AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit 10.2
Execution Version
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this Amendment) is made as of October 26, 2015 among Baxter Healthcare SA, a corporation duly organized and existing under the laws of Switzerland (Baxter Healthcare SA), Baxter World Trade SPRL, a corporation duly organized and existing under the laws of Belgium (Baxter World Trade SPRL) (Baxter Healthcare SA and Baxter World Trade SPRL are each individually a Borrower and collectively, the Borrowers), J.P. Morgan Europe Limited, as administrative agent under the hereinafter defined Credit Agreement (the Administrative Agent), the other financial institutions signatory hereto and, solely for purposes of Section 8 hereof, Baxter International Inc., a Delaware corporation.
R E C I T A L S:
A. The Borrowers, the Administrative Agent and the Banks are party to a Credit Agreement dated as of July 1, 2015 (the Credit Agreement).
B. The Borrowers, the Administrative Agent and the undersigned Banks wish to amend the Credit Agreement on the terms and conditions set forth below.
Now, therefore, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1. Definitions. Unless otherwise specified herein, all capitalized terms used herein shall have the meanings specified in the Credit Agreement.
2. Amendment to Credit Agreement. Upon the Effective Time (as defined below), the definition of Change of Control in Section 1.01 of the Credit Agreement is amended in its entirety to read as follows:
Change of Control means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the date hereof) of fifty percent (50%) or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Guarantor or (b) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the date hereof), other than the Guarantor or any of its Wholly-Owned Subsidiaries, of fifty percent (50%) or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of a Borrower.
3. Representations and Warranties of the Borrowers. Each Borrower represents and warrants that:
(a) the execution, delivery and performance by such Borrower of this Amendment have been duly authorized by all necessary corporate action and that this Amendment is a legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforcement thereof may be subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally; and
(b) no Event of Default or Unmatured Event of Default has occurred and is continuing.
4. Effective Time. This Amendment shall become effective on the date (the Effective Time) upon the execution and delivery hereof by the Borrowers, Baxter International Inc., the Administrative Agent and the Majority Banks.
5. Miscellaneous.
(a) Except as specifically amended above, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or any Bank under the Credit Agreement or any other Loan Document, or constitute a waiver of any provision of the Credit Agreement or any other Loan Document. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to this Agreement, hereunder, hereof, herein or words of similar import shall mean and be a reference to the Credit Agreement as amended hereby.
(c) Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purposes.
(d) This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed an original but all such counterparts shall constitute one and the same instrument. Delivery of an executed signature page of this Amendment by facsimile transmission or other electronic transmission shall be effective as delivery of manually executed counterpart hereof.
(e) This Amendment is a Loan Document.
6. Costs and Expenses. Each Borrower hereby affirms its obligation under Section 11.04 of the Credit Agreement to reimburse the Administrative Agent for all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment, including but not limited to the reasonable and documented fees, charges and disbursements of attorneys for the Administrative Agent with respect thereto.
7. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
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8. Reaffirmation. Baxter International Inc. hereby (a) consents to this Amendment and each of the transactions referenced herein, (b) reaffirms its obligations under the Guaranty and (c) agrees that all references in any Loan Document to the Credit Agreement shall hereafter mean and be a reference to the Credit Agreement as amended by this Amendment.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
BAXTER HEALTHCARE SA | ||
By: | /s/ Marcel Fausch | |
Name: | Marcel Fausch | |
Title: | Authorized Representative | |
By: | /s/ Justin Azzopardi | |
Name: | Justin Azzopardi | |
Title: | Authorized Representative | |
BAXTER WORLD TRADE SPRL | ||
By: | /s/ David P. Scharf | |
Name: | David P. Scharf | |
Title: | Authorized Representative |
Signature page to Baxter Healthcare First Amendment
BAXTER INTERNATIONAL INC. | ||
By: | /s/ David P. Scharf | |
Name: | David P. Scharf | |
Title: | Corporate Vice President and General Counsel |
Signature page to Baxter Healthcare First Amendment
J.P. MORGAN EUROPE LIMITED, | ||
as Administrative Agent | ||
By: | /s/ Belinda Lucas | |
Name: | Belinda Lucas | |
Title: | Associate |
Signature page to Baxter Healthcare First Amendment
JPMORGAN CHASE BANK, N.A., LONDON BRANCH, as a Bank | ||
By: | /s/ Alastair Stevenson | |
Name: | Alastair Stevenson | |
Title: | Managing Director |
Signature page to Baxter Healthcare First Amendment
CITIBANK, N.A., London Branch | ||
By | /s/ Laura Fogarty | |
Name: Laura Fogarty | ||
Title: Vice President |
Signature page to Baxter Healthcare First Amendment
DEUTSCHE BANK AG, LONDON BRANCH | ||
By | /s/ Julian Puddick | |
Name: Julian Puddick | ||
Title: Director | ||
By | /s/ Paul Hogan | |
Name: Paul Hogan | ||
Title: Vice President |
Signature page to Baxter Healthcare First Amendment
Bank of America, N.A. | ||
By | /s/ Joseph L. Corah | |
Name: Joseph L. Corah | ||
Title: Director |
Signature page to Baxter Healthcare First Amendment
BARCLAYS BANK PLC | ||
By | /s/ T. Pham | |
Name: T. Pham | ||
Title: Director |
Signature page to Baxter Healthcare First Amendment
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||
By | /s/ Christopher Day | |
Name: Christopher Day | ||
Title: Authorized Signatory | ||
By | /s/ Karim Rahimtoola | |
Name: Karim Rahimtoola | ||
Title: Authorized Signatory |
Signature page to Baxter Healthcare First Amendment
DANSKE BANK A/S | ||||
By /s/ Merete Ryvald-Christensen | ||||
Name: Merete Ryvald-Christensen | ||||
Title: Chief Loan Manager | ||||
By | /s/ Gerg Carstens | |||
Name: Gert Carstens | ||||
Title: Senior Loan Manager |
Signature page to Baxter Healthcare First Amendment
UBS AG, Stamford Branch | ||
By | /s/ Denis Bushee | |
Name: Denise Bushee | ||
Title: Associate Director | ||
By | /s/ Craig Pearson | |
Name: Craig Pearson | ||
Title: Associate Director |
Signature page to Baxter Healthcare First Amendment