7.00% SENIOR NOTES DUE 2020
DATED AS OF SEPTEMBER 28, 2010
AS TRUSTEE
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE | ||||||
Section 1.1 | Definitions | 1 | ||||
Section 1.2 | Other Definitions | 22 | ||||
Section 1.3 | Trust Indenture Act Provisions | 23 | ||||
Section 1.4 | Rules of Construction | 24 | ||||
ARTICLE 2 THE SECURITIES | ||||||
Section 2.1 | Form and Dating | 24 | ||||
Section 2.2 | Execution and Authentication | 26 | ||||
Section 2.3 | Registrar and Paying Agent | 26 | ||||
Section 2.4 | Paying Agent to Hold Money in Trust | 27 | ||||
Section 2.5 | Securityholder Lists | 27 | ||||
Section 2.6 | Transfer and Exchange | 27 | ||||
Section 2.7 | Replacement Securities | 28 | ||||
Section 2.8 | Outstanding Securities | 29 | ||||
Section 2.9 | Treasury Securities | 29 | ||||
Section 2.10 | Temporary Securities | 29 | ||||
Section 2.11 | Cancellation | 29 | ||||
Section 2.12 | Legend; Additional Transfer and Exchange Requirements | 29 | ||||
Section 2.13 | CUSIP and ISIN Numbers | 32 | ||||
ARTICLE 3 REDEMPTION AND PURCHASES | ||||||
Section 3.1 | Right to Redeem | 32 | ||||
Section 3.2 | Selection of Securities to Be Redeemed | 32 | ||||
Section 3.3 | Notice of Redemption | 33 | ||||
Section 3.4 | Effect of Notice of Redemption | 33 | ||||
Section 3.5 | Deposit of Redemption Price | 34 | ||||
Section 3.6 | Securities Redeemed in Part | 34 | ||||
Section 3.7 | Optional Redemption | 34 | ||||
Section 3.8 | Purchase of Securities at Option of the Holder Upon Change of Control | 35 | ||||
Section 3.9 | Effect of Change of Control Purchase Notice | 37 | ||||
Section 3.10 | Deposit of Change of Control Purchase Price | 38 | ||||
Section 3.11 | Securities Purchased in Part | 38 | ||||
Section 3.12 | Compliance with Securities Laws upon Purchase of Securities | 38 | ||||
Section 3.13 | Repayment to the Company | 38 | ||||
Section 3.14 | Offer to Purchase by Application of Excess Proceeds | 39 |
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ARTICLE 4 COVENANTS | ||||||
Section 4.1 | Payment of Securities | 40 | ||||
Section 4.2 | Maintenance of Office or Agency | 41 | ||||
Section 4.3 | Reports | 41 | ||||
Section 4.4 | Compliance Certificates | 42 | ||||
Section 4.5 | Further Instruments and Acts | 43 | ||||
Section 4.6 | Maintenance of Corporate Existence | 43 | ||||
Section 4.7 | Changes in Covenants When Securities Rated Investment Grade | 43 | ||||
Section 4.8 | Restricted Payments | 43 | ||||
Section 4.9 | Incurrence of Indebtedness and Issuance of Preferred Stock | 46 | ||||
Section 4.10 | [Reserved] | 49 | ||||
Section 4.11 | Liens | 49 | ||||
Section 4.12 | Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries | 50 | ||||
Section 4.13 | Transactions with Affiliates | 51 | ||||
Section 4.14 | Asset Sales | 52 | ||||
Section 4.15 | Additional Subsidiary Guarantees | 54 | ||||
Section 4.16 | Designation of Restricted and Unrestricted Subsidiaries | 54 | ||||
Section 4.17 | Business Activities | 54 | ||||
Section 4.18 | Payments for Consent | 55 | ||||
Section 4.19 | Stay, Extension and Usury Laws | 55 | ||||
Section 4.20 | [Reserved] | 55 | ||||
Section 4.21 | Notice of Default | 55 | ||||
Section 4.22 | Payment of Additional Amounts | 55 | ||||
ARTICLE 5 MERGER, CONSOLIDATION OR SALE OF ASSETS | ||||||
Section 5.1 | Merger, Consolidation or Sale of Assets | 57 | ||||
Section 5.2 | Successor Substituted | 59 | ||||
ARTICLE 6 DEFAULT AND REMEDIES | ||||||
Section 6.1 | Events of Default | 59 | ||||
Section 6.2 | Acceleration | 61 | ||||
Section 6.3 | Other Remedies | 61 | ||||
Section 6.4 | Waiver of Defaults and Events of Default | 61 | ||||
Section 6.5 | Control by Majority | 62 | ||||
Section 6.6 | Limitations on Suits | 62 | ||||
Section 6.7 | Rights of Holders to Receive Payment | 62 | ||||
Section 6.8 | Collection Suit by Trustee | 62 | ||||
Section 6.9 | Trustee May File Proofs of Claim | 62 | ||||
Section 6.10 | Priorities | 63 | ||||
Section 6.11 | Undertaking for Costs | 63 |
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ARTICLE 7 TRUSTEE | ||||||
Section 7.1 | Duties of Trustee | 63 | ||||
Section 7.2 | Rights of Trustee | 64 | ||||
Section 7.3 | Individual Rights of Trustee | 65 | ||||
Section 7.4 | Trustee’s Disclaimer | 66 | ||||
Section 7.5 | Notice of Default or Events of Default | 66 | ||||
Section 7.6 | Reports by Trustee to Holders | 66 | ||||
Section 7.7 | Compensation and Indemnity | 66 | ||||
Section 7.8 | Replacement of Trustee | 67 | ||||
Section 7.9 | Successor Trustee by Merger, Etc. | 67 | ||||
Section 7.10 | Eligibility; Disqualification | 68 | ||||
Section 7.11 | Preferential Collection of Claims Against the Company | 68 | ||||
ARTICLE 8 DEFEASANCE; SATISFACTION AND DISCHARGE OF INDENTURE | ||||||
Section 8.1 | Satisfaction and Discharge of Indenture | 68 | ||||
Section 8.2 | Legal Defeasance | 69 | ||||
Section 8.3 | Covenant Defeasance | 70 | ||||
Section 8.4 | Application of Trust Money | 71 | ||||
Section 8.5 | Repayment to the Company | 71 | ||||
Section 8.6 | Reinstatement | 71 | ||||
ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS | ||||||
Section 9.1 | Without Consent of Holders | 72 | ||||
Section 9.2 | With Consent of Holders | 72 | ||||
Section 9.3 | [Reserved] | 73 | ||||
Section 9.4 | Revocation and Effect of Consents | 73 | ||||
Section 9.5 | Notation on or Exchange of Securities | 74 | ||||
Section 9.6 | Trustee to Sign Amendments, Etc. | 74 | ||||
Section 9.7 | Effect of Supplemental Indentures | 74 | ||||
ARTICLE 10 NOTE GUARANTEES | ||||||
Section 10.1 | Note Guarantees | 74 | ||||
Section 10.2 | Execution and Delivery of Note Guarantees | 76 | ||||
Section 10.3 | Limitation on Note Guarantor Liability | 76 | ||||
Section 10.4 | Merger and Consolidation of Note Guarantors | 76 | ||||
Section 10.5 | Release | 77 | ||||
Section 10.6 | Canadian Note Guarantee | 77 |
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ARTICLE 11 MISCELLANEOUS | ||||||
Section 11.1 | Certain Trust Indenture Act Sections | 77 | ||||
Section 11.2 | Notices | 77 | ||||
Section 11.3 | Communications by Holders With Other Holders | 79 | ||||
Section 11.4 | Certificate and Opinion of Counsel as to Conditions Precedent | 79 | ||||
Section 11.5 | Record Date for Vote or Consent of Holders | 79 | ||||
Section 11.6 | Rules by Trustee, Paying Agent and Registrar | 80 | ||||
Section 11.7 | Legal Holidays | 80 | ||||
Section 11.8 | Governing Law; Submission to Jurisdiction; Waiver of Jury Trial | 80 | ||||
Section 11.9 | No Adverse Interpretation of Other Agreements | 80 | ||||
Section 11.10 | No Recourse Against Others | 80 | ||||
Section 11.11 | Successors | 80 | ||||
Section 11.12 | Multiple Counterparts | 80 | ||||
Section 11.13 | Separability | 80 | ||||
Section 11.14 | Table of Contents, Headings, etc. | 80 | ||||
Section 11.15 | Calculations in Respect of the Securities | 81 | ||||
Section 11.16 | Agent for Service and Waiver of Immunities | 81 | ||||
Section 11.17 | Judgment Currency | 81 | ||||
Section 11.18 | Foreign Currency Equivalent | 81 |
EXHIBIT A-1 | - | FORM OF 2017 NOTE | ||
EXHIBIT A-2 | - | FORM OF 2020 NOTE | ||
EXHIBIT B | - | FORM OF GUARANTEE | ||
EXHIBIT C | - | FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR | ||
EXHIBIT D | - | FORM OF CANADIAN NOTE GUARANTEE |
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DEFINED IN | ||||
TERM | SECTION | |||
“Additional Amounts” | 4.22(a) | |||
“Affiliate Transaction” | 4.13(a) | |||
“Agent Members” | 2.1(b) | |||
“Asset Sale Offer” | 4.14(c)/3.14 | |||
“Authorized Agent” | 11.16 |
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DEFINED IN | ||||
TERM | SECTION | |||
“Benefited Party” | 10.1(b) | |||
“Change of Control Offer” | 3.8(b) | |||
“Change of Control Purchase Date” | 3.8(b) | |||
“Change of Control Purchase Notice” | 3.8(c) | |||
“Change of Control Purchase Price”. | 3.8(a) | |||
“Company Notice” | 3.8(b) | |||
“Company Order” | 2.2 | |||
“Covenant Defeasance” | 8.3 | |||
“Depositary” | 2.1(a) | |||
“DTC” | 2.1(a) | |||
“EU Savings Tax Directive” | 4.22(b)(v) | |||
“EU-Swiss Savings Tax Agreement” | 4.22(b)(v) | |||
“Event of Default” | 6.1 | |||
“Excess Proceeds” | 4.14(c) | |||
“incur” | 4.9(a) | |||
“Judgment Currency” | 11.17 | |||
“Legal Defeasance” | 8.2 | |||
“Legal Holiday” | 11.7 | |||
“Legend” | 2.12(a) | |||
“Notice of Default” | 6.1 | |||
“Offer Amount” | 3.14 | |||
“Offer Period” | 3.14 | |||
“Parity Indebtedness” | 3.14 | |||
“Paying Agent” | 2.3 | |||
“Payment Default” | 6.1(e) | |||
“Payor” | 4.22(a) | |||
“Permitted Debt” | 4.9(b) | |||
“Purchase Date” | 3.14 | |||
“QIB” | 2.1(a) | |||
“Registrar” | 2.3 | |||
“Relevant Taxing Jurisdiction” | 4.22(a) | |||
“Restricted Payments” | 4.8(a) | |||
“Tax” | 4.22(a) |
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• | the aggregate principal amount of the Securities to be redeemed; | ||
• | the Redemption Date (which shall be a Business Day); | ||
• | the redemption price; | ||
• | the name and address of the Paying Agent; | ||
• | that Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price; | ||
• | if fewer than all the outstanding Securities are to be redeemed, the certificate numbers, if any, and principal amounts of the particular Securities to be redeemed; | ||
• | that, unless the Company defaults in the deposit of the redemption price, interest on Securities called for redemption will cease to accrue on and after the Redemption Date; | ||
• | the Section of this Indenture pursuant to which the Securities are being redeemed; and | ||
• | the CUSIP numbers of the Securities. |
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Year | Percentage | |||
2014 | 103.375 | % | ||
2015 | 101.688 | % | ||
2016 and thereafter | 100.000 | % |
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Year | Percentage | |||
2015 | 103.500 | % | ||
2016 | 102.333 | % | ||
2017 | 101.167 | % | ||
2018 and thereafter | 100.000 | % |
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DISCHARGE OF INDENTURE
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One Enterprise
Aliso Viejo, California 92656
Attention: Corporate Secretary
Facsimile No.: (949) 461-6661
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Attention: Eric L. Schiele
Facsimile No.: (212) 474-3700
700 South Flower Street, Suite 500
Los Angeles, CA 90017
Attn: Corporate Trust Administration
Facsimile No.: (213) 630-6298
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VALEANT PHARMACEUTICALS INTERNATIONAL | ||||
By: | /s/ J. Michael Pearson | |||
Name: | J. Michael Pearson | |||
Title: | Chief Executive Officer | |||
VALEANT PHARMACEUTICALS INTERNATIONAL, INC. | ||||
By: | /s/ Margaret Mulligan | |||
Name: | Margaret Mulligan | |||
Title: | Chief Financial Officer | |||
SUBSIDIARY GUARANTORS: BIOVAIL AMERICAS CORP. BTA PHARMACEUTICALS, INC. PRESTWICK PHARMACEUTICALS, INC. BIOVAIL TECHNOLOGIES LTD. BIOVAIL DISTRIBUTION CORPORATION | ||||||
By: Name: | /s/ Mark Durham | |||||
Title: | Senior Vice President | |||||
HYTHE PROPERTY INCORPORATED | ||||||
By: Name: | /s/ William M. Wells | |||||
Title: | Director and President | |||||
BIOVAIL LABORATORIES INTERNATIONAL (BARBADOS) SRL BIOVAIL LABORATORIES INTERNATIONAL SRL BIOVAIL HOLDINGS INTERNATIONAL, SRL | ||||||
By: Title: | /s/ William M. Wells | |||||
OCEANSIDE PHARMACEUTICALS, INC. VALEANT BIOMEDICALS, INC. PRIVATE FORMULA CORP. DR. LEWINN’S PRIVATE FORMULA INTERNATIONAL INC. RENAUD SKIN CARE LABORATORIES, INC. PRINCETON PHARMA HOLDINGS, LLC | ||||||
By: Name: | /s/ Rajiv De Silva | |||||
Title: | President | |||||
VALEANT PHARMACEUTICALS NORTH AMERICA CORIA LABORATORIES, LTD. DOW PHARMACEUTICAL SCIENCES, INC. ATON PHARMA, INC. | ||||||
By: Name: | /s/ J. Michael Pearson | |||||
Title: | Chief Executive Officer |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE | ||||
By: | /s/ Alex Briffett | |||
Name: | John A. (Alex) Briffett | |||
Title: | Authorized Signatory | |||
1 | This paragraph to be included only if the Security is a Global Security. |
A-1-1
2 | These paragraphs to be included only if the Security is a Restricted Security. | |
3 | Include only if the Security is a Restricted Security. | |
4 | Include only if the Security is issued with original issue discount. |
A-1-2
CUSIP: [ ] | No. [ ] |
VALEANT PHARMACEUTICALS INTERNATIONAL | ||||
By: | ||||
Name: | ||||
Title: | ||||
5 | Include only if the Security is a Global Security. |
A-1-3
This is one of the Securities referred to in
the within-mentioned Indenture for the 6.75%
Senior Notes due 2017.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||||
By: | ||||
Authorized Signatory |
A-1-4
6 | Include only if the Security is a Global Security. | |
7 | Include only if the Security is a Definitive Security. |
A-1-5
A-1-6
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Your Signature: | ||||
Date: ___________________ | ||||
(Sign exactly as your name appears on the other | ||||
side of this Note) | ||||
By: | ||||
* | The signature must be guaranteed by an institution which is a member of one of the following recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee. |
A-1-10
Your Signature: | ||||
(Sign exactly as your name appears on the face of this Note) | ||||
Tax Identification No.: _____________________ | ||||
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-1-11
PRINCIPAL AMOUNT | ||||||
OF THIS GLOBAL | ||||||
SECURITY FOLLOWING | AUTHORIZED | AMOUNT OF DECREASE | AMOUNT OF INCREASE | |||
SUCH DECREASE DATE | SIGNATORY OF | IN PRINCIPAL AMOUNT | IN PRINCIPAL AMOUNT | |||
OF EXCHANGE | SECURITIES | OF THIS GLOBAL | OF THIS GLOBAL | |||
(OR INCREASE) | CUSTODIAN | SECURITY | SECURITY | |||
8 | This schedule should be included only if the Security is a Global Security. |
A-1-12
OF TRANSFER OF RESTRICTED SECURITIES9
Pharmaceuticals International (the “Company”).
o | Such Note is being transferred pursuant to an effective registration statement under the Securities Act. | ||
o | Such Note is being acquired for the Transferor’s own account, without transfer. | ||
o | Such Note is being transferred to the Company or a Subsidiary (as defined in the Indenture) of the Company. | ||
o | Such Note is being transferred to a person the Transferor reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A or any successor provision thereto (“Rule 144A”) under the Securities Act) that is purchasing for its own account or for the account of a “qualified institutional buyer,” in each case to whom notice has been given that the transfer is being made in reliance on such Rule 144A, and in each case in reliance on Rule 144A. | ||
o | Such Note is being transferred pursuant to and in compliance with an exemption from the registration requirements under the Securities Act in accordance with Rule 144 (or any successor thereto) (“Rule 144”) under the Securities Act. | ||
o | Such Note is being transferred to a Non-U.S. Person in an offshore transaction in compliance with Rule 904 of Regulation S under the Securities Act (or any successor thereto). |
9 | This certificate should be included only if this Security is a Restricted Security. |
A-1-13
o | Such Note is being transferred to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act) that has provided a letter addressed to the Company, in the form of Exhibit C attached to the Indenture, containing certain representations and agreements. |
Date: _____________________ | ||||
(Insert Name of Transferor) | ||||
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10 | This paragraph to be included only if the Security is a Global Security. |
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11 | These paragraphs to be included only if the Security is a Restricted Security. | |
12 | Include only if the Security is a Restricted Security. | |
13 | Include only if the Security is issued with original issue discount. |
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CUSIP: [ ] | No. [ ] |
VALEANT PHARMACEUTICALS INTERNATIONAL | ||||
By: | ||||
Name: | ||||
Title: | ||||
14 | Include only if the Security is a Global Security. |
A-2-3
Trustee’s Certificate of Authentication: This is one of the Securities referred to in the within-mentioned Indenture for the 7.00% Senior Notes due 2020. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||||
By: | ||||
Authorized Signatory | ||||
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15 | Include only if the Security is a Global Security. | |
16 | Include only if the Security is a Definitive Security. |
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Your Signature: | ||||
Date: ___________________ | ||||
(Sign exactly as your name appears on the other | ||||
side of this Note) | ||||
By: | ||||
* | The signature must be guaranteed by an institution which is a member of one of the following recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee. |
A-2-10
Your Signature: | ||||
(Sign exactly as your name appears on the face of this Note) | ||||
Tax Identification No.: _____________________ | ||||
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
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PRINCIPAL AMOUNT | ||||||
OF THIS GLOBAL | ||||||
SECURITY FOLLOWING | AUTHORIZED | AMOUNT OF DECREASE | AMOUNT OF INCREASE | |||
SUCH DECREASE DATE | SIGNATORY OF | IN PRINCIPAL AMOUNT | IN PRINCIPAL AMOUNT | |||
OF EXCHANGE | SECURITIES | OF THIS GLOBAL | OF THIS GLOBAL | |||
(OR INCREASE) | CUSTODIAN | SECURITY | SECURITY | |||
17 | This schedule should be included only if the Security is a Global Security. |
A-2-12
OF TRANSFER OF RESTRICTED SECURITIES18
Pharmaceuticals International (the “Company”).
o | Such Note is being transferred pursuant to an effective registration statement under the Securities Act. | ||
o | Such Note is being acquired for the Transferor’s own account, without transfer. | ||
o | Such Note is being transferred to the Company or a Subsidiary (as defined in the Indenture) of the Company. | ||
o | Such Note is being transferred to a person the Transferor reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A or any successor provision thereto (“Rule 144A”) under the Securities Act) that is purchasing for its own account or for the account of a “qualified institutional buyer,” in each case to whom notice has been given that the transfer is being made in reliance on such Rule 144A, and in each case in reliance on Rule 144A. | ||
o | Such Note is being transferred pursuant to and in compliance with an exemption from the registration requirements under the Securities Act in accordance with Rule 144 (or any successor thereto) (“Rule 144”) under the Securities Act. | ||
o | Such Note is being transferred to a Non-U.S. Person in an offshore transaction in compliance with Rule 904 of Regulation S under the Securities Act (or any successor thereto). |
18 | This certificate should be included only if this Security is a Restricted Security. |
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o | Such Note is being transferred to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act) that has provided a letter addressed to the Company, in the form of Exhibit C attached to the Indenture, containing certain representations and agreements. |
Date: __________________ | ||||
(Insert Name of Transferor) | ||||
A-2-14
[NAME OF NOTE GUARANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
B-1
INSTITUTIONAL ACCREDITED INVESTOR
One Enterprise
Aliso Viejo, California 92656
Attention: General Counsel
Facsimile No.: (949) 461-6609
Re: | o | 6.75% SENIOR NOTES DUE 2017 | |||||
o | 7.00% SENIOR NOTES DUE 2020 |
C-1
[Insert Name of Accredited Investor] | ||||
By: | ||||
Name: | ||||
Title: |
C-2
A. | Reference is made to that Indenture dated as of September 28, 2010 among Valeant Pharmaceuticals International, a corporation duly organized under the laws of the State of Delaware (the “Company”), Valeant Pharmaceuticals International, Inc., a corporation continued under the federal laws of Canada (the “Parent”), the Subsidiary Guarantors party thereto and, the Trustee (as amended, supplemented, restated, extended, renewed, or replaced from time to time, the “Indenture”). | |
B. | Guarantor is an Affiliate of the Company, and, as such, will benefit by virtue of the financial accommodations extended to the Company pursuant to the Indenture. |
D-1
(a) | Governing Law— This Canadian Note Guarantee (including terms incorporated by reference to the Indenture) is a contract made under and shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario. | |
(b) | Headings— Headings of Articles and Sections are inserted for convenience of reference only and shall not affect the construction or interpretation of this Canadian Note Guarantee. | |
(c) | Including— Where the word “including” or “includes” is used in this Canadian Note Guarantee, it means “including (or includes) without limitation”. | |
(d) | No Strict Construction— The language used in this Canadian Note Guarantee is the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. | |
(e) | Number and Gender— Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders. | |
(f) | Statutory references— A reference to a statute includes all regulations made pursuant to such statute and, unless otherwise specified, the provisions of any statute or regulation which amends, revises, restates, supplements or supersedes any such statute or any such regulation. | |
(g) | Time— Time is of the essence in the performance of Guarantor’s obligations under this Canadian Note Guarantee. |
(a) | Guarantor hereby unconditionally Guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Securities or the obligations of the Company thereunder that: (i) the due and punctual payment of principal, premium and interest on the Securities shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, (ii) the due and punctual payment of interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or any Security shall be promptly paid in full or performed, all in accordance with the terms thereof, and (iii) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration pursuant to Section 6.2 of the Indenture or otherwise (collectively, the “Guaranteed Obligations”). Guarantor agrees that this Canadian Note Guarantee is a guarantee of payment and not a guarantee of collection. Failing payment when due of any Guaranteed Obligations for whatever reason, Guarantor shall be obligated to pay the same immediately. |
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(b) | Guarantor hereby agrees that its obligations with regard to its Canadian Note Guarantee shall be unconditional, irrespective of the validity or enforceability of the Securities or the obligations of the Company under the Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to the Indenture, the Securities or the obligations of the Company under the Indenture or the Securities, any action to enforce the same or any other circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Guarantor further, to the extent permitted by applicable law, hereby waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and shall agree not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (i) any right to require any Beneficiary, as a condition of payment or performance by Guarantor, to (A) proceed against the Company, any other guarantor (including any other Note Guarantor) of the Guaranteed Obligations or any other person, (B) proceed against or exhaust any security held from the Company, any such other guarantor or any other person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of any Beneficiary in favour of the Company or any other person, or (D) pursue any other remedy in the power of any Beneficiary whatsoever; (ii) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than payment in full of the Guaranteed Obligations; (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations, except behavior which amounts to bad faith; (v) (A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Canadian Note Guarantee and any legal or equitable discharge of Guarantor’s obligations hereunder and under this Canadian Note Guarantee, (B) the benefit of any statute of limitations affecting Guarantor’s liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of this Canadian Note Guarantee, notices of default under the Securities or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; and (vii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Canadian Note Guarantee. | |
(c) | If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Note Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or any Note Guarantor, any amount paid to either the Trustee or such Holder, this Canadian Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. | |
(d) | Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all Guaranteed Obligations. Guarantor further agrees that, as between Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Section 6.2 of the Indenture for the purposes of this Canadian Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations and (ii) in the event of any declaration of acceleration of such obligations as provided in Section 6.2 of the Indenture, such obligations (whether or not due |
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and payable) shall forthwith become due and payable by Guarantor for the purpose of this Canadian Note Guarantee. Guarantor shall not exercise any right to seek contribution from any non-paying Note Guarantor if the exercise of such right impairs the rights of the Holders under the Note Guarantees. |
(a) | In case of any sale or other disposition, consolidation, merger, amalgamation or conveyance and upon the assumption by the successor person on terms and conditions satisfactory to the Trustee of the obligations of Guarantor under this Canadian Note Guarantee, and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by Guarantor, such successor person shall succeed to and be substituted for Guarantor under this Canadian Note Guarantee with the same effect as if it had been named herein as Guarantor. | |
(b) | Except as set forth in Articles 4 and 5 of the Indenture, and notwithstanding clause (a) of this Section 2.2, nothing contained in the Indenture or in any of the Securities shall prevent any consolidation, merger or amalgamation of a Note Guarantor with or into the Company or another Note Guarantor, or shall prevent any sale or conveyance of the property of a Note Guarantor as an entirety or substantially as an entirety to the Company or another Note Guarantor. |
(a) | In the event (i) of a sale or other disposition of all or substantially all of the assets of Guarantor, by way of merger, amalgamation, consolidation or otherwise, or a sale or other disposition of all the Equity Interests of any Guarantor, in each case to a person that is not (either before or after giving effect to such transactions) a Subsidiary of Parent, so long as the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of the Indenture, including without limitation Section 4.14 thereof, (ii) of a designation by Parent of Guarantor as an Unrestricted Subsidiary in accordance with the definition thereof, (iii) upon the release or discharge of this Canadian Note Guarantee in respect of any Indebtedness that resulted in the issuance after the Issue Date of this Canadian Note Guarantee by Guarantor or (iv) the Company discharges the Indenture under Section 8.1 thereof or exercises its legal or covenant defeasance options under Section 8.2 or 8.3 thereof, respectively, Guarantor or, in the case of a sale or other disposition of all or substantially all of the assets of Guarantor, the Person acquiring such property, shall be released and relieved of any obligations under this Canadian Note Guarantee without any further action being required by the Trustee or any Holder. | |
(b) | Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of the Indenture, including without limitation Section 4.8 thereof, the Trustee shall execute any documents reasonably required in order to evidence the release of Guarantor from its obligations under this Canadian Note Guarantee. |
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(a) | All payments made under or with respect to this Canadian Note Guarantee by Guarantor will be made free and clear of any withholding or deduction for or on account of any tax, duty, levy, impost, assessment or other governmental charge of whatever nature (collectively, “Tax”) imposed or levied by or on behalf of Canada or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless Guarantor is required to withhold or deduct Taxes by law. If Guarantor is required by law to withhold or deduct any amount for or on account of Taxes of any Relevant Taxing Jurisdiction from any payment made under or with respect to this Canadian Note Guarantee, Guarantor, subject to the exceptions listed below, will pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder or beneficial owner of the Securities after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount the Holder or beneficial owner would have received if such Taxes had not been withheld or deducted. | |
(b) | Guarantor will not, however, pay Additional Amounts to a Holder or Beneficial Owner of Securities: |
(i) | to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the existence of any present or former connection between the Holder or beneficial owner (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation) and the Relevant Taxing Jurisdiction (other than any connection resulting from the acquisition, ownership, holding or disposition of Securities, the receipt of payments thereunder or under this Canadian Note Guarantee and/or the exercise or enforcement of rights under any Securities or this Canadian Note Guarantee); | ||
(ii) | to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or Beneficial Owner of Securities, following Guarantor’s written request addressed to the Holder, to the extent such Holder or Beneficial Owner is legally eligible to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a |
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certification that the Holder or Beneficial Owner is not resident in the Relevant Taxing Jurisdiction); | |||
(iii) | with respect to any estate, inheritance, gift, sales or any similar Taxes; | ||
(iv) | to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder or beneficial owner of any Security, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; | ||
(v) | with respect to any withholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to the European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003 or any law implementing or complying with, or introduced in order to conform to, such directive (the “EU Savings Tax Directive”) or is required to be made pursuant to the Agreement between the European Community and the Swiss Confederation dated October 26, 2004 providing for measures equivalent to those laid down in the EU Savings Tax Directive (the “EU-Swiss Savings Tax Agreement”) or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreement; or | ||
(vi) | any combination of items (i), (ii), (iii), (iv) and (v). |
(c) | Guarantor will (i) make any such withholding or deduction required by applicable law and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Guarantor will make reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes. Guarantor will provide to the Trustee, within a reasonable time after the date the payment of any Taxes so deducted or withheld are due pursuant to applicable law, either a certified copy or tax receipts evidencing such payment, or, if such tax receipts are not reasonably available to Guarantor, such other documentation that provides reasonable evidence of such payment by Guarantor. | |
(d) | Prior to the date on which the payment of any Additional Amounts are due, Guarantor will deliver to the Trustee such Additional Amounts payable together with an Officers’ Certificate stating that such Additional Amounts will be payable on the applicable payment date, and setting forth the Additional Amounts so payable and will also set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the applicable payment date. Any such Officers’ Certificate will be delivered to the Trustee at least 5 Business Days in advance of when the payments in question are required to be made (unless a shorter period of time is acceptable to the Trustee in its reasonable discretion). Guarantor will promptly publish a notice in accordance with Section 11.2 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. | |
(e) | Guarantor will reimburse the Holders of Securities, upon written request of such Holder of Securities and certified proof of payment for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to this Canadian Note Guarantee; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement will not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification |
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obligation provided for in this Section 3.9(e) shall not extend to Taxes imposed for which the Holder of the Securities would not have been eligible to receive payment of Additional Amounts hereunder by virtue of clauses (i) through (vi) of Section 3.9(b) hereof, or to the extent such Holder received Additional Amounts with respect to such payments. | ||
(f) | In addition, Guarantor will pay any stamp, issue, registration, court, documentary, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the execution, issuance, registration or delivery of this Canadian Note Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction at any time as a result of, or in connection with, (i) any payments made pursuant to the Securities, any Guarantee or any other such document or instrument referred to thereunder and/or (ii) the enforcement of this Canadian Note Guarantee or any other such document or instrument referred to thereunder. | |
(g) | The obligations described under this Section 3.9 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to Guarantor and to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which such successor is organized, doing business or is otherwise resident for Tax purposes or any jurisdiction (other than the United States, any state thereof or the District of Columbia) from or through which payment is made by such successor or its respective agents. | |
(h) | Whenever this Canadian Note Guarantee refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Security or under this Canadian Note Guarantee, such reference includes the payment of Additional Amounts or other payments that would be payable pursuant to this Section 3.9, if applicable. |
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l, as Canadian Note Guarantor | ||||
By: | ||||
Name: | ||||
Title: | ||||
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