AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT
AMENDMENT NO. 1 TO
This AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT, dated as of July 20, 2012 (this “Amendment”), is among MYLAN PHARMACEUTICALS INC. (“MPI”), individually and as initial servicer (in such capacity, the “Servicer”), MYLAN SECURITIZATION LLC (“Seller”), MARKET STREET FUNDING LLC (“Market Street”), as a conduit purchaser, WORKING CAPITAL MANAGEMENT CO., LP (“WCMC”), as a conduit purchaser, VICTORY RECEIVABLES CORPORATION (“Victory”), as a conduit purchaser (each of Market Street, WCMC and Victory in the capacity of a conduit purchaser, individually, a “Conduit Purchaser” and collectively, the “Conduit Purchasers”), PNC BANK, NATIONAL ASSOCIATION (“PNC”), as a committed purchaser, MIZUHO CORPORATE BANK, LTD. (“Mizuho”), as a committed purchaser, SUNTRUST BANK (“SunTrust”), as a committed purchaser, THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH (“BTMUNY”), as a committed purchaser (each of PNC, Mizuho, SunTrust and BTMUNY in the capacity of a committed purchaser, individually, a “Committed Purchaser” and collectively, the “Committed Purchasers” and collectively with the Conduit Purchasers, the “Purchasers”), PNC, as a purchaser agent, Mizuho, as a purchaser agent, SUNTRUST XXXXXXXX XXXXXXXX, INC. (“STRH”), as a purchaser agent, BTMUNY, as a purchaser agent (each of PNC, Mizuho, STRH and BTMUNY in the capacity of a purchaser agent, individually, a “Purchaser Agent” and collectively, the “Purchaser Agents”), BTMUNY, as agent on behalf of the Secured Parties (in such capacity, the “Agent”), and PNC, as an issuer of Letters of Credit (in such capacity, the “LOC Issuer”).
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Receivables Purchase Agreement, dated as of February 21, 2012 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Agreement”);
WHEREAS, concurrently herewith, MPI and Seller are entering into that certain Amendment No. 1 to Purchase and Contribution Agreement, dated as of the date hereof (the “Sale Agreement Amendment”);
WHEREAS, concurrently herewith, MPI, Seller, the Purchasers, the Purchaser Agents, the Agent and the LOC Issuer are entering into that certain Amendment Fee Letter, dated as of the date hereof (the “Amendment Fee Letter”); and
WHEREAS, the parties hereto wish to amend the Agreement upon the terms hereof.
NOW, THEREFORE, in exchange for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged and confirmed), each of the parties hereto hereby agree as follows:
A G R E E M E N T:
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1.Definitions. Unless otherwise defined or provided herein, capitalized terms used herein have the meanings attributed thereto in (or by reference in) the Agreement.
2. Amendments. The Agreement is hereby amended as of the date hereof as follows:
(a) Section 7.3(i) of the Agreement is hereby amended by replacing the amount “$6,000,000” where it appears therein with the amount “$8,000,000”.
(b) The definition of “Purchasers’ Total Commitment” set forth in Appendix A to the Agreement is hereby amended by replacing the amount “$300,000,000” where it appears therein with the amount “$400,000,000”.
(c) The amount specified as the “Commitment” for each Committed Purchaser as set forth below its signature to the Agreement is hereby amended to be the amount set forth below such Committed Purchaser’s signature to this Amendment.
3. Representations and Warranties. Each of Seller, MPI, the Servicer and Performance Guarantor represents and warrants to each of the other parties hereto as of the date hereof, both before and immediately after giving effect to this Amendment, as follows:
(a) The representations and warranties made by it in the Agreement and each of the other Transaction Document to which it is a party are true and correct both as of the date hereof and immediately after giving effect to this Amendment, the Sale Agreement Amendment and the Amendment Fee Letter.
(b) The execution and delivery by it of the Sale Agreement Amendment, the Amendment Fee Letter and this Amendment, as applicable, and the performance of its respective obligations under this Amendment, the Agreement (as amended hereby), the Amendment Fee Letter, the Sale Agreement (as amended by the Sale Agreement Amendment), each as applicable, and the other Transaction Documents to which it is a party are within its organizational powers and have been duly authorized by all necessary action on its part, and this Amendment, the Agreement (as amended hereby), the Sale Agreement (as amended by the Sale Agreement Amendment), the Amendment Fee Letter and the other Transaction Documents to which it is a party are its valid and legally binding obligations, enforceable in accordance with their respective terms, subject to the effect of bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally.
(c) No Event of Default or Unmatured Event of Default has occurred and is continuing, or would occur as a result of this Amendment, the Sale Agreement Amendment, the Amendment Fee Letter or the transactions contemplated hereby or thereby.
4. Conditions to Effectiveness. This Amendment shall become effective as of the date first above written upon satisfaction of the following conditions precedent:
(a) Execution of Amendment. The Agent shall have received a counterpart of
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this Amendment duly executed by each of the parties hereto.
(b) Execution of Sale Agreement Amendment. The Agent shall have received a counterpart of the Sale Agreement Amendment duly executed by each of the parties thereto.
(c) Execution of Amendment Fee Letter. The Agent shall have received a counterpart of the Amendment Fee Letter duly executed by each of the parties thereto.
(d) Amendment Fee. Each of the Purchaser Agents shall have received, in accordance with the terms of the Amendment Fee Letter, the amounts owing to it under the Amendment Fee Letter.
(e) No Defaults. No Event of Default or Unmatured Event of Default shall have occurred and be continuing either before or immediately after giving effect to this Amendment.
(f) Representations and Warranties True. The representations and warranties of Seller, MPI and the Servicer contained in the Agreement, and of Seller, MPI, the Servicer and Performance Guarantor contained in this Amendment, in each case shall be true and correct both as of the date hereof and immediately after giving effect to this Amendment.
5. Reference to and Effect on the Agreement and the other Transaction Documents.
(a) Each reference in the Agreement to “this Agreement,” “herein,” “hereof” and words of like import and each reference in the other Transaction Documents to “Receivables Purchase Agreement”, “Purchase Agreement”, “thereunder”, “thereof” or words of like import referring to the Agreement shall mean and be a reference to the Agreement, as amended hereby.
(b) Each of the Agreement and the other Transaction Documents (except as specifically amended herein) is hereby ratified and confirmed in all respects by each of the parties hereto and shall remain in full force and effect in accordance with its respective terms.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of or amendment to any right, power or remedy of the Agent, any Purchaser, any Purchaser Agent or the LOC Issuer under, nor constitute a waiver of or amendment to, any other provision or condition under any Transaction Document.
(d) To the extent that the consent of any party hereto, in any capacity, is required under any Transaction Document or any other agreement entered into in connection with any Transaction Document with respect to any of the amendments set forth herein, such party hereby grants such consent.
6. Transaction Document. This Amendment shall be a Transaction Document under (and as defined in) the Agreement.
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7. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of Seller, the Servicer, MPI, the Purchasers, the Purchaser Agents, the LOC Issuer and the Agent, and their respective successors and assigns.
8. Costs and Expenses. The Seller agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses incurred by or on behalf of Agent, each Purchaser, each Purchaser Agent and the LOC Issuer in connection with the preparation, negotiation, execution and delivery of this Amendment, the Sale Agreement Amendment and the Amendment Fee Letter, and any other documents to be delivered in connection herewith or therewith, including, reasonable attorneys’ fees and expenses of a single counsel.
9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF).
10. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Delivery of an executed counterpart hereof by facsimile or other electronic means shall be equally effective as delivery of an originally executed counterpart.
11. Section Headings. The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Agreement or any provision hereof or thereof.
12. Reaffirmation of Performance Guaranty. After giving effect to this Amendment, the Sale Agreement Amendment and the Amendment Fee Letter, and the transactions contemplated hereby and thereby, all of the provisions of the Performance Guaranty shall remain in full force and effect and the Performance Guarantor hereby ratifies and affirms the Performance Guaranty and acknowledges that the Performance Guaranty has continued and shall continue in full force and effect in accordance with its terms.
[Signatures Follow]
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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 above written.
MYLAN PHARMACEUTICALS INC.,
individually and as initial Servicer
By: /s/ Xxxxx Byala
Name: Xxxxx Byala
Title: Treasurer
MYLAN SECURITIZATION LLC,
as Seller
By: /s/ Xxxxx Byala
Name: Xxxxx Byala
Title: Manager
VICTORY RECEIVABLES CORPORATION,
as a Conduit Purchaser
By: /s/ Xxxxx X. XxXxxxxxx
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,
as Purchaser Agent for the BTMU Group
By: /s/ Xxxxxxxxxxx Xxxx
Name: Xxxxxxxxxxx Xxxx
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,
as Agent
By: /s/ Xxxxxxxxxxx Xxxx
Name: Xxxxxxxxxxx Xxxx
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,
as a Committed Purchaser
By: /s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx
Title: Director
Commitment of Committed Purchaser: $100,000,000
MARKET STREET FUNDING LLC,
as a Conduit Purchaser
By: /s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent for the PNC Group
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Committed Purchaser and as an LOC Issuer
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
Commitment of Committed Purchaser: $100,000,000
SUNTRUST XXXXXXXX XXXXXXXX, INC.,
as Purchaser Agent for the SunTrust Group
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
SUNTRUST BANK,
as a Committed Purchaser
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Senior Vice President
Commitment of Committed Purchaser: $100,000,000
WORKING CAPITAL MANAGEMENT CO., LP, as a Conduit Purchaser
By: /s/ Shinichi Nochiide
Name: Shinichi Nochiide
Title: Attorney-in-Fact
MIZUHO CORPORATE BANK, LTD.,
as Purchaser Agent for the Mizuho Group
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Authorized Signatory
MIZUHO CORPORATE BANK, LTD.,
as a Committed Purchaser
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Authorized Signatory
Commitment of Committed Purchaser: $100,000,000
Acknowledge and Agreed to:
as Performance Guarantor
By: /s/ Xxxxx Byala
Name: Xxxxx Byala
Title: Senior Vice President, Treasurer
