FIFTH SUPPLEMENTAL INDENTURE
Exhibit 4.17
FIFTH SUPPLEMENTAL INDENTURE, dated as of September 9, 2013 (the “Fifth Supplemental Indenture”), by and among Valeant Pharmaceuticals Australasia Pty Limited (ACN 001 083 352), DermaTech Pty Limited (ACN 000 000 000), Private Formula International Holdings Pty Ltd (ACN 095 450 918), Private Formula International Pty Ltd (ACN 095 451 442), Ganehill Pty Ltd (ACN 065 261 538) (collectively, the “New Guarantors”), Valeant Pharmaceuticals International, a Delaware corporation (the “Company”), and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the “Trustee”).
WHEREAS, each of VPI Escrow Corp., a Delaware corporation, the Company, Valeant Pharmaceuticals International, Inc., a corporation continued under the federal laws of Canada (“Parent”) and the Subsidiary Guarantors (as defined in the Indenture referred to below) then party hereto, has heretofore executed and delivered to the Trustee an Indenture, dated as of October 4, 2012 (the “Indenture”), providing for the issuance of 6.375% Senior Notes due 2020 (the “Securities”);
WHEREAS, pursuant to a supplemental indenture (the “Supplemental Indenture”) dated as of October 4, 2012, among the Company, Parent, the Subsidiary Guarantors (as defined in the Supplemental Indenture) party thereto, and the Trustee, the Company has unconditionally assumed all of VPI Escrow Corp.’s obligations under the Securities;
WHEREAS, each New Guarantor desires to provide a full and unconditional guarantee (each, a “Guarantee”) of the obligations of the Company under the Securities and the Indenture on the terms and conditions set forth herein;
WHEREAS, pursuant to Section 9.1 of the Indenture, the Company, the Trustee and the New Guarantors are authorized to execute and deliver this Fifth Supplemental Indenture; and
WHEREAS, the Company has complied with all conditions precedent provided for in the Indenture relating to the Fifth Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Definitions. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Indenture.
2. Guarantee. Each New Guarantor hereby agrees, jointly and severally, to provide a full and unconditional guarantee on the terms and subject to the conditions set forth in the Guarantee and in the Indenture including, but not limited to, Article 10 thereof.
1
3. Effectiveness of Fifth Supplemental Indenture. This Fifth Supplemental Indenture shall become effective upon the execution and delivery of this Fifth Supplemental Indenture by the Company, the New Guarantors and the Trustee.
4. Indenture Remains in Full Force and Effect. This Fifth Supplemental Indenture shall form a part of the Indenture for all purposes and, except as supplemented or amended hereby, all other provisions in the Indenture and the Securities, to the extent not inconsistent with the terms and provisions of this Fifth Supplemental Indenture, shall remain in full force and effect.
5. No Recourse Against Others. No stockholder, officer, director or incorporator, as such, past, present or future of any New Guarantor shall have any personal liability under this Guarantee, the Securities, the Indenture or this Fifth Supplemental Indenture by reason of his, her or its status as such stockholder, officer, director or incorporator.
6. Headings. The headings of the Articles and Sections of this Fifth Supplemental Indenture are inserted for convenience of reference and shall not be deemed a part thereof.
7. Counterparts. This Fifth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
8. Governing Law. This Fifth Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws.
9. Agent for Service. Each New Guarantor hereby appoints CT Corporation as its authorized agent upon whom process may be served in any suit or proceeding arising out of or relating to the Indenture, the Securities or this Fifth Supplemental Indenture that may be instituted in any federal or state court in the State of New York or brought under federal or state securities laws.
10. Trustee Disclaimer. The Trustee is not responsible for the validity or sufficiency of this Fifth Supplemental Indenture nor for the recitals herein.
[Intentionally Left Blank]
2
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed as of the day and year first written above.
|
Company:
|
VALEANT PHARMACEUTICALS INTERNATIONAL
|
||||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx
|
||||
|
Name:
|
Xxxxxx X. Xxxxxxxx
|
||||
|
Title:
|
Executive Vice President and Chief Financial Officer
|
||||
[Signature Page to Fifth Supplemental Indenture to October Indenture]
|
Signed by
|
||
|
Valeant Pharmaceuticals Australasia Pty Limited (ACN 001 083 352)
|
||
|
in accordance with section 127 of the Corporations Xxx 0000 by a director and secretary/director:
|
||
|
/s/ Xxxxxx X. Xxxx-Onn
|
/s/ Xxxx Xxxx
|
|
|
Signature of director
|
Signature of director/secretary
|
|
|
Xxxxxx X. Xxxx-Onn
|
Xxxx Xxxx
|
|
|
Name of director (please print)
|
Name of director/secretary (please print)
|
|
Signed by
|
||
|
DermaTech Pty Limited (ACN 000 000 000)
|
||
|
in accordance with section 127 of the Corporations Xxx 0000 by a director and secretary/director:
|
||
|
/s/ Xxxxxx X. Xxxxxxxx
|
/s/ Xxxxxx X. Xxxx-Onn
|
|
|
Signature of director
|
Signature of director/secretary
|
|
|
Xxxxxx X. Xxxxxxxx
|
Xxxxxx X. Xxxx-Onn
|
|
|
Name of director (please print)
|
Name of director/secretary (please print)
|
|
Signed by
|
||
|
Private Formula International Holdings Pty Ltd (ACN 095 450 918)
|
||
|
in accordance with section 127 of the Corporations Xxx 0000 by a director and secretary/director:
|
||
|
/s/ Xxxxxx X. Xxxxxxxx
|
/s/ Xxxxxx X. Xxxx-Onn
|
|
|
Signature of director
|
Signature of director/secretary
|
|
|
Xxxxxx X. Xxxxxxxx
|
Xxxxxx X. Xxxx-Onn
|
|
|
Name of director (please print)
|
Name of director/secretary (please print)
|
|
Signed by
|
||
|
Private Formula International Pty Ltd (ACN 095 451 442)
|
||
|
in accordance with section 127 of the Corporations Xxx 0000 by a director and secretary/director:
|
||
|
/s/ Xxxxxx X. Xxxxxxxx
|
/s/ Xxxxxx X. Xxxx-Onn
|
|
|
Signature of director
|
Signature of director/secretary
|
|
|
Xxxxxx X. Xxxxxxxx
|
Xxxxxx X. Xxxx-Onn
|
|
|
Name of director (please print)
|
Name of director/secretary (please print)
|
|
Signed by
|
||
|
Ganehill Pty Ltd (ACN 065 261 538)
|
||
|
in accordance with section 127 of the Corporations Xxx 0000 by a director and secretary/director:
|
||
|
/s/ Xxxxxx X. Xxxxxxxx
|
/s/ Xxxxxx X. Xxxx-Onn
|
|
|
Signature of director
|
Signature of director/secretary
|
|
|
Xxxxxx X. Xxxxxxxx
|
Xxxxxx X. Xxxx-Onn
|
|
|
Name of director (please print)
|
Name of director/secretary (please print)
|
[Signature Page to Fifth Supplemental Indenture to October Indenture]
|
Trustee:
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
|
||||
|
By:
|
/s/ Xxxxxx Xxxxx
|
||||
|
Name:
|
Xxxxxx Xxxxx
|
||||
|
Title:
|
Authorized Signatory
|
||||
[Signature Page to Fifth Supplemental Indenture to October Indenture]
