto and the successors and permitted
assigns of the Lenders. The rights hereunder of Borrower, or any interest therein, may not be
assigned without the written consent of all Lenders.




Section 14. Waiver of Jury Trial




          EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS AND BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT.




 









 








Section 15. Release.




          In further consideration of the Requisite Lenders’ execution of this Amendment, Borrower
hereby releases the Administrative Agent and each Lender and each of their respective affiliates,
officers, employees, directors, agents and attorneys (collectively, the “Releasees”) from
any and all claims, demands, liabilities, responsibilities, disputes, causes of action (whether at
law or equity) and obligations of every kind or nature whatsoever, whether liquidated or
unliquidated, known or unknown, matured or unmatured, fixed or contingent that Borrower may have
against the Releasees which arise from the Credit Agreement, Obligations or any Loan Documents, in
each case, to the extent arising on or prior to the date hereof.




[SIGNATURE PAGES FOLLOW]




 









 




In Witness Whereof, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first written above.




	 	 	 	 	 
	 	WATSON PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/ Mark W. Durand
 	 
	 	 	Name:  	Mark W. Durand 	 
	 	 	Title:  	CFO and SVP 	 
	 



[Watson Amendment No. 1 Sig. Page]




 








 







	 	 	 	 	 
	 	Canadian Imperial Bank of Commerce,

     acting through its New York Agency,

     as Administrative Agent

 	 
	 	By:  	/s/ Caroline Adams
 	 
	 	 	Name:  	Caroline Adams 	 
	 	 	Title:  	Canadian Imperial Bank of Commerce
Authorized Signatory 	 
	 
	 	CIBC Inc.

     as Lender

 	 
	 	By:  	/s/ Caroline Adams
 	 
	 	 	Name:  	Caroline Adams 	 
	 	 	Title:  	CIBC Inc. Agent 	 
	 




 











 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,
 as a Lender

 	 
	 	By:  	/s/  Alysa Trakas
 	 
	 	 	Name:  	Alysa Trakas 	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	Union Bank of California, N.A.,
 as a Lender

 	 
	 	By:  	/s/  Peter Thompson
 	 
	 	 	Name:  	Peter Thompson  	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	E.Sun Commercial Bank, Ltd., Los Angeles Branch,
as a Lender 

 	 
	 	By:  	/s/
Benjamin Lin
 	 
	 	 	Name:  	Benjamin Lin  	 
	 	 	Title:  	EVP & GM 	 
	 




 









 





	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.,
 as a Lender

 	 
	 	By:  	/s/ Bertram Tang
 	 
	 	 	Name:  	Bertram Tang      	 
	 	 	Title:          Authorized Signatory 	 
	 




 









 








	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
 as a Lender,

 	 
	 	By:  	/s/ Victor Pierzchalski
 	 
	 	 	Name:  	Victor Pierzchalski 	 
	 	 	Title:  	Authorized Signatory 	 
	 




 












 





	 	 	 	 	 
	 	Land Bank of Taiwan-Los Angeles Branch, as a Lender

 	 
	 	By:  	/s/ Roger Chien
 	 
	 	 	Name:  	Roger Chien  	 
	 	 	Title:  	General Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Taipei Fubon Commercial Bank Co., Ltd. Los Angeles Branch, as a Lender

 	 
	 	By:  	/s/ Sophia Jing
 	 
	 	 	Name:  	Sophia Jing  	 
	 	 	Title:  	GM & FVP 	 



 









 







	 	 	 	 	 



	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:


	 	 /s/ Dana Dhaliwal
 

Name: Dana Dhaliwal
	 	 
	 

	 	
	 	Title:   Vice President	 	 






 









 






	 	 	 	 	 
	 	Mega International Commercial Bank Co., Ltd., 

Los Angeles Branch,

as a Lender

 	 
	 	By:  	/s/ Chia Jang Liu
 	 
	 	 	Name:  	Chia Jang Liu 	 
	 	 	Title:  	SVP & GM 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Mega International Commercial Bank New York Branch, as a Lender

 	 
	 	By:  	/s/ Tsang-Pei Hsu
 	 
	 	 	Name:  	Tsang-Pei Hsu 	 
	 	 	Title:  	VP & Deputy General Manager 	 
	 




 












 





	 	 	 	 	 
	 	United Overseas Bank,

as a Lender

 	 
	 	By:  	/s/ Hoong Chen
 	 
	 	 	Name:  	Hoong Chen 	 
	 	 	Title:  	SVP & General Manager 	 



WPI Amendment


 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Fortis Capital Corp.,
 as a Lender

 	 
	 	By:  	/s/ John W. Deegan
 	 
	 	 	Name:  	John W. Deegan 	 
	 	 	Title:  	Director & Group Head 	 
	 
	 	 	 
	 	By:  	                      /s/ John Spillane
 	 
	 	 	Name:  	John Spillane 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., 
as a Lender

 	 
	 	By:  	/s/ Melissa James
 	 
	 	 	Name:  	Melissa James 	 
	 	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MORGAN STANLEY SENIOR FUNDING, INC.,


as a Lender

 	 
	 	By:  	/s/
Ryan Votsh
 	 
	 	 	Name:  	Ryan Votsh 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Kurban H. Merchant
 	 
	 	 	Name:  	Kurban H. Merchant  	 
	 	 	Title:  	Vice President 	 
	 




 











 





	 	 	 	 	 
	 	THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND,
 as a Lender

 	 
	 	By:  	/s/ Wendy Hobson
 	 
	 	 	Name:  	Wendy Hobson  	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	 	 
	 	By:  	/s/ Carla Ryan
 	 
	 	 	Name:  	Carla Ryan 	 
	 	 	Title:  	Authorised Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	First Commercial Bank, Los Angeles Branch,
 as a Lender

 	 
	 	By:  	/s/ Wen-Han Wu
 	 
	 	 	Name:  	Wen-Han Wu 	 
	 	 	Title:  	Deputy General Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Wells Fargo Bank, N.A.,
 as a Lender

 	 
	 	By:  	/s/ Vanessa Meyer
 	 
	 	 	Name:  	Vanessa Meyer  	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JP Morgan Chase Bank, N.A.,
 as a Lender

 	 
	 	By:  	/s/ Camille Farnsworth-Schrader
 	 
	 	 	Name:  	Camille Farnsworth-Schrader  	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	The Bank of New York Mellon,
 as a Lender

 	 
	 	By:  	/s/ Clifford A. Mull
 	 
	 	 	Name:  	Clifford A. Mull  	 
	 	 	Title:  	First Vice President 	 
	 




 












 





	 	 	 	 	 
	 	[LENDER]. BANK LEUMI USA

as a Lender

 	 
	 	By:  	/s/ Joung Hee Hong
 	 
	 	 	Name:  	Joung Hee Hong 	 
	 	 	Title:  	First Vice President 	 
	 




 









 





	 	 	 	 	 
	 	Chang Hwa Commercial Bank, New York Branch

as a Lender

 	 
	 	By:  	/s/ Jim C.Y. Chen
 	 
	 	 	Name:  	Jim C.Y. Chen 	 
	 	 	Title:  	Vice President & General Manager 	 
	 




 









 





	 	 	 	 	 
	 	Wachovia Bank, National Association,

as a Lender

 	 
	 	By:  	/s/ Kirk Tesch
 	 
	 	 	Name:  	Kirk Tesch 	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	Comerica Bank,

as a Lender

 	 
	 	By:  	/s/ Steve Clear
 	 
	 	 	Name:  	Steve Clear 	 
	 	 	Title:  	Vice President 	 
	 



Watson Amendment # 1